Docket: IMM-8852-21
Citation: 2022 FC 315
Ottawa, Ontario, March 8, 2022
PRESENT: The Honourable Mr. Justice Zinn
| BETWEEN:
|
| CAREN JAE PITPIT
|
| Applicant
|
| and
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| MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
|
| Respondent
|
ORDER AND REASONS
[1] The Applicant moves for an Order staying her removal to the Philippines, scheduled to be executed on March 9, 2022, until her application for leave and judicial review of a deportation order made March 5, 2020 [the Deportation Order], is considered and finally determined. In that application and on this motion, she also seeks an anonymity Order.
[2] The Respondent opposes both requests on several grounds. First, it is submitted that the motion should be dismissed because the underlying application for leave and judicial review was filed late and the request for an extension of time ought to be denied. Second, it is submitted that the Applicant comes to this Court with unclean hands. Lastly, it is submitted that the Applicant has failed to meet the tripartite test of serious issue, irreparable harm and balance of convenience established in Toth v Canada (Minister of Employment and Immigration), (1988) 86 NR 302 (FCA).
[3] The Respondent also says that the proper respondent is the Minister of Public Safety and Emergency Preparedness. I agree, and an Order will issue with immediate affect amending the style of cause.
[4] Having read the parties’ materials and heard counsel at the Court’s General Sittings in Toronto by Zoom platform, I conclude that this motion for a stay of removal and an anonymity Order must be dismissed.
[5] I agree with the Respondent that the anonymity Order requested is overbroad and unsubstantiated.
[6] The Applicant states that she is requesting anonymity to protect her privacy based on fears that disclosure of her identity and personal circumstances could affect her parents’ health and safety in the Philippines.
[7] The Respondent notes that in her meeting with the Minister’s Delegate on October 7, 2019, the Applicant stated that she had no fear of returning to the Philippines. It is also noted that in the supporting affidavit in the application record, the Applicant refers to loan sharks and states that she fears for her life in the Philippines; however, that allegation was previously assessed and rejected by a Pre-Removal Risk Assessment [PRRA] officer on September 10, 2021. Lastly, the Applicant now states that she is at risk due to an alleged bisexual gender orientation; however, as the Respondent notes, she did not mention any risk related to sexual orientation at her detention review, in her PRRA, or in her affidavit that she filed in support of her initial stay motion in December 2021. The Applicant has not demonstrated that an anonymity Order is warranted.
[8] While there may be considerable merit to the Respondent’s submissions regarding the lateness of the application and the conduct of this Applicant, the motion for a stay may be quickly disposed of based on the tripartite test analysis.
[9] The alleged serious issue raised in the underlying application is stated to be “whether the conditional sentence and probation of the Applicant should be considered as conviction by indictment under section 36(2)(a) of the [Immigration and Refugee Protection Act, SC 2001, c 27] [IRPA] and the corresponding consequences to the Applicant will amount to being inequitable and unreasonable.”
[10] The record shows that on September 25, 2019, the Applicant was charged with two counts of assault contrary to section 266 of the Criminal Code, RSC 1985, c C-46. On February 3, 2020, one count was withdrawn and she pled guilty to the other. She was convicted and given a four-month conditional sentence of imprisonment and three years of probation. The Deportation Order was based on paragraph 36(2)(a) of IRPA which provides that a “foreign national is inadmissible on grounds of criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment … .”
[11] The Applicant accepts that section 266 of the Criminal Code may be prosecuted either summarily, as it was in her case, or by indictment. Paragraph 36(3)(a) of IRPA provides that “an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.”
[12] The Applicant submits: “Surely, it would not have been the intent of Parliament to distinguish an offence under the Code such that it can either be punishable by indictment or summarily when the consequences to a convicted person would be one and the same, and more importantly inequitable and unreasonable.”
[13] The Applicant is asking this Court to either ignore paragraphs 36(2)(a) and 36(3)(a), or to interpret them in a way that is contrary to their clear and express language, because the result to the Applicant is unfair and unreasonable. She seems to base her submission on the fact that she was sentenced to a conditional order and probation, rather than a custodial sentence. However, paragraph 36(2)(a) does not address sentencing, it speaks to a person who has been “convicted”
of an offence. She has been so convicted. It is not this Court’s role to ignore the plain language used by Parliament in IRPA, or to interpret a statutory provision in a manner contrary to its obvious intent.
[14] For these reasons, I find that the Applicant has failed to raise a serious issue in the underlying application, even on the standard of being neither frivolous nor vexatious. In my view, the issue raised is frivolous and vexatious.
[15] I further find that irreparable harm is not established. The harms she now raises were assessed previously by the PRRA officer, are unsubstantiated, or relate to her parents. To satisfy the irreparable harm prong of the test, the harm alleged must be harm to the Applicant.
[16] Lastly, the balance of convenience rests with the Respondent. The Applicant overstayed her work permit, has been convicted of assault, and has been less than frank with the Court concerning her conviction.
[17] The motions will be dismissed.
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