Date: 20000706
Docket: IMM-3424-00
BETWEEN:
FODA KENNEDY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] These reasons relate to a stay of the execution of a removal order which I granted on Monday, July 3, 2000. The applicant had been informed late last week he was being deported on Tuesday, July 4, 2000, to Liberia, his country of citizenship.
BACKGROUND
[2] The applicant, at the age of 14, entered Canada illegally in 1989 by walking across the U.S.-Canadian border. In his affidavit in support of the stay, he recites that, in 1989, Liberia was in the midst of a civil war and that his father, who was politically active, was a strong supporter of the existing Samuel Doe Government. The rebels were led by Charles Taylor who remains in power in Liberia.
[3] The applicant recites that in December 1989, on returning to his home from visiting a childhood friend, he witnessed the bodies of his parents, his brother and sister, who had been murdered by the rebels and his house was torched.
[4] The applicant lived in Canada underground until early January 1999. He was charged with several counts of trafficking and possession of marijuana, cocaine and crack cocaine over several separate days in late August 1998 and the first two weeks of September of that year. He pleaded guilty and was sentenced in March 1999, to twelve months in jail.
[5] On September 2, 1999, the applicant was advised by Canada Immigration Enforcement Centre in Ottawa ("CIC") of its intention to seek the opinion of the Minister, pursuant to subparagraph 46.01(1)(e) (iii) of the Immigration Act that he is a danger to the public in Canada. The applicant was advised if the Minister was of that opinion his refugee claim which he might make would not be referred to the CRDD for determination. On November 4, 1999, the applicant made such a claim.
[6] On November 16, 1999, the Minister formed an opinion the applicant constituted a danger to the public in Canada. On November 24, 1999, a deportation order was issued against the applicant after the conduct of an inquiry at which the applicant and his legal counsel were present.
[7] I need not detail, to any great length, the events of December 1999 to early January 2000 when the applicant retained new legal counsel because his previous one had failed to make submissions seeking to persuade the Minister the applicant was not a danger to the public. In this respect, he had the support of a number of persons including the Chaplain at the Rideau Correctional and Treatment Centre but for some reason unknown to the Court, this evidence was not previously put to CIC prior to the Minister"s November danger opinion.
[8] The applicant"s new legal counsel was able to achieve a settlement with CIC whereby the November 16, 1999 danger opinion was set aside; CIC was at liberty to embark upon the process of seeking a fresh danger opinion from the Minister on the basis of a procedure set out in the settlement agreement. In exchange, the applicant discontinued his motion for a stay of the execution of his deportation order as well as that of his application for leave and judicial review.
[9] The agreed to procedure between the applicant and CIC as to the process for seeking a determination of a fresh danger opinion included notice to the applicant with accompanying information relating to the case the applicant had to meet, an opportunity for the applicant to make submissions within 30 days from receipt and "thereafter, the Minister or her delegate shall have 30 days in which to issue a decision pursuant to section 46.01(1)(e) of the Immigration Act".
[10] On February 4, 2000, the applicant was advised by CIC it was seeking a new danger opinion from the Minister. After a number of extensions, the applicant made submissions on April 14, 2000.
[11] On June 7, 2000, an Adjudicator reviewing the applicant"s detention ruled that his presence in Canada would not likely constitute a danger to the public and ordered the applicant"s release as of June 21, 2000, subject to reasonable terms and conditions, provided that CIC did not issue an opinion before that date.
[12] On June 7, 2000, the applicant"s legal counsel so advised CIC pointing out to CIC the January minutes of settlement which required CIC to issue any decision by May 14, 2000. He advised the applicant would challenge as unlawful, any opinion issued by the Minister because it was in breach of the settlement agreement.
[13] On June 20, 2000, the Minister"s delegate formed an opinion the applicant constituted a danger to the public in Canada. The applicant continues to remain in detention and CIC took the steps mentioned above to remove the applicant to Liberia.
