Date: 20040625
Docket: A-167-04
Citation: 2004 FCA 247
Present: The Honourable Mr. Justice Rothstein
BETWEEN:
ALWYN LLOYD TOWNSEND
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on June 25, 2004.
Order delivered from the Bench at Toronto, Ontario, on June 25, 2004.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20040625
Docket: A-167-04
Citation: 2004 FCA 247
Present: The Honourable Mr. Justice Rothstein
BETWEEN:
ALWYN LLOYD TOWNSEND
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario, June 25, 2004)
[1] This is an application for stay of a removal order pending determination of an appeal from a decision of the Federal Court on a certified question. The Minister of Citizenship and Immigration concedes that there is a serious issue.
[2] The appellant's irreparable harm argument is based on his long residency in Canada and his lack of family ties in Jamaica. It is said that if his appeal is successful and the matter is remitted to the Immigration Appeal Division for redetermination, his ability to make new representations will be diminished if he is out of Canada. It is also argued that section 71 of the Immigration Refugee Protection Act may preclude the re-opening of an appeal if the appellant is removed from Canada.
[3] I am not persuaded that these arguments demonstrate irreparable harm if the appellant is removed from Canada. In the length of time the appellant has been in Canada, he has amassed 27 criminal convictions. Whatever weight is given to the length of time he has spent in Canada, it is surely undermined by his criminal activity over that period. The evidence of ties to his family is weak. There is no significant argument based on the best interest of children.
[4] I do not think that the appellant's argument that his diminished ability to make new representations before the Immigration Appeal Division if he is removed amounts to irreparable harm. Those representations will be based on future events and it would be simply speculative for this Court to anticipate what type of arguments might be made before the Immigration Appeal Division.
[5] As to the section 71 argument, counsel for the Minister has undertaken that, if the appellant's appeal is successful and the matter is remitted to the Immigration Appeal Division, the Minister will not preclude the appellant from returning to Canada for that purpose. In any event, as I read section 71, it applies when a foreign national who has not left Canada under a removal order applies to re-open an appeal before the Immigration Appeal Division on the grounds of a breach of the principle of natural justice. It does not apply when a matter is remitted to the Immigration Appeal Division by order of the Federal Court or Federal Court of Appeal.
[6] The balance of convenience also favours the Minister. The appellant's long criminal record and current costly incarceration outweigh the appellant's lengthy residence in Canada.
[7] The application for stay pending appeal will be dismissed.
"Marshall Rothtein"
J.A.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-167-04
STYLE OF CAUSE: ALWYN LLOYD TOWNSEND and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JUNE 25, 2004
REASONS FOR ORDER
RENDERED FROM THE
BENCH BY: ROTHSTEIN J.A.
APPEARANCES:
MICHEAL CRANE FOR APPELLANT
DEBORAH DRUKARSH FOR RESPONDENT
SOLICITORS OF RECORD:
MICHEAL CRANE
TORONTO, ONTARIO FOR APPELLANT
MORRIS ROSENBERG
DEPUTY ATTORNEY
GENERAL OF CANADA FOR RESPONDENT