Date: 20070320
Docket: IMM-1064-07
Citation: 2007
FC 302
Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
CLEMENT
LLOYD JONES
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
Clement
Jones is British. His estranged wife, Michelle, is Canadian. They met and
married in England, where their twin sons Evan
and Dylan were born. Evan and Dylan are now three years of age. The Joneses moved
to Canada where their marriage quickly
unravelled. At Michelle’s instance, criminal charges were laid against Clement
relating to assault and destruction of property. He was acquitted of all
assault charges but convicted of mischief.
[2]
He has no
legal standing in Canada. Moreover, he has been found
inadmissible and is subject to be deported later this week.
[3]
However,
both Clement and Michelle want custody of Evan and Dylan. At present, Michelle
has de facto custody, but Clement has court sanctioned visiting rights.
The next court hearing is 10 April, but it may be a few months more before the
Court issues a final custody order. Both parents have agreed to psychological
testing which would include professional observations as to how each interacts
with the children.
[4]
Clement
does not contest the fact that he is inadmissible. However, he asked the
enforcement officer to defer his deportation until custody is resolved. The
enforcement officer refused to do so. An application for leave and for judicial
review of that decision has been taken pursuant to section 72 of the Immigration
and Refugee Protection Act (IRPA). In the interim, Clement seeks a stay of
his deportation.
DECISION
[5]
After
considering the written and oral representations of counsel, I have decided to
grant the stay.
ISSUES
[6]
The issue
is whether the requirements of the cumulative tri-partite stay, enunciated in
such cases as Toth v. Canada (Minister of Employment
and Immigration) (1988), 86 N.R. 302 and RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, have been met. The onus is on Mr. Jones to show there is a
serious underlying issue, that the refusal to grant a stay would result in
irreparable harm, and that the balance of convenience rests with him.
THE DECISION OF THE ENFORCEMENT OFFICER
[7]
It began
with a report from an immigration officer to the Minister of Citizenship and
Immigration in accordance with section 44(1) of IRPA. The officer was of the
opinion that Mr. Jones, a foreign national, was inadmissible to Canada. The officer’s opinion was
that Mr. Jones was inadmissible pursuant to section 36(2) (a) of IRPA in that he
had been convicted of an offence under an act of Parliament punishable by way
of indictment. The conviction was for mischief contrary to section 430(1) (c)
of the Criminal Code. Although the matter had been prosecuted summarily,
and he had been given a suspended sentence, section 36(3) of the Act provides
that it matters not that an offence which could have been prosecuted by way of
indictment was prosecuted summarily.
[8]
If the
Minister is of the opinion that the report is well-founded (which it was), he
may refer the report to the immigration division for an admissibility hearing.
On 19 February 2007 the Minister’s delegate prepared notes which referred to
the civil litigation underway with respect to custody. The delegate concluded
that Mr. Jones did fall within section 36(2) (a) of IRPA, writing, “I therefore
must issue a deportation order.” That statement is correct in law.
[9]
Thereafter,
the Minister’s delegate also acted as an enforcement officer under section 48
of IRPA which provides:
|
(1)
A removal order is enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable, the foreign
national against whom it was made must leave Canada immediately and it must be enforced as
soon as is reasonably practicable.
|
(1) La mesure de renvoi est exécutoire
depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[10]
The next step was a
letter from Mr. Jones’ counsel to the enforcement officer. This letter
emphasized that the ongoing family court proceedings were central to the lives of
Mr. Jones and his sons. It was estimated that the psychological testing and all
custody issues in the family dispute would be resolved within months. The
letter concluded by stating that if a decision was not forthcoming by 5 March
2007 it would be assumed that the officer decided not to defer removal.
[11]
According to Mr.
Jones’ affidavit, the enforcement officer met with him on 6 March. The officer
informed him orally that the request for deferral was denied. “He stated that
he could do nothing…” There is no affidavit from the enforcement officer
contradicting Mr. Jones, and no reasons given with respect to the refusal to
defer. All that is contained in the file are the uncontested reports of Mr. Jones’
inadmissibility.
ANALYSIS
[12]
I am sure that the
last word has not yet been written on the meaning of “as soon as is reasonably
practicable” found in section 48 of IRPA. In the meantime, I rely upon the
decision of Mr. Justice O’Reilly in Ramada v. Canada (Solicitor General), 2005 FC 1112, where he said:
[3] Enforcement officers have
a limited discretion to defer the removal of persons who have been ordered to
leave Canada. Generally speaking, officers have an obligation to remove persons
as soon as reasonably practicable (s. 48(2), Immigration and Refugee Protection
Act, S.C. 2001, c. 27; set out in the attached Annex). However, consistent with
that duty, officers can consider whether there are good reasons to delay
removal. Valid reasons may be related to the person's ability to travel (e.g.
illness or a lack of proper travel documents), the need to accommodate other
commitments (e.g. school or family obligations), or compelling personal
circumstances (e.g. humanitarian and compassionate considerations). (See: Simoes
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936
(T.D.) (QL), Wang v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 682
(T.D.) (QL), Prasad v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 805
(T.D.) (QL); Padda v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1353
(F.C.) (QL)). It is clear, however, that the mere fact that a person has an
outstanding application for humanitarian and compassionate relief is not a
sufficient ground to defer removal. On the other hand, an officer must consider
whether exigent personal circumstances, particularly those involving children,
justify delay.
