Docket:
IMM-4712-09
IMM-4767-09
IMM-4766-09
IMM-5691-08
Citation: 2009 FC 989
Ottawa, Ontario, October 1, 2009
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
MOHAMED SAID JAMA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
AND
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATON
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
On a stay application, on balance in assessing
risk, the protection of the Canadian public must be of paramount consideration.
The violent criminal history of the Applicant has led both the Minister’s
delegate (twice) and the Immigration Division to have considered the Applicant
to be a danger to the public. The integrity of the government (in all of its
three branches under the
separation of
powers) is at stake in regard to the confidence of the public in Canada’s Immigration system. The Canadian public, composed of individual members, who,
together, constitute Canadian society, needs to feel secure; yet, nevertheless,
the Canadian public recognizes, through legislation, that the fragility of the
human condition of one individual is also to be taken into account. Both are to
be balanced in assessing risk. In this matter, the Respondents have fully
considered both the Applicant and the Canadian public. The Respondents stand
ready to disburse $50,000 for a charter flight to ensure that the specific
final destination of the Applicant will have taken into account his personal
risk situation; yet, nevertheless, the Respondents recognize their paramount
responsibility for the security of the Canadian public.
[2]
In deciding any immigration matter, the Court
recognizes, acknowledges and understands that the objectives of the new Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), as set out by
Parliament, in Section 3, represent the very premise in respect of the
interpretation to be given to each and every subsequent section of the IRPA.
[3]
For the Court in this matter, the relevant
subsections of Section 3 are (2)(g) and (h) which specify:
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(g) to protect the health and safety of Canadians and to
maintain the security of Canadian society; and
(h) to promote international justice and security by
denying access to Canadian territory to persons, including refugee claimants,
who are security risks or serious criminals.
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g) de protéger
la santé des Canadiens et de garantir leur sécurité;
h) de
promouvoir, à l’échelle internationale, la sécurité et la justice par
l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de
grands criminels ou constituent un danger pour la sécurité.
|
[4]
As pertaining to the security of Canadian
society, the decision in (Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539), interprets
through the judiciary of Canada’s highest Court, the essence of Canada’s legislative objectives in its IRPA.
II. Introduction
[5]
This decision is in response to an application
for an interim order temporarily prohibiting the Minister of Public Safety and
Emergency Preparedness from removing the Applicant from Canada. The Court is fully in accord with the position of the Respondents.
III. Background
[6]
The Applicant’s criminal record, in summary,
specifies:
November 15, 1995 – Burnaby, B.C., convicted:
•
Driving While Ability Impaired – Section 253(a) of the Criminal Code. He was
sentenced to $300 fine, in default of 3 days imprisonment, and prohibition of
driving for 1 year;
May 18, 2005 – Winnipeg, MB, convicted:
•
Possession of a Weapon – Section 88 of the Criminal Code. He was sentenced to 9
months and a mandatory prohibition order under section 109 of the Criminal
Code.
•
Public Mischief
Section 140(1)(b) of the Criminal Code. He was sentenced to 8
months concurrent.
•
Robbery – Section
344(b) of the Criminal Code. He was sentenced to 6 months
concurrent and a mandatory prohibition order under section 109 of the Criminal
Code concurrent.
•
Failure to Comply with Recognizance (x2) – Section 145(3) of the Criminal Code. He was sentenced to 3
months on each count concurrent and concurrent to the other convictions.
August 25, 2005 – Winnipeg, MB, convicted:
•
Failure to Comply with Recognizance – Section 145(3) of the Criminal Code. He was sentenced to 1
day (and 15 days pre-sentence custody).
December
4, 2006 – Winnipeg, MB, convicted:
•
Robbery – Section
344(b) of the Criminal Code. He was sentenced to 7 years (with
credit for the equivalent of 27 months pre-sentence custody) and mandatory
prohibition order under section 109 of the Criminal Code on each charge
concurrent.
•
Aggravated Assault – Section 268(1) of the Criminal Code. He was sentenced to 7
years (with credit for the equivalent of 27 months pre-sentence custody) and
mandatory prohibition order under section 109 of the Criminal Code on
each charge concurrent.
•
Assault with a Weapon – Section 267(a) of the Criminal Code. He was
sentenced to 7 years (with credit for the equivalent of 27 months pre-sentence
custody) and mandatory prohibition order under section 109 of the Criminal
Code on each charge concurrent.
