Date: 20070726
Docket: IMM-3003-07
Citation: 2007 FC 783
Ottawa, Ontario, July 26, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BARRINGTON RICHARDS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION; THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The
Applicant is a foreign national who was stripped of his permanent resident
status due to his extensive criminal record of 33 convictions spanning a 9 year
period. He had already been before the Immigration Appeal Division (IAD) in
2002, but he continued his criminal activities and returned to the IAD, less
than five years later, in 2007. The Applicant was informed of his scheduled removal
for July 23, 2007 and, at that time, voiced an agreement in regard to a return
to Jamaica. He again voiced his
desire to be removed to Jamaica on July 25, 2007. The
Applicant, nevertheless, then filed a stay motion on short notice at 2:30 p.m.,
July 25, 2007, recognizing that his removal is scheduled for July 27, 2007. He is
scheduled to be escorted by two Canada Boarder Services Agency (CBSA) officers due
to his past criminal activities. The Applicant is considered by the Respondent
to be unrehabilitated, violent, a long time criminal and an alcoholic who has
spent much of his time in Canada, in detention. His stay is dismissed as the public’s
interest and safety requires that he be removed.
TEST FOR A STAY
[2]
The
test for granting a stay is well established. The Applicant must establish:
1. that there is a serious question to be tried;
2. that the moving party would, unless the
injunction is granted, suffer irreparable harm; and
3. that the balance of convenience favours the
moving party.
(Toth v. Canada
(M.E.I.) (1988), 86 N.R. 302 (F.C.A.); RJR-MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311.)
[3]
The
requirements of the tripartite test are conjunctive. That is, the Applicant
must satisfy all three branches of the test before this Court can grant a stay
of proceedings. (Toth, above; Marenco v. Canada (M.C.I.), (1994),
86 F.T.R. 299.)
[4]
The
Applicant is challenging the removal officer’s refusal to defer. Since the
granting of the Applicant’s motion would effectively give him the relief he
seeks in his underlying application for leave and for judicial review, this
Court must engage in a more extensive review of the merits of the application.
This has been confirmed in Wang v. Canada (M.C.I.), (2001) 3 F.C. 682,
at paragraph 1, where Justice Denis Pelletier held that the threshold for the
serious issue branch of the tripartite test in motions such as this, is not
frivolous and vexatious, but rather, the "likelihood of success." No
merit exists to his application for leave regarding the removal officer’s
refusal to defer removal and he has no likelihood of success on judicial
review. (Reference is also made to: RJR-MacDonald, above.)
[5]
The
issuance of a stay is an extraordinary remedy wherein the Applicant must
demonstrate "special and compelling circumstances" that would warrant
"exceptional judicial intervention". The Applicant is a foreign
national who had his permanent residence revoked because of his 33 criminal
convictions. He has not shown circumstances why he should be able to remain in
Canada, and, in fact, the IAD which considered his appeal on the circumstances
of his case, including H&C grounds, found that he ought to be deported from
Canada. (Tavaga v. Canada (M.E.I.), (1991), 15 Imm. L.R.
(2d) 82; Machado v. Canada (M.E.I.), (1989), 9 Imm. L.R. (2d) 90; Ikeji v.
Canada (M.C.I.), [2001] F.C.J. No. 885, para. 8.)
SEROUS ISSUE
No reviewable error in
Officer’s decision
[6]
Section
48 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA)
requires that a removal order “be enforced as soon as reasonably practicable.” (IRPA,
s. 48.)
[7]
Removals
officers have the authority to defer execution of a removal order only in very
limited circumstances such as those arising just prior to the removal date. In this case, it was
well within the Officer’s discretion to find that the Applicant’s circumstances
did not warrant deferral of removal. (Pavalaki v. Canada (M.C.I.),
[1998] F.C.J. No. 338; Wiltshire v. Canada (M.C.I.), [2000] F.C.J. No.
571, para. 6; Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936; Wang,
above, paras. 31, 32, 45; Prasad v. Canada (M.C.I.), 2003 FCT 614, para.
32; Padda v. Canada (M.C.I.), 2003 FC 1081, paras. 8-9.)
