Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Harrington
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] Clement Jones is British. His estranged wife, Michelle, is Canadian. They met and married in England, where their twin sons Evan and Dylan were born. Evan and Dylan are now three years of age. The Joneses moved to Canada where their marriage quickly unravelled. At Michelle’s instance, criminal charges were laid against Clement relating to assault and destruction of property. He was acquitted of all assault charges but convicted of mischief.
[2] He has no legal standing in Canada. Moreover, he has been found inadmissible and is subject to be deported later this week.
[3] However, both Clement and Michelle want custody of Evan and Dylan. At present, Michelle has de facto custody, but Clement has court sanctioned visiting rights. The next court hearing is 10 April, but it may be a few months more before the Court issues a final custody order. Both parents have agreed to psychological testing which would include professional observations as to how each interacts with the children.
[4] Clement does not contest the fact that he is inadmissible. However, he asked the enforcement officer to defer his deportation until custody is resolved. The enforcement officer refused to do so. An application for leave and for judicial review of that decision has been taken pursuant to section 72 of the Immigration and Refugee Protection Act (IRPA). In the interim, Clement seeks a stay of his deportation.
DECISION
[5] After considering the written and oral representations of counsel, I have decided to grant the stay.
ISSUES
[6] The issue is whether the requirements of the cumulative tri-partite stay, enunciated in such cases as Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 and RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, have been met. The onus is on Mr. Jones to show there is a serious underlying issue, that the refusal to grant a stay would result in irreparable harm, and that the balance of convenience rests with him.
THE DECISION OF THE ENFORCEMENT OFFICER
[7] It began with a report from an immigration officer to the Minister of Citizenship and Immigration in accordance with section 44(1) of IRPA. The officer was of the opinion that Mr. Jones, a foreign national, was inadmissible to Canada. The officer’s opinion was that Mr. Jones was inadmissible pursuant to section 36(2) (a) of IRPA in that he had been convicted of an offence under an act of Parliament punishable by way of indictment. The conviction was for mischief contrary to section 430(1) (c) of the Criminal Code. Although the matter had been prosecuted summarily, and he had been given a suspended sentence, section 36(3) of the Act provides that it matters not that an offence which could have been prosecuted by way of indictment was prosecuted summarily.
[8] If the Minister is of the opinion that the report is well-founded (which it was), he may refer the report to the immigration division for an admissibility hearing. On 19 February 2007 the Minister’s delegate prepared notes which referred to the civil litigation underway with respect to custody. The delegate concluded that Mr. Jones did fall within section 36(2) (a) of IRPA, writing, “I therefore must issue a deportation order.” That statement is correct in law.
[9] Thereafter, the Minister’s delegate also acted as an enforcement officer under section 48 of IRPA which provides:
[10] The next step was a letter from Mr. Jones’ counsel to the enforcement officer. This letter emphasized that the ongoing family court proceedings were central to the lives of Mr. Jones and his sons. It was estimated that the psychological testing and all custody issues in the family dispute would be resolved within months. The letter concluded by stating that if a decision was not forthcoming by 5 March 2007 it would be assumed that the officer decided not to defer removal.
[11] According to Mr. Jones’ affidavit, the enforcement officer met with him on 6 March. The officer informed him orally that the request for deferral was denied. “He stated that he could do nothing…” There is no affidavit from the enforcement officer contradicting Mr. Jones, and no reasons given with respect to the refusal to defer. All that is contained in the file are the uncontested reports of Mr. Jones’ inadmissibility.
ANALYSIS
[12] I am sure that the last word has not yet been written on the meaning of “as soon as is reasonably practicable” found in section 48 of IRPA. In the meantime, I rely upon the decision of Mr. Justice O’Reilly in Ramada v. Canada (Solicitor General), 2005 FC 1112, where he said:
[3] Enforcement officers have a limited discretion to defer the removal of persons who have been ordered to leave Canada. Generally speaking, officers have an obligation to remove persons as soon as reasonably practicable (s. 48(2), Immigration and Refugee Protection Act, S.C. 2001, c. 27; set out in the attached Annex). However, consistent with that duty, officers can consider whether there are good reasons to delay removal. Valid reasons may be related to the person's ability to travel (e.g. illness or a lack of proper travel documents), the need to accommodate other commitments (e.g. school or family obligations), or compelling personal circumstances (e.g. humanitarian and compassionate considerations). (See: Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL), Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.) (QL), Prasad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 805 (T.D.) (QL); Padda v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1353 (F.C.) (QL)). It is clear, however, that the mere fact that a person has an outstanding application for humanitarian and compassionate relief is not a sufficient ground to defer removal. On the other hand, an officer must consider whether exigent personal circumstances, particularly those involving children, justify delay.
