Date: 20070904
Docket: IMM-3266-07
Citation: 2007
FC 882
Ottawa, Ontario, September
4, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
DIOGO
CICHACZEWSKI and
GLORIA
DANIELS
Applicants
and
THE
MINISTER OF CITIZENSHIP & IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
&
EMERGENCY PREPAREDNESS
Respondents
REASONS
FOR ORDER AND ORDER
“Everyone has
the following fundamental freedoms:
a) freedom of conscience
and religion;”
[1]
Our Canadian
Charter of Rights and Freedoms says nothing new. Freedom of religion is,
and has been, a cornerstone of Canadian society. This freedom has been
recognized by the United Nations in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
[2]
Mr. Cichaczewski
is a young man from Brazil. Gloria Daniels is his
Canadian wife. He is Christian, she Jewish.
[3]
He came
here in 2002 and claimed refugee status. His claim was based upon his fear of a
revenge attack by a drug dealer who was convicted and imprisoned as a result of
information he supplied the police. The drug deal also involved a police
officer. His refugee claim was declared abandoned, perhaps because of
incompetence on the part of his immigration counsellor. More recently, he
sought a pre-removal risk assessment (PRRA) and asked to remain in Canada on humanitarian and
compassionate (H&C) grounds while his application for permanent residence
status was being processed. One consideration is that he is well underway in
his conversion to Judaism.
[4]
Both
applications were refused. He has applied to this Court for leave and judicial
review thereof. In the meantime, he is scheduled to be removed from Canada on 15 September 2007. He
seeks a stay of that removal pending the outcome of his applications for
judicial review.
ISSUES
[5]
As always
in motions of this kind, the extraordinary remedy of an interlocutory stay is
only to be granted if there is a serious issue, irreparable harm and if the
balance of convenience favours the applicant (Toth v. Minister of Employment
and Immigration (1988), 86 N.R. 302 and RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311).
[6]
A serious
issue is one that is neither frivolous nor vexatious.
[7]
More to
the point, would an interruption of his religious conversion as a consequence
of his removal constitute a serious issue and result in irreparable harm?
DISCUSSION
[8]
Mr.
Cichaczewski has established a successful business as a subcontractor in the
construction industry. He married his wife last year. She was gainfully
employed as a teacher, but with his financial support, has now gone back to
school to follow a graduate program.
[9]
As
aforesaid, Ms. Daniels is Jewish, and Mr. Cichaczewski is in the process of
converting to that faith. His sincerity has not been put into question. It is
important to emphasize that this is not an opportunistic conversion.
[10]
During
argument, I said I would not grant a stay pending the outcome of the PRRA.
[11]
With
respect to the H&C application, an inland spousal application does not lie
at this time because Mr. Cichaczewski was convicted of a minor offence in 2004.
While he has not been declared inadmissible, it seems he would not be eligible
for a spousal sponsorship until pardoned for his offence, a pardon which could not
take place before 2010. The Minister adds that a special application can be
made pending that pardon, but the details are somewhat sketchy.
[12]
As I have
decided to grant the stay on religious grounds, I need not consider his wife’s
alleged financial dependency, or the many other submissions made on his behalf.
FREEDOM OF RELIGION
[13]
Everyone
has the right to believe, or not to believe. Everyone has the right to be a
member of an organized religion, subject to the tenants of that faith, or not. Everyone
has the right to give public witness to faith. Everyone has the right to change
religion.
[14]
As stated
by the Privy Council in Despatie v. Tremblay (1921), 1 A.C. 702 at 714:
The religion position in the Province of Quebec in 1774, was therefore that every
individual had the right to profess and practise the Catholic religion without
let or endurance. But it must be borne in mind that this is a privileged
granted to the individual. There is no legislative compulsion of any kind
whatever. He may change his religion at will. If he remains in the Roman
Catholic community he may, so far as the law is concerned, choose to be
orthodox or not, subject to the inherent power of any voluntary community, such
as the Roman Catholic Church, to decide the conditions on which he may remain a
member of that community…
[15]
The evidence
before the officer was that Mr. Cichaczewski is in the middle of converting to
Judaism. He has completed the classes, but there are a number of other steps still
to be taken. The evidence is that he must complete the process with his wife
and sponsoring rabbi in his own congregation. However, the officer was of the
view that nothing prevented Mr. Cichaczewski from converting to Judaism while
back in Brazil. That may be so, but at the
very least his conversion would be interrupted and delayed.
[16]
Article 18
of the International Covenant on Civil and Political Rights provides
that:
No one shall be subject to
coercion which would impair his freedom to have or to adopt a religion or
belief of his choice.
[17]
While Canada’s focus is on removing an
individual who has no legal status here, an unfortunate repercussion is that
his conversion would be delayed; in other words, arguably impaired.
[18]
Certainly,
Mr. Cichaczewski’s case raises a serious issue, in the sense it is neither
frivolous nor vexatious. As to irreparable harm, it is noteworthy that in both R.J.R.
MacDonald and Toth, above, what was at stake were commercial
interests, not fundamental human rights. As Mr. Justice Robertson said in Suresh
v. Canada (Minister of Citizenship and
Immigration),
[1999] 4 F.C. 206 at paragraph 12:
No transgression of a basic human right
can be accurately measured or compensated by money.
How can the harm arising form a roadblock in Mr.
Cichaczewski’s right to celebrate the religion of his choice be measured?
[19]
The timing
of the H&C decision creates its own difficulties. If Mr. Cichaczewski were Jewish
in the first place, or his conversion had been complete, religion would not
have been an issue. Nor would it have been if he had no intention of
converting, or, if he claimed to have that intention but had done nothing about
it (Chibani v. Canada (Minister of Public Safety
and Emergency Preparedness),
2006 FC 1167).
[20]
We must
take the facts as they are. The parties were represented by very experienced
counsel, but neither was able to draw my attention to a case precisely on
point. In the circumstances, it is far better to maintain the status quo,
pending the resolution of the application for leave and for judicial review.
The Ministers have not yet had the opportunity of responding thereto.
[21]
The
balance of convenience also favours the applicants.
ORDER
THIS COURT ORDERS that the motion for a stay of Mr.
Cichaczewski’s removal scheduled to Brazil
scheduled for 15 September 2007 is granted. Removal is stayed pending the
outcome of the application for leave and for judicial review of the negative
decision based on humanitarian and compassionate grounds.
“Sean Harrington”
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