Date: 20080815
Docket: IMM-3257-08
Citation: 2008 FC 953
Ottawa, Ontario, August 15,
2008
PRESENT:
The Honourable Mr. Justice Lemieux
BETWEEN:
CHARLES GÉRARD PLACIDE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1]
This
is an application for a stay of the removal order of Charles Placide (the
applicant) to Haiti, his country
of citizenship. His removal is to be enforced on August 18, 2008, at 8:00 a.m.
This application for a stay is accompanied by an application for leave and
judicial review of a decision dated July 15, 2008, by the delegate of the
Minister of Citizenship and Immigration Canada. For the reasons that follow, I
believe that the stay of his removal should be granted.
Background
[2]
The
applicant is forty-six years old. He came to Canada with his
parents and siblings in 1983 as a permanent resident. He is now
inadmissible on grounds of serious criminality following his convictions in
2004 and 2006 for possession of and trafficking in narcotics for which he
served a three-year sentence. He is currently being detained following the
Correctional Service of Canada’s suspension of his statutory release and
pursuant to an arrest warrant issued under section 55 of the Immigration and
Refugee Protection Act (IRPA).
[3]
On
September
4, 2007,
he applied for a pre-removal risk assessment (PRRA). Since he is inadmissible,
the provisions of sections 112, 113 and 114 of the IRPA apply:
·
Paragraph
112(3) states that refugee status may not be granted to him;
·
Paragraph
113(d) provides that his PRRA application is assessed on the basis of
the factors in section 97 and whether he is a danger to the public in Canada;
·
Pursuant
to subsection 114(1), a decision to allow the application for protection has
the effect of staying the removal order against him;
·
Under
subsection 114(2), if the Minister is of the opinion that the circumstances
surrounding a stay of the enforcement of a removal order have changed, the
Minister may re-examine, in accordance with paragraph 113(d) and the
regulations, the grounds on which the application was allowed and may cancel
the stay.
[4]
In
November 2007, the pre-removal risk assessment officer, Patricia Rousseau
(the PRRAO), concluded her assessment, stating that, on a balance of
probabilities, because of his personal situation and the current situation in
Haiti, Mr. Placide would be subject to a risk to his life or to a risk of cruel
and unusual treatment or punishment should he return to this country.
[5]
On
February 26, 2008, the Canada Border Services Agency (CBSA) sent
Mr. Placide a copy of the PRRA together with a copy of the restriction
assessment prepared by an analyst from the Department of Citizenship and
Immigration (CIC) and other documents that were added to the PRRA material to
be submitted to the Minister’s delegate for a decision.
[6]
The
procedure surrounding the process triggered by the CBSA is prescribed by
certain provisions of the Immigration and Refugee Protection Regulations (the
Regulations) (see sections 172, 173 and 174 of the Regulations).
[7]
On
March
27, 2008,
June
19, 2008,
and June
30, 2008,
counsel for Mr. Placide submitted comments to the Minister’s delegate.
[8]
The
Minister’s delegate issued his decision on July 15,
2008.
He wrote [translation] “as a
result of my research, my view of the current situation in Haiti is different
from the PRRAO’s.” He relied, in particular, on the most recent U.S. DOS 2007 report
on Haiti published on
March 11, 2008.
[9]
Based
on the evidence, he determined that, on a balance of probabilities, Mr. Placide
[translation] “would not be
subject to a risk of torture or to a risk to his life or to cruel or unusual
treatment or punishment if he were returned to Haiti.”
[10]
The
Minister’s delegate also concluded, based on [translation]
“a review of all the evidence in the file, on a balance of probabilities, that
Mr. Placide currently poses and will in the future pose a risk for the public
in Canada and that Mr. Placide may well commit other offences in the future . .
. Mr. Placide is a potential recidivist whose presence in Canada would
constitute an unacceptable risk for the Canadian public.”
[11]
In
his last finding, the Minister’s delegate was of the view that, on a balance of
probabilities, [translation] “Mr.
Placide’s risk of return to Haiti is much lower than the threat he
represents for the Canadian people.”
[12]
In
support of dismissing this stay application, counsel for the respondents filed
a number of affidavits, including one from France Pérusse who reviewed the file
that the Department of Justice had on Mr. Placide. She submitted a document
entitled “Statutory Declaration” signed by Jean‑François David, First
Secretary (Immigration) at the Canadian Embassy in Haiti on July 30, 2008.