[13] His reasons pertained to a judicial review, not a stay. One of the issues was the health of one of the children. Mr. Justice O’Reilly continued:
[5] The officer is to be commended for her willingness to entertain Ms. Ramada's arguments and consider the evidence before her. She made detailed notes explaining her decision not to defer Ms. Ramada's removal from Canada. She took the additional precaution of seeking a medical opinion on Ms. Ramada's fitness to travel. She considered, at least in general terms, the best interests of Ms. Ramada's two Canadian-born children.
[…]
[7] I have some reluctance in granting this application for judicial review, out of concern for imposing on enforcement officers an obligation to engage in an extensive analysis of the personal circumstances of persons subject to removal orders. Obviously, officers are not in a position to evaluate all of the evidence that might be relevant in an application for humanitarian and compassionate relief. Their role is important, but limited. In my view, it is only where they have overlooked an important factor, or seriously misapprehended the circumstances of a person to be removed, that their discretion should be second-guessed on judicial review.
SERIOUS ISSUE
[14] Although the scope of discretion given an enforcement officer under section 48 of IRPA is clearly not as broad as the Minister’s discretion to allow someone to remain in Canada on humanitarian and compassionate grounds pursuant to section 25 of IRPA, compelling circumstances of a temporary nature may be considered. The officer gave no reasons for his refusal to defer. In fact the evidence of Mr. Jones indicates that he did not realize that he had some discretion, which was fettered. Although the officer may not have been obliged to give reasons, if reasons are not given it is difficult to determine the basis of a decision. Although decided in a criminal law context, R. v. Sheppard, [2002] 1 S.C.R. 869 is à propos. Mr. Justice Binnie said:
[15] Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[…]
[18] In Canadian administrative law, this Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, that:
... it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.
[15] Even if we were to relate back to the enforcement officer’s report as the Minister’s delegate, a recital of facts without analysis does not constitute a reasoned decision.
[16] I find that the custody of the children was a serious issue which was not at all considered.
[17] The Minister referred to the decision of Mr. Justice Pelletier, as he then was, in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] F.C.J. No. 295 (QL) where he said that the judge hearing a motion for a stay should not simply decide the serious issue test on the question of whether it is not vexatious and not frivolous “…but should go further and closely examine the merits of the underlying application.”
[18] This led both parties to offer suggestions as to the outcome of the custody dispute. This arises from the fact that the conclusion of the motion was in the alternative for a stay pending the application for leave and judicial review of the decision not to defer removal or that the removal be stayed for at least six months or until such time as custody has been decided.
[19] It would be completely inappropriate for me to offer any opinion on matters before the Ontario Family Court. The serious issue has to relate to the one before this Court which is the decision of the enforcement officer. Furthermore, unlike Wang, above, Mr. Jones is only seeking a temporary stay. In my view, the enforcement officer’s consideration of the scope of section 48 of IRPA, or his lack of consideration, constitutes a serious issue, no matter what the standard.
IRREPARABLE HARM
[20] Mr. Jones’ submission is that he will have no chance to obtain a custody order if he is out of the country. He would be unable to attend at the psychologist’s office with his children, and would not be in Court at the custody hearing. The Ministers reply that section 52 of IRPA permits them to authorize his return. However they offered no evidence as to the normal administrative delays in that connection. Without such evidence, I am satisfied that Mr. Jones’ case would be severely prejudiced. Indeed, the interests of his children may also be prejudiced if his wife gains custody solely by default.
[21] Natural justice requires that Mr. Jones be given a full opportunity to be heard in the pending custody hearings. See Ball c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2005 CF 1609.
BALANCE OF CONVENIENCE
[22] The Ministers have an obligation to enforce the law. Furthermore in this case, Mr. Jones has been found to be inadmissible because of a criminal conviction in Canada. However he is not considered a particular risk in that he is not in jail and furthermore is obliged to report to a parole officer weekly. The scale is on Mr. Jones’ side.
ORDER
THIS COURT ORDERS that the applicant’s deportation scheduled for 23 March 2007 is stayed pending the resolution of the application for leave and for judicial review of the decision of the enforcement officer not to defer removal.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1064-07
STYLE OF CAUSE: Clement Lloyd Jones v.
The Minister of Citizenship and Immigration
Minister of Public Safety and Emergency Preparedness
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 20, 2007
REASONS FOR ORDER
APPEARANCES:
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Julie Taub
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Jennifer Francis
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SOLICITORS OF RECORD:
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Julie Taub Ottawa, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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