Docket: IMM-8849-11
Citation: 2011 FC 1470
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 13, 2011
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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JEAN-BERNARD DEVILMÉ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
It is
clear that the applicant does not come before the Court with clean hands. He
has anything but clean hands and this creates a major obstacle to obtaining the
equitable remedy he is seeking:
[4] It is well established law
that the issuing of a stay is an equitable remedy that will only be granted where
the applicant appears before the court with clean hands. See Khalil v.
Canada(Secretary of State) [1999] 4 F.C. 661 para 20, Basu v. Canada
[1992] 2 F.C. 38, Ksiezopolski v. M.C.I. & S.G.C. [2004] F.C.J. No.
1715.
[5] In this case the applicant has
anything but clean hands. She has shown a constant and persistent disregard for
Canadian family law, criminal law and immigration law. It would be encouraging
illegality, serve a detrimental purpose and be contrary to public policy if the
court were to grant her the relief sought.
[6] Accordingly, given the
circumstances of this case, the court is not prepared to exercise any equitable
jurisdiction in respect of the applicant. [Emphasis added.]
(Brunton v Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 33)
II. Introduction
[2]
The
applicant, a citizen of Haiti, is bringing before this Court a motion for a
stay of a removal order issued against him, which is to be enforced on December
15, 2011. He is to be deported to the United States.
[3]
This stay
motion is incidental to an application for leave and judicial review (ALJR) challenging
the decision to issue a removal order dated December 2, 2011, by an officer of
the Minister of Citizenship and Immigration in accordance with subsection 44(2)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
III. Amendment of the style of cause
[4]
The
applicant brought his proceeding only against the “Minister of Citizenship and
Immigration”. Because the “Minister of Public Safety and Emergency
Preparedness” is the Minister responsible for the enforcement of removal
orders, he should also be named as a respondent. Consequently, the style of
cause is amended to add the Minister of Public Safety and Emergency
Preparedness as a respondent in addition to the Minister of Citizenship
and Immigration.
IV. Facts
[5]
The applicant,
Jean-Bernard Devilmé, is a citizen of Haiti and a permanent resident of the
United States.
[6]
The Court reiterates
the summary with respect to the applicant in Canada from the pre‑removal
risk assessment (PRRA) decision:
[translation]
Immigration history in Canada
August
10, 1989, Mr. Devilmé became
a permanent resident of the United States.
January
29, 1994, the applicant
tried to enter Canada; a section 20 report was issued because the officer was
not convinced that his visit was in good faith.
October
16, 2002, a section 44 report
was issued indicating that Mr. Devilmé was admitted to Canada around December 1,
2001, and stayed beyond the period allowed. The report also indicated that the
applicant had been working illegally on a farm since September 2002.
January
8, 2003, a section 44
report was issued on inadmissibility under paragraph 36(2)(a) of
the IRPA, indicating that the applicant had been convicted of wilfully obstructing
a peace officer in the execution of his duty, an offence described in paragraph
129(a)(e) of the Canadian Criminal Code. That same day, he was also
convicted of failing to comply with a condition, an offence described in
paragraph 145(3)(b) of the Canadian Criminal Code.
June
16, 2003, he was
convicted of possession of property obtained by crime. The record indicates
that Mr. Devilmé did not appear in Court on June 13, 2003.
May
26, 2005, an arrest
warrant was issued by the Canada Border Services Agency.
April
5, 2007, Mr. Devilmé was
arrested by the police.
May
16, 2007, Mr. Devilmé claimed
refugee protection.
December
17, 2008, he was
convicted in Drummondville of theft under $5,000, an indictable offence liable
to imprisonment for a term not exceeding two years, an offence described in
paragraph 334(b) of the Canadian Criminal Code. He was also
convicted of “personating with intent”, a criminal offence liable to
imprisonment for a term not exceeding ten years described in paragraph 403(a)
of the Canadian Criminal Code.
February
17, 2010, the Canada
Border Services Agency confirmed that the applicant still had legal status in
the United States.
August
16, 2010, the Refugee
Protection Division (RPD) found that the refugee claimant was excluded from the
definition of Convention refugee and person in need of protection under Article 1E
of the Convention.
The
refugee claim was rejected; the RPD found that Mr. Devilmé is not a refugee or
a person in need of protection.
June
1, 2011, the PRRA
application was offered to Mr. Devilmé.
