Date: 20080403
Docket: IMM-1463-08
Citation: 2008 FC 420
Ottawa, Ontario, April 3, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JEANNE
MAURICETTE
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This
is a motion for a stay of removal of an Enforcement
Officer’s decision, refusing to defer the removal of a twenty-five year old Applicant
to St.
Lucia
on the basis of risk to the Applicant. The Applicant is a witness in a criminal
trial and she has a pending humanitarian and compassionate (H&C) application.
Additionally, the deferral request is based on the basis of the best interests
of the Applicant’s three Canadian-born children, three year old twins and, especially,
the youngest, a nursing infant, who face risk in St. Lucia from the
Applicant’s abusive ex-partner. If the children would leave with the Applicant,
they have problematic medical issues with which to contend. They will be
separated from a large extended family, most of whom have status in Canada, all of
which is specified in a pending H&C application of the Applicant.
II. Background
[2]
The
Applicant lived with a roommate until a dispute resulted in the roommate,
changing the locks and discarding the belongings of the Applicant, including
the birth certificates and passports of the children. The Applicant called the
police for assistance but was herself arrested on that day, October 30, 2007.
She has been in detention with her youngest child, ten month old, Myles, since
that time. Her three year-old twin daughters are being cared for by the
Applicant’s aunt who is a permanent resident.
[3]
The
Applicant was initially assisted by a consultant who had prepared stay motion documents
on her behalf. On February 28, 2008, Justice Douglas Campbell granted her a
stay of removal effective to March 4, 2008, at which point the matter was
reviewed by teleconference. He instructed the Applicant to make a legal aid
application, which she did. On March 4, 2008, Justice Campbell extended the
stay of removal to March 25, 2008, at which point the stay ended. The Applicant
was very recently granted legal aid and is now represented by proper counsel.
[4]
The
Applicant filed a refugee claim which was denied on April 12, 2005. She did not
file an Application for Leave and for Judicial Review. She subsequently
received a Pre-Removal Risk Assessment (PRRA) application which was denied on
February 15, 2007. She was directed to report for removal on April 14, 2007 but
did not appear as she was extremely fearful of the reaction of her ex-partner if
returned to St.
Lucia,
seven months pregnant with another man’s child. She felt vulnerable and unable
to protect herself and her two year-old twin daughters.
[5]
The
Refugee Protection Division (RPD) panel accepted her testimony about physical
abuse and death threats from the ex-partner; however, it found that there was
state protection in St.
Lucia. The
PRRA Officer relied on that decision and conducted a cursory and selective
review of country condition documents.
[6]
The
Applicant came to Canada to escape an abusive ex-partner in St. Lucia who sexually,
physically and emotionally abused her. She was beaten with belts, pots, sticks,
anything that came to hand. When she ran to her mother’s house for protection,
her mother told her to return to her partner. Her mother lives only a few
houses from the ex-partner, who still questions her about the Applicant’s
whereabouts. When she fled St. Lucia, the Applicant, pregnant with her twin girls, had to leave
her three year-old son behind. The Applicant had called police on a number of
occasions but was dissuaded from proceeding by the very authorities tasked with
her protection.
[7]
The
Applicant was recently informed that she is to testify as a witness in a
domestic violence trial as she witnessed an incident between her brother and
his partner. She has been advised by the Officer that he has a subpoena for
her.
[8]
The
Applicant’s baby, Myles, suffers from a skin condition; in fact, his body is
covered in open sores. The condition developed a few days after birth. Her two
daughters also have a skin condition. The Applicant is concerned that she will
be unable to provide for their medical needs in St. Lucia. (Motion Record, Doctor’s Letter, pp.
23.)
[9]
The
Applicant had obtained passports and birth certificates for the two girls (the
youngest was not yet born) in preparation for her removal in April 2007. She
had cooperated with immigration officials in this regard; however, fear and
vulnerability overcame her and she did not appear for removal.
[10]
The
Applicant’s cousin was recently removed to St. Lucia with her Canadian-born son. The child was
recently deported from St.
