Date: 20090825
Docket: IMM-4183-09
Citation: 2009 FC 843
Toronto, Ontario, August 25, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
EMILY ANNE MARIE SHARPE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant
filed a motion on an urgent basis on August 21, 2009, seeking an Order staying
the execution of the removal order made against her, now scheduled to be
executed on Wednesday, August 26, 2009 at 1:05 p.m.
[2]
The Respondent
submitted that the Court should not entertain this motion, as it would not be
in the interests of justice to do so because: (a) the Applicant is not coming
to the Court with clean hands, (b) the Applicant has not provided good grounds
for bringing this motion late and on an urgent basis, and (c) it is not open to
the Applicant to use the family courts to stay a removal order under the guise
of determining the best interests of a child;
[3]
The Court briefly heard
oral submissions of counsel at the Court in Toronto, Ontario,
on short notice, on Tuesday, August 25, 2009 at 2:00 p.m., following which the
parties were advised that the motion was being dismissed as the Applicant has
not come to the Court with clean hands. I have concluded that this Applicant
has engaged in an egregious course of conduct that has permitted her to stay in
Canada, with the exception of a
few weeks, since she first arrived in October 1995.
[4]
The Respondent, in a
letter sent to the Court on August 22, 2009 submitted that “the Court should
not entertain this motion due to the Applicant’s lack of clean hands, her
failure to disclose relevant information and her demonstrated unwillingness to
comply with Canada’s immigration laws and the process of this
Court.”
[5]
The Respondent pointed
out that the Applicant failed to report for removal on March 10, 2000 following
a negative refugee determination and a denial of a permanent residency
application on H&C grounds. The Applicant filed an application for leave
and judicial review challenging the Direction to Report (IMM-1226-00). A
warrant for her arrest was issued; she applied for a stay which was dismissed.
She was removed from Canada on or about July 15, 2000.
[6]
She returned to Canada some two weeks later on August 2, 2000, without
authorization. Since that time she has had a second H&C application
refused on May 14, 2001, a third H&C application dismissed on October 16,
2006, and a negative Pre-removal Risk Assessment made on April 29, 2009. A
fourth H&C application was filed July 16, 2009 and remains in process. On
October 19, 2006 and September 10, 2008 section 44 inadmissibility reports were
written against the Applicant.
[7]
In response to the
Respondent’s allegations of her failure to come to this Court with clean hands,
the Applicant filed an affidavit sworn August 24, 2009. In it she blames
others for the failures mentioned by the Respondent and accepts no personal
responsibility for her own actions. The Court finds that she is untruthful in
the affidavit.
[8]
She swears that she
failed to report for removal on March 10, 2000 because she was not provided
with the information that she was to report on that date by her immigration
consultant (and pastor) Raymond Cyrus. She fails to mention that on March 10,
2000 she filed an application (IMM-1226-00) for leave and judicial review of
the decision directing her to report for removal. I simply do not accept her
evidence that she was unaware of the requirement to report when she filed an
application for judicial review of that very direction on the very day she was
to report. Moreover, she filed an affidavit in IMM-1226-00 in which she swears
“I was issued a Departure Order effective within 30 days of February 9, 2000.”
Accordingly, she has been proved by her own words to have known that she was to
depart by March 10, 2000.
[9]
Further, she swears in
her current affidavit that Mr. Cyrus only retained a lawyer to act on her
behalf after she was informed that she was to be removed on July 15,
2000. Court file IMM-1226-00 shows otherwise. That file indicates that Mr.
Wayne DeLandro, a barrister and solicitor, filed a motion on March 13, 2000 for
a stay of execution of the deportation order issued against the Applicant.
[10]
In her current affidavit
she swears that:
The lawyer [retained
by Mr. Cyrus after being informed in July that she was to be deported] told me
that he would attend Court on the Tuesday prior to my scheduled removal on
Saturday, July 15th, 2000 to attempt to prevent my removal from Canada.
However, on the Friday, prior to my removal, I finally managed to
contact the lawyer, despite several failed attempts during the week prior. It
was on that date that the lawyer told me that he had a tooth ache and did not
attend Court on the Tuesday.
As a result, I complied with all instructions provided by the
removals officer and left Canada on July 15th, 2000.
[11]
Again, Court file
IMM-0226-00 proves this to be untruthful. The stay application filed March 13,
2000 with, I would add, an affidavit in support sworn by this Applicant on
February 16, 2000, was heard by Justice Hansen on Friday, July 14, 2000 and the
record shows that her counsel, Mr. DeLandro appeared and argued the motion.
Justice Hansen dismissed the motion for a stay of execution of the deportation
order.
[12]
The Applicant, after
her removal, returned to Canada without authorization some two weeks
later. In her affidavit she swears that the “removals officer then told me
that I could return to Canada after about two and a half to three weeks … [and
he] did not tell me that I had to seek authorization to return to Canada.” I
have grave doubt that the Applicant was told any such thing. Further, as was
pointed out by the Respondent, the Departure Order form contains an express
statement that “the person shall not, after the person is removed from or
otherwise leaves Canada, come into Canada without the
written consent of the Minister unless an appeal from the Order has been
allowed.” It is therefore clear that she ignored or was wilfully blind to the
prohibition against returning to Canada. She cannot
blame others for her actions.
[13]
The Applicant now
claims that she is responsible for and is seeking custody of her
granddaughter. The Court notes that this child was removed from Canada with her Mother in 2007. She was sent to live with
her Grandmother, the Applicant in January 2009. She apparently managed to
survive with her Mother in the intervening period. The Applicant only filed an
application for custody on August 20, 2009. The Respondent suggests that this
is an attempt to use the Family Court system and this child as a pawn in the
Applicant’s obvious desire to avoid removal from Canada. Given my finding as to the Applicant’s lack of honesty, her claim that
she was unable to commence the custody proceeding earlier due to financial
restraints but did so only after a Direction to Report for Removal was issued,
makes her explanation questionable.
[14]
Counsel urges me not to
visit the sins of the Grandmother on her Granddaughter. I am doing no such
thing. There are options open to the child to stay in Canada, where her father resides, or return to Grenada where her Mother resides. If the sins of the Grandmother are visited on
the Granddaughter it is not the Court’s doing; rather, it is the Grandmother’s
doing in failing to be honest.
[15]
I have come to the
conclusion that the Applicant has not been honest, upright, or sincere in her
dealings with the Immigration authorities or this Court. Her evidence filed in
support of her request for a stay has not been full, honest or candid. She has
failed to abide by Canadian law and lawful orders respecting her removal. She
has been in Canada without authorization for the better part of 13 years,
imposing a substantial drain on the resources of the persons who work diligently
in the immigration system when their time and attention could be better spent
responding to the demands of honest and candid applicants.
[16]
Had I heard this matter
on the merits, I would have found for these reasons, and others, that the
balance of convenience rested with the Respondent and would have dismissed the
motion on its merits for failing to meet all three parts of the tripartite test
in Toth v. Canada (Minister of Employment and Immigration) (1988), 86
N.R. 302 (F.C.A.).
[17]
I wish to make it clear
that I find no fault with the Applicant’s counsel. She relied on the
information provided to her by her client. It was not accurate. Counsel did
her best, without success, in difficult circumstances to convince the Court to
hear the motion on its merits.
ORDER
THIS COURT ORDERS that the motion for a stay is
dismissed.
“Russel W. Zinn”
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