Date: 20070321
Docket: IMM-915-07
Citation: 2007
FC 307
Toronto, Ontario, March 21, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CZESLAWA MALGORZATA JAKOBSCHY
KRZYSZTOF ANDRZEJ JAKOBSCHY
DAWID MICHAL JAKOBSCHY
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Applicants, citizens of Poland, seek a stay of removal
originally scheduled for March 9, 2007. They entered Canada in 2003 and their refugee claim was
denied in part based upon state protection in Poland. Leave to appeal the refugee claim was
denied.
[2]
The
Applicants received a negative PRRA based on the absence of any significant
difference between this PRRA application and the refugee application and that
the presumption in favour of state protection had not been rebutted.
[3]
On the day
of the stay hearing, the Applicants presented the Court with subpoenas for the
two adult Applicants requiring their presence at the Ontario Court of Justice
on March 19, 2007. This stay application was put over until March 20, 2007 in
order that the Court could have better evidence and submissions as to the
circumstances surrounding the issuance of the subpoenas.
[4]
It is now
clear that Mrs. Jakobschy’s sister obtained the subpoenas with the assistance
of a criminal lawyer. The sister is the complainant in a spousal abuse
criminal proceeding being conducted by provincial Crown counsel.
[5]
Apparently,
the sister is dissatisfied with the way in which the Crown counsel was handling
her case and she decided that Mr. and Mrs. Jakobschy were material witnesses.
The Crown has not come to that conclusion and there has been no effort by such
counsel to secure Mr. and Mrs. Jakobschy’s attendance.
[6]
Initially
in the confusing circumstances under which the subpoenas arose, the
Respondent’s counsel consented to a stay to March 19, 2007 on the basis that
the subpoenas fell within s.50(a) of IRPA which reads as follows:
|
50. A removal order is stayed
(a) if a decision that was made in a judicial proceeding
— at which the Minister shall be given the opportunity to make submissions —
would be directly contravened by the enforcement of the removal order;
|
50. Il y a sursis de la mesure de
renvoi dans les cas suivants :
a) une décision judiciaire a pour effet direct d’en
empêcher l’exécution, le ministre ayant toutefois le droit de présenter ses
observations à l’instance;
|
[7]
The
Respondent indicates that this view of the applicability of s.50 (a) was in error.
I agree. The subpoenas were not obtained in any judicial proceeding much less
one at which the Respondent had an opportunity to appear. Therefore there is
no automatic stay of removal.
[8]
As to
whether the Court should exercise its equitable jurisdiction to stay removal
because of the existence of the subpoenas, I am not persuaded to do so. The
complainant justifies her actions on the basis that the provincial Crown has
been negligent and should have subpoenaed her sister and brother-in-law. The
complainant is in no position to make the determination as to which witnesses
the Crown should call.
[9]
There was
a hearing on March 19, 2007 and there is no evidence that the Crown intends to
call these Applicants as witnesses when the case resumes in August. There are
no new subpoenas much less ones obtained by the Crown.
[10]
Counsel had
been directed to advise the Court at the resumed stay hearing as to the
circumstances under which the subpoenas were obtained. No explanation was
provided. The Court is concerned that privately served subpoenas could be used
as a method to avoid deportation. Without a request from the Crown that Mr.
and Mrs. Jakobschy remain in Canada, there is no reason to defer deportation on
the basis of the old subpoenas (which have expired, there being no direction
from a Court that they appear in August) or on the basis of new subpoenas
secured in the method used previously.
[11]
As to the
application for a stay based upon the PRRA decision, the Applicants have not
satisfied me that they have met the three prong test for the granting of a stay.
Most particularly Poland, a member of the European
Union, has been found to be able to provide state protection and there is no
serious issue raised in respect of that finding.
[12]
Therefore,
this application for a stay will be dismissed without prejudice to any future
application for a stay on the basis of subpoenas issued on behalf of the
provincial Crown.
ORDER
FOR THE REASONS PROVIDED HEREIN:
THIS COURT ORDERS that this application for a stay is
dismissed without prejudice to any future application for another stay based on
subpoenas issued on behalf of the Crown.
“Michael
L. Phelan”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-915-07
STYLE OF
CAUSE: CZESLAWA MALGORZATA JAKOBSCHY ET AL
Applicants
and
MINISTER
OF CITIZENSHIP & IMMIGRATION ET AL
Respondents
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: MARCH 20, 2007
REASONS FOR ORDER
AND ORDER: PHELAN, J.
DATED: MARCH 21, 2007
APPEARANCES:
LANI GOZLAN
FOR THE APPLICANTS
BERNARD ASSAN
FOR THE RESPONDENTS
SOLICITORS
OF RECORD:
LANI GOZLAN
Barrister &
Solicitor
Toronto, Ontario FOR
THE APPLICANTS
JOHN H. SIMS,
Q.C.
Deputy Attorney
General of Canada FOR
THE RESPONDENTS
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