Date: 20090128
Docket: IMM-5724-08
Citation: 2009 FC 94
Ottawa, Ontario, January 28,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GATHER
OMAR
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant is a long-time criminal who was found to be a “danger to the public”
under section 115 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA). He seeks a stay of removal until his judicial review application
is determined. The Applicant has not shown that he meets all three branches of
the Toth
v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302 11 A.C.W.S. (3d) 440 (F.C.A.), test for a stay of removal.
In particular, the evidence shows that he is a danger to both the public, when
he is at large, and to prison officials and other inmates, when he is
incarcerated. There is a strong public interest in the removal of the Applicant
in accordance with the IRPA.
[2]
One of the stated objectives of
the IRPA
is “to protect the health and safety of Canadians and to
maintain the security of Canadian society” [“de protéger la santé des Canadiens
et de garantir leur sécurité”]. The Supreme Court of Canada commented on the
IRPA's objectives in Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005
SCC 51, where Justice Beverley
McLachlin stated:
[10] The
objectives as expressed in the IRPA indicate an intent to prioritize
security. This objective is given effect by preventing the entry of applicants
with criminal records, by removing applicants with such records from Canada,
and by emphasizing the obligation of permanent residents to behave lawfully
while in Canada. This marks a change from the focus in
the predecessor statute, which emphasized the successful integration of
applicants more than security… the objectives of the IRPA and its
provisions concerning permanent residents, communicate a strong desire to treat
criminals and security threats less leniently than under the former Act.
(Emphasis added).
[3]
This Court has long held that the
balance of convenience favours the Minister in cases where the Applicant has a
criminal record (Townsend v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 247, 132 A.C.W.S. (3d) 339 at para. 6; Moncrieffe
v. Canada (Minister of Citizenship and Immigration) (1995), 62 A.C.W.S.
(3d) 964, [1995] F.C.J. No. 1576 (QL) at para. 13; Mallia v. Canada
(Minister of Citizenship and Immigration) (2000), 96 A.C.W.S. (3d) 111,
[2000] F.C.J. No. 369 (QL) at para. 6).
[4]
In Mahadeo v. Canada
(Secretary of State) (1994) 51
A.C.W.S. (3d) 901, [1994] F.C.J. No. 1624 (QL), Justice Marshall Rothstein
stated that, when an Applicant is guilty of welfare fraud or has been convicted
of a criminal offence in Canada, the balance of convenience weighs heavily in
favour of the Respondent (Richards v. Canada (Minister of Citizenship and
Immigration), 2007 FC 783, 159
A.C.W.S. (3d) 248 at para. 35; Gomes
v. Canada (Minister of Citizenship and Immigration) (1995), 91 F.T.R. 264, 53 A.C.W.S. (3d) 358 at para.
7).
[5]
In Townsend, above, at
paragraph 6, Justice Rothstein considered the appellant's “costly
incarceration” in assessing the balance of convenience. This Applicant's costly
incarceration, including the cost of having him in segregation or in a
higher-security prison, should be factored into the balance of convenience in
this case. The fact that the Applicant requires two guards for every detention
review hearing also demonstrates the great cost of keeping safe the people with
whom he comes into contact.
II. Facts
[6]
The
Applicant,
Mr. Gather Omar, is a 24-year old man with no dependents. He is a citizen of Somalia.
[7]
The
Applicant arrived in Canada in March 2000 and claimed refugee status.
In December 2000 he was determined to be a Convention refugee.
[8]
According
to the Applicant’s brother, the family has relatives in Djubouti and Ethiopia.
Applicant’s
Criminal Record
[9]
The
Applicant has a lengthy criminal record. In September 2002, he was convicted of
assault causing bodily harm and failure to comply with conditions of
undertaking.
[10]
In
January 2003, the Applicant was convicted of theft under $5,000, failure to
comply with recognizance and possession of property obtained by crime under
$5,000.
[11]
In
June 2003, the applicant was convicted of obstructing a peace officer and
failure to attend Court.
[12]
In
October 2003, the Applicant was convicted of possession of a weapon and failure
to comply with a disposition under the Youth Criminal Justice Act, 2002,
c. 1.
[13]
In
January 2004, the Applicant was convicted of attempting to break enter and
commit, break, enter and commit and failure to comply with a probation order.
[14]
In
February 2004, the Applicant was convicted of aggravated assault and possession
of a weapon.
[15]
In
April 2004, the Applicant was convicted of obstructing a peace officer and
failing to comply with a probation order.