Lucia to Canada as the authorities
there did not consider him St. Lucian. Parent and child are now separated. The
Applicant fears that her children will also be deported.
[11]
The
Applicant has a close and large extended family in Toronto, most of whom have
status. She has two aunts in Toronto, one, a Canadian citizen and the other, a permanent
resident. She also has ten adult cousins, all of whom are permanent residents
who have five Canadian-born children, with one on the way. The Applicant’s twin
daughters are very close to this extended family and have been living with
their aunt, Ms. Mary Leone and fifteen-year-old cousin, since October 30, 2007,
when the Applicant was arrested. They look upon their cousin as an older
brother.
[12]
The
objective evidence on this issue at www.unicef.org/barbados/cao_unicefeco_sitan.pdf
, additionally, a 2006 UNICEF report, states:
- More than half of the children in St. Lucia
and St. Vincent and fully a third of those in Barbados are “at risk”;
- The main risk factors are food insecurity
(or poverty) followed by chronic illness of a parent;
- Poverty is a major obstacle to accessing
nominally free social services, including education and health care;
- The abuse of children, particularly sexual
abuse, is a serious problem to many.
III. Issue
[13]
Whether or not this application for an order, staying the
execution of the removal order made against the Applicant meets the tripartite
test for the granting of a stay:
(a) The
Applicant has raised a serious issue;
(b) The
Applicant would suffer irreparable harm if deported from Canada; and
(c) That, on the balance of
convenience, giving consideration to both parties, the stay should be ordered.
(Toth
v. Canada (Minister of Employment and Immigration) (1988), 86 N.R.
302 (F.C.A.).)
IV. Analysis
A. Serious Issue
[14]
The
Court in Toth established the test for determining whether or not to
grant a stay of removal. An Applicant must demonstrate that he/she has raised a
serious issue to be tried; that he/she would suffer irreparable harm if no
order were granted; and that the balance of convenience favours granting the
order, considering the total situation of both parties.
[15]
The Courts have consistently established a low threshold for a
finding of “serious issue to be tried” in the context of stay motions. It is
merely necessary to show that the application before the Court is not frivolous
and vexatious. (Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C.
451 (C.A.); North American Gateway Inc. v. CRTC, F.C.A. 97-A-47, May 26, 1997; Copello v. Canada (Minister
of Foreign Affairs), [1998] F.C.J. No. 1301 (QL).)
[16]
A higher threshold
applies to the question of serious issue where a stay of removal is sought on
the basis of an application to review a decision not to defer removal. (Wang
v. Canada (Minister of
Citizenship and Immigration) (2001), 204 F.T.R. 5, [2001] F.C.J. 295 (QL).)
[17]
The
decision to defer removal under ss. 48 (2) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), is a discretionary decision and
requires that the Officer consider any relevant factors and circumstances
unique to the particular case. This includes a broad range of circumstances. (Poyanipur
v. Canada (Minister of
Citizenship and Immigration) (1995), 116 F.T.R. 4, [1995] F.C.J. No. 1785
(QL); Wang, above.)
[18]
As Justice
James O'Reilly summarized in Ramada v. Canada (Solicitor General), 2005 FC 1112, [2005]
F.C.J. No. 1384 (QL):
[3] Enforcement officers
have a limited discretion to defer the removal of persons who have been ordered
to leave Canada. Generally speaking,
officers have an obligation to remove persons as soon as reasonably
practicable (s. 48(2), Immigration and Refugee Protection Act, S.C.
2001, c. 27; set out in the attached Annex). However, consistent with that
duty, officers can consider whether there are good reasons to delay removal…
(Emphasis added.)
[19]
The
Federal Court decisions regarding the scope of the discretion that removals
officers have, is quite varied.
[20]
In
Saini v.