[13]
His reasons pertained
to a judicial review, not a stay. One of the issues was the health of one of
the children. Mr. Justice O’Reilly continued:
[5] The officer is to be
commended for her willingness to entertain Ms. Ramada's arguments and consider
the evidence before her. She made detailed notes explaining her decision not to
defer Ms. Ramada's removal from Canada. She took the additional precaution of
seeking a medical opinion on Ms. Ramada's fitness to travel. She considered, at
least in general terms, the best interests of Ms. Ramada's two Canadian-born
children.
[…]
[7] I have some reluctance
in granting this application for judicial review, out of concern for imposing
on enforcement officers an obligation to engage in an extensive analysis of the
personal circumstances of persons subject to removal orders. Obviously,
officers are not in a position to evaluate all of the evidence that might be
relevant in an application for humanitarian and compassionate relief. Their
role is important, but limited. In my view, it is only where they have
overlooked an important factor, or seriously misapprehended the circumstances
of a person to be removed, that their discretion should be second-guessed on
judicial review.
SERIOUS ISSUE
[14]
Although the scope of
discretion given an enforcement officer under section 48 of IRPA is clearly not
as broad as the Minister’s discretion to allow someone to remain in Canada on humanitarian and compassionate grounds pursuant to
section 25 of IRPA, compelling circumstances of a temporary nature may be
considered. The officer gave no reasons for his refusal to defer. In fact the
evidence of Mr. Jones indicates that he did not realize that he had some
discretion, which was fettered. Although the officer may not have been obliged
to give reasons, if reasons are not given it is difficult to determine the
basis of a decision. Although decided in a criminal law context, R. v.
Sheppard, [2002] 1 S.C.R. 869 is à propos. Mr. Justice Binnie said:
[15] Reasons for judgment are the primary
mechanism by which judges account to the parties and to the public for the
decisions they render. The courts frequently say that justice must not only be
done but must be seen to be done, but critics respond that it is difficult to
see how justice can be seen to be done if judges fail to articulate the reasons
for their actions. Trial courts, where the essential findings of facts and
drawing of inferences are done, can only be held properly to account if the
reasons for their adjudication are transparent and accessible to the public and
to the appellate courts.
[…]
[18] In Canadian administrative law, this
Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, at para. 43, that:
... it is now appropriate to recognize that, in
certain circumstances, the duty of procedural fairness will require the
provision of a written explanation for a decision. The strong arguments
demonstrating the advantages of written reasons suggest that, in cases such as
this where the decision has important significance for the individual, when
there is a statutory right of appeal, or in other circumstances, some form of
reasons should be required.
[15]
Even if we were to
relate back to the enforcement officer’s report as the Minister’s delegate, a
recital of facts without analysis does not constitute a reasoned decision.
[16]
I find that the
custody of the children was a serious issue which was not at all considered.
[17]
The Minister referred
to the decision of Mr. Justice Pelletier, as he then was, in Wang v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No.
295 (QL) where he said that the judge hearing a motion for a stay should not
simply decide the serious issue test on the question of whether it is not
vexatious and not frivolous “…but should go further and closely examine the merits
of the underlying application.”
[18]
This led both parties
to offer suggestions as to the outcome of the custody dispute. This arises from
the fact that the conclusion of the motion was in the alternative for a stay
pending the application for leave and judicial review of the decision not to
defer removal or that the removal be stayed for at least six months or until
such time as custody has been decided.
[19]
It would be
completely inappropriate for me to offer any opinion on matters before the
Ontario Family Court. The serious issue has to relate to the one before this
Court which is the decision of the enforcement officer. Furthermore, unlike Wang,
above, Mr. Jones is only seeking a temporary stay. In my view, the enforcement
officer’s consideration of the scope of section 48 of IRPA, or his lack of
consideration, constitutes a serious issue, no matter what the standard.
IRREPARABLE HARM
[20]
Mr. Jones’ submission
is that he will have no chance to obtain a custody order if he is out of the
country. He would be unable to attend at the psychologist’s office with his
children, and would not be in Court at the custody hearing. The Ministers reply
that section 52 of IRPA permits them to authorize his return. However they offered
no evidence as to the normal administrative delays in that connection. Without
such evidence, I am satisfied that Mr. Jones’ case would be severely
prejudiced. Indeed, the interests of his children may also be prejudiced if his
wife gains custody solely by default.
[21]
Natural justice
requires that Mr. Jones be given a full opportunity to be heard in the pending
custody hearings. See
Ball c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2005 CF
1609.
BALANCE OF CONVENIENCE
[22]
The Ministers have an
obligation to enforce the law. Furthermore in this case, Mr. Jones has been
found to be inadmissible because of a criminal conviction in Canada. However he is not considered a particular risk in that he
is not in jail and furthermore is obliged to report to a parole officer weekly.
The scale is on Mr. Jones’ side.
ORDER
THIS COURT ORDERS that the applicant’s deportation
scheduled for 23 March 2007 is stayed pending the resolution of the application
for leave and for judicial review of the decision of the enforcement officer
not to defer removal.
“Sean Harrington”
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