|
Date: |
2003-10-15 |
|
Docket: |
IMM-7907-03 |
|
URL: |
http://www.canlii.org/en/ca/fct/doc/2003/2003fc1196/2003fc1196.html |
Immigration and Refugee Protection Act, S.C., 2001, c. 27
Date: 20031015
Docket: IMM-7907-03
Citation: 2003 FC 1196
BETWEEN:
SECADES ZUNIGA MARIA DEL MILAGRO,
ARTAVIA MENDEZ JORGE ARTURO and
JORGE ESTAVAN ARTAVIA ESPINOZA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] By Notice of Motion dated the 8th of October, 2003, the applicants seek a stay of the implementation of the removal order issued to them on the 25th of September, 2003 and communicated to them on the 29th of September, 2003. The applicants are scheduled to be removed to Costa Rica on the 16th of October, 2003 at 6:30 a.m.
[2] The application for judicial review underlying the motion before the Court seeks review of the direction to report for removal issued against the applicants.
[3] The applicant Artavia Mendez Jorge Arturo has an outstanding charge in the Criminal Courts of Ontario of assault. The charge was laid on information provided by his common-law spouse and co-applicant on the motion, Secades Zuniga Maria del Milagro. Mr. Artavia Mendez Jorge Arturo is scheduled to appear in court on the assault charge on the 17th of October, 2003.
[4] Paragraph 50(a) of the Immigration and Refugee Protection Act[1] reads as follows:
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;
...
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;
...
[5] Paragraph 50(a) is equivalent to, but not identical to, paragraph 50(1)(a) of the Immigration Act[2], the predecessor to the Immigration and Refugee Protection Act. Paragraph 50(1)(a) of the Immigration Act has been interpreted as precluding execution of a removal order where the subject of the order faces an outstanding criminal charge unless that charge has first been stayed or withdrawn.[3]
[6] Paragraph 234 (a) of the Immigration and Refugee Protection Regulations[4] reads as follow:
234. For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if
(a) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or
...
234. Il est entendu que, pour l'application de l'alinéa 50a) de la Loi, une décision judiciaire n'a pas pour effet direct d'empêcher l'exécution de la mesure de renvoi s'il existe un accord entre le procureur général du Canada ou d'une province et le ministère prévoyant :
a) soit le retrait ou la suspension des accusations au pénal contre l'étranger au moment du renvoi;
...
[7] Neither the Immigration Act or the Regulations enacted pursuant to that Act contained any provision equivalent to paragraph 234(a).
[8] The material before the Court on this motion includes a statutory declaration of an "Expulsion Officer" in the Respondent's Ministry which includes the following two (2) paragraphs:
I contacted James Chaffe, Crown Attorney at Toronto East Court House via email on 03/10/03 to inform them that Mr. Mendez and his family were tentatively booked for removal on 16/10/03 and requesting if charges could be stayed if removal was confirmed.
I received a call from Scott Rogers, Assistant Crown Attorney, Toronto East Court House informing me that if subject departs Canada on 16/10/03 and if his departure is confirmed by Canada Immigration in writing, his charges will be stayed.
It is clear to the Court that the burden of the quoted paragraphs is to establish that an agreement within the contemplation of paragraph 234(a) of the Immigration and Refugee Protection Regulations exists and that therefore the stay of removal of the applicant Artavia Mendez Jorge Arturo provided by paragraph 50(a) of the Immigration and Refugee Protection Act would not be breached by the removal of the Applicants.
[9] Removal from Canadaof persons such as the Applicants, against their will, is clearly a matter of great significance to such persons. It potentially affects their safety and well being and will, in most cases, certainly affect their economic and social circumstances, often, unfortunately, in a dramatically negative way. In the light of this reality, the Court concludes that the evidence now before it of an agreement between the respondent and the Attorney General of a province that criminal charges will be withdrawn or stayed on the removal of the Applicants from Canada is simply insufficient. Such an agreement should be evidenced in writing and such evidence should be properly before the Court where the respondent takes the position that paragraph 50(a) of the Immigration and Refugee Protection Act does not operate to stay removal of a person such as the applicant, Artavia Mendez Jorge Arturo.
[10] Based upon the foregoing conclusion, following a hearing this day, the Court, for greater certainty, stayed removal of the applicants from Canada until the 31st of October, 2003. In all other respects, the motion for a stay of removal pending final determination of the application for judicial review on which the stay application was based was adjourned, sine die.
_______________________________
Judge
Ottawa, Ontario
October 15, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7907-03
STYLE OF CAUSE: SECADES ZUNIGA MARIA DEL MILAGRO et al v. MCI
PLACE OF HEARING: OTTAWA, ONTARIO AND TORONTO, ONTARIO
VIA TELECONFERENCE CALL
DATE OF HEARING: WEDNESDAY, OCTOBER 15, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
DATED: WEDNESDAY, OCTOBER 15, 2003
APPEARANCES:
MR. MUNYONZWE HAMALENGWA FOR APPLICANT
MR. MICHAEL BUTTERFIELD FOR RESPONDENT
SOLICITORS OF RECORD:
MR. MUNYONZWE HAMALENGWA FOR APPLICANT
MISSISSAUGA, ONTARIO
MR. MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY OF CANADA
3] See for example Darboe v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (3d) 72 (F.C.T.D.).
[4] SOR/2002-227.