Officer considered the
Applicant’s criminal litigation
[8]
The
Applicant states that the officer did not give reasons for her decision. This
is incorrect; rather, the officer did give reasons but the Applicant neglected
to request said reasons. The Respondent has provided them in the record.
[9]
Further,
the Applicant states the officer ignored that his August 2006 conviction is
under appeal at the Ontario Court Appeal. The officer, however, specifically
noted this in her reasons for decision; therefore, this argument is unfounded.
[10]
The
Applicant further claims that if he is removed, his criminal appeal to the
Ontario Court of Appeal will be rendered nugatory. The case law from the
Ontario Court of Appeal, itself, does not support this argument.
[11]
In Diakite
v. Canada (M.P.S.E.P.), April 17, 2007, IMM-1530-07, Justice Johanne Gauthier
dismissed the stay motion of the applicant, noting that the Ontario Court of
Appeal had found it was unnecessary for him to remain in Canada in order to pursue his
appeal and that he could do this in writing from Guinea.
[12]
Further
to this case in Diakite, above, at the Ontario Court of Appeal, that
court refused to order that the applicant remain in Canada pending his appeal
and stated: “[i]f the applicant is deported prior to his appeal date, that does
not prevent him from pursuing his appeal. He may do so in writing from Guinea.” (Endorsement of Justice
Michael J. Moldaver, Ontario Court of Appeal, Diakite
v. Her Majesty the Queen, March 29, 2007.)
[13]
In
addition, the Ontario Court of Appeal in R.
v. Bish, [1998] O.J. No. 5215, stated that: “it was common ground,
that in the circumstances of this case, the deportation of the applicant will
not render his appeal moot.” The Ontario Court of Appeal dismissed his motion
for a stay of removal.
[14]
The
case law from the Ontario Court of Appeal, itself, indicates that the
Applicant’s appeal would not be moot, should the Applicant be deported from Canada prior to it being
heard. The Applicant has retained counsel for the purposes of this appeal and
this counsel can receive instructions from the Applicant from Jamaica.
[15]
The
Applicant further alleges, if his August 2006 conviction is overturned,
his deportation order against him would not be valid.
[16]
The
Applicant was convicted beyond a reasonable doubt after a trial. He appealed
that decision and his appeal was rejected in a lengthy decision of the Superior
Court of Justice of Ontario.
[17]
It
is speculative that the Ontario Court of Appeal will overturn the Applicant’s
conviction. A conviction stands until and unless it is overturned. Moreover,
even so, the Applicant still has 32 other criminal convictions, including a
February 2004 conviction under s.267 for assault with the weapon, which is the
exact same offence he again committed in August 2006. Regardless of the outcome
of the Applicant’s Ontario Court of Appeal, he is still inadmissible for
serious criminality.
[18]
The
Applicant claims he cannot be removed from Canada while he is appealing his
conviction for the second time, he has not cited any case law or statutory
provisions in support of his contention. Nothing in the law requires him to be
allowed to remain in Canada while he exhausts the
entire criminal appeals process. The Applicant is a foreign national, who,
regardless of the outcome of his appeal, is inadmissible for serious
criminality.
[19]
The
Applicant had his permanent residence removed by the IAD and he failed to seek
judicial review of this decision. The Applicant is no longer a permanent
resident and has decided not to exercise his judicial review rights. The
Applicant also chose not to participate in the Pre-Removal Risk Assessment (PRRA)
process. It is the Applicant’s own actions which have placed him in the
position of being legally removable before his Ontario Court of Appeal is
finalized.
[20]
The
Applicant, if after removed, succeeds at the Ontario Court of Appeal in having
his conviction overturned, he will be able to apply for permission to return to
Canada. If his August 2006
conviction is overturned, it will not be taken into consideration in deciding
whether or not to allow him to return. His other 32 convictions, nevertheless,
would render him criminally inadmissible for serious criminality. This, again, is
the Applicant’s own doing in that he repeatedly participated in criminal
activities.