[16]
In
June 2004, the Applicant was convicted of failing to comply with a probation
order, and possession of a Schedule II substance in the Controlled Drugs and
Substances Act, 1996, c. 19.
[17]
In
July 2004, the Applicant was convicted of failing to comply with a probation
order, and failing to comply with a recognizance under the Criminal Code,
R.S. 1985, c. C-46.
[18]
In
October 2004, the Applicant was convicted of possession of a firearm or
ammunition contrary to a prohibition order, failure to comply with a probation
order and failure to comply with a probation order.
[19]
In
March 2006, the Applicant was convicted of failing to comply with a probation
order.
[20]
In
May 2007, the Applicant was convicted of committing an indecent act.
[21]
In
July 2007, the applicant was convicted of operating a motor vehicle while
impaired, trespassing at night, and failing to comply with an undertaking.
[22]
In
December 2007, the Applicant was convicted of possession of a Schedule I
substance under the Controlled Drugs and Substances Act.
[23]
In
January 28, 2008, the Applicant was convicted of failure to comply with
conditions of judicial release.
[24]
In
relation to the February 2004 conviction for aggravated assault and possession
of a weapon, the Ottawa Police Service report indicates that, on October 29,
2003, the victim was bicycling under the bridge at 2 Rideau Street and
attempted to stop his bike, which skidded on a wet surface. The victim nearly
struck the Applicant. The Applicant took out a knife and stabbed the victim in
the lower left torso. The victim fell to the ground and the Applicant kicked
him in the head before fleeing.
[25]
A
detective from the Ottawa Police Service reports that the Applicant is a
confirmed member of the Ledbury Banff Cripps Street Gang, recognized by the
Police as one of the most active and violent gangs in Ottawa.
Criminal Behaviour While Incarcerated
[26]
The Applicant has a
long history of misconduct while incarcerated. A few examples of this
misconduct are detailed below.
[27]
On August 25, 2007, the
Applicant was found guilty of misconduct in which a guard found a 2-inch long
shank from a broken cup in his cell. The Misconduct Report states "piece
of cup has obviously been sharpened and inmate had previously denied
ownership."
[28]
On October 9, 2007, the
Applicant was found guilty of misconduct after he assaulted an inmate on the
head. On March 12, 2008, he was found guilty of misconduct for assaulting
another inmate.
[29]
On October 21, 2007,
the Applicant was also found guilty of misconduct after he assaulted his
cell-mate.
[30]
The Applicant has a
history of assaulting, disrespecting, and abusing correctional officers. On
September 5, 2007, he was found guilty of misconduct for using abusive/profane
language directed at a correctional officer. On November 14, 2007, the Applicant
was found guilty of misconduct for using abusive/profane language and gestures
(sucking noises with teeth) toward a correctional officer. On the same day, he
was found guilty of misconduct for attempting to assault a correctional
officer. On March 19, 2008, the Applicant was found guilty of misconduct for calling
a correctional officer a “fucking bitch”.
[31]
On December 31, 2007,
the Applicant was found guilty of misconduct for causing a disturbance likely
to endanger the security of the institution by banging and screaming. On May 4,
2008, the Applicant was found guilty of misconduct for having broken the
sprinkler head in a segregation cell.
[32]
The Applicant had a
detention review hearing on December 11, 2008. A transcript of the hearing
indicates that the Applicant had threatened the Deputy Superintendent of the
prison where he was incarcerated and was on “very high security alert” and that
two guards were present at the hearing. (At that hearing, the Applicant stated
that, if removed to Somalia, he “would not mind” going to Hargeisa,
but did not want to go to Mogadishu).
[33]
The Applicant is
currently incarcerated in the Ottawa-Carleton Detention Centre. Due to the
Applicant’s behaviour, the Deputy Superintendent of the Detention Centre
requested that the Applicant be transferred to a higher security prison, to the
Central East Correctional Centre in Lindsay, Ontario. The Applicant
has been in segregation for more than a year as a result of security concerns;
however, the Canada Border Services Agency (CBSA) requested that the Applicant
remain in Ottawa as he was due to be removed from Canada.
[34]
On November 19, 2008, the Minister of Citizenship and Immigration (the
"Minister's Delegate") rendered an opinion pursuant to paragraph
115(2)(a) of the IRPA, that the Applicant
constituted a danger to the public in Canada (“Danger Opinion”).
[35]
The Minister has not
imposed a general stay on removals to Somalia under section
230 of the IRPA.