April 16, 2007 – Winnipeg, MB, convicted:
•
Failure to Comply with Recognizance – Section 145(3) of the Criminal Code. He was sentenced to
30 days of time served on each charge concurrent.
•
Failure to Attend Court – Section 145(2)(a) of the Criminal Code. He was
sentenced to 30 days of time served on each charge concurrent.
(Exhibit “D” to
Affidavit of Barry Pike, affirmed September 25, 2009, Respondents’ Motion
Record at pp. 23-25).
[7]
The December 4, 2006, convictions resulted from
a home invasion. When one of the victims attempted to flee from the apartment,
the Applicant pursued him and stabbed him in the face. The victim suffered a
two centimetre gash to his left cheek that penetrated to the inside of his
mouth. The wound required oral surgery and ongoing plastic surgery to reduce
scarring. The sentencing judge described the circumstances as “a vicious and
wanton attack” (Exhibits “B”, “C”, and “D” to Affidavit of Barry Pike, affirmed
September 25, 2009, Respondents’ Motion Record at pp. 8-10, 16-19, 25-27).
IV. Analysis
[8]
The Applicant has not shown (a) a serious issue
to be determined; (b) irreparable harm if deported; (c) nor a balance of
convenience in his favour.
[9]
The Applicant would have had to establish all
three factors in order to obtain the relief sought: a serious issue or arguable
case, irreparable harm, and a balance of convenience in his favour. The test is
conjunctive and a failure to establish any one of the three elements will
result in a dismissal of the application (RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302 (F.C.A.)).
A. Serious Issue
[10]
The first issue is whether or not the
Applicant’s matters pending before the Federal Court raises a serious issue or
arguable case. The Applicant technically has four matters pending before this
Court and he has filed this motion for a stay of his removal under all four
Court file numbers. The Applicant’s four matters and the decision to which they
relate are, as follows:
•
IMM-5691-08:
Concerns the Minister’s Delegate’s December 8, 2008 finding that the Applicant
constitutes a danger to the public in Canada under paragraph 115(2)(a)
of the IRPA. On July 29, 2009, Justice James Russell issued Reasons for
Judgment, in which he found no reviewable errors (2009 FC 781). Justice
Russell’s decision on certification of a question of general importance, and
the Judgment remain outstanding;
•
IMM-4712-09:
Purportedly concern the decision of Mr. Barry Pike, dated September 21, 2009,
not to defer the Applicant’s removal. The September 21, 2009 letter is actually
nothing more than notification of travel arrangements. The Applicant has not
made any submissions with respect to this matter;
•
IMM-4766-09:
Concerns the Minister’s Delegate’s September 24, 2009 finding, upon
reconsideration, that the Applicant constitutes a danger to the public in
Canada under paragraph 115(2)(a) of the IRPA; and
•
IMM-4767-09:
Concerns the decision of Mr. Pike, dated September 24, 2009 not to defer the
Applicant’s removal.
i)
IMM-5691-08 – The Danger Opinion
[11]
The Applicant’s submission with respect to this
matter effectively assumes that there is a serious issue. Yet, after a full
hearing of the Applicant’s application for judicial review of the Minister’s
Delegate’s decision, Justice Russell concluded: “I can find no reviewable
errors on the points raised by the Applicant and conclude that this application
should be dismissed.” This matter before this Court has already been finally
determined. Only issuance of the formal judgment remains outstanding (Jama
v. Canada (Minister of Citizenship and Immigration), 2009 FC 781 at para.
93).
[12]
Moreover, the Minister’s Delegate’s September
24, 2009 reconsideration decision supersedes her December 8, 2008 decision.
Thus, even if a question is certified by Justice Russell in IMM-5691-08, any
further review of the December 8, 2008 decision by way of appeal to the Federal
Court of Appeal is now moot. Consequently, the Applicant’s underlying
application in IMM-5691-08 does not raise a serious issue.
ii)
IMM-4767-09 – No further Deferral of Removal
[13]
In this matter, the decision being challenged is
the implementation of the removal order. In these circumstances, granting the
stay effectively grants the relief sought in the underlying judicial review
application. The examination of serious issue is the only consideration that
the refusal to defer will receive before the Court grants the remedy which is
the object of the application for judicial review. Consequently, the Court must
engage in an extensive review of the merits of the underlying application. The
test of serious issue becomes the likelihood of success on the underlying
application (Wang v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 682, 2001 FCT 148 (T.D.) at paras. 7-11; Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, 387 N.R.