Canada (Minister of
Citizenship and Immigration), [1998] 150 F.T.R. 148, [1998] F.C.J. No. 982
(QL), Justice Frederick Gibson, concluded:
[19] I conclude that the
"broad range of circumstances" that Madame Justice Simpson found to
be contemplated by section 48 of the Immigration Act includes discretion
to consider whether it is reasonable to defer the making of removal
arrangements pending a risk assessment and determination. Accordingly, it
follows that a removal officer may have regard to cogent evidence of risk in
removal to a particular destination and as to whether or not an appropriate
risk assessment has been conducted and evaluated, solely for the purpose of
informing his or her exercise of discretion regarding deferral. (Emphasis
added.)
[21]
The
phrase “as soon as is reasonably practicable” has been analyzed by Justice
Campbell in the following terms:
[10] …this phrase denotes that there are two factors in play in arriving
at a decision to defer removal: the legal requirement for removal, and the
factual requirement that the removal be on the basis of two factual
considerations being found to exist at the same time. That is, removal must
occur as soon as practicable, but only as soon as the practicability of removal
is reasonable.
…
[13] … removal is to occur
as soon as it is "able to [be] put into practice". But there is an
important additional qualifier: what is practicable must be reasonable; that is, "sensible"…
(Emphasis added.)
(Cortes v. Canada (Minister of
Citizenship and Immigration), 308 F.T.R. 69, [2007] F.C.J. No. 117 (QL).)
[22]
The Court
adopts the reasoning of Justice Campbell in Cortes, above, and concludes
that the proper standard of review of a removals officer’s decision is
reasonableness simpliciter which follows the latest Supreme Court of
Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9:
[8] It is agreed that no privative clause exists to
limit judicial review of a deferral decision. As described below in detail, the
purpose of s.48(2) is to immediately remove persons without status, but only as
soon as the practicability of removal is reasonable. On practicability, there
is no doubt that the removals officer has expertise, but this is relatively
unimportant to the outcome of a deferral request. At the core of a deferral
decision is the expertise used in determining the issue of reasonableness. I
find that neither a removals officer, nor a reviewing judge, possesses dominant
subjective judgment when it comes to weighing the human conditions which are,
invariably, integral to a deferral application. Thus, having found three
factors that are essentially neutral on the issue of deference, in my opinion,
the outcome of the pragmatic and functional analysis depends on whether the
deferral decision is one of law, fact, or mixed law and fact.
[9] In my opinion, a deferral decision is not a
question of fact, but is a question of mixed law and fact.
[10] …As I do not find any reason to deviate from the
usual standard of review that applies to findings of mixed law and fact, I find
that the standard of review of a deferral decision is reasonableness simpliciter.
(Emphasis
added.)
[23]
There
are no set conditions that must be met in order for an Officer to exercise his/her
discretion to defer removal; therefore, where there are compelling
circumstances that make it necessary for the Officer to defer removal, then,
justice would require that the Officer exercise that discretion.
[24]
The
Applicant set out a number of factors which, taken together, render her removal
unreasonable at this time: risk to herself and her children especially the youngest
child, from her ex-partner; medical conditions of all three of her children
especially the youngest child; lack of identity documents for the children;
separation of the children from their in-status extended family; the Applicant
being a witness in a criminal trial; and, a pending H&C application.
[25]
The
Officer did not turn her mind to the best interests of these children. The
Officer focused exclusively on the practicality of removal and none at all on
the reasonableness of that removal. As soon as the stay of removal expired, the
Officer issued another Notice of Removal without any regard to the lack of
passports for the children, information which was properly before the Officer.
The Officer has not deferred removal as per the request to defer removal and,
in so doing, has not considered the best interests of these children. In
ignoring the second factor of the “practicably reasonable” test, the Officer
committed a reviewable error.
[26]
A
duty exists to be “alert, alive and sensitive” to the best interests of the
Applicant’s child or children. (Martinez v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1341, [2003] F.C.J. No. 1695
(QL); Baker
Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
para 75.)