[13]
Mr.
David states that he is employed by the Government of Canada “as a Migration
Identity Officer (MOI) since my arrival at the mission in August 2007”. He
informs us that he “was able to monitor their arrival ([translation] Haitian citizens deported
from Canada despite the
moratorium “unless serious acts were committed”) at the airport for most of
them”. He advises us that “practically none of the sixteen Haitian nationals
removed from Canada was detained for more than 3 days” and that “based on
observation of detention conditions and available information, there is no
indication that deportees to Haiti are tortured, mistreated or subject to
persecution.”
Analysis
[14]
After
considering the written and oral submissions of the parties, I find as follows.
(a) Serious issues
[15]
The
applicant has persuaded me that the decision dated July 15,
2008,
by the Minister’s delegate raises at least the following serious issues:
(1) Considering
the decision by the PRRAO Patricia Rousseau, did the CBSA comply with the IRPA
and its Regulations in the process it followed that resulted in the impugned
decision; in other words, which provision of the Regulations applies:
section 172 or section 173?
(2) Considering
the scheme of the Act and the Regulations concerning the assessments required to
be given to the applicant under section 172 or section 173 of the Regulations, were
these provisions, on the one hand, or procedural fairness, on the other hand,
infringed by the Minister’s delegate when he went beyond the ambit of those
assessments by conducting his own research on the treatment of criminal
deportees to Haiti, without giving the applicant the opportunity to comment on
this new evidence? I note that the U.S. DOS of March 11, 2008, was disputed on
March 28, 2008, by the organization Alternative Chance as contrary “to our own
personal observations and findings as well as Haitian law.”
(3) Did the
Minister’s delegate disregard or fail to consider all the evidence when
determining the danger that the applicant represented to the Canadian public, given
the decisions of the National Parole Board dated September 24, 2007, and June
18, 2008? The documentation that was before the Board indicated that the
gravity of the applicant’s violent behaviour was relatively weak; that the
applicant had promised to attend a drug addiction program; that he had not
reoffended and that in this context, his case could be managed in the community
and “that the risk to society is not acceptable with the special conditions that
you were subject to.”
(4) Did the
Minister’s delegate disregard the evidence or fail to assess all the evidence on
the treatment of Canadian criminal deportees to Haiti?
(5) Did the
Minister’s delegate give sufficient reasons for rejecting certain pieces of
evidence dealing with the allegations? The applicant contends that he does not
know why this evidence was rejected (see Mr. Justice Blanchard’s order granting
a stay of enforcement of a removal to Haiti in Pierre v.
Minister of Immigration and Citizenship and Minister of Public Safety and
Emergency Preparedness, July 25, 2008, IMM‑3250‑08).
(b) Irreparable
harm
[16]
Considering
the PRRAO’s finding that section 97 of the IRPA would be infringed if the applicant
were deported to Haiti and considering the contradictory evidence on the
treatment of criminal deportees from Canada to Haiti, I believe that the probability
that he will suffer irreparable harm has been established.
[17]
Counsel
for the Minister submitted that the applicant did not demonstrate irreparable
harm. She relies largely on the affidavit of Jean-François David dated July 30,
2008, that I described earlier. I believe it is premature to determine the
value of this affidavit in the context of this stay application. Without
cross-examination, it is impossible to know its probative value, which seems to
be limited “that I was able to monitor their arrival at . . . the airport in Port-au-Prince for most of
them.” I note that Alternative Chance’s document dated March 28, 2008, states
“Additionally, the International Office on Migration (IOM) program referred to
in the State Department report does not assist or intervene on behalf of
criminal deportees while they are detained by Haiti police.”
Balance of convenience
[18]
In
the particular circumstances of this case, I find that the balance of
convenience favours the applicant. It is likely that section 97 of the IRPA
would be infringed if he were deported to Haiti now. I am
very aware that the Minister alleges that Mr. Placide represents a danger to
the Canadian public. In my view, this risk is limited by the fact that he is
being detained under section 55 of the IRPA because he is inadmissible on grounds
of serious criminality and that his release is managed by the IRPA and
administered by the Immigration Division.
ORDER
THE COURT
ORDERS a
stay of enforcement of the removal of Mr. Placide to Haiti until a decision is
made on his application for leave and judicial review, and if this is granted,
until a decision is rendered on the judicial review.
“François Lemieux”
__________________________
Judge
Certified
true translation
Mary
Jo Egan, LLB
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