Irreparable harm
[21]
This
Court has held that irreparable harm is a strict test in which serious
likelihood or jeopardy to the applicant’s life or safety must be
demonstrated. The Applicant has provided no evidence that there is a risk to
his life or safety. (Duve v. Canada (M.C.I.), [1996] F.C.J. 387 (T.D.)
at para. 22; Reference is also made to: Mikhailov v. Canada (M.C.I.),
[2000] F.C.J. No. 642, paras. 12-13; Frankowski v. Canada (M.C.I.),
[2000] F.C.J. No. 935, para. 7; Csanyi v. Canada (M.C.I.), [2000] F.C.J.
758, para. 4.)
[22]
The
Applicant states that his children will be harmed if he is not able to say
goodbye to them as he believes they are on vacation in Florida at present. It is clear
from the Applicant’s own record that he has not seen or spoken to his children,
who are 15 and 12, for at least a year and a half. The IAD decision reveals
that the evidence clearly demonstrates that he had rarely visited his children
since separated from their mother in 1990’s and that he has spent a large
portion of his time in Canada, in detention. Neither his ex-wife, nor his
children, provided any letter on his behalf for him to remain in Canada for his IAD appeal. This
is a strong indication that the Applicant’s children would not be harmed by his
being removed without saying goodbye. Moreover, it is speculative, whether and
when, he may see his children in the future whether or not he is removed.
[23]
The
Applicant’s allegations that he will be unable to pursue his Federal Court
leave application regarding the refusal to defer removal have already been
rejected in a much more serious context, that of PRRA applicants where risk to
life is alleged.
[24]
On
this point Justice James O’Reilly found in Kim v.
Canada (M.C.I.), 2003 FCT 321: “I
see nothing in the Act or the Rules that would interfere with the entitlement
of a PRRA applicant, who has been removed from Canada and who is successful on
judicial review, to have that application reconsidered.” Further, as Justice Luc Martineau decided
in Akyol v. Canada (M.C.I.), 2003 FC 931:
[11] Sixth,
the deportation of individuals while they have outstanding leave applications
and/or other litigation before the Court, is not a serious issue nor does it
constitute irreparable harm: Ward v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 86 (T.D.) at para. 12; and Owusu v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1166 (T.D.). I
also note that the application for leave and judicial review will continue
regardless of where the applicants are located, and that they can provide
instructions to counsel as to how to proceed with the litigation from the U.S.
or, should they end up there, Turkey.
(Reference
is also made to: Ryan v. Canada (M.C.I.), [2001] F.C.J. No. 1939 at
para. 8.)
[25]
Indeed,
this Court and the Court of Appeal routinely dismiss stays where there are
outstanding applications for leave and for judicial review or appeals. (Selliah v. Canada (M.C.I.), above; El Ouardi v. Canada
(S.G.),
2005 FCA 42; Sivagnanansuntharam v. Canada
(M.C.I.), (February 16, 2004, Docket A-384-03) (F.C.A.); Tesoro
v. Canada( M.C.I.), 2005 FCA
148 (F.C.A.).)
[26]
The
proper, persuasive, and authoritative approach is the one articulated by the
Federal Court of Appeal that has held that removing an applicant from Canada, while his appeal of
his negative PRRA is pending, does not render his/her rights nugatory. In Selliah v. Canada (M.C.I.), [2004] F.C.J. No. 1200 (F.C.A.), Justice
John Maxwell Evans stated:
[20] Since the appeal can be ably conducted by experienced counsel
in the absence of the appellants and since, if the appeal is successful, the
appellants will probably be permitted to return to Canada at public expense, I
cannot accept that removal renders their right of appeal nugatory.
[27]
Further,
Justice Judith Snider considered but rejected a similar argument to the one
advanced by the Applicant and ultimately concluded that the application is not
rendered nugatory by removal. Justice Snider relied on Kim, above,
and on the Court of Appeal’s decision in Selliah, above, and noted as
follows in Nalliah v. Canada (M.C.I.), 2004 FC 1649:
[30] The second
branch of Mr. Nalliah's argument is that the loss of the right to continue the
litigation constitutes irreparable harm. Contrary to these submissions, if the
injunction is refused, their right to an effective remedy will not be rendered
nugatory. As Mr. Justice O'Reilly stated in Kim v. Canada (Minister
of Citizenship and Immigration) (2003), 33 Imm. L.R. (3d) 95 (F.C.T.D.), at
paragraph 9: "nothing in the Act or the Rules would interfere with the
entitlement of a PRRA applicant, who has been removed from Canada and who is successful
on judicial review, to have that application reconsidered" .
