Date: 20010726
Docket: A-359-01
Ottawa, Ontario, July 26, 2001
PRESENT: EVANS J.A.
BETWEEN:
STEVEN ROMANS
Appellant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
ORDER
The motion is granted with costs: the removal of the appellant to Jamaica, scheduled for August 1, 2001, is stayed pending the disposition of his appeal.
"John M. Evans"
J.A.
Date: 20010726
Docket: A-359-01
Neutral citation: 2001 FCA 244
Present: EVANS J.A.
BETWEEN:
STEVEN ROMANS
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard by way of a teleconference between
Ottawa and Toronto, Ontario, on July 26, 2001
Delivered orally at Ottawa, Ontario, on July 26, 2001.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20010726
Docket: A-359-01
Neutral citation: 2001 FCA 244
Present: EVANS J.A.
BETWEEN:
STEVEN ROMANS
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] Steven Romans is aged 35 and has lived in Canada since he was almost two years old. However, he has never become a Canadian citizen and remains a citizen of Jamaica, the country of his birth.
[2] When a teenager, he was diagnosed as a schizophrenic. More recently, he has been found by members of the Adjudication Division and the Immigration Appeal Division of the Immigration and Refugee Board to be incompetent to understand the nature of the appeal proceedings against his deportation.
[3] He was ordered deported by virtue of his long record of criminal offences committed in Canada, including convictions for serious assaults and trafficking in drugs. His removal to Jamaica is scheduled for August 1, 2001. Throughout all his difficulties, his family, all of whom are in Canada, have stood by him, offering him their love and support, and have tried to plan for his future.
[4] In the motion before the Court, counsel seeks a stay of Mr. Romans' deportation pending the disposition of his appeal from an order of Dawson J. of the Trial Division dismissing his application for judicial review of a refusal by the Immigration Appeal Division to exercise its equitable jurisdiction to stay Mr. Romans' deportation.
[5] Dawson J. certified the following question under subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2:
In light of the decision of the Supreme Court of Canada in United States of America v. Burns, 2001 SCC 7, and in light of the evolving nature of Charter interpretation, is it a violation of fundamental justice to deport a permanent resident pursuant to paragraph 27(1)(d) of the Act in circumstances where the permanent resident has resided in Canada since very early childhood so as to have no establishment outside of Canada, and where the permanent resident suffers from a serious mental illness to an extent which makes him unable to function in society?
[6] The exercise of this Court's jurisdiction to stay a removal pending an appeal is governed by the three-part test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Counsel for the Minister conceded, rightly in my view, that the question certified for appeal meets the requirement that the appeal must raise a serious issue and that the first part of the test was therefore satisfied.
[7] As is often the case in proceedings such as these, the principal issue concerned the second part of the test. Counsel submitted that it would cause irreparable harm to deport Mr. Romans, a mentally incompetent person to Jamaica, since it was unlikely that he would remain for long in the secure and, possibly, therapeutic environment of a psychiatric hospital. Further, given Mr. Romans' history and the unavailability of social assistance in Jamaica, it was all too likely that he would live on the streets, commit offences and either find himself incarcerated under appalling conditions, or become the victim of the street and gang violence prevalent in areas of that country.
[8] The record contains ample evidence to support the factual bases of the motion about conditions in Jamaica, especially for those suffering from mental illness who have no family support or means of subsistence. Counsel for the Minister submitted no evidence to rebut this evidence, but reported that arrangements were being made by the Minister for Mr. Romans to be delivered into the care of a psychiatric hospital on his arrival in Jamaica, and that the Court should not assume that the medical authorities there would act irresponsibly toward Mr. Romans.
[9] I do not need to make any such assumption in order to be satisfied by the evidence before me and by the cases relied upon by counsel, in particular, Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4.F.C. 206 (C.A.) and Said v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 283 (C.A), that the irreparable harm requirement is satisfied. There is a substantial likelihood that, if Mr. Romans, a mentally incompetent person unable to support himself, who has lived in Canada nearly all his life, were deported pending the disposition of his appeal, he would effectively be denied the benefit of a decision that he had a constitutional right under section 7 of the Charter not to be deported to Jamaica.
[10] Turning to the third part of the test, the balance of convenience, I note that, since Mr. Romans will remain in detention pending the disposition of his appeal, to stay his removal poses no threat to the safety of anyone in Canada. It is true, of course, that the Canadian public must bear the cost of his detention. However, in my opinion, that is a price worth paying to ensure that, by removing Mr. Romans before the courts have had an opportunity finally to determine his constitutional rights, the Minister does not jeopardize the life and safety of a vulnerable person, who in truth, although not a citizen of Canada, is more the product and responsibility of Canadian than of Jamaican society.
[11] Given, the risks facing Mr Romans if he were removed prior to the appeal, I have concluded that the financial costs of detaining him, and the public interest in the enforcement of the Immigration Act, do not outweigh the public and private interests in his remaining in Canada pending the determination of his constitutional rights. The hearing of the appeal will be expedited in order to alleviate, to some extent at least, the Minister's concern about the expense of Mr. Romans' detention.
[12] The motion will be granted with costs and the removal of Mr. Romans from Canada will be stayed pending the disposition of his appeal.
"John M. Evans"
J.A.