Date: 20000114
Docket: A-727-99
CORAM: STONE J.A.
LÉTOURNEAU J.A.
| MALONE J.A. |
BETWEEN:
NIRANJAN CLAUDE FABIAN and SHANKRI FABIAN
by her litigation guardian Nilanthi Kanathasan
Appellants
AND:
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
Heard at Toronto, Ontario, Friday, January 14, 2000
Judgment delivered from the Bench at Toronto, Ontario, Friday, January 14, 2000
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20000114
Docket: A-727-99
CORAM: STONE J.A.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
NIRANJAN CLAUDE FABIAN and SHANKRI FABIAN
by her litigation guardian Nilanthi Kanathasan
Appellants
AND:
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Friday, January 14, 2000)
LÉTOURNEAU J.A.
[1] We are of the view that this appeal should be allowed. In both Suresh v. Minister of Citizenship and Immigration et al. (1999) 176 DLR (4th) 296 and Said v. Canada (Minister of Citizenship and Immigration [1999] F.C.J. No. 663, judges of this Court have recognized that deporting someone who has a pending constitutional challenge to legislation permitting deportation may, for practical purposes, destroy their legal rights to have their day in Court.
[2] Contrary to the opinion of the learned motions judge, we believe that the balance of convenience favours the appellant, Niranjan Claude Fabian. In our view, she erred when she concluded that the fact that the appellant had committed crimes in Canada as opposed to abroad and was found to constitute a danger to the public weighed against him and in favour of the public interest. She failed to consider whether the public was in any danger from the appellant during the relevant time at issue here, i.e., between the possible granting of an interlocutory injunction against the deportation order and the hearing of the Charter challenge. The appellant is detained and as long as he so remains and that there is no evidence that he is conducting his criminal activities from his cell, we endorse the following statement made in the Said case:
| 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. |
[3] It is not sufficient to look at the concept of "public danger" or "danger to the public" when there is in fact no likelihood of a contact between the public and the "dangerous" person during the time for which interlocutory relief is sought.
[4] We can understand the difficulty and perhaps the frustration experienced by the Minister of Citizenship and Immigration who is trying to deport criminals who undoubtedly are not deserving of Canadian hospitality and generosity. However, we are bound to apply the law as it stands.
[5] For these reasons, the appeal will be allowed, the order of the motions judge will be set aside and an interim injunction will be granted to stay the execution of the deportation order until final adjudication by the Trial Division in file Imm-2394-99.
"Gilles Létourneau"
J.A.