Date: 19990218
Docket: IMM-215-99
BETWEEN:
MICHAEL KEITH PETGRAVE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is a motion by the applicant to stay his removal from Canada which has been scheduled for February 22, 1999. He has filed with this Court an application for leave to apply and an application for judicial review to determine the validity of the removal order. Neither has yet been determined.
[2] The applicant is a citizen of Jamaica who has been a permanent resident in Canada since his arrival in 1987, when he was 15 years old. In 1996 he was sentenced to 41 months" imprisonment following his conviction on two counts of aggravated assault and use of a firearm in the commission of an assault. On the basis of these convictions, the applicant was ordered deported in 1996. In October 1997 the Immigration Appeal Division of the Immigration and Refugee Board dismissed his appeal against the deportation order.
[3] The applicant has applied under subsection 114(2) of the Immigration Act R.S.C. 1985 c. I-2 for permanent resident status on humanitarian and compassionate grounds. He is being sponsored by his wife, the mother of their child who was born in Canada in 1993. The applicant and his wife are expecting another child. Apart from the time when he was incarcerated, the applicant has a steady employment record.
[4] In order to obtain the relief sought, the applicant must satisfy each of the three elements of the test established in Toth v. Minister of Employment and Immigration (1988), 36 N.R. 302 (F.C.A.).
[5] First, the application for judicial review must raise a serious issue. Mr. Hamalengwa, counsel for the applicant, submitted that the serious issue was whether it was a breach of section 7 of the Canadian Charter of Rights and Freedoms for the Minister of Citizenship and Immigration to remove persons who are the primary source of support for their Canadian-born children. He argued that this issue is currently before the Supreme Court of Canada in Baker v. Minister of Citizenship and Immigration (leave to appeal granted, September 4, 1997).
[6] In my opinion, however, the facts of the case before me are readily distinguishable from those in Baker, as is apparent for the judgment rendered by Simpson J. in dismissing the application for judicial review in Baker (F.C.T.D.; IMM-2477-94; October 30, 1995). First, in Baker the person to be removed, the mother of the children, was the only parent who was involved in the support and care of the children. In the present case, the mother of the applicant"s son has been cared for by his mother, including during the time when the applicant was serving his sentence.
[7] Second, the decision challenged in Baker was the refusal to grant permanent resident status to Ms. Baker on humanitarian and compassionate grounds. In particular, it was submitted that the refusal was erroneous in law because it had been made without affording an opportunity for submissions to be made by or on behalf of Mr. Baker"s children, and without giving sufficient weight in the exercise of the statutory discretion to the best interests of her children.
[8] In the case before me, however, no decision has yet been made in respect of the respondent"s application to remain in Canada on humanitarian and compassionate grounds. In my opinion, Baker is therefore of no assistance to the applicant, especially since it is well established that this Court may not grant a stay of a removal order simply to await the determination of a subsection 114(2) application.
[9] For these reasons the motion for stay is dismissed, although if it had been necessary I would also have concluded that the applicant had failed to satisfy either the irreparable harm or the balance of convenience elements of the Toth test.
OTTAWA, ONTARIO John M. Evans
February 18, 1999. J.F.C.C.