278 at paras. 66-67).
[14]
In this case considering the law and the facts,
Officer Pike’s decision was entirely reasonable. The underlying application
does not meet the likelihood of success threshold.
[15]
“It is trite law that an enforcement officer’s
discretion to defer removal is limited”. Recently, in Baron, above, at
paragraphs 49 to 51, the Federal Court of Appeal reviewed the law in regard to
the principles governing the discretion of removals officers. The Court of
Appeal stressed that there were limited circumstances in which a deferral would
be appropriate. In Ferraro v. Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 815, 168 A.C.W.S. (3d) 828 at paragraph
32, this Court noted that the exercise of this discretion should not be
second-guessed on judicial review unless the enforcement officer overlooked an
important factor, or seriously misapprehended the circumstances of a person to
be removed. This description cannot be applied to Officer Pike’s September 24th
decision.
[16]
The Applicant asked that the removal order be
deferred pending the determination of his request for reconsideration of his
danger opinion and pending the decision on certification in IMM-5691-08.
Officer Pike waited to make his decision until after a decision was made by
Case Management Branch on the Applicant’s request for reconsideration, so the
first basis deferral disappeared.
[17]
The only remaining basis was the Applicant’s
September 23, 2009 request for delay, which stated:
…I further request
removal arrangements be delayed until final determination in the outstanding
Federal Court proceedings challenging the danger opinion against Mr. Jama. I
draw your attention to these excerpts from the transcripts of detention reviews
for Mr. Jama.
(Motion Record of
the Applicant at p. 152).
[18]
In response, Officer Pike correctly noted that
the Applicant’s judicial review application has been dismissed despite the
outstanding matter of whether a question will be certified. He also correctly
noted that the existence of the outstanding judgment does not prevent the
removal from proceeding. In these circumstances, Officer Pike concluded that
there is no reason for any further delay. Officer Pike’s decision was entirely
reasonable (Exhibit “E” to Affidavit of Barry Pike, affirmed September 25,
2009, Respondents’ Motion Record at pp. 44-45).
[19]
The fact that the existence of the Applicant’s
application for judicial review of the danger opinion did not give rise to a
statutory or regulatory stay at any point in the proceedings is particularly
relevant. Absent a statutory stay, the existence of the application in
IMM-5691-08 is not, in itself, a ground for delaying removal. To treat it as
such “would be to create a statutory stay which Parliament declined to enact” (Wang,
above, at paras. 45 and 52).
[20]
The Applicant’s submissions that the statements
made by the Minister of Public Safety and Emergency Preparedness to the
Immigration Division amount to an undertaking, these submissions have no merit.
First, the Applicant’s September 23, 2009, request made no mention of the
purported undertaking. Officer Pike’s decision cannot now be impugned on this
basis.
[21]
The evidence confirms that the Canada Border
Services Agency (CBSA) chose to wait for the Federal Court decision before
taking action on the Applicant’s removal. The CBSA may have also initially
chosen to wait for the decision on certification, although, even this is
unclear. In any event, given the length of time since the Federal Court’s
decision was issued, the increasing length of the Applicant’s detention, and
the Applicant’s reliance on the length of his detention as a factor favouring
his release, there was no barrier to proceeding with removal at this time. The
Immigration Division was advised of the CBSA’s decision in this regard at the
September 17, 2009 detention review (Affidavit of Maria Dejaeger, affirmed
September 28, 2009, Respondents’ Motion Record at pp. 46-50, 54, 58; Motion
Record of the Applicant at pp. 66,-68-69).
[22]
In these circumstances, Officer Pike’s decision
was entirely reasonable. The matter having been considered in its entirety, the
Applicant’s underlying application in this matter has no likelihood of success
and, consequently, does not raise a serious issue.
iii)
IMM-4766-09 - Danger Opinion Reconsideration
[23]
The Applicant’s last matter before this Court is
his application for leave and for judicial review of the Minister’s Delegate’s
September 24, 2009, finding, upon reconsideration, that the Applicant
constitutes a danger to the public in Canada under paragraph 115(2)(a)
of the IRPA. The Applicant submits two issues with respect to this decision,
neither of which amount to a serious issue.
