Docket: IMM-829-17
Citation:
2017 FC 263
Vancouver, British Columbia, March 03, 2017
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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LEN VAN HEEST
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Applicant
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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ORDER AND REASONS
I.
Introduction
[1]
In this Motion, Mr. Van Heest seeks an urgent
stay of the execution of a Deportation Order that was issued against him after
he was found to be inadmissible to Canada on the ground of serious criminality,
pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA]. That Deportation Order was issued on January
2, 2008 and currently is scheduled to be executed on the morning of Monday,
March 6, 2017.
[2]
Mr. Van Heest requests that the stay be
maintained until this Court makes a determination with respect to his
application for leave and for judicial review of a decision of Gail Begley, an
Inland Enforcement Officer with Canada Border Services Agency, in respect of
his request for a deferral of his removal from Canada to the Netherlands. In
that request, Mr. Van Heest sought to defer his removal to the Netherlands
until a decision is made on his application for permanent residence based on
humanitarian and compassionate [H&C] grounds, pursuant to s. 25 of the
IRPA.
[3]
In her decision [the Decision], Officer Begley
refused to defer Mr. Van Heest’s removal from Canada, on the basis that the
reasons given in support of his request were not sufficiently compelling to warrant
a deferral of his removal.
[4]
Mr. Van Heest takes the position that the
Decision is unreasonable, because it ignored important evidence that he had
provided in support of his request. In addition, he asserts that he will suffer
irreparable harm if he is removed to the Netherlands, largely because he will
not be capable of accessing health care, housing, income and a social network
in that country. There is also some suggestion in the documentation provided in
support of this Motion that Mr. Van Heest’s mental health may deteriorate, and
that he may harm himself, if he is removed to the Netherlands. Mr. Van Heest
further maintains that the balance of convenience supports the granting of the
stay that he has requested.
[5]
The Ministers counter that the Decision was
reasonable, that Mr. Van Heest has not demonstrated that he will suffer
irreparable harm if he is removed to the Netherlands, and that the balance of
convenience supports the execution of the Deportation Order, particularly in
view of Mr. Van Heest’s lengthy criminal and immigration history.
[6]
For the reasons that follow, this Motion will be
dismissed.
II.
Background
[7]
Mr. Van Heest is a citizen of the Netherlands.
He came to Canada as an infant with his parents in 1958. However, he never
obtained citizenship in this country.
[8]
At the age of sixteen, he was diagnosed with
bi-polar affective disorder. Around that time, he also began to experiment
with, and become dependent on, street drugs. A few years later, he began to
abuse alcohol.
[9]
Between 1976 and 2013, he was convicted of
approximately 45 criminal charges. In his most recent request for permanent
residence on H&C grounds, he stated that those offences were committed when
he was in a manic stage of his illness.
[10]
Mr. Van Heest was declared inadmissible on the
ground of serious criminality due to his 2001 conviction for assault with a
weapon, contrary to paragraph 267(a) of the Criminal Code, RSC 1985, c
C-46.
[11]
After he appealed the Deportation Order to the
Immigration Appeal Division [IAD] of the Immigration and Refugee Board, the IAD
granted a four-year stay of his removal to the Netherlands, on H&C grounds.
That stay was automatically cancelled pursuant to subsection 68(4) of the IRPA,
after Mr. Van Heest was convicted of several additional offences in December
2012.
[12]
However, since the end of the jail sentence that
he received in respect of the latter convictions, Mr. Van Heest has managed to
obtain three stays of his removal from Canada, from this Court. Those stays
permitted him to remain in Canada until determinations could be made on (i) a
previous application for permanent residence in Canada on H&C grounds, (ii)
an application for judicial review in respect of the rejection of that H&C
application, and (iii) an application for judicial review in respect of the
rejection of his request for a deferral of his removal from Canada. Those stays
expired after each of Mr. Van Heest’s applications for judicial review was
rejected by this Court.
III.
