Date: 20080207
Docket: IMM-630-08
Citation:
2008 FC 167
Ottawa, Ontario, February 7, 2008, 9:30 p.m.
Present:
The Honourable Mr. Justice
Shore
BETWEEN:
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicants
and
Karim OUERK
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
1. Introduction
[1] This ex parte motion, presented to
the Court by conference call, is for an interlocutory injunction, an interim
measure before the hearing on the merits of the application to stay filed by
the applicants so that the application does not become moot.
[2] This motion follows the respondent’s release pending the hearing
of an application to stay the decision of member Marie-Louise Côté, no later
than the week of February 11, 2008, or February 18, 2008, and until a decision is made on the application
to stay.
[3] This application to stay must be served and filed no later than Wednesday, February 13, 2008, to
be heard on an urgent basis on or before February 18, 2008.
2.
The facts
[4] According to the affidavit of Isabelle Trottier, immigration
officer, detention hearings, Immigration Division, at the Canada Border
Services Agency (CBSA), the
facts are as follows.
[5] The respondent was born on May 8, 1966, in Algeria.
[6] The respondent arrived in Canada in November 2005 through the port of entry at St-Bernard-de-Lacolle and
was not given authorization to remain in Canada.
[7] The respondent then resided for three years at the hotel across
from the Voyageur terminus in Montréal.
[8] On November 14, 2006, the respondent was convicted in Montréal of
theft and breaching probation.
[9] On November 15, 2006, the respondent was arrested and detained by the Canada Border Services
Agency for the purposes of proceeding with his removal.
[10] On November 15, 2006, the respondent stated that he was working in Canada illegally. He also stated that during a previous arrest by
the police, he identified himself as his brother, i.e. Overk, Berkassim (September
1, 1951).
[11] A deportation order was made on November 15, for criminality in Canada, pursuant to paragraph 36(2)(a) of the Immigration
and Refugee Protection Act (IRPA).
[12] According to the information obtained from the U.S. Border Patrol,
the respondent secretly entered the United States and he was arrested and detained by the American authorities on January 25, 2000. He was released from the York
County Correctional Centre on October 7, 2002,
on the condition that he report to the authorities each month. The respondent did
not comply with these conditions and disappeared at the end of 2005. Further,
it appears that the respondent had two aliases in the United
States, namely that of Overk Karim (May 8, 1966) and
Overk Berkassim (September 1, 1951).
[13] The Canada Border Services Agency requested a travel document from
the Algerian Consulate on November 16, 2006.
[14] The respondent had been released on December 21, 2006, by the
Immigration Division with the following conditions: Messaoud Aliouane had to
deposit $3,000, the respondent had to live with Messaoud Aliouane, and the respondent
had to keep the peace.
[15] On March 1, 2007, the respondent was
arrested by the Montréal police and charged with robbery, extortion, theft,
concealing and possession of break-in instruments.
[16] On June 12, 2007, the respondent pleaded guilty to two counts of possession
of property obtained by crime, two counts of theft, two counts of possession of
break-in instruments and one count of attempted theft.
[17] The respondent did not comply with his condition to keep the peace
and to live with Mr. Messaoud despite the $3,000 surety.
[18] He received two sentences of six months’ imprisonment and one
sentence of three months’ imprisonment, to be served concurrently.
[19] On October 11, 2007, at the end of his
sentence, the applicant was once again arrested and detained by Immigration.
[20] He was kept in detention on the grounds that he was dangerous and a
flight risk by the Immigration Division on October 12, 2007, October 19, 2007, November 15, 2007, December 14, 2007 and January 10, 2008.
[21] The Border Services Agency again contacted the Algerian Consulate
several times and contacted the Minister of Foreign Affairs Canada to
accelerate the process for obtaining a travel document.
[22] Today, February 7, 2008, the
respondent was immediately released.
3. Analysis
[23] According to the applicants’ information, the Court considered these
facts:
(a)
The respondent is a danger to the public and has been
convicted many times for theft;
(b) The respondent is a high flight risk and is now subject to a deportation
order issued against him on November 15, 2006, on grounds of criminality in
Canada under paragraph 36(2)(a) of the IRPA;
(c)
The respondent, now without status, was unconditionally released
on December 21, 2007, but nevertheless breached his release
conditions thereafter, he was arrested on March 1, 2007 for theft; in
fact, the applicant had been arrested on March 1, 2007, for theft,
extortion, and possession of break-in instruments; he had been convicted on
June 12, 2007, of different counts for three different incidents: possession
of property obtained by crime, theft, possession of break-in instruments and
attempted robbery;
(d) According to the information obtained from the U.S. Border Patrol, the respondent
secretly entered the United States and was released from the York County Correctional Centre on October 7, 2002, on condition that he report
to the authorities once a month. The respondent did not comply with these conditions
and disappeared at the end of 2005;
(e)
The Border Services Agency made repeated requests to the
Algerian Consulate and contacted the Department of Foreign Affairs Canada to
accelerate the process for obtaining a travel document in order to carry out
the respondent’s removal as soon as possible.
[24] There is a serious issue to be decided in the application for leave and
judicial review filed on this very day which justifies ordering an interim measure
before the hearing on the merits of the application to stay filed by the applicants
to ensure that this application for leave does not become moot.
[25] On this point, the applicants argue that the member Marie-Louise
Côté who ordered the respondent’s release erred in fact and in law and
misinterpreted and misapplied the test required by subsection 58(2) of the IRPA
and sections 244, 245 and 248 of the Immigration and Refugee Protection
Regulations (the IRPR).
[26] The applicants will suffer irreparable harm if this ex parte motion
on the decision of the member Marie-Louise Côté is not granted, in that the
respondent’s past record indicates that it is very likely that he will not
report for his removal and that he may commit other criminal offences in Canada.
[27] The balance of convenience favours the applicants.
[28] The applicants were today informed of member Marie-Louise Côté’s
decision to release the respondent.
JUDGMENT
THE COURT
ORDERS an interlocutory injunction, as an interim measure, pending an application
to stay the decision of member Marie-Louise Côté to release the respondent: this
judgment suspends member Marie-Louise Côté’s decision.
This
judgment is made following the respondent’s release pending the hearing of an application
to stay member Marie-Louise Coté’s decision no later than the week of
February 11, 2008 or February 18, 2008, or until a decision is made
on the application to stay.
This
application to stay must be certified and filed no later than February 13, 2008, to be heard on an urgent
basis on or before February 18, 2008.
“Michel M.J. Shore”
Certified true translation
Kelley A. Harvey, BCL, LLB
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