Date: 20070329
Docket: IMM-2419-06
Citation: 2007 FC 336
Toronto, Ontario, March 29,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
THE MINISTER OF PUBLIC SAFETY and
EMERGENCY PREPAREDNESS
Applicant
and
PETER
LAWSON SIMMONDS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by the Minister of Public Safety and Emergency Preparedness
for judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board dated April 21, 2006 in which it was ordered that
the execution of a removal order issued against the Respondent Peter Lawson
Simmonds be stayed for a period of three years subject to certain terms and
conditions. For the reasons that follow, I find that the application is
dismissed.
[2]
The
Respondent, Simmonds, was born in Jamaica. He entered Canada when he was
fifteen years old as a permanent resident having been sponsored by his mother.
Simmonds became addicted to serious drugs such as crack cocaine and was
convicted of numerous criminal offences including those of assault and armed
robbery.
[3]
Simmonds
has been in Canada some 32 years;
he has been married to a Canadian citizen for some nine years, having
previously been in a relationship with the woman who became his wife for some
five years previous. He says that his convictions are a result of his drug
addiction and that he intends to seek remedial treatment leading to a career as
a cook. Since 1996, he argues, there have been no recorded incidents against
him and his convictions arise from a Court finding in 1996 although sentence
was not imposed until 2003 since he apparently could not be apprehended. He
was apprehended when he sought re-entry into Canada from what he
described as a short vacation to Jamaica.
[4] A decision was made by the
Immigration Division dated December 4, 2003 that Simmonds should be removed
from Canada pursuant to section 36(1)(a) of the Immigration and Refugee
Protection Act. An appeal was taken from that decision to the Immigration
Appeal Division of the Immigration and Refugee Board and that appeal was
successful. In its decision dated April 21, 2006, which is the decision in
respect of which judicial review is sought here, the Appeal Division stayed
removal for a period of three years on terms and conditions set out in the
formal Order. An interim reconsideration of the case was ordered to be made on
or about June 1, 2007.
[5] The terms and conditions imposed
were numerous. Without repeating all of them, Simmonds was not to commit any
criminal offences, if charged or convicted he was to report it, he was to keep
the relevant Agency aware of his whereabouts, he was to report every six
months, and many more conditions were imposed. Most important were the terms
as to Interim Reconsideration and Final Reconsideration which I repeat here:
INTERIM RECONSIDERATION
An interim reconsideration of the case by
the Immigration Appeal Division will take place on or about the 1st
day of June, 2007, at which time it may
change or cancel any non-prescribed conditions imposed, or it may cancel the
stay and then allow or dismiss the appeal. You will receive a notice to appear
prior to the hearing date.
FINAL RECONSIDERATION
Take notice that the Immigration Appeal
Division will reconsider the case on or about the 21st
day of April, 2009, or at such other date as it
determines, at which time it may change or cancel any non-prescribed conditions
imposed, or it may cancel the stay and then allow or dismiss the appeal.
[6] The basis upon which I have
rejected this application is a pragmatic one. A Removal Order was made against
Simmonds in December, 2003. He nonetheless remained in Canada pending an
Appeal. That Appeal was not heard until March, 2006 and a decision made April,
2006. Thus he remained for a period of two and a half years in Canada until the
Appeal was determined. A further year has now gone by before the matter was
heard in this Court at the end of March, 2007.
[7] The decision under review stays
the removal for three years subject to compliance with many strict conditions.
One of those years has already gone by.
[8] The decision under review itself
will be reviewed in about two months time at which time it could be changed or
even set aside. Even if I were to grant the Order sought and set aside that
decision, nothing would be gained by the Minister since a review pursuant to a
Court Order would probably not occur for several months, with a possibility of
judicial review after that. By that time Simmonds would be near the end of the
three-year stay of his Removal Order anyway.
[9] Since the Interim Review in two
months and the Final Reconsideration in two years as provided in the decision
under review in this Court both provide that the conditions imposed may be
changed or cancelled, that the stay may be cancelled and the Appeal as to
removal may be allowed or dismissed, there is little point in a Court judgment
at this time.
[10] The Minister argues that even if
the Appeal Division reviewed its decision as an Interim or Final bases, it
would only do so on the basis that there have been events arising since the
date of the decision that make the decision no longer appropriate. Whether or
not this is the case, it does not appear from a pragmatic point of view to make
any difference. If I were to certify a question, an appeal would take at least
a year to be heard and disposed of. If I were to allow the application and
retain the matter de novo to the Appeal Division, that would take a year
plus a further period if judicial review were sought. The stay of the removal
order expires in two years.
[11] I do not say that the matter is
moot because the Appeal Division has undertaken an Interim as well as a Final Review.
What I do say is, pragmatically, if I were to make decision to return the
matter de novo it would make little difference since the remainder of
the three year stay would be pretty much exhausted by the time a final
determination of the new proceeding, including my judicial review, was
completed. It would be a waste of the resources of the Board, Appeal Division
and this Court. Therefore no question will be certified.
JUDGMENT
For the Reasons provided;
THIS COURT ADJUDGES that:
1.
The
Application is dismissed;
2.
There
is no question to be certified; and
3.
There
is no Order as to costs.
“Roger T. Hughes”
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