Legal test
[13]
To obtain a stay of removal from this Court, Mr.
Van Heest must demonstrate the following three things: (i) his underlying
application for judicial review in respect of the Decision raises a serious
issue to be tried; (ii) there is a non-speculative, real risk that he will
suffer irreparable harm if he is removed to the Netherlands; and (iii) the
balance of convenience favours the granting of the stay: (Toth v Canada
(Minister of Employment and Immigration), (1988) 86 NR 302 (FCA), Atwal
v Canada (Minister of Citizenship and Immigration), 2004 FCA 427, at paras
14-17; Akyol v Canada (Minister of Citizenship and Immigration), 2003 FC
931 at para 7).
[14]
With respect of the first prong of the test,
when an applicant is seeking to review a refusal of a removals officer to
exercise his or her discretion to defer removal, the applicant must demonstrate
a likelihood of success (Wang v Canada (Minister of Citizenship and
Immigration), [2001] 3 FC 682, at para 11 [Wang]; Baron v Canada
(The Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, at
paras 66-67 and 74 [Baron]). In the context of the present Motion, that
means a likelihood of demonstrating that the Decision was unreasonable.
[15]
The discretion of a removals officer to defer
the removal of a person subject to an enforceable removal order is very limited
and does not extend to conducting a “mini-H&C
assessment” (Baron, above; Wang, above, at para. 48; Simoes
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 936, at
paras 11 and 12). Rather, the officer’s discretion is restricted to deferring
the timing of a removal, having regard to special or compelling circumstances,
such as illness, other impediments to travel, or a pending decision on an
application for permanent residence on H&C grounds that was brought on a
timely basis (Baron, above, at paras 49-51; Duran v Canada (Minister
of Public Safety and Emergency Preparedness), 2007 FC 738, at para 21).
IV.
Assessment
A.
Serious issue to be tried
[16]
It is not necessary for me to address this prong
of the test because I have determined that Mr. Van Heest has not established a
non-speculative, real risk that he will suffer irreparable harm if he is
removed to the Netherlands. In addition, I have found that the balance of
convenience lies with the Ministers being able to enforce the Deportation Order,
which has now been outstanding for over nine years.
B.
Irreparable harm
[17]
Mr. Van Heest largely relies on the fact that
previous decisions of this Court have found that he is likely to suffer
irreparable harm due to the likelihood that he will encounter barriers in
accessing health care, housing, income and a social network.
[18]
However, those previous decisions of the Court
were taken in 2014 and 2015. Since that time, Justice O’Reilly, who granted a
stay to Mr. Van Heest in 2015, has had an opportunity to revisit Mr. Van
Heest’s situation. Specifically, just a few weeks ago, Justice O’Reilly dealt
with a challenge by Mr. Van Heest of a refusal by a removals officer to defer
his removal from Canada in December 2015 (Van Heest v Canada (Minister of
Public Safety and Emergency Preparedness), 2017 FC 42 [Van Heest]).
[19]
In his decision, Justice O’Reilly found that the
evidence before the removals officer reasonably showed that Mr. Van Heest was
no longer reliant on his Canadian support network, that he was living
independently, is no longer taking medication, and has much less need of
medical care. Moreover, the evidence demonstrated that he has some modest
financial resources that will ensure that he will not be homeless upon his
arrival in the Netherlands (Van Heest, above, at para 11).
[20]
The evidence adduced on this Motion is
consistent with that which was before Justice O’Reilly.
[21]
Mr. Van Heest currently lives in Courtenay,
British Columbia, where he states he relies on a support network that includes
his mother, whom he sees approximately once per week, and Mr. John Leevers, a
retired Adult Forensic Outreach Worker. It appears that, at least as recently
as 2014, Dean Meyerhoff, who is a Forensic Case Worker, was also an important
part of Mr. Van Heest’s local support network.
[22]
It is common ground between the parties that Mr.
