Docket: IMM-3692-15
Citation:
2016 FC 79
Vancouver, British Columbia, January 22, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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RAAFAY SHEHZAD
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
The Applicant has presented a motion before this
Court to stay his application for judicial review scheduled for today, January
20, 2016.
[2]
The stated reason for the Applicant’s motion is
to adjourn until such time that the Supreme Court of Canada will have rendered
its final judgment in Thanh Tam Tran v Canada (MPSEP), (SCC file no.
36784). As yet, the Supreme Court has not even granted leave.
[3]
It is recalled that in its decision, the Federal
Court of Appeal in Canada (MPSEP) v Tran, 2015 FCA 237, stated that it
affirmed thereby, that conditional sentences of imprisonment are “terms of imprisonment” under the Immigration and
Refugee Protection Act (IRPA) and are properly considered as such.
[4]
It is to be recalled that a pending appeal, and
even less so, a pending application for leave to appeal, does not change the
law. The requirement in such cases is to apply the legislation as it is, as
interpreted by the latest jurisprudence in that regard.
[5]
The Federal Court of Appeal concluded in Tran,
as cited above, that “a conditional sentence of
imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the
Criminal Code may reasonably be construed as a term of imprisonment under
paragraph 36(1)(a) of the IRPA”.
[6]
In the same Federal Court of Appeal decision,
the Court clearly set out in concluding that paragraph 64(2) of IRPA applies
thereto as well.
[7]
The test to determine whether to stay a judicial
review in such matter is whether it would be in the interests of justice to
pursue such a course. Sanchez v Canada (MCI), 2014 FCA 19, para 8.
[8]
Immigration proceedings aa per the IRPA are to
proceed in a timely manner as is set out in paragraphs 72-74 inclusive.
[9]
Also, judicial review applications are to be
conducted “without delay” and in a “summary way”.
[10]
There are no appeals of interlocutory decisions
to the Federal Court of Appeal.
[11]
In Joseph v Canada (MCI), 2015 FC 904,
paras 49 and 52, Justice Henry Brown reiterated the Court’s responsibility in
its “duty to decide cases as they arise”.
Furthermore, he went on to specify therein that the law is to be applied as
decided by the Federal Court of Appeal, which stands until such time as the
Supreme Court of Canada may decide otherwise.
[12]
It is recalled that the Federal Court of Appeal
was very clear when it specified in Sanchez that a potential delay was “very long”, and considered a prejudice to public
interest when the Supreme Court of Canada hearing was to take place subsequent
to a two month delay. In the Tran case, it has not been decided whether the
Supreme Court of Canada will even grant leave for the matter to be heard. As a
result, the delay would be substantially and significantly much longer.
[13]
Also, due to the several issues arising in the Tran
case, the definitive answers in regard to that which the Federal Court of
Appeal has already decided appear to have responded to the issues in respect of
the present case before this Court. Therefore, the Court considers that an
adjournment would not be appropriate in such circumstances. It would go against
finality in the proceeding; it would also be in opposition to the need for a
summary and expeditious manner in proceeding in judicial reviews; and, it would
be in contradiction to the Court’s responsibility or duty to ensure the
legislation is applied and the jurisprudence is interpreted as it stands.
[14]
At this time, the law is as it is; the Federal
Court of Appeal decision is dispositive of as it was in Tran (above).
[15]
Therefore, the interlocutory motion for an
adjournment, or a stay, of the Applicant’s application for judicial review is
refused.
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