Date: 20090109
Docket: IMM-5629-08
Citation: 2009 FC 28
BETWEEN:
ARNALDO ACHI DELISLE
AND JOANNA DIZAZZO
Applicants
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
LEMIEUX J.
Introduction and Background
[1]
On
Monday, January 5, 2009, I granted the Applicant, Arnaldo Archi Delisle, a
citizen of Cuba, a stay of the execution of his removal to the United States,
scheduled for Wednesday, January 7, 2009, at 8:00 a.m., until leave of the
underlying application for judicial review was decided and, if granted, until
the judicial review application was decided.
[2]
The
stay application is grafted to a challenge by way of an application for leave
and judicial review of the December 19, 2008 decision of an Enforcement Officer
who refused to defer his removal which had been requested on December 15, 2008
on two grounds:
1. The recently
discovered fact his wife Joanna Dizazzo was three and one half months pregnant who
provided a letter from her family physician, dated December 12, 2008, her
pregnancy was considered a high risk due to her weight and rhumatological
condition and that it was not advisable she undergo “the major stress and
distress associated with losing her husband and parent at a most vulnerable
time in her life”.
2. A letter
dated December 14, 2008, from the Legal Services Coordinator of Vermont Refugee
Assistance Inc., who expressed the view that if removed, Mr. Delisle “will face
mandatory detention if returned to the United States and his
eligibility for relief from removal is severely limited”.
[3]
This
is Mr. Delisle’s second stay application. I dismissed his first stay
application by decision, dated November 26, 2008, reported at 2008 FC 1325.
That first stay application was grafted to an application for leave and judicial
review of a decision of a Minister’s Delegate, dated September 15, 2008, but
only communicated to him on October 15, 2008 determining: (1) he would not be
at risk if he was returned to his country of nationality (Cuba) or his country
of habitual residence (the United States); (2) he was not a danger to
the public in Canada; and, (3) there were insufficient humanitarian and
compassionate grounds to keep him in Canada.
[4]
In
rejecting the first stay application, I wrote the following at paragraphs 14
and 15 in terms of serious issue:
(a)
Serious
question to be tried
[14] The Supreme Court of Canada in RJR
-- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (RJR
-- MacDonald) discussed the indicators of a serious question to be tried
stating the threshold was a low one and that the judge on the application for a
stay must make a preliminary assessment of the merits of the case and once
satisfied that the application is neither vexatious or frivolous should go on
to consider the other two criteria.
[15] Counsel for the applicant raised
in my view at least the following serious questions:
1)
Did the
Delegate apply the correct legal test to determine that
conditions in Cuba
had changed to such an extent so as to eliminate
any section 97 risk to the applicant if returned to Cuba?
2)
Did the
Delegate err in fact by ignoring relevant documentary
evidence on current conditions in Cuba and specifically in failing to
comment on the US DOS report on Cuba published in March 2008
which was in front of him?
[5]
As
to irreparable harm, I said this in rejecting his stay application, I wrote in
part:
[20] First, while I accept that
irreparable harm may in some circumstances encompass that type of harm to a
family unit (see Kahn v. the Minister of Public Safety and Emergency
Preparedness, 2005 FC 1107, at paragraph 27), I am not satisfied that,
after reading the applicant’s affidavits and those of his partner Jo-Anne
Dizazzo, he has identified any harm which rises above the harm normally
associated with the execution of a lawful deportation order. In my view, the
harm the applicant and his partner have identified is inherent in the nature of
a deportation involving the removal of a family member. The applicant had to
show his particular circumstances and those of his family unit disclosed a type
of harm upon removal which was unique and special. This he has failed to do.
[6]
On
a balance of convenience, I found:
(c) Balance of convenience
[35] Not having established
irreparable harm, the balance of convenience favours the Minister in
discharging his obligations under section 48 of the Act to remove the
applicant as soon as practicable.
Facts
[7]
The
facts are set out in 2008 FC 1325 and may be summarized:
(a) Mr. Delisle
fled Cuba on a raft in September 1994, was picked up by the U.S. Navy
and sent to Guantanamo Bay, but was permitted to enter the United States in
1995 on a special program related to Cuban nationals. He apparently became a
permanent resident, a status which he may have lost because of two criminal
convictions in 1996 and 1997 whose sentences he served in U.S. prisons.
(b) He came to
Canada on February 17, 2000, claimed refugee status, was found to have a well
founded fear of persecution from Cuba, but was deemed excluded under section
1Fb) of the Geneva Convention because of the serious crimes he had committed in
the United States.