Van Heest is no longer taking any medication or seeing any doctors. During the
hearing of this Motion, his counsel also acknowledged that it can be inferred
from the fact that he has not committed any offences since 2012, that his
mental condition has stabilized. Although this also appears to have been true
in 2014 and 2015, when this Court issued stays of his removal to the
Netherlands, Mr. Van Heest’s period of stability has now been longer. Mr. Van
Heest’s stable medical condition was confirmed by Mr. Meyerhoff in October
2014.
[23]
The most recent medical evidence before the
Court is an assessment dated April 22, 2014 by Dr. Mark Tapper, who was a
Consulting Psychiatrist at the Nanaimo Regional Clinic prior to his recent
retirement. In that assessment, he stated the following: “[Mr. Van Heest] is doing very well. His bi-polar disorder is
under control. He is abstinent from alcohol. Despite the stresses in his life
he trusts Dean [Meyerhoff] and John [Leevers] enough to get the support he
needs from them to deal with these stresses without any major deterioration in
his mental state or behaviour.” Although Dr. Tapper proceeded to
recognize that Mr. Van Heest would likely be removed to the Netherlands “sooner or later,” he did not opine on how such
removal would affect his mental condition.
[24]
It is also very relevant that, whereas Mr. Van
Heest refused to cooperate with his removal in 2015, he is now cooperating in
that regard. Among other things, he signed a new travel document application and
has stated that if he is required to go to the Netherlands, he will do so.
[25]
In addition, I consider it to be very
significant that Mr. Van Heest has declined assistance offered by Officer
Begley. Specifically, when asked by her whether he would like her to contact
his family in the Netherlands, as she previously did, to make arrangements for
him to stay upon his arrival, Mr. Van Heest stated that he does not require
assistance and that his brother in North Vancouver, Daniel Van Heest, can help
to make arrangements for him. Among other things, this suggests that Mr. Van
Heest is confident in his ability to make arrangements for himself.
[26]
In his most recent request for permanent
residence on H&C grounds, dated June 10, 2016, Mr. Van Heest stated that he
does not dispute that the Netherlands is comparable to Canada in the social
services that it provides. However, he expressed his belief that he will have
difficulty navigating the many bureaucratic processes there, including in
respect of housing, financial support and, most particularly, medical services.
[27]
With respect to medical services, the fact that
he is no longer taking medication and has now had a stable condition for
several years diminishes the significance of any barriers that he may face to
accessing such services or medication in the Netherlands.
[28]
Mr. Van Heest’s ability to make arrangements to
address his needs in the Netherlands will also be facilitated by the fact that,
according to evidence in his Application Record, “[e]very
Dutchman can speak – at least some- English.” This is apparently
particularly true of doctors and pharmacologists. That evidence also states
that Dutch nationals are entitled to social benefits, including housing,
although it will take a period of time to access them if arrangements are not
made in advance.
[29]
Mr. Van Heest’s counsel further maintains that
although his medical condition has stabilized, there is a real risk that it
could take a turn for the worse if he is removed from his current environment
and support network here in Canada. However, Mr. Van Heest himself did not
provide a recent affidavit in this regard. In an affidavit dated October 27,
2014, he simply stated that the thought of living in the Netherlands with his
uncle and his daughters “does nothing to calm my
anxiety about leaving Canada.”
[30]
According to his mother, if he is removed from
Canada, “the worst part for both of us will be the
separation from each other”, because they depend on each other for
companionship.
[31]
According to Mr. Leevers, Mr. Van Heest’s mental
health has been stable for three years, and that period of stability is due to
the support that he currently has in Courtenay and his contact with his mother.
Although Mr. Leevers added that Mr. Van Heest has stated more than once that he
would kill himself if he is returned to the Netherlands, he did not indicate
when those statements were made. I note also that Mr. Leevers is not a medical
doctor.