[36]
Arrangements for the Applicant's
removal to Somalia (Mogadishu) have been made. The Applicant is
scheduled to be accompanied by three CBSA officials on flights from Montreal to Amsterdam and Amsterdam to Dubai, United Arab Emirates. Once in Dubai, the Applicant is scheduled to board an African
Express flight to Mogadishu. Two Somali security escorts have been
hired at a pre-paid cost of $3,000 U.S. to accompany the Applicant
on the Dubai-Mogadishu flight.
[37]
On December 31, 2008,
the Applicant brought an application for leave and judicial review in relation
to the Danger Opinion.
[38]
On January 27, 2009,
the Applicant brought the within motion for a stay of removal.
III. Analysis
[39]
To obtain a stay pending determination of a case on its merits, an
applicant must establish all of the following three requirements:
a) that there is a serious
question to be tried;
b) that he/she would suffer
irreparable harm if the Court refused relief; and
c) that the balance of
convenience favours the applicant because he/she will suffer the greater harm
from the refusal of the stay.
(Toth,
above).
[40]
The Applicant has failed to
demonstrate that he has satisfied each branch of the test.
A. Serious Issue
[41]
The underlying application for judicial review does not present
an arguable case. First, the application was filed out of time, and required
the consent of the Court to proceed. Second, the Minister's Delegate's finding
that the Applicant would not be subject to persecution and the risks identified
in sections 96 and 97 of the IRPA if returned to Somalia is not unreasonable.
The Minister's Delegate held that the Applicant would not be subject to any
individualized risk and that he would not be at greater risk of harm than other
Somalis. The Applicant has not demonstrated that this conclusion is
unreasonable.
B. Irreparable Harm
[42]
A conclusion that the Applicant will suffer
irreparable harm if removed cannot be based on speculation or mere possibility.
The evidence supporting such a finding must be clear and non-speculative (Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 464, 205 F.T.R. 285 at para. 31).
[43]
The relief sought on a stay motion
is effectively a suspension of certain provisions of the IRPA, which is a very
significant step to take without the opportunity to hear arguments on a full
record. As the dramatic step of suspending the
operation of legislation cannot be taken lightly, irreparable harm to the Applicant
must be demonstrated in order to meet this branch of the test (Chen,
above at paras. 41-42).
[44]
The Applicant argues that he will
suffer irreparable harm in being sent to Mogadishu, Somalia, because of the living conditions in that
country. The Minister's Delegate explained that the Applicant did not face an
individualized risk should he be returned to Somalia, and that he would not
suffer persecution or the risks identified in section 97 of the IRPA as an
Akisha clan member in the event that he is returned to Somalia.
[45]
In any event, this motion does not
constitute a judicial review application of the Danger Opinion, but is rather a
request for extraordinary relief in the form of a stay of removal. What the
Minister's Delegate wrote is not in issue on this branch of the test.
[46]
What the Applicant would have had
to show is that he will suffer irreparable harm should he be removed to Somalia.
[47]
The Applicant has provided an
affidavit from his brother, Mr. Omar Omar, who has lived in Brampton since
1993. Mr. Omar states that he made a telephone call to one, Mr. Moussa Hussein
Ali, who stated that it would be a “death sentence” for any Akisha from Ethiopia to
cross the border into Somalia. Likewise, Mr. Ali stated that the Applicant would be
killed at the airport on arrival in Mogadishu. Similarly, any Akisha who received the Applicant at
the Mogadishu airport would likewise be killed (Affidavit of Omar
Omar sworn January 22, 2009 at paras. 7-9).
[48]
This evidence - that any Akisha
in Somalia would be killed - is at odds with the Applicant's preference as
stated in his December 18, 2008 detention review hearing - that he would not
mind going to Hargeisa,
which is in Somalia.
[49]
It is also at odds with the
fact that the Akishe tribe exists and persists in Somalia, and is a subclan of the Dir, one of the six major
tribes (or clans) of that country (“Somalia – Issue of Family Unity,
Identity and Culture”, United Nations Consolidated Inter-Agency Appeal
for Somalia, January-December 2000, Affidavit of Daniel Carré sworn January 28,
2009, para. 31).
[50]
On this motion, the Applicant has
not provided any credible, independent evidence to support the notion that
on arrival in Mogadishu he would be killed as a member of the Akisha clan.
[51]
The Applicant has not provided any credible, independent,
evidence to show that he would be irreparably harmed should he be returned to
Somalia and does not meet the second branch of the Toth test.
