Toronto, Ontario, March 21, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KRZYSZTOF ANDRZEJ JAKOBSCHY
DAWID MICHAL JAKOBSCHY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] The Applicants, citizens of Poland, seek a stay of removal originally scheduled for March 9, 2007. They entered Canada in 2003 and their refugee claim was denied in part based upon state protection in Poland. Leave to appeal the refugee claim was denied.
[2] The Applicants received a negative PRRA based on the absence of any significant difference between this PRRA application and the refugee application and that the presumption in favour of state protection had not been rebutted.
[3] On the day of the stay hearing, the Applicants presented the Court with subpoenas for the two adult Applicants requiring their presence at the Ontario Court of Justice on March 19, 2007. This stay application was put over until March 20, 2007 in order that the Court could have better evidence and submissions as to the circumstances surrounding the issuance of the subpoenas.
[4] It is now clear that Mrs. Jakobschy’s sister obtained the subpoenas with the assistance of a criminal lawyer. The sister is the complainant in a spousal abuse criminal proceeding being conducted by provincial Crown counsel.
[5] Apparently, the sister is dissatisfied with the way in which the Crown counsel was handling her case and she decided that Mr. and Mrs. Jakobschy were material witnesses. The Crown has not come to that conclusion and there has been no effort by such counsel to secure Mr. and Mrs. Jakobschy’s attendance.
[6] Initially in the confusing circumstances under which the subpoenas arose, the Respondent’s counsel consented to a stay to March 19, 2007 on the basis that the subpoenas fell within s.50(a) of IRPA which reads as follows:
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50. A removal order is stayed (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;
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50. Il y a sursis de la mesure de renvoi dans les cas suivants : a) une décision judiciaire a pour effet direct d’en empêcher l’exécution, le ministre ayant toutefois le droit de présenter ses observations à l’instance;
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[7] The Respondent indicates that this view of the applicability of s.50 (a) was in error. I agree. The subpoenas were not obtained in any judicial proceeding much less one at which the Respondent had an opportunity to appear. Therefore there is no automatic stay of removal.
[8] As to whether the Court should exercise its equitable jurisdiction to stay removal because of the existence of the subpoenas, I am not persuaded to do so. The complainant justifies her actions on the basis that the provincial Crown has been negligent and should have subpoenaed her sister and brother-in-law. The complainant is in no position to make the determination as to which witnesses the Crown should call.
[9] There was a hearing on March 19, 2007 and there is no evidence that the Crown intends to call these Applicants as witnesses when the case resumes in August. There are no new subpoenas much less ones obtained by the Crown.
[10] Counsel had been directed to advise the Court at the resumed stay hearing as to the circumstances under which the subpoenas were obtained. No explanation was provided. The Court is concerned that privately served subpoenas could be used as a method to avoid deportation. Without a request from the Crown that Mr. and Mrs. Jakobschy remain in Canada, there is no reason to defer deportation on the basis of the old subpoenas (which have expired, there being no direction from a Court that they appear in August) or on the basis of new subpoenas secured in the method used previously.
[11] As to the application for a stay based upon the PRRA decision, the Applicants have not satisfied me that they have met the three prong test for the granting of a stay. Most particularly Poland, a member of the European Union, has been found to be able to provide state protection and there is no serious issue raised in respect of that finding.
[12] Therefore, this application for a stay will be dismissed without prejudice to any future application for a stay on the basis of subpoenas issued on behalf of the provincial Crown.
ORDER
FOR THE REASONS PROVIDED HEREIN:
THIS COURT ORDERS that this application for a stay is dismissed without prejudice to any future application for another stay based on subpoenas issued on behalf of the Crown.
“Michael L. Phelan”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-915-07
STYLE OF CAUSE: CZESLAWA MALGORZATA JAKOBSCHY ET AL
Applicants
and
MINISTER OF CITIZENSHIP & IMMIGRATION ET AL
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 20, 2007
APPEARANCES:
LANI GOZLAN
BERNARD ASSAN
SOLICITORS OF RECORD:
LANI GOZLAN
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
JOHN H. SIMS, Q.C.