[31] In Selliah
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 26, at
paragraph 20, Justice Evans of the Court of Appeal stated:
Since the appeal can
be ably conducted by experienced counsel in the absence of the appellants and
since, if the appeal is successful, the appellants will probably be permitted
to return to Canada at public expense, I cannot accept that removal renders their right of
appeal nugatory.
[32] The cases of
Suresh and Resulaj, referred to by Mr. Nalliah may be
distinguished on the basis that, in both of those cases, there was significant
evidence supporting a personalized risk. From a review of the jurisprudence, I
conclude that irreparable harm cannot be solely founded on difficulty in pursuing
legal rights of challenge once removed from Canada.
[28]
Furthermore,
as stated earlier, the Applicant does have the option, under s. 52, of applying to
return to Canada after his deportation
order is executed.
[29]
Irreparable
harm alleged by the Applicant is speculative and it does not satisfy the test.
Balance
of Convenience
Applicant
has not met the test
[30]
The
Applicant has not met the third aspect of the tri-partite test, insofar as the
balance of convenience favours the Minister and not the Applicant.
[31]
The
inconvenience that the Applicant may suffer as a result of his removal from
Canada does not outweigh the public interest in executing removal orders as
soon as reasonably practicable in accordance with s. 48 of IRPA.
[32]
The
public interest is to be taken into account and weighed together with the
interests of private litigants. (Manitoba (A.G.) v. Metropolitan Stores
(MTS) Ltd, [1987] 1 S.C.R. 110, at 146.)
[33]
The
Applicant is seeking extraordinary equitable relief. It is trite law that the
public interest must be taken into consideration when evaluating this last
criterion. In order to demonstrate that the balance of convenience favours the
Applicant, the latter should demonstrate that there is a public interest not
to remove him as scheduled. (RJR-MacDonald, aobve; Blum v. Canada
(M.C.I.), (1994) 90 F.T.R. 54, decided by Justice Paul Rouleau.)
[34]
In
this context, as Justice Evans held in Selliah, the balance of
convenience does not favour delaying further the discharge of either the
Applicant’s duty, as a person subject to an enforceable removal order, to leave
Canada immediately, or the Minister's duty to remove him as soon as reasonably
practicable. “This is not simply a question of administrative convenience, but
implicates the integrity and fairness of, and public confidence in, Canada's system of immigration
control.” (Selliah v. M.C.I., 2004 FCA 261 at paras. 21-22; Dasilao
v. Canada (M.C.I.), 2004 FC 1168.)
[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. As Justice Marshall Rothstein
stated in Mahadeo, criminal convictions are “public interest
considerations that weigh heavily against an applicant in a consideration of
the balance of convenience.” Justice William P. McKeown agreed with this
reasoning in Gomes v. Canada (M.C.I.), (1995), 26 Imm. L.R. (2d) 308 (T.D.), and held
that:
[7] With respect to the
balance of convenience test, I am in agreement with the reasoning of Rothstein
J. in Mahadeo v. Canada (Secretary of State), October 31, 1994,
(unreported), Court File IMM-4647-94 (F.C.T.D) [Please see [1994] F.C.J. No.
1624]. In that case, Rothstein J. stated that when the 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. In this case
the applicant was convicted of assault causing bodily harm, which I find to
outweigh any consideration of the emotional devastation of the applicant's
family. I therefore find that the balance of convenience in this case lies with
the respondent.
(Reference is also made
to: Mahadeo v. Canada (Secretary of State), [1994] F.C.J. No. 1624
at para. 3 (T.D.) (QL); Moncrieffe v. Canada (M.C.I.), [1995] F.C.J. No.
1576 (T.D.) (QL) and Choubaev v. Canada (M.C.I.), 2002 FCT 816.)
CONCLUSION
[36]
For
all the above reasons, this motion for a stay of removal is dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant’s application for an order to stay the removal be dismissed.
“Michel M.J. Shore”
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