Ottawa, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
and Emergency Preparedness
REASONS FOR ORDER AND ORDER
[1] This is a motion for an order staying a deportation order issued against the applicant on September 19, 2006. The applicant has lived in Canada for all of his 59 years, and is the son of Canadian born parents.
Background
[2] The applicant, a 59 year old male, is currently incarcerated at the Prince Albert penitentiary in Saskatchewan. On April 3, 2006, he was convicted of the following offences:
1. Production of cannabis marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act;
2. Possession of proceeds exceeding five thousand dollars obtained from the commission of trafficking cannabis marihuana contrary to ss. 354(2) and 355(a) of the Criminal Code;
3. Possession of cannabis marihuana exceeding three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act;
4. Conspiring to commit an indictable offence (two counts) contrary to s. 465(1)(c) of the Criminal Code; and
5. Smuggling alcohol from the United States into Canada for resale contrary to s. 999(9) of the Customs Excise Act;
The maximum sentence for this series of convictions is life imprisonment. The applicant was sentenced to a term of 30 months imprisonment. He is scheduled for release on parole in February 2007 and will then be deported to the United States.
[3] On June 14, 2006, the Minister’s delegate wrote a report under s. 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 stating that the applicant was a foreign national or permanent resident who there were reasonable grounds to believe was inadmissible. On September 19, 2006, the Minister’s delegate issued a deportation order stating that the applicant was inadmissible on grounds of serious criminality.
[4] At issue in the underlying application for judicial review is whether the removal officer erred in issuing the deportation order against the applicant. The applicant claims that he is a citizen of Canada and that the deportation order against is him is therefore invalid.
The applicant’s citizenship
[5] Both of the applicant’s natural parents were Canadian citizens by birth. At the time of the applicant’s birth on June 5, 1947, his parents lived on a farm in rural Manitoba near the U.S. border. At the time, the nearest medical facility was located in Westhope, North Dakota, approximately 10 miles away. As there was no public health system in Canada at the time, the applicant’s parents decided to travel to the nearest facility in North Dakota for the applicant’s birth--as they had done for each of their children. After the applicant’s birth, the family returned to its farm in Manitoba.
[6] The applicant states that he was not aware that his birth needed to be registered in order for Canada to consider him a Canadian citizen. Throughout his life, the applicant believed he was in fact a citizen of Canada. His parents received family allowance cheques from the government on account of all of their children. The applicant voted in Canadian elections, and he has provided evidence from Elections Canada confirming that he is a registered voter.
[7] The applicant states that he was first informed that he was not a citizen of Canada on June 14, 2006 when he received the report issued under s.44(1) of the Immigration and Refugee Protection Act stating that he was inadmissible because of his conviction.
The law governing the applicant’s citizenship
[8] The applicant relies on paragraph 3(1)(e) of the Citizenship Act, R.S.C. 1985, c. C-29, which provides:
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PART I THE RIGHT TO CITIZENSHIP 3. (1) Subject to this Act, a person is a citizen if […] (e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act.
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PARTIE I LE DROIT À LA CITOYENNETÉ 3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne : […] e) habile, au 14 février 1977, à devenir citoyen aux termes de l’alinéa 5(1)b) de l’ancienne loi. |
[9] Paragraph 5(1)(b) of the former Citizenship Act, R.S.C. 1970, c. C-19, reads as follows:
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Person born after December 31, 1946
5. (1) A person born after the 31st day of December 1946 is a natural-born Canadian citizen,
[…]
(b) if he is born outside Canada elsewhere than on a Canadian ship, and
(i) his father, or in the case of a child born out of wedlock, his mother, at the time of that person’s birth, is a Canadian citizen, and (ii) the fact of his birth is registered, in accordance with the regulations, within two years after its occurrence or within such extended period as the Minister may authorize in special cases.
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Personne née après le 31 décembre 1945
5. (1) Une personne née après le 31 décembre 1946 est un citoyen canadien de naissance,
[…]
(b) si elle est née hors du Canada ailleurs que sur un navire canadien, et si
(i) son père ou, dans le cas d’un enfant né hors du marriage, sa mere, au moment de la nassance de cette personne, était un citoyen canadien, et si (ii) le fait de sa naissance est inscrit, en conformité des règlements, au cours des deux années qui suivent cet événement ou au cours de la période prolongée que le Ministre peut autoriser en des cas spéciaux. |
[10] The applicant did not register the fact of his birth within two years of its occurrence as required under s. 5(1)(b) of the former Act. However, the applicant argues that the jurisprudence of the Federal Court supports the proposition that his entitlement to citizenship is not dependent on registration and, furthermore, that the automatic loss of citizenship provisions in the former Act are unenforceable against the applicant.
