Date: 20010810
Docket: IMM-3794-01
IMM-3796-01
Neutral citation: 2001 FCT 877
Ottawa, Ontario, this 10th day of August, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LEON BROWN
by his litigation guardian
CARMEN BROWN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by the applicant for an order staying the deportation of the applicant which was scheduled by the removal officer to take place on August 13, 2001. It is the decision of the removal officer dated August 7, 2001 not to defer the removal that is the subject of the judicial review applications. The applicant is to be deported to Jamaica.
[2] The applicant is 36 years old and he came to Canada as a permanent resident in 1979. According to the affidavit of the applicant's mother, he suffers from mild mental retardation with an IQ of about 47.
[3] After the applicant was diagnosed as having schizophrenia in 1983, he began to break the law and he has several convictions, the last conviction being in 1993.
[4] In 1993, the applicant was declared financially incompetent and his affairs since that time have been managed by the public guardian and trustee.
[5] In 1997, the applicant was placed on the drug clozapine which is an effective form of treatment for his schizophrenia. Other drugs used did not help his illness. Since the applicant started taking clozapine, there has been a dramatic improvement in the control of his illness.
[6] The applicant had three brothers all of whom had mental illness. All three of his brothers have been deported to Jamaica. His brother, Ronald, died in Jamaica under circumstances his mother believes were related to his mental illness. The applicant's brother, Earl is schizophrenic and after he was deported to Jamaica he disappeared. His mother believes he is dead. The remaining brother, Mark is in the Bellevue mental hospital in Jamaica and according to his mother, not doing very well.
[7] Apparently, if a patient at Bellevue becomes a difficult case, the patient is discharged and forced to live on the streets. If there are allegations of criminal wrong doing made against such a patient, the patient is detained in a regular prison.
[8] There is conflicting evidence about the availability of clozapine at Bellevue. The respondent's documents indicate that there is an equivalent of clozapine available at Bellevue hospital.
[9] The medical evidence is to the effect that the applicant needs clozapine to treat his illness and that this is the only drug that has successfully managed his condition.
[10] The applicant has made an H & C application.
[11] Issue
Should an order issue staying the removal order?
[12] Analysis and Decision
It is now established that a removal officer has some discretion and may in certain circumstances, stay the removal of the applicant (see Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 295 (F.C.T.D.)).
[13] In order to obtain a stay, the applicant must satisfy the requirements set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:
This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:
The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties, favours the order.
The applicant is required to satisfy all three branches of the tri-partite test.
[14] Serious Issue
I am of the opinion that the applicant has raised serious issues to be tried. These issues include:
1. Did the removal officer err in stating that "No new information has been provided, the same medical reports have been sent to Jamaican authorities."?
2. Should the removal officer have deferred the removal until a risk assessment was completed?
3. Is it a violation of the principles of fundamental justice to deport the applicant back to Jamaica?
[15] Irreparable Harm
The documentary and affidavit evidence establishes that mentally ill people such as the applicant may not continue to receive treatment if their condition becomes too difficult to treat. If the applicant cannot remain at Bellevue hospital, he would be discharged to the streets. If the past is any indication of the future, the applicant will most likely break the law if he is placed on the streets with no treatment for his illness. If he breaks the law, he would be placed and held in a regular prison. It must be remembered that the applicant cannot even manage his own financial affairs.
[16] Currently, the applicant's disease is under control with clozapine and he is being looked after by a competent care giver. If the applicant is deported to Jamaica prior to his applications being decided, the evidence before me shows that he could find himself on the streets without treatment and without financial or emotional support. The end result would be that the applicant, who suffers from a mental illness and who has a diagnosis of mild mental retardation could find himself in a regular prison for breaches of the law as he tended to break the law when not under treatment. In my view, this constitutes irreparable harm to the applicant.
[17] Balance of Convenience
The respondent argued that the balance of convenience favours the respondent. The respondent referred to the costs to the taxpayer to keep the applicant in Canada until his applications are determined. I believe that these costs are a very small consideration to pay in order to maintain the applicant's improved mental health until his applications are dealt with. The respondent can still enforce the provisions of the Immigration Act if the applicant is unsuccessful in his applications and the delay will not be unduly long. I find that the balance of convenience favours the applicant.
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