(c) He
established a common law relationship with Joanna Dizazzo in early 2001,
their son Alejandro
is born of that union; the family unit also includes Tyson, a 15 year old
teenager, the product of a union between Joanna Dizazzo and a previous
relationship.
(d) From the record in Mr.
Delisle’s first stay application, it is clear her most recent pregnancy was
unknown to the Applicants, who recently married, until after I had dismissed
Mr. Delisle’s first stay application. Ms. Dizazzo is the breadwinner of the
family unit with Mr. Delisle being the caregiver. I am also satisfied the
pregnancy occurred before the Minister’s Delegate informed Mr. Delisle
of his decision communicated in late October 2008.
[8]
Some
extracts from Dr. Colavincenzo’s December 12, 2008 letter concerning Joanna
Dizazzo, which was before the Enforcement Officer, are quoted below. It is
important to appreciate this letter is not controverted there being no other
evidence on the record concerning the impact on his wife and unborn child of
Mr. Delisle’s removal. Dr. Colavincenzo is Joanna Dizazzo’s family physician
who has known her for approximately eight years and has treated her on several
medical issues. The doctor stated:
1.
When she
informed him on December 9, 2008 of her unplanned and unexpected pregnancy, she
visited his office and “she was completely unrecognizable. I’ve known her for
many years and I have never seen her so sad and full of fear and despair”.
2.
“Psychologically,
she displays deep emotions of sadness and anxiety including lack of appetite,
nausea, fatigue and pessimism that will be detrimental to her health and also
to the well being of her two children who have always had a happy and strong
mother. More importantly, this condition could also have an effect on the well
being of her unborn child with the risk of premature weight and birth and more
tragically the risk of a miscarriage. Moreover, considering her unhealthy
mental state she may have a major psychological problem when the baby is born
that is known as post partum depression. This condition is prevalent and
dangerous in that it may lead to unpredictable and tragic events.”
3.
“As far as
treatments are concerned, they do exist. But during pregnancy it is always
advisable not to take any medication because of the risk of teratogenicity or
toxicity. In this case the best treatment is to remedy the underlying
circumstance or situation and that is to avoid destabilizing or causing stress
and distress to an individual who is both physically and psychologically
fragile. A loss of her husband would be strongly detrimental to her health.”
4.
“In light
of what I’ve reported above, with the opinion that the deportation of her
husband (that is considered a loss in her life and to the life of her
children), this would have a negative impact on her life, on her pregnancy and
as a mother of two children, it is strongly recommended that a favorable
decision be granted so as to avoid potentially danger to Mrs. Dizazzo’s health.
As a physician in family practice I believe in compassion and humanitarianism
and most of all I strive to promote and maintain health in all my patients and
this lady is no exception. That is why I freely wrote this letter.”
Analysis
[9]
I
make three preliminary observations. First, counsel for the Respondent Minister
challenged Joanna Dizazzo’s standing to be an Applicant in this proceeding,
submitting she was not directly affected by the Enforcement Officer’s decision
not to defer Mr. Delisle’s removal to the United States because as a
Canadian citizen she could not be removed. Counsel for the Applicants submitted
her Charter rights were affected and therefore she has standing. It is
unnecessary for me to determine the issue because on ordinary principles
relating to stay of removal orders, as a member of the family unit, harm to her
would provide sufficient connection and is a relevant consideration in
determining Mr. Delisle’s removal (see Toth v. Canada (Minister of Employment
and Immigration), (1988) 86 N.R. 302 (C.A.) and Wang
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, at
paragraph 44, where Justice Pelletier, as he then was, wrote interpreting the
statutory provision that the execution of removal orders must be carried out as
soon as reasonably practicable:
44 Obviously,
there is a range of factors arising from the mechanics of making travel
arrangements which will require the exercise of some judgment and discretion.
The vagaries of airline schedules, the uncertainties related to the issuance of
travel documents, medical conditions affecting the ability to travel, these are
all factors which could result in removal being rescheduled. Beyond that are
factors outside the narrow compass of travel arrangements but which are
affected by those arrangements such as children's school years, pending births
or deaths. These too could influence the timing of removal. These arise even on
the narrowest reading of section 48 of the Act. [My emphasis.]
[10]
Second,
I need not deal with the Charter Issues raised by counsel for the Applicants,
as in my view, this application for a stay can be determined on the settled
jurisprudence of this Court as to when it is appropriate to grant a stay or not,
in the light of the statutory mandate, which Parliament has set out in several
versions of federal laws relating to immigration that removals shall be carried
out as soon as reasonably practicable. My overall finding is that, in the
unique circumstances of this case, it was not reasonably practicable to enforce
his removal order at this time.
