Docket: IMM-2614-16
Citation:
2016 FC 757
[ENGLISH TRANSLATION]
Ottawa, Ontario, July 5, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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EKANGA ANNE EUGÉNIE LILALA
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS:
I.
Introduction
[1]
The applicant was convicted of criminal offences
committed against her minor daughter. She was charged with three counts of
assault with a weapon causing bodily harm to a child under paragraphs 267(a)
and 267(b) of the Criminal Code, RSC, 1985, c C-46.
[2]
Given the serious crimes committed by the
applicant against her child, and that, to date, she has not been granted a
record suspension, the applicant has not regularized her status in Canada for
19 years; this is her third application for a stay of the removal order,
which was also denied. In the very recent Federal Court decision, rendered by
Mr. Justice Alan J. Diner, on May 4, 2016, in
Lilala v. Canada (Public Safety and Emergency Preparedness), 2016 FC 500,
Diner J. clearly stated at paragraph 23:
[23] Finally, as the Respondent noted
in the hearing, a record suspension is discretionary. There is no guarantee
that her application, if submitted, will be approved. Considering she had not
even applied for a record suspension at the time of the Officer’s decision,
there was little evidence to suggest a deferral was reasonably forthcoming.
On
May 4, 2016, Diner J. had no evidence demonstrating that the
applicant had even applied for a record suspension at that time. After
May 4, the applicant finally submitted an application in this regard, but
with no guarantee of a favourable response.
II.
Analysis
[3]
The applicant is requesting a stay of the
removal order.
[4]
The applicant’s removal was scheduled for
Wednesday, July 6, 2016.
[5]
Based on the test in Toth v. Canada (Minister
of Employment and Immigration), 86 NR 302 (FCA), the applicant
must demonstrate three conjunctive requirements: a serious issue to be tried in
an application for leave and judicial review; a risk of suffering irreparable
harm; and, a balance of convenience in her favour.
[6]
According to the history of the case, the
applicant is a citizen of the Democratic Republic of the Congo [DRC]. She has
been in Canada since January 28, 1997; at that time, she made a claim
for refugee protection; her claim for refugee protection was denied by the
Refugee Protection Division and a departure order was issued against her.
[7]
The applicant’s application for leave and
judicial review of the decision regarding her claim for refugee protection was
denied by the Federal Court on May 27, 1998.
[8]
After that, the applicant filed a humanitarian
and compassionate application [H&C application].
[9]
Given the serious crimes committed by the
applicant against her child, and that, to date, she has not been granted a
record suspension, the applicant has not regularized her status in Canada in
19 years; this is her third application for a stay of the removal order,
which was also denied (see Lilala, above, at paragraph 23). On
May 4, 2016, Diner J. had no evidence demonstrating that the
applicant had even applied for a record suspension at that time. After
May 4, the applicant finally submitted an application in this regard, but
with no guarantee of a favourable response.
[10]
The applicant wanted to show that her actions
constituted a simple parental disciplinary measure against a child with
behavioural problems. Instead, her criminal assaults are considered serious
crimes under common law under the Criminal Code.
[11]
The investigation conducted confirmed at the
time that this was not an isolated incident of abuse, but rather recurring acts
constituting a serious crime under common law under the Criminal Code,
repeated by the applicant. Moreover, following her serious criminal actions,
the applicant lost parental authority and the right to visit her child, who was
taken in by the state.
[12]
A report was prepared under
subsection 44(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], and the applicant’s H&C application
was denied.
[13]
Under the deportation order issued against her,
the applicant was inadmissible in Canada in accordance with
paragraph 36(1)(a) of the IRPA on grounds of serious criminality.
[14]
Once again, the applicant tried to stay in
Canada, based on a new application for permanent residence; it was also denied.
[15]
The applicant’s first pre-removal risk
assessment [PRRA] was denied on May 7, 2014.
[16]
In addition, given that the applicant failed to
cooperate with the Canada Border Services Agency [CBSA] authorities, she posed
a flight risk.
[17]
The applicant was granted a stay pending the
outcome of a judicial review of the PRRA decision.
[18]
The applicant filed a second PRRA application
that was also denied on January 16, 2016.
[19]
Furthermore, the Federal Court dismissed the
judicial review of the decision refusing to defer the removal on
January 20, 2016.
[20]
Following her release from custody with
conditions, the applicant was arrested for breach of release conditions and
detained once again.
[21]
The applicant tried to obtain a new
administrative stay without success on June 20, 2016; and she was
again arrested due to a flight risk.
[22]
According to the CBSA, the removal was scheduled
for July 6, 2016, at 19:45, to the DRC, with the applicant’s
departure requiring an escort by two CBSA officers in possession of a visa for
the applicant’s country of nationality.
[23]
This is based on the steps taken with
authorities in Canada since 1997 (thus, for 19 years) and on the fact
that the risks related to her were fully assessed as not interfering with her
deportation, knowing that the applicant did not file her application for a
record suspension until after Diner J.’s May 4, 2016 ruling,
refusing her application for a stay of the removal order.
[24]
The applicant must be deported given that she
has not met any of the three conjunctive requirements in the Toth test.
III.
Conclusion
[25]
The Court finds that the applicant’s motion for
stay of the removal order must be dismissed.
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