Date: 19990716
Docket: IMM-3445-99
BETWEEN:
THOMAS STUART CHARLES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] On the 15th of July, I heard by teleconference an application to stay the execution of a removal order issued against the applicant. Removal to Scotland was scheduled for late in the day on the 16th of July.
[2] Underlying the application for a stay is an application for leave and for judicial review to compel the respondent to deal with an application by the applicant for landing from within Canada on humanitarian and compassionate grounds, which application was made the 11th of February, 1999.
[3] At the close of the teleconference hearing I issued an Order in the following terms:
| Removal of the applicant from Canada is stayed pending determination by the respondent of the applicant"s application for landing from within Canada on humanitarian and compassionate grounds, which application was made the 11th of February, 1999. |
What follows is brief reasons in support of the foregoing Order.
[4] The applicant is 27 years of age. He has been in Canada since the age of 3. He has no status in Canada, that is to say, he is not a Canadian citizen, he is not a landed immigrant or permanent resident, and he does not have permission to be in Canada as a visitor. In 1992 and 1993 he was convicted of assault, robbery and obstruction of justice with the assault conviction resulting in a 30 days sentence and the latter two convictions resulting in a four month sentence. Since those convictions, he alleges that he has not been subjected to any further charges. The applicant was married to a Canadian citizen on the 22nd of May 1998. He and his wife have a seven month old Canadian-born daughter. The applicant was for some period of time gainfully employed. Now, because of his immigration difficulties, he cannot work outside the home. In the result, he is a full-time house-husband and his wife is the "bread winner".
[5] While it is too early to attempt to forecast all of the implications of Baker v. Canada (Minister of Citizenship and Immigration)1, I am satisfied that that decision does raise a serious question to be tried on the application for leave and for judicial review underlying this matter. That question can be summarized in the following terms:
| In the light of Baker, is it open to the respondent to deport from Canada an individual who has before the respondent an application for landing from within Canada on humanitarian and compassionate grounds where: |
| - the application for landing from within Canada was filed in a timely manner; |
| - there is no evidence that the individual is an imminent danger to the public in Canada; and |
| - the individual has a Canadian-born child for whom he or she assumes parental responsibility? |
[6] Counsel for the respondent cited Calderon v. Canada (Minister of Citizenship and Immigration)2 and Kerrut v. Canada (Minister of Citizenship and Immigration)3 for the proposition that "irreparable harm" for the purposes of a stay application implies serious likelihood of jeopardy to an applicant"s life or safety. No jeopardy to the applicant"s life or safety was alleged here, nor could it be successfully alleged on the facts before me.
[7] With great respect, I do not agree that irreparable harm for the purposes of a stay application implies serious likelihood of jeopardy to an applicant"s life or safety. I simply am not satisfied that Kerrut stands for that proposition and Calderon simply relies on Kerrut4. On the facts before me, I conclude that execution of the deportation order issued against the applicant on the 22nd of April, 1999, more than two months after the applicant made his application for landing on humanitarian and compassionate grounds, would result in irreparable harm to the applicant.
[8] I turn briefly to the third element of the test to determine whether or not a stay should be granted, namely, balance of convenience. It is trite that the respondent has an obligation in law to execute an outstanding deportation order "as soon as reasonably practicable". In my view, "as soon as reasonably practicable" is a flexible test. That the respondent has a backlog of applications for landing from within Canada on humanitarian and compassionate grounds that has precluded her from dealing with the applicant"s application, and will apparently continue to preclude her from dealing with the application for a number of months, should not work against the applicant. Given my finding that there is a serious issue to be tried on the applicant"s application for judicial review and my finding that the applicant would suffer irreparable harm if deported before his application for landing is dealt with, I conclude that the balance of convenience favours the applicant.
[9] In the result, the Order recited in the opening paragraph of these reasons issued.
[10] The material before me on behalf of the applicant on this application for a stay was entirely inadequate. Although the applicant advised during the course of the teleconference that he has the advice and assistance of a lawyer in dealing with his immigration difficulties, the lawyer remains unidentified and the material filed fails to reflect the standard of professional competence that I would expect from a lawyer. In the result, I elicited unsworn evidence from the applicant during the course of the teleconference, and I have relied on that evidence. Counsel for the respondent did not object to this course of conduct, and she, if not I, had the opportunity to observe the demeanour of the applicant in responding to my questions. If objection had been taken, given the pace at which this matter has been developing and the fact that the applicant was for all intents and purposes unrepresented, I would have adjourned the hearing to allow the applicant to present a further and better affidavit.
"Frederick E. Gibson"
Judge
OTTAWA, ONTARIO
July 16, 1999.
__________________2 (1996), 30 Imm. L.R. (2d) 256 (F.C.T.D.).
4 For my analysis in this regard see Calabrese v. Canada (Minister of Citizenship and Immigration) , (1996), 115 F.T.R. 213 at 216-218.