[11]
Third,
since I found that the issue, surrounding Joanna Dizazzo’s health and that of
her unborn child determinative, I need not comment on the second ground,
advanced by counsel for the Applicants, relating to the opinion expressed by
Vermont Refugee Assistance Inc. as to Mr. Delisle’s mandatory detention if
removed to the United States and the availability of options for
relief.
[12]
The
parties acknowledge it is settled law to obtain a stay, an Applicant must
establish conjunctively: (1) the existence of a serious issue to be tried; (2)
irreparable harm and balance of convenience.
[13]
As
I indicated orally when granting the stay, I was satisfied, on the unique and uncontroverted
evidence before me, the three part test has been met in this case.
(a) Serious issue
[14]
Counsel
for the Respondent argued and the Court and counsel for the Applicants agreed
the normally low threshold of a serious issue, not being frivolous or vexatious,
was not applicable in this case and that the Applicants had to establish the
serious question(s) would point to a likelihood of success.
[15]
I
find counsel for the Applicants has made out at least three serious questions
to be tried which flow from the written reasons of the Enforcement Officer,
dated December 19, 2008. Referring to a statement made by Dr. Colavincenzo in
his letter, of December 12, 2008, that “her pregnancy could be considered as
high risk due to her weight and rhumatological condition […] not advisable that
she undergo the major stress” the Enforcement Officer wrote:
According to that letter, Ms. Dizazzo’s
medical condition is not a direct consequence of her husband’s removal. The
stress associated with the removal would merely be an additional factor to
other health problems. Moreover, the family has first learned of the
removal procedure in October 2008, giving them time to prepare for it. On
December 15th, 2008, we have also accorded them a 3 weeks extra delay
in order for them to spend the holidays together.
We therefore believe that you have not
identified any harm that rises above the consequences normally associated with
the execution of a lawful deportation order. In reaching this decision, we have also
considered that Ms. Dizazzo has a family in Canada to support her, and access to medical
care.
[16]
I
set out these serious questions which meet the likelihood of success criteria:
1. Did the
Enforcement Officer apply the proper test to gauge whether removal was
warranted or not. Recent jurisprudence suggests the proper test is to determine
whether there are compelling personal circumstances to warrant deferral? (See Ramada
v. Canada (Solicitor
General),
[2005] F.C.J. No. 1384 and Tamar Mazakian et al v. the Minister of
Citizenship and Immigration et al, 2008 FC 1248.) Moreover, in Wang
above, Justice Pelletier specifically referred to pending births as a relevant
factor to be considered.
2. Did the
Enforcement Officer misinterpret the medical evidence? She found as a fact that
Joanna Dizazzo’s medical condition is not a direct consequence of her husband’s
removal; the stress associated with the removal is merely an additional factor
to other health problems. There is a serious question the Enforcement Officer
misinterpreted what the doctor was saying. What he was really saying was, but
for Mr. Delisle’s removal, she and her unborn child would not be exposed to the
risks he identified. In her second medical finding, the Enforcement Officer
found she had family in Canada who could support her and have access to
medical care. I agree with counsel for the Applicants this finding, unsupported
by any evidence, is based on pure conjecture.
3. Was there a
positive duty on the Enforcement Officer to seek a medical opinion as to the
strength of Dr. Colavincenzo’s advice particularly when she was specifically
asked to do so by the Applicants’ counsel?
(b) Irreparable harm
[17]
Based
on the unchallenged evidence before me, Joanna Dizazzo has demonstrated
irreparable harm if her husband Mr. Delisle is removed from Canada at this
time. Her physical security is affected as is that of the unborn child. Counsel
for the Respondent conceded as much when questioned by the Court. I add,
however, this case cannot be taken for the proposition that a normal pregnancy
would justify a stay on grounds of irreparable harm. This case, as the evidence
showed, rises much higher, reaching to serious harm which cannot be said to be
a normal consequence of removal.
(c) Balance of convenience
[18]
Having
raised a serious issue and irreparable harm, the balance of convenience favours
the Applicants. Two additional factors enter into the equation. Mr. Delisle is
not a danger to the Canadian public (as found by the Minister’s delegate).
Moreover, he is the essential caregiver.
[19]
For
these reasons, the stay of removal is granted.
“François Lemieux”
______________________________
Judge
Ottawa, Ontario
January
9, 2009
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