[11] Mr. Justice Luc Martineau in Taylor v. Canada (Minister of Citizenship and Immigration), 2006 FC 1053 held that the automatic loss of citizenship effected by the Act was unenforceable against Mr. Taylor because it is contrary to due process and infringes the rights guaranteed by paragraphs 1(a) and 2(e) of the Canadian Bill of Rights and section 7 of the Charter:
¶249 The simple fact that the automatic loss of citizenship was "prescribed by law" does not make it more compliant with due process if it has the potential to deprive one's life, liberty or security (see Reference re Motor Vehicle Act (British Columbia) S 94(2), supra). There should be some form of proper notice given to the individual, provided for in the statute or regulations. However, it is not the role of this Court to remedy past and current legislative or regulatory deficiencies. It is sufficient to declare that the claimed automatic loss of citizenship was and is unenforceable against the Applicant because it was and is contrary to due process and infringes the rights guaranteed by paragraphs 1(a) and 2(e) of the Bill of Rights, and section 7 of the Charter.
[Emphasis added]
[12] The respondent has filed a notice of appeal in respect of the Taylor judgment and a decision of the Federal Court of Appeal is pending. It is not necessary for the purpose of this motion to determine conclusively whether the applicant is entitled to Canadian citizenship despite the provisions in the Citizenship Act which purport to deny him citizenship because he did not register the fact of his birth before the prescribed deadline. The parties also advise that the applicant has applied for proof of citizenship, and that the respondent has imposed “interim instructions” prohibiting determinations regarding citizenship in cases such as the applicant pending the outcome of a motion before the Federal Court of Appeal for a stay of the Federal Court’s judgment in Taylor. In effect, the applicant’s citizenship status, and in turn the validity of his deportation order, remain in suspense due to factors beyond his control.
Analysis
[13] Three requirements must be met to obtain an order stating execution of a removal order: there must be a serious question to be determined by the Court; the party seeking the stay would suffer irreparable harm if the stay were not issued; and the balance of convenience must favour the party seeking the stay such that he will suffer the greater harm from the refusal to grant the stay: Toth v. Canada (Minister of Citizenship and Immigration, [1988] F.C.J. No. 587; 86 N.R. 302; 6 Imm. L.R. (2d) 123 (F.C.A).
Serious issue
[14] In my view, the applicant’s argument has merit. In any event, he has raised a serious issue as required under the tripartite test for granting a stay under s. 18.2 of the Federal Courts Act. If he is a citizen of Canada, it necessarily follows that the deportation order is invalid.
Irreparable harm
[15] The immediate irreparable harm claimed by the applicant arises out of the fact that the issuance of the deportation order has prevented him from accessing Accelerated Day Parole and Unescorted Temporary Absences, to which he would otherwise be entitled, as a result of subsection 128(4) of the Corrections and Conditional Release Act, S.C. 1992, c. 20:
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Effect of Parole, Statutory Release or Unescorted Temporary Absence Removal order 128. […] (4) Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole.
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Conséquences de la libération conditionnelle ou d’office et permission de sortir sans escorte Mesure de renvoi 128. […] (4) Malgré la présente loi ou la Loi sur les prisons et les maisons de correction, l’admissibilité à la libération conditionnelle totale de quiconque est visé par une mesure de renvoi au titre de la Loi sur l’immigration et la protection des réfugiés est préalable à l’admissibilité à la semi-liberté ou à l’absence temporaire sans escorte.
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[16] The applicant also submits that prison authorities have reclassified the applicant as a medium security risk because of the deportation order, rather than a minimum security risk, which prevented his transfer to the Riverbend minimum security institution.
[17] In my view, the execution of the deportation order constitutes irreparable harm for the applicant. In particular, if the applicant is successful in establishing his citizenship, the execution of the deportation order, would prima facie infringe his right under section 6 of the Charter to enter and remain in Canada. The respondent argues that no irreparable harm arises because a date has not been scheduled for the removal order, and this motion has been brought prematurely. I do not agree. The issuance of the deportation order has triggered a serious consequence for the applicant, the automatic ineligibility for day parole for which the applicant would otherwise be eligible. It is no answer, as the respondent has argued, that damages may compensate the applicant for any unlawful confinement which might arise should the deportation order prove to be invalid. A person’s loss of liberty cannot always be adequately compensated for in damages. I am satisfied that the circumstances give rise to irreparable harm to the applicant should a stay be denied.
Balance of convenience
[18] There is minimal prejudice to the respondent in staying the effect of the deportation order. The applicant has lived in Canada for 59 years. I am of the view that the balance of convenience favours the applicant.
Conclusion
[19] For the reasons above, the motion is allowed. An interim order will issue staying the effect of the deportation order pending the final disposition of the underlying application for judicial review. Additionally, as agreed by the parties, the style of cause will be amended to reflect the designation of the Minister of Public Safety and Emergency Preparedness as the responsible authority.
ORDER
THIS COURT ORDERS that:
1. the deportation order issued against the applicant is stayed pending the disposition of the underlying application for judicial review; and
2. the style of cause is amended to name the Minister of Public Safety and Emergency Preparedness as respondent in lieu of the Minister of Citizenship and Immigration.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5373-06
STYLE OF CAUSE: Robert Gene Clark v. The Minister of Public Safety and Emergency Preparedness
DATE OF HEARING: December 15, 2006
APPEARANCES:
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Mr. Christopher Veeman
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Ms. Glennys Bembridge Ms. Crystal Warde
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SOLICITORS OF RECORD:
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Roe & Company 313-220 3rd Avenue S. Saskatoon, SK
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John H. Sims, Q.C. Deputy Attorney General of Canada
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