Date: 20061218
Docket: IMM-5373-06
Citation: 2006
FC 1512
Ottawa, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ROBERT
GENE CLARK
Applicant
and
THE Minister of Public Safety
and Emergency Preparedness
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is a motion for an order staying a deportation order issued against the applicant
on September 19, 2006. The applicant has lived in Canada for all of
his 59 years, and is the son of Canadian born parents.
Background
[2]
The applicant, a 59 year old male, is currently
incarcerated at the Prince Albert penitentiary in Saskatchewan. On April 3, 2006, he was convicted of the following offences:
1. Production of cannabis marihuana contrary to s. 7(1) of the Controlled
Drugs and Substances Act;
2. Possession of proceeds exceeding five thousand dollars obtained from
the commission of trafficking cannabis marihuana contrary to ss. 354(2) and
355(a) of the Criminal Code;
3. Possession of cannabis marihuana exceeding three kilograms for the
purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and
Substances Act;
4. Conspiring to commit an indictable offence (two counts) contrary to
s. 465(1)(c) of the Criminal Code; and
5. Smuggling alcohol from the United States into Canada for resale contrary to s. 999(9) of
the Customs Excise Act;
The maximum sentence for this series of
convictions is life imprisonment. The applicant was sentenced to a term of 30
months imprisonment. He is scheduled for release on parole in February 2007 and
will then be deported to the United States.
[3]
On June 14, 2006, the Minister’s delegate wrote
a report under s. 44(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 stating that the applicant was a foreign national or
permanent resident who there were reasonable grounds to believe was
inadmissible. On September 19, 2006, the Minister’s delegate issued a
deportation order stating that the applicant was inadmissible on grounds of
serious criminality.
[4]
At issue in the underlying application for
judicial review is whether the removal officer erred in issuing the deportation
order against the applicant. The applicant claims that he is a citizen of Canada and that the deportation order
against is him is therefore invalid.
The applicant’s citizenship
[5]
Both of the applicant’s natural parents were
Canadian citizens by birth. At the time of the applicant’s birth on June 5,
1947, his parents lived on a farm in rural Manitoba near the U.S.
border. At the time, the nearest medical facility was located in Westhope, North Dakota, approximately 10
miles away. As there was no public health system in Canada at the time, the applicant’s parents decided to travel to the
nearest facility in North Dakota for the applicant’s birth--as they had done for each of their
children. After the applicant’s birth, the family returned to its farm in Manitoba.
[6]
The applicant states that he was not aware that
his birth needed to be registered in order for Canada to consider him a Canadian citizen. Throughout his life, the
applicant believed he was in fact a citizen of Canada. His parents received family allowance cheques from the government
on account of all of their children. The applicant voted in Canadian elections,
and he has provided evidence from Elections Canada confirming that he is a
registered voter.
[7]
The applicant states that he was first informed that
he was not a citizen of Canada on June 14, 2006 when he received the report issued
under s.44(1) of the Immigration and Refugee Protection Act stating that
he was inadmissible because of his conviction.
The law governing the applicant’s
citizenship
[8]
The applicant relies on paragraph 3(1)(e)
of the Citizenship Act, R.S.C. 1985, c. C-29, which provides:
|
PART I
THE RIGHT TO
CITIZENSHIP
Persons who are citizens
3. (1) Subject to this
Act, a person is a citizen if
[…]
(e) the
person was entitled, immediately before February 15, 1977, to become a
citizen under paragraph 5(1)(b) of the former Act.
|
PARTIE I
LE DROIT
À LA CITOYENNETÉ
Citoyens
3. (1) Sous
réserve des autres dispositions de la présente loi, a qualité de citoyen
toute personne :
[…]
e) habile, au 14 février 1977, à
devenir citoyen aux termes de l’alinéa 5(1)b) de l’ancienne loi.
|
[9]
Paragraph 5(1)(b) of the former Citizenship
Act, R.S.C. 1970, c. C-19, reads as follows:
|
Person born after December 31, 1946
5. (1) A person born after the 31st
day of December 1946 is a natural-born Canadian citizen,
[…]
(b) if he is born
outside Canada elsewhere than on a Canadian ship, and
(i) his father, or in the case
of a child born out of wedlock, his mother, at the time of that person’s
birth, is a Canadian citizen, and
(ii) the fact of his birth is
registered, in accordance with the regulations, within two years after its
occurrence or within such extended period as the Minister may authorize in
special cases.
|
Personne née après le 31 décembre 1945
5. (1) Une personne née après
le 31 décembre 1946 est un citoyen canadien de naissance,
[…]
(b) si elle est née hors du Canada
ailleurs que sur un navire canadien, et si
(i) son père ou, dans le cas d’un enfant
né hors du marriage, sa mere, au moment de la nassance de cette personne,
était un citoyen canadien, et si
(ii) le fait de
sa naissance est inscrit, en conformité des règlements, au cours des deux
années qui suivent cet événement ou au cours de la période prolongée que le
Ministre peut autoriser en des cas spéciaux.
|
[10]
The applicant did not register the fact of his
birth within two years of its occurrence as required under s. 5(1)(b) of the
former Act. However, the applicant argues that the jurisprudence of the Federal
Court supports the proposition that his entitlement to citizenship is not
dependent on registration and, furthermore, that the automatic loss of
citizenship provisions in the former Act are unenforceable against the
applicant.
[11]
Mr. Justice Luc Martineau in Taylor v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1053 held that the
automatic loss of citizenship effected by the Act was unenforceable against Mr.