C. Balance of Convenience
[52]
One of the stated objectives of
the IRPA is “to protect the
health and safety of Canadians and to maintain the security of Canadian society”
[“de protéger la santé des Canadiens et de garantir leur sécurité”. The Supreme
Court of Canada commented on the IRPA's objectives in Medovarski, above, where Justice McLachlin
stated:
[10] The
objectives as expressed in the IRPA indicate an intent to prioritize
security. This objective is given effect by preventing the entry of applicants
with criminal records, by removing applicants with such records from Canada,
and by emphasizing the obligation of permanent residents to behave lawfully
while in Canada. This marks a change from the focus in
the predecessor statute, which emphasized the successful integration of
applicants more than security… the objectives of the IRPA and its
provisions concerning permanent residents, communicate a strong desire to treat
criminals and security threats less leniently than under the former Act.
(Emphasis added).
[53]
This Court has long held that the
balance of convenience favours the Minister in cases where the Applicant has a
criminal record (Townsend, above; Moncrieffe, above; Mallia,
above).
[54]
In Mahadeo, above, Justice Rothstein
stated that, when an Applicant is guilty of welfare fraud or has been convicted
of a criminal offence in Canada, the balance of convenience weighs heavily in
favour of the Respondent (Richards,
above; Gomes, above).
[55]
Where the Applicant is a habitual
or unrehabilitated criminal, the balance of convenience favours the Minister. In
Richards, above, the Court stated:
[35] The balance of
convenience further tips in favour of the Minister when the Applicant’s
criminal record is taken into account. The Applicant, in this case, has
accumulated 33 convictions while in Canada, including multiple convictions for assault and assault
with a weapon. According to the IAD, which recently heard his appeal, he is an
unrehabilitated long time criminal with little establishment demonstrated in Canada…
(Reference is also
made to Louis v. Canada (Minister of Citizenship and Immigration)
(1999), 94 A.C.W.S. (3d) 541, [1999] F.C.J. No. 1101 (QL) at para. 5).
[56]
The Applicant has received 30
convictions in the space of 6 years. The evidence filed in this case shows that
he engages - chronically - in criminal activity, and is a member of a dangerous
street gang. He certainly falls within the definition of unrehabilitated
longtime criminal as described above by the Court.
[57]
In Fabian v. Canada, the
Federal Court of Appeal held that the trial judge had failed to consider
whether the public was in any danger from the applicant during the relevant
time period: between the possible grant of a stay application and the hearing
of his Charter challenge. The Court held that because the applicant was in
custody he presented very little risk of recidivism, stating: "the
applicant is detained and as long as he so remains and that there is no
evidence that he is conducting his criminal activities from his cell, we
endorse the following statement made in the Said case...". The Federal Court
of Appeal granted the stay and reversed the trial decision (Fabian v. Canada (2000), 94 A.C.W.S. (3d) 958, [2000] F.C.J.
No. 75 (QL) at para. 2).
[58]
The Federal Court of Appeal's
decision in Fabian is distinguishable. In the present case, there is
evidence that the Applicant’s pattern of behaviour is that he persistently
commits offences, whether incarcerated or not. The Applicant’s criminal history
shows that he is a threat not just to people which whom he associates, but to
anyone who has any contact with him. This includes, in the prison context,
prison managers, correctional officers, and other inmates. His behaviour at the
Ottawa-Carleton Regional Detention Centre is so disruptive that management has
kept him in segregation for long periods and has asked to have him transferred
to a higher security institution.
[59]
In Townsend, above, at
paragraph 6, Justice Rothstein considered the appellant's “costly incarceration”
in assessing the balance of convenience. This Applicant's costly incarceration,
including the cost of having him in segregation or in a higher-security prison,
should be factored into the balance of convenience in this case. The fact that
the Applicant requires two guards for every detention review hearing also
demonstrates the great cost of keeping safe the people with whom he comes into
contact.
[60]
There is a public interest in
enforcing removal orders in an efficient, expeditious and fair manner. Only in
exceptional cases will a person’s interest outweigh the public interest (Aquila
v. Canada (Minister of Citizenship and Immigration) (2000), 94 A.C.W.S. (3d) 960, [2000] F.C. J. No. 36 (QL)).
[61]
The jurisprudence suggests that an applicant's persistent
criminality will weigh the balance of convenience in the Minister's favour.
Given that the level of criminality exhibited by this applicant exceeds that
reported in the applicable cases, the balance of convenience lies in not
staying the Applicant's removal. The Applicant has not met the third branch of
the Toth test.
IV.
Conclusion
[62]
The
Applicant has failed to establish each of the three parts of the tri-partite
stay test; therefore, the Applicant’s motion for a stay of removal is dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant’s motion for a stay of removal be dismissed.
“Michel M.J. Shore”
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