[7]
The
applicant did not submit an ALJR against the decision by the Refugee Protection
Division (RPD) or the PRRA decision.
[8]
In his letter sent to
the Canada Border Services Agency (CBSA) on November 30, 2011, requesting that his
removal be deferred, the applicant indicated at the outset that he had not yet
submitted an application for permanent residence (APR) in Canada on
humanitarian and compassionate (H&C) grounds, but that he intended to do so
shortly.
[9]
During his
meeting on November 23, 2011, with the enforcement officer, the applicant was
given a choice: he could return to the United States or to Haiti.
[10]
The
applicant indicated that he wished to return to the United States and the
officer therefore scheduled his removal to that country for December 15, 2011.
V. Analysis
[11]
The
Court agrees with the respondents that the applicant does not have clean hands.
[12]
It is
established that a motion for a stay is a discretionary remedy, and that,
according to the rules of equity, those who come to the Court seeking a
discretionary remedy must have clean hands (Chavez v Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 830
at paragraph 13; also, Adams v Canada (Minister of Citizenship and Immigration),
2008 FC 256 at paragraph 2).
[13]
The respondent
submits that this Court should dismiss the motion on the ground that the
applicant violated criminal law and demonstrated a flagrant lack of respect for
immigration laws and obligations.
[14]
The
following examples appear in the RPD’s decision:
·
The
applicant admitted that he had been on the run from 2003 to 2007, that is,
until he was arrested by the Canadian authorities;
·
He worked
illegally in Canada;
·
He
misrepresented himself as someone else twice;
·
He was
convicted of several criminal offences under Canada’s Criminal Code.
[15]
This
situation therefore justifies the Court using its discretion to refuse to hear
this motion or, at minimum, to dismiss it. The applicant had several
opportunities to assert his rights. Despite this, he acted in disregard of the
law and the system during his stay in Canada.
[16]
The Federal
Court of Appeal recently reiterated this principle in Moore v Canada
(Minister of Citizenship and Immigration), 2009 FC 803:
[1] An applicant for an equitable
remedy must come before the Court with clean hands.
The well established principle "he
is who has committed Iniquity ... shall not have Equity." Jones v.
Lenthal (1669) 1 Ch. Ca. 154 needs to be applied in this case. I see no
reason to extend equity to the Applicant in light of his deeds. It follows as a
logical corollary that where the Applicant does not come with clean hands, the
balance of convenience does not tilt his way.
It is obvious to me that the Court in
exercising its discretion must have regard and must take into account a number
of factors not the least of which is the public interest. Public policy
dictates that I bar the plaintiff's claim. The maxim that "no one should
take benefit from his own wrong" has been adopted and followed for centuries.
This principle was enunciated quite succintly in Cleaver v. Mutual Reserve
Fund Life Association . . . , where Fry, L.J., said:
It appears to me that no system of
jurisprudence can with reason include amongst the rights which it enforces
rights directly resulting to the person asserting them from the crime of that
person....This principle of public policy, like all such principles, must be
applied to all cases to which it can be applied without reference to the
particular character of the right asserted or the form of its assertion.
(Reference is made to Khalil v. Canada
(Secretary of State), [1999] 4 F.C. 661, [1999] F.C.J. No. 1093 (QL)
(C.A.); Ksiezopolski v. Canada (Minister of Citizenship and Immigration),
2004 FC 1402, [2004] F.C.J. No. 1715 (QL); Basu v. Canada, [1992] 2 F.C.
38, [1991] F.C.J. No. 1272 (QL) (T.D.)).
. . .
[4] Mr. Moore is not entitled to
the Court’s discretion on the merits of the matter as he has come to Court with
unclean hands due to serious criminality and disregard for Canada’s immigration
laws.
[17]
Therefore,
this Court is not exercising its equitable jurisdiction in respect of the
applicant.
[18]
Granting
the applicant a stay would further undermine the integrity of the system.
VI. Conclusion
[19]
In light
of the foregoing, because the applicant does not have clean hands, this Court is
not exercising its equitable jurisdiction in respect of the applicant, and,
therefore, his application for a stay of the removal order is dismissed.
JUDGMENT
THE COURT
ORDERS that the application for a stay of
the removal order against the applicant be dismissed.
“Michel
M.J. Shore”
Certified
true translation
Janine Anderson,
Translator
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