Taylor because it is contrary to due process and infringes the rights
guaranteed by paragraphs 1(a) and 2(e) of the Canadian Bill of Rights
and section 7 of the Charter:
¶249 The
simple fact that the automatic loss of citizenship was "prescribed by
law" does not make it more compliant with due process if it has the potential
to deprive one's life, liberty or security (see Reference re Motor Vehicle Act (British Columbia)
S 94(2), supra). There
should be some form of proper notice given to the individual, provided for in
the statute or regulations. However, it is not the role of this Court to
remedy past and current legislative or regulatory deficiencies. It is
sufficient to declare that the claimed automatic loss of citizenship was and is
unenforceable against the Applicant because it was and is contrary to due
process and infringes the rights guaranteed by paragraphs 1(a) and 2(e) of the Bill of Rights, and section 7 of the
Charter.
[Emphasis added]
[12]
The respondent has
filed a notice of appeal in respect of the Taylor
judgment and a decision of the Federal Court of Appeal is pending. It is not
necessary for the purpose of this motion to determine conclusively whether the
applicant is entitled to Canadian citizenship despite the provisions in the Citizenship
Act which purport to deny him citizenship because he did not register the
fact of his birth before the prescribed deadline. The parties also advise that
the applicant has applied for proof of citizenship, and that the respondent has
imposed “interim instructions” prohibiting determinations regarding citizenship
in cases such as the applicant pending the outcome of a motion before the
Federal Court of Appeal for a stay of the Federal Court’s judgment in Taylor. In effect, the applicant’s citizenship status, and in turn the
validity of his deportation order, remain in suspense due to factors beyond his
control.
Analysis
[13]
Three requirements must
be met to obtain an order stating execution of a removal order: there must be a
serious question to be determined by the Court; the party seeking the stay
would suffer irreparable harm if the stay were not issued; and the balance of
convenience must favour the party seeking the stay such that he will suffer the
greater harm from the refusal to grant the stay: Toth v. Canada (Minister of
Citizenship and Immigration, [1988] F.C.J. No. 587; 86 N.R. 302; 6 Imm. L.R. (2d) 123 (F.C.A).
Serious issue
[14]
In my view, the applicant’s argument has merit.
In any event, he has raised a serious issue as required under the tripartite
test for granting a stay under s. 18.2 of the Federal Courts Act. If he
is a citizen of Canada, it
necessarily follows that the deportation order is invalid.
Irreparable harm
[15]
The immediate irreparable harm claimed by the
applicant arises out of the fact that the issuance of the deportation order has
prevented him from accessing Accelerated Day Parole and Unescorted Temporary
Absences, to which he would otherwise be entitled, as a result of subsection
128(4) of the Corrections and Conditional Release Act, S.C. 1992, c. 20:
|
Effect of Parole, Statutory Release or
Unescorted Temporary Absence
Removal order
128. […]
(4) Despite
this Act or the Prisons and Reformatories Act, an offender against
whom a removal order has been made under the Immigration and Refugee
Protection Act is ineligible for day parole or an unescorted temporary absence
until the offender is eligible for full parole.
|
Conséquences de la libération
conditionnelle ou d’office et permission de sortir sans escorte
Mesure de renvoi
128. […]
(4) Malgré la présente loi ou la Loi sur les prisons et les
maisons de correction, l’admissibilité à la libération conditionnelle
totale de quiconque est visé par une mesure de renvoi au titre de la Loi
sur l’immigration et la protection des réfugiés est préalable à
l’admissibilité à la semi-liberté ou à l’absence temporaire sans escorte.
|
[16]
The applicant also submits that prison
authorities have reclassified the applicant as a medium security risk because
of the deportation order, rather than a minimum security risk, which prevented
his transfer to the Riverbend minimum security institution.
[17]
In my view, the execution of the deportation
order constitutes irreparable harm for the applicant. In particular, if the
applicant is successful in establishing his citizenship, the execution of the
deportation order, would prima facie infringe his right under section 6
of the Charter to enter and remain in Canada. The respondent argues that no irreparable harm arises because a
date has not been scheduled for the removal order, and this motion has been
brought prematurely. I do not agree. The issuance of the deportation order has
triggered a serious consequence for the applicant, the automatic ineligibility
for day parole for which the applicant would otherwise be eligible. It is no
answer, as the respondent has argued, that damages may compensate the applicant
for any unlawful confinement which might arise should the deportation order
prove to be invalid. A person’s loss of liberty cannot always be adequately
compensated for in damages. I am satisfied that the circumstances give rise to
irreparable harm to the applicant should a stay be denied.
Balance of convenience
[18]
There is minimal prejudice to the respondent in
staying the effect of the deportation order. The applicant has lived in Canada for 59 years. I am of the view that
the balance of convenience favours the applicant.
Conclusion
[19]
For the reasons above, the motion is allowed. An
interim order will issue staying the effect of the deportation order pending
the final disposition of the underlying application for judicial review.
Additionally, as agreed by the parties, the style of cause will be amended to
reflect the designation of the Minister of Public Safety and Emergency
Preparedness as the responsible authority.
ORDER
THIS COURT ORDERS that:
1.
the
deportation order issued against the applicant is stayed pending the
disposition of the underlying application for judicial review; and
2.
the style
of cause is amended to name the Minister of Public Safety and Emergency
Preparedness as respondent in lieu of the Minister of Citizenship and
Immigration.
“Michael
A. Kelen”
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