Date: 20100416
Docket: A-155-10
Citation: 2010 FCA 105
Present: STRATAS J.A.
BETWEEN:
SEYMOUR
GARFIELD GREY
Appellant
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Heard via tele-conference between Ottawa, Ontario and Toronto, Ontario on April 16,
2010.
Order delivered at Ottawa, Ontario
on April 16, 2010.
REASONS
FOR ORDER BY: STRATAS
J.A.
Date: 20100416
Docket: A-155-10
Citation: 2010 FCA 105
Present: STRATAS
J.A.
BETWEEN:
SEYMOUR GARFIELD GREY
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant is about to be deported to England under a removal order. The removal
order was issued on the basis of two convictions of the appellant in 2005 for
juvenile prostitution. The appellant has fifteen other convictions for offences
in Canada since 1981.
[2]
In response to the removal order, the appellant
started an action in the Federal Court. It is very similar to one brought
earlier in the Federal Court, T-1470-09, which was struck out without leave to
amend.
[3]
After bringing his action in the Federal Court,
the appellant brought a motion for a stay of the removal order. Justice Hughes
dismissed the motion: 2010 FC 266.
[4]
The appellant has now appealed to this Court
from that dismissal. The appellant also has moved in this Court for a stay of
the removal order.
[5]
In this stay motion, the Court is to apply the
test set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. There are three requirements in the
test. The appellant must demonstrate that there is a serious issue to be tried,
he will suffer irreparable harm if the relief is not granted and the balance of
convenience lies in his favour.
[6]
Justice Hughes applied this
test in the stay motion before him and found that none of the three
requirements were met.
[7]
I have studied carefully all
of the appellant’s motion record and I have considered carefully all of the
appellant’s oral submissions.
[8]
In particular, in the oral
hearing on this motion before me, the appellant reviewed and amplified upon all
of his grounds of appeal from Justice Hughes’ decision. Among other things, the
appellant emphasized that he was coping with challenges from earlier in his
life. He admitted that he had been convicted of seventeen offences in Canada, but submitted that some of these were minor and were prompted by the
challenges he faced. The appellant also submitted that Justice Hughes erred in
failing to give sufficient weight to the hardship he will encounter when he is
deported due to his lack of connection to anything in England and his present
connections with his business and relationships in Canada.
[9]
I agree with the conclusions
and reasons of Justice Hughes and, like him, would dismiss the appellant’s
motion for a stay.
[10]
On whether there is a
serious issue to be tried, I note that the appellant’s present action in
Federal Court does not seek to quash the removal order, nor does it raise any
ground for doing so that is known to law. I agree with Justice Hughes’
conclusion that the appellant’s present action raises no justiciable issue
within the jurisdiction of this Court. As a result, the removal order exists
without any challenge against it founded on grounds known to law.
[11]
On whether the appellant
will suffer irreparable harm if a stay is not granted, I agree with Justice
Hughes that the appellant must demonstrate prejudice over and above that
typically encountered as a result of a deportation. The record here does not
establish any such prejudice.
[12]
On whether the balance of
convenience lies in the appellant’s favour, I am required to take into account
that there is a “very important” public interest that
“weigh[s] heavily” in this determination — in this case, the public interest underlying
the enforcement of Canada’s
immigration laws: 143471 Canada Inc. v. Quebec
(Attorney General), [1994] 2 S.C.R. 339 at
page 383, per Cory J. (for the majority); Harper
v. Canada (Attorney General), [2000] 2 S.C.R. 764 at paragraph
9. Justice Hughes relied in part on this public interest in dismissing the
appellant’s motion for a stay. Here again, I agree
with Justice Hughes.
[13]
I add that section 48 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 increases the
weight that must be given to the public interest factor in this case. Section
48 of the Act provides that a foreign national against whom a removal order is
made “must leave Canada immediately” and that the order must be
enforced “as soon as is reasonably practicable.” These are unambiguous words of
mandatory obligation.
[14]
The appellant has
established none of the requirements for a stay. Therefore, his motion for a
stay shall be dismissed.
"David
Stratas"
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