Date: 19990430
Docket: A-149-99
OTTAWA, ONTARIO, FRIDAY, APRIL 30, 1999
PRESENT: LÉTOURNEAU J.A.
BETWEEN:
DAWOD NOORI SAID
Appellant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
This is a motion by the Appellant to stay the removal order from Canada to Afghanistan, issued against him by Citizenship and Immigration Canada and scheduled to be executed today at 5:50 p.m..
The Appellant who came to Canada as a Convention refugee in 1986 was found guilty in 1992 on five counts of trafficking in heroin and sentenced to five years in jail. On March 31, 1993, a deportation order was issued as a result of such convictions. Subsequently, the Appellant was found by the Minister of Citizenship and Immigration (Minister) to constitute a danger to the public in Canada pursuant to paragraph 53(1)(d) of the Immigration Act R.S.C. 1985, c. I-2 (Act). He challenged by judicial review that decision as well as a removal order which had been scheduled for January 17, 1998. In the meantime, the removal order was stayed by Pinard J.. The applications for judicial review were eventually dismissed but the motions judge certified two questions for appeal pursuant to subsection 83(1) of the Act, namely:
| 1. In a judicial review of a decision of the Minister of Citizenship and Immigration under paragraph 53(1)(d) of the Immigration Act, that the applicant constitutes a danger to the public in Canada, does the Court have jurisdiction to determine the constitutional validity of paragraph 53(1)(d)? |
| 2. Does a determination by the Minister under paragraph 53(1)(d) of the Immigration Act that a Convention refugee is a danger to the public in Canada that includes an assessment of the risk of returning the Convention refugee to the country from which he sought refuge and a balancing of the danger to the public in Canada against the risk to the Convention refugee conform to the requirements of fundamental justice under section 7 of the Charter of Rights and Freedoms. |
The appeal was launched on March 11, 1999.
On April 26, 1999, the Appellant was informed that on April 23, a removal order had been signed against him by the Minister. Hence, this urgent Notice of motion for a stay of removal filed on April 28.
There is no doubt that the two certified questions by the motions judge raise serious issues. The first one has given rise to conflicting decisions in the Trial Division as to whether the constitutionality of paragraph 53(1)(d) of the Act can be challenged on an application for judicial review or whether it can only be dealt with by way of action.
As for the second certified question, the issue it raises with respect to section 7 of the Charter of Rights and Freedoms has been found by this Court to be a serious issue1.
There is no real dispute between the parties as to the irreparable harm that the Appellant could suffer if he were to be deported although counsel for the Respondent submitted that the threats now alleged by the Appellant were not put before the Immigration officers when the danger assessment was made in February 1996. At the time, the Appellant expressed fears with respect to various factions of the Mujahideens while he now claims, as a member of the Hazara ethnic group, fear of persecution, ill-treatments and death at the hands of the Talebans.
It is not disputed that there was a change in the circumstances in Afghanistan since that assessment and that the Talebans have now become in control of a large portion of the country. The Country Documentation Reports reveal ethnic purges exacted by the Talebans against Tajiks and Hazaras civilians because of religious differences and beliefs. I have to assess the potential threats against the Appellant and violations of his section 7 Charter rights as of the time the application for the stay of removal is heard, especially where conditions in the country to be deported have worsened for the deportee.
Counsel for the Respondent has, indeed, focussed more on the third criterion of the test, i.e., the balance of convenience. She relied upon the following passage in the decision of the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (P.G.)2:
| In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. |
Basically, counsel for the Respondent submitted that irreparable harm to the public interest would result from a stay of the removal order because it is costly to keep the Appellant in custody. In addition, she argued that there is always a possibility that the Appellant be released after a detention review. I might say in relation to this second argument that this is unlikely to happen as long as the Appellant constitutes a danger to the public in Canada. If he ceases to be a danger to the public and is released, then I would think he does not have to be removed from this country.
There is no doubt that the Appellant's case is not a sympathetic one from a public interest perspective, especially as the Appellant's removal pursuant to the first ministerial decision in 1993 has been delayed by his failure to cooperate3.
However, what we are concerned with in the present instance for the purpose of a stay of the removal order is a balancing of the Appellant's interests and the public interest. The Appellant is in custody and is likely to remain there for the whole of the proceedings and he, therefore, presents very little risks of recidivism. If a stay is not granted, it is evident that his appeal will be rendered nugatory since, as a result of his deportation, he would not be able to benefit from any relief that the Canadian courts could grant him. Violations of his section 7 Charter rights, if any, would remain without remedy. Moreover, his deportation would, according to the evidence, jeopardize his life and security.
As against these inconveniences lies the public interest expressed in terms of costs of detention. This is not a case where the public interest considerations involve a large number of persons likely to be detrimentally affected by the decision to order a stay of removal, save for the costs of the Appellant's custody. The solution, I would have thought, is more in trying to speed up the legal process on the litigious issues than denying the Appellant a trial of these issues by means of deportation and jeopardizing his security. As the Supreme Court said in the MacDonald case4:
| public interest considerations will weigh more heavily in a "suspension" case than in an "exemption" case. The reason for this is that the public interest is much less affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely. |
We are not dealing here with suspension of or exemption from the law. But the rationale is applicable to the Appellant's motion for a stay since this Court's decision will apply only to him. In my view, the balance of convenience favours the Appellant.
Counsel for the Appellant has sought costs on the motion on a solicitor-client basis. He objected to the manner in which the removal order was issued and served on his client as well as to the attempt by the Respondent to deprive the Appellant of the benefit of his appeal.
I am not satisfied that this is a proper case for granting solicitor-client costs. However, I have come to the conclusion that the Appellant should be entitled to some costs. It is difficult to understand why the removal order was brought to the Appellant's attention only four days before its execution. The Appellant is in custody and, therefore, could not flee upon service. In addition, the very fact of detention made it more difficult and time-consuming for his counsel to prepare the motion for stay and gather the necessary supporting material to such motion. I can see no valid reasons, and none were offered or given, as to why a better time frame could not have been provided for the hearing of the motion to stay and why such an unnecessary urgency was created. Accordingly, I have fixed the costs at $1,000.00.
For these reasons, the motion to stay the Appellant's removal scheduled for today at 5:50 p.m. will be granted with costs fixed at $1,000.00.
"Gilles Létourneau"
J.A.
__________________1 Sivakumar c. Canada [1996] 2 F.C. 872, p. 880. See also Suresh v. R. (1998) 38 O.R. (3d), p. 267.
2 [1994] 1 S.C.R. 311, at p. 346.
3 See the decision of Rothstein J. in files IMM-169-98 and 170-98 at pp. 18 and 19.