Best Interests of the
Child
[27]
In Baker,
the Supreme Court of Canada ruled that Immigration Officers should consider the
best interests of the child while making decisions that may have an impact on
children. This requirement has now been codified in the IRPA. Moreover,
international instruments for which Canada is a party to, for example, Convention on the
Rights of the Child, the Inter American Declaration on Human Rights and the
International Covenant on Civil and Political Rights, imposes upon states
parties the obligation to take into account the best interests of the child and
to maintain the integrity of the family. The principles and obligations should
be considered while making a decision in this case.
[28]
In
the recent decision of Munar v. Canada (Minister of Citizenship and Immigration), 2006 FC 761, [2006]
F.C.J. No. 950 (QL), at paragraph 17: “the law is clear that when a
deferral of removal of a parent is requested and where the interests of
affected children are raised, a Removal Officer must consider their short-term
interests”. The Court also relied on the earlier decision of Munar v. Canada (Minister of
Citizenship and Immigration), [2006] 2 F.C.R. 664, [2005] F.C.J. No. 1448
(QL), whereby it elaborated on the duties of a Removals Officer:
[40] … What he should be
considering, however, are the short term best interests of the child. For
example, it is certainly within the removal officer's discretion to defer
removal until a child has terminated his or her school year, if he or she is
going with his or her parent.
[29]
It
is not practical to remove the Applicant at this point. Given the recent Cortes
decision, whereby the practicality of removal was described as being reasonable
and sensible, removing these Canadian children and their mother at this point
is neither reasonable nor sensible.
[30]
In
light of the above considerations, the principles of the IRPA are served by
deferring the Applicant’s removal.
[31]
The
Applicant’s children are Canadian citizens and, as such, have a right to remain
in Canada and enjoy the full
benefits of Canadian citizenship. They also have a right to enjoy the love and
relationship of their extended family here in Canada.
State protection for
victims of domestic abuse in St. Lucia
[32]
The
Applicant left St.
Lucia to
flee the abuse she was receiving at the hands of her ex-partner. In refusing
her PRRA application, the PRRA Officer neglected to refer to very recent
documentary evidence form the IRB, which seriously throws doubt on the
availability of state protection for victims of domestic violence in St. Lucia.
[33]
According
to a January 6, 2006 Response to Information Request (RIR), the Family Court
magistrate can issue protection orders. The victim has to initiate the
proceedings by approaching one of the social workers. It is noteworthy that the
limited measures available to women to combat intimate partner violence is
through family law proceedings rather than criminal law proceedings. This fact
speaks to the way that violence against women is viewed by the authorities. The
protection orders cited in the report focus on prohibiting an abuser from remaining
in the household residence of the victim. These would not apply to the
Applicant as she has already separated from her ex-partner. None of the
protection orders address stalking behaviour.
[34]
The
state of St.
Lucia is
at the early stages of addressing the complex problem of violence against
women, particularly domestic violence. The state’s response is currently at an
unsophisticated level, one that is unable to address stalking by ex-partners.
This is evidenced by the limitations of the so-called protection orders.
[35]
For
example, the RIR states that “according to the St. Lucia Crisis Centre Present,
it is up to the victim to file a complaint, to seek protection and to obtain
legal redress.” The President also noted that there are problems in executing
arrest warrants and that “this problem plagues the whole criminal justice
system not only the Family Court.”
[36]
With
respect to access to legal aid, there is a very limited service in the form of
a program that operates a few hours a week. The RIR states that “the only cases
where a lawyer could be provided by the state would be if the case involved a
capital offence (i.e. murder).” Clearly, a woman could only access a lawyer for
her defense only if she killed her abuser. If her abuser kills her, then he
would benefit from the services of a government funded lawyer, the same
government that denied the abused woman such services.
[37]
With
respect to police effectiveness, “the police response is sometimes ineffective,
especially in emergency situations, because of factors such as a lack of
transportation for police personnel.” Additionally, “police were hesitant to
intervene in domestic violence disputes, and many victims were reluctant to
report cases of domestic violence and rape or to press charges.” Clearly, the lack
of state protection acts as an incentive to victims’ reporting the abuse. In
fact, to report the abuse in the fact of ineffective police response would
simply place the victim at increased risk from the abuser.