[14] On June 30, 2000, the applicant filed an application for leave and judicial review of the Minister"s delegate"s June 20, 2000 decision which formed the danger opinion. The applicant raised the following grounds:
| (1) The decision was contrary to standards of procedural fairness in that it was contrary to the minutes of settlement agreed to by both parties and was therefore unlawful; |
| (2) The opinion the applicant constituted a danger to the public in Canada was arbitrary and unreasonable. |
ANALYSIS
| (a) The matter of urgency |
[15] The application for leave and judicial review were served and filed late on Friday June 30, 2000. Counsel for the Minister was reached by the Registry of the Court at 6:30 p.m. (when she was preparing to leave Ottawa for the long week-end) and was advised a hearing on an urgent basis would take place the following Monday. In these circumstances, she had little time to prepare and could not file any response affidavit.
[16] As of late, this Court has been seized of a great number of stay applications which have been filed at the last minute. This phenomena was recently commented upon by my colleague Mr. Justice Dubé in Herrera v. Minister of Citizenship and Immigration, docket IMM-2517-00, May 18, 2000, who ruled urgent stay motions had to be justified.
[17] After questioning counsel for the applicant and the respondent on this issue, I was satisfied the lateness of the stay motion was justified. In the circumstances, I decided to hear it.
| (b) Serious issue |
[18] Counsel for the respondent conceded a serious issue had been made out by the applicant because of the impact the execution of the removal order had upon him. In this respect, I believe counsel for the respondent had in mind the recent decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Nima Haghighi (docket A-587-99, June 12, 2000) where the importance of the disclosure of a risk assessment in order to enable an applicant to make submissions was emphasized because of the potentially grave consequences for an individual who is returned to a country he fears.
[19] I saw other serious issues in this case and, in particular, those raised by the applicant:
| (1) whether the fresh danger opinion of June 20, 2000 was unlawful in that it breached the settlement agreement or otherwise was contrary to the principles of procedural fairness; |
| (2) whether, based on the case law which the applicant brought to my attention, the formulation of the opinion was arbitrary and unreasonable based on the evidence which was before the Minister"s delegate; and |
| (3) the absence of written reasons justifying the danger opinion. |
| (c) Irreparable harm |
[20] Counsel for the respondent argued it was the applicant"s onus to establish irreparable harm based on concrete evidence. She submitted the evidence produced by the applicant to this Court was not sufficient. She pointed out the applicant"s evidence was based on events which occurred ten years ago and that he had delayed ten years before making a refugee claim.
[21] Counsel for the applicant had previously taken me through a number of recent country reports on Liberia which, to say the least, were not complimentary to that country in terms of its human rights record and which indicated the government was still tracking opponents including persons similarly situate to the applicant"s family. Counsel for the applicant referred me to the applicant"s affidavit which outlined the basis for his fear, namely, the murder of his entire immediate family by rebels who control the government and who have been integrated into the security and police forces of that country.
[22] On the basis of the evidence before me, I concluded there was a serious possibility that personal harm would come to the applicant if he were returned to that country.
[23] In the circumstances, I do not have to rule on the alternative argument in respect of irreparable harm based on a denial of benefits accepted by Robertson J.A. in Suresh v. Canada (Minister of Citizenship and Immigration) (docket A-415-99, July 23, 1999).
| (d) Balance of convenience |
[24] Under the balance of inconvenience test, the question is which of the two parties will suffer greater harm from the granting or refusal of the stay. Counsel for the respondent argued balance of convenience favoured the Minister in three respects: (1) the applicant had been convicted of criminal offences; (2) the applicant had a danger opinion issued against him; and (3) the applicant had failed to make a timely refugee claim.
[25] Counsel for the respondent also argued the public interest in enforcing the law also favoured the Minister.
[26] I concluded the balance of convenience favoured the applicant who is currently detained. The serious risk of harm which he may come to if removed to Liberia tipped the scales in his favour.
[27] For all of these reasons, a stay was granted pending the determination of the applicant"s leave and judicial review proceeding.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 6, 2000