[24]
The Applicant’s first submission is that the
decision of the Minister’s Delegate was made without regard to material before
her. Specifically, the Applicant suggests that the Minister’s Delegate failed
to consider an e-mail sent to Mr. Matas, which provides purported details of
the reported death of “Hussien” (sic) Jiliow.
[25]
The Applicant’s suggestion is unsustainable on
the face of the Minister’s Delegate’s reasons for decision. The Minister’s
Delegate explicitly refers to the e-mail in question in two places in her
reasons. First, in summarizing the submissions made on behalf of he Applicant,
the Minister’s Delegate reproduces the entire text of the e-mail in her
decision. Then, in analyzing the Applicant’s risk on return, the Minister’s
Delegate considers the weight to attach to this new information. Ultimately,
she concludes that it is insufficient to meet the standard of proof, which
conclusion is reasonable (Exhibit “D” to Affidavit of Barry Pike, affirmed
September 25, 2009, Respondents’ Motion Record at pp. 34, 40).
[26]
The Applicant’s other submission is that the
Minister’s Delegate should not have relied on the indication from the Minister
of Public Safety and Emergency Preparedness that the removal arrangements being
made for the Applicant are by direct charter flight, which will not transit
through Mogadishu. This submission has no merit. The Minister of Public Safety
and Emergency Preparedness has acknowledged that Mr. Abokor Jama’s removal did
not proceed as intended. The removal arrangements in Mr. Abokor Jama’s case included
a transit through Mogadishu, which proved problematic. Different arrangements –
a direct charter flight (at a $50,000 cost to the Canadian government) – are
being used in this case to avoid any possibility of the same issues arising in
the present case. It was reasonable for the Minister’s Delegate to accord
weight to this information (Exhibit “D” to Affidavit of Barry Pike, affirmed
September 25, 2009, Respondents’ Motion Record at pp. 40-41; Exhibit “B” to
Affidavit of Maria Dejaeger, affirmed September 28, 2009, Respondents’ Motion
Record at p. 56; Motion Record of the Applicant at pp. 143, 149, 150).
[27]
For all of these reasons, none of the
Applicant’s underlying applications raise a serious issue. This motion should
be dismissed on this basis alone, given that the test is conjunctive.
B. Irreparable Harm
[28]
The onus is on the Applicant to bring forth
evidence of irreparable harm. The risk of harm alleged by the Applicant has
been considered by the Minister’s Delegate. This is not a situation in which there
is any un-assessed risk. All of the evidence before this Court has been
considered.
[29]
The information before this Court with respect
to Mr. Hussein Jilaow has not been provided by way of sworn or affirmed
evidence. Significant credibility concerns exist with respect to the validity
of this information.
[30]
The Applicant has failed to demonstrate that he
will suffer irreparable harm if removed.
C. Balance of Convenience
[31]
Finally, the Applicant has not met the third
aspect of the tri-partite test. The balance of convenience favours the Minister
of Public Safety and Emergency Preparedness and the public.
[32]
The Federal Court of Appeal has recently held
that even in a case where the applicant has no criminal record, is not a
security concern, and is financially established in and socially integrated
into Canada, the balance of convenience does not favour delaying further the
discharge of either their duty, as persons subject to an enforceable removal
order, to leave Canada immediately, or the Minister’s duty to remove as soon as
reasonably practicable. This is not a question of administrative
convenience, but implicates the integrity and fairness of, and public
confidence in, Canada’s immigration system (Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S. (3d) 547 (F.C.A.)
at para. 22).
[33]
In this case, the Applicant is neither
financially nor socially integrated into Canada. Rather, he is integrated
into the prison system as a result of his lengthy and violent criminal history.
Both the Minister’s Delegate (twice), and the Immigration Division, in
detaining the Applicant, have considered him to be a danger to the public.
Despite the latter finding, delay of the Applicant’s removal may result in his
release from detention – indeed it has been the Applicant’s submission that an
increasingly lengthy delay is a factor favouring release.
[34]
Protection of the Canadian public must be a
paramount consideration.
[35]
In all of these circumstances, the balance of
convenience favours the Ministers.
V. Conclusion
[36]
For all of the above reasons, the Applicant’s
application for a stay of execution of the removal order is dismissed.
JUDGMENT
THIS COURT
ORDERS that the
Applicant’s application for a stay of execution of the removal order be
dismissed.
“Michel M.J. Shore”
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