[32]
According to an e-mail written by Mr. Meyerhoff
in October 2014, Mr. Van Heest’s mental and emotional stability are “fragile and could be effected [sic] by his
being sent to a place that is completely foreign to him” (emphasis
added). In my view, this is not non-speculative evidence demonstrating a real
risk that his mental and emotional stability will deteriorate.
[33]
In addition to the foregoing, Officer Begley has
offered to assist Mr. Van Heest with respect to various matters. This includes
the contacts with his family that I have discussed above, as well as a package
of information that will assist Mr. Van Heest to obtain housing and social
services, and other resources that can assist him upon his arrival at Schiphol
International Airport.
[34]
In summary, based on all of the foregoing, I
find that Mr. Van Heest has not demonstrated that he will face a
non-speculative, real risk of suffering irreparable harm if he is removed to
the Netherlands on March 6, 2017.
C.
Balance of Convenience
[35]
The focus of this prong of the test for a stay
of removal is upon “which of the two parties will
suffer the greater harm from the granting or refusal of an interlocutory injunction,
pending a decision on the merits” (RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, at para 62 [RJR]). In
addition, other factors may be taken into consideration in determining where
the balance lies (RJR, above, at para 63).
[36]
Where a public authority is enforcing validly
enacted legislation, the burden on that authority in the balance of convenience
analysis is less than the burden on a private litigant. In brief, once it has
been demonstrated that the public authority is proposing to take action
pursuant to validly enacted legislation, “the court
should in most cases assume that irreparable harm to the public interest would
result from the restraint of that action” (RJR, above, at para 71).
[37]
This is not simply
a question of administrative convenience, but implicates the integrity and
fairness of, and public confidence in, Canada’s system of immigration control (Selliah
v Canada (Minister of Citizenship and Immigration), 2004 FCA 261, at para
22).
[38]
In the present circumstances, Mr. Van Heest is
subject to a validly issued Deportation Order.
[39]
Pursuant to subsection 48(2) of the IRPA, such
orders must be enforced “as soon as possible.”
[40]
Although the removals officers have some limited
discretion with respect to the timing of the enforcement of such orders, Mr.
Van Heest has demonstrated that his real interest lies in remaining in Canada
permanently. Collectively, the stays that he has obtained have permitted him to
avoid the operation of the Deportation Order for more than nine years now. During
that period, Mr. Van Heest has sought and been denied permanent residence in
Canada on H&C grounds. He has also continued to commit criminal offences,
although I recognize that his last offence was in respect of conduct that
occurred in 2012. Nevertheless, this factor weighs against him in the balance
of convenience assessment.
[41]
In September 2014, he requested a one-month
deferral of removal so that he could spend more time with his mother and get
his affairs in order. He has now had well over three years to do so.
[42]
According to Officer Begley, she was informed by
the department of Immigration, Refugee, Citizenship Canada that the current
processing time for an H&C application is approximately 34 months,
depending on various factors such as verification of information provided,
responses to any questions or concerns, and whether an application is complete.
[43]
In December 2015, Mr. Van Heest refused to
cooperate with his removal, notwithstanding the validity of his Deportation
Order. The factor must also count against him in the balance of convenience
assessment.
[44]
In addition, it was discovered in 2015 that Mr.
Van Heest had breached a condition of his stay pertaining to the location of
his residence. Once again, this factor counts against him in the balance of
convenience assessment.
[45]
On the positive side for Mr. Van Heest, I
recognize that he may suffer a level of inconvenience and difficulty in
settling into life in the Netherlands that is greater than that which is
typically associated with a person’s removal from Canada. However, he appears
to have done very little to minimize such inconvenience and difficulty, by
taking proactive steps to make advance arrangements for his needs in the
Netherlands.
[46]
Having regard to all of the foregoing, I find
that the balance of convenience lies with the enforcement of the Deportation
Order on Monday, March 6, 2017. Stated differently, Mr. Van Heest has not
demonstrated that the balance of convenience lies in his favour and in support
of the stay of his removal that he has requested.
V.
Conclusions
[47]
For the above reasons, this motion is dismissed.
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