Date: 20000127
Docket: IMM-5366-99
BETWEEN:
| DAVEL ANTHONY EDWARDS |
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application on behalf of the applicant for an Order:
| - that the execution of the removal order made against the applicant be stayed until determination of his application for leave and for judicial review of a decision of the Appeal Division (the "Tribunal") of the Immigration and Refugee Board in which it found that he had not discharged the onus on him of proving that in all the circumstances he should not be removed from Canada; |
| - in the alternative, that execution of the removal order be stayed until 30 days after the reasons of the Tribunal are received by him; and |
| - providing_ such further and other relief as this Court deems just. |
[2] The applicant"s appeal from the deportation order made against him was heard by the Tribunal on the 13th of October, 1999. It was dismissed, according to the applicant without reasons, on the 21st of October, 1999.
[3] This application first came before me by teleconference on the 9th of December, 1999. At that time, there was before the Court an affidavit of the applicant attesting to the fact that he had not received reasons for the decision of the Tribunal. In the result, I issued an order in the following terms:
| This Court hereby orders that: |
| As the Court ordered in Lawson v. The Minister of Citizenship and Immigration, 5th November, 1999, court file Imm-4900-99, this application is hereby adjourned sine die to be brought back on upon two (2) days notice by either party. |
| The execution of the deportation order issued to the applicant herein on the 8th of March, 1999 is hereby stayed on an interim basis for a period ending seven (7) days after the applicant receives the reasons of the Immigration Appeal Division for the dismissal of his appeal of the said deportation order. |
| Upon receipt of the reasons of the Immigration Appeal Division, the applicant shall forthwith advise the respondent thereof. |
[4] The applicant attests that he received the reasons of the Tribunal, dated the 21st of December, 1999, on the 30th of December, 1999. Counsel for the respondent was notified of the receipt of the reasons in accordance with the terms of my Order. Removal of the applicant from Canada to Jamaica was rescheduled for the 27th of January, 2000. In the result, the application to stay removal was again brought before me at Toronto on the 24th of January, 2000.
[5] The grounds cited for the application to stay removal are three in number and are well established in the jurisprudence: that there is a serious issue to be tried on the application for leave and for judicial review of the decision of the Tribunal; that the applicant will suffer irreparable harm if removed from Canada before the application for leave and for judicial review is determined; and the balance of convenience lies in favour of staying the execution of the removal order until the Court has determined the merits of the application for leave and, if leave be granted, of the application for judicial review.
[6] In summary form, the background to this application is the following. The applicant was born in Jamaica in 1971. He arrived in Canada in 1981 and has apparently remained here since his arrival. All his known relatives are in Canada. They consist of his mother, his brother, his sister, his wife and his three daughters, one of whom is the natural daughter of his wife, one of whom is his natural daughter, and one of whom is the natural daughter of he and his wife. He and his wife have lawful custody of his natural daughter.
[7] In 1991, the applicant was convicted of possession of a narcotic and of trafficking in a narcotic. In 1993, he was again convicted of possession of a narcotic. In 1994, he was convicted of assault with a weapon and of dangerous operation of a motor vehicle. In 1998, he was again convicted of dangerous operation of a motor vehicle. The longest sentence of incarceration imposed on the applicant was in respect of the trafficking conviction for which he received a sentence of thirty (30) days. The applicant has limited education and limited employment experience.
[8] The Tribunal found that the applicant had minimized his responsibility for his offences. It noted that the applicant"s mother had testified before it that she had repeatedly warned him over the years that his criminal activity could result in his deportation. It found little evidence that the applicant had worked towards his own rehabilitation. In its reasons for decision, the Tribunal wrote:
| The appellant has not been truthful concerning his efforts to seek assistance with his rehabilitation. Moreover, he has sought to present a false document so as to mislead the panel in this regard. |
[9] Again in its reasons for decision, the Tribunal focussed on the impact of removal of the applicant from Canada on his three daughters. It wrote:
| While I note that a letter in evidence attests that the appellant"s [applicant"s] two children have aggressive behaviour problems, I am not satisfied that the appellant"s impeding removal is the source of those problems. There are numerous reasons why such behaviour might occur. The children"s behaviour might reasonably be explained by the fact that they have not lived with their father for most of their lives until 1997. They could also be affected by a lack of credibility from the appellant at home similar to that evidenced by him at the hearing. In any event, it is not sufficient reason alone or taking into accounts [sic] other positive considerations to exercise discretion in favour of the appellant. |
| I am not persuaded that the appellant is a positive force in the lives of his children. The children have been consistently supported by their mother, her mother and the appellant"s mother. The appellant"s first child has spent most of her life in foster care. While the recent custody action concerning that child might otherwise stand in the appellant"s favour I am not so persuaded. The appellant has a poor record of supporting his children. His criminal behaviour does not indicate his concern for his children. In these circumstances, I am satisfied that the appellant played a passive role in gaining custody of his first child; that his mother and Ms. Edwards were more active in this respect and that they remain the main emotional supports for the children. I am satisfied that Ms. Edwards will be supported by her mother and the appellant"s mother in the care of the children into the future. |
| In summary, the evidence concerning the appellant"s care for his children and his poor employment record do not attest to his positive establishment during the 18 years he has been in Canada. |
| The appellant remains a menace to Canadian society, despite repeated warnings from his mother over the years that he should change his ways or face possible deportation. I am not persuaded that his family members will suffer undue hardship if he is removed from Canada. |
[10] By order signed shortly after the close of the hearing of the application for a stay, I dismissed the application. In reaching my decision, I focussed primarily on whether or not irreparable harm would result 5if the applicant were removed from Canada. Since the tripartite test of serious issue to be tried, irreparable harm and balance of convenience is conjunctive in nature, if the applicant failed on the issue of irreparable harm, he would fail on his application. I was satisfied that he failed on the issue of irreparable harm.