[38]
Given
the Applicant’s status as a single mother, the fact that the ex-partner still
makes inquiries about her and would be enraged were she to return with another
man’s child, it is not unreasonable to believe that she and the child, Myles,
would be at risk. The documentary evidence indicates clearly that the
protection available to her would be inadequate.
[39]
The
impact on the children of separation from their extended family is most
significant.
[40]
The
Applicant has raised a serious issue regarding the Enforcement Officer’s
decision, in that, the decision necessitates that the Officer be “alert, alive
and sensitive” to the children’s best interests and that cannot be avoided
B. Irreparable Harm
[41]
Where
the law requires that an official give careful consideration to a child’s best
interests, failing to do so constitutes irreparable harm to the child in
question. (Melo
v. Canada (Minister of
Citizenship and Immigration) (2000), 188 F.T.R. 39, [2000] F.C.J. No. 403
(QL), para. 22; Samuels v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1349, [2003] F.C.J. No. 1715 (QL); Sowkey v. Canada
(Minister of Citizenship and Immigration), 2004 FC 67, [2004] F.C.J. No. 51
(QL); Okojie v. Canada (Minister of Citizenship and Immigration),
2003 FC 905, [2003] F.C.J. No. 1152 (QL).)
[42]
Irreparable
harm to the Applicant’s children constitutes irreparable harm to the Applicant
herself. (Melo, above, para. 22.)
[43]
While
the temporary separation of adult spouses who will eventually be reunited may
not amount to irreparable harm, the separation of a young child from either of
his parents is an entirely different matter. The reasoning of Justice Barbara Reed
in Paterson v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 139 (QL), should be
persuasive:
[10] If the applicant is
returned to Grenada, her daughter must either go with her mother, or stay in Canada with her father, and
be separated from her mother. I have no doubt that this will cause irreparable
harm to the child.
[44]
That
the children may be permanently separated from their mother due to their
potential for deportation from St. Lucia, as evidenced by a similar situation
occurring with regard to the Applicant’s cousin’s child.
[45]
The
children, especially the youngest, faces irreparable harm due to the risk he
faces from the ex-partner of the Applicant, who continues to attend at her
mother’s home seeking the Applicant. The Applicant fears he will be enraged by
the child as he will be a symbol of the Applicant’s involvement with another
man. Yet, the Officer did not turn her mind to this risk.
[46]
Additionally,
these children, especially the twin girls, face irreparable harm through
separation from their extended family, who are currently their primary
caregivers. To suddenly remove them would cause the children irreparable harm.
[47]
The
children face irreparable harm due to their medical conditions. The youngest
especially suffers from a skin condition and his body is covered in open sores.
Due to the Applicant’s poverty she fears she will not be able to provide
medical care and medication for all three of her children. The interests of
these children and their mother’s ability to care for their medical needs were
not considered by the Officer.
C. Balance of
Convenience
[48]
Where
the Court is satisfied that a serious issue and irreparable harm have been established,
the balance of convenience will flow with the Applicant. (Membreno-Garcia v.
Canada (Minister of Employment
and Immigration)
(1992), 55 F.T.R. 104, [1992] F.C.J. No. 535 (QL).)
[49]
The
Applicant did not show for removal but explained that this was due to her
intense fear for her and her children’s safety, particularly as she was seven
months pregnant at the time and very vulnerable. The Applicant does not have a
criminal record and has contributed to Canadian society. The Applicant, having
shown a serious issue to be tried and having demonstrated that irreparable harm
will follow if this motion is not granted, has demonstrated that the balance of
convenience lies with her.
V. Conclusion
[50]
Due
to the
potential peril which the Applicant and her children face, the Applicant has
demonstrated that she has met all three branches of the Toth test;
therefore, the execution of her removal is stayed pending the final disposition
of her H&C application.
ORDER
THIS COURT ORDERS that the Applicant’s motion for
a stay of the execution of the removal from Canada be granted pending the final
disposition of her H&C application.
“Michel M.J. Shore”
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