[11] There was no evidence before the Court that the applicant would be at risk in Jamaica. Rather, the evidence related to the harm that would flow from the break-up of his family unit and, more particularly, to the impact on his three daughters and to a lesser extent his wife if he were removed from Canada.
[12] In Robinson v. Canada (Minister of Employment and Immigration)1, I wrote:
| I am sympathetic to the argument that the break up of a family unit produces substantial hardship which, in some circumstances, but not all, approaches the level or reaches the level of irreparable harm to the family unit. That is not the test. The issue, of course, is irreparable harm to the applicant. |
| ... |
| If the law had intended to place maintenance of the family unit above the risks and hardships associated with the fact situation that is before me, Parliament could have so provided. Parliament chose not to do so. |
| I must, therefore, assume that the law contemplates, in circumstances where options are real, that deportation can result in the break-up of a family. I conclude that the fact situation before me does not represent irreparable harm to the applicant. |
[13] The foregoing was adopted by my colleague, Mr. Justice Rouleau, in Moncrieffe v. Canada (Minister of Citizenship and Immigration)2. It was noted and distinguished in the result on the facts in Ponnampalam v. Canada (Minister of Citizenship and Immigration)3 where Mr. Justice Muldoon found break-up of the family unit to constitute irreparable harm, citing two earlier decisions of this Court where separation of family was also found to constitute irreparable harm.
[14] Since issuing my reasons in Robinson, supra, based on further consideration of the case law, I am no longer of the view that irreparable harm must be directly and uniquely to an applicant in order to satisfy the irreparable harm element of the tripartite test for a stay. Applications such as this, where removal will in all likelihood result in the break-up of a family unit, I am now satisfied must be considered in the light of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)4 where Madame Justice L"Heureux-Dubé, for the majority, wrote at paragraph 73:
| The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker"s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. |
[15] While the decision that I was here called upon to make, is not an "humanitarian" and "compassionate" decision under subsection 114(2) of the Immigration Act5, it is, I am satisfied, a decision where the factors to which Madame Justice L"Heureux-Dubé refers, and that are identified in some detail in other paragraphs of her reasons, are applicable. I am satisfied that the Baker decision and the factors enumerated therein are entirely relevant by analogy to the determinations of irreparable harm and balance of convenience that I was here required to make.
[16] Against the foregoing, I was heavily influenced by the analysis set forth in the reasons of the Tribunal, quoted above, regarding the impact of the break-up of the applicant"s family, particularly on his children. In the words of Madame Justice L"Heureux-Dubé, the reasons indicate to my satisfaction that the Tribunal"s decision "...was made in a manner which was alive, attentive, or sensitive to the interests of [the applicant"s] children...". On a preliminary application such as this, I found no basis on which to challenge that analysis or to differ from its conclusion.
[17] For the foregoing reasons, I concluded that the facts of this matter do not demonstrate that irreparable harm would be suffered, by reasons of the break-up of the applicant"s family, or for any other reason, by the removal of the applicant to Jamaica in advance of determination of his application for leave and for judicial review. In the result, as indicated earlier in these reasons, I dismissed the applicant"s application for a stay of his removal to Jamaica that was scheduled for the 27th of January, 2000.
___________________________
Judge
Ottawa, Ontario
January 27, 2000
__________________1 (1994), 74 F.T.R. 316 (F.C.T.D.).
2 [1995] F.C.J. No. 1576 (Q.L.), (F.C.T.D.).
3 [1995] F.C.J. No. 1174 (Q.L.), (F.C.T.D.).