Date: 20050406
Docket: IMM-2057-05
Ottawa, Ontario, April 6, 2005
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
JOYCELYN CEBALLO
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant applies for an order staying her removal scheduled for later today, pending the determination of her application for leave and judicial review of the April 1, 2005 decision of an enforcement officer refusing to defer the applicant's removal or, in the alternative, for an order staying her removal for a period of 30 days.
[2] It is common ground that the applicant must meet the tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). Since the issue in the underlying application for judicial review is the decision not to defer removal, the Court should consider not only whether a serious issue is raised, but consider in more detail the merits of the application and the likelihood of success: Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C.R. 682 (T.D.).
[3] The applicant has lived in Canada for over 31 years. She has four Canadian-born children presently 14, 18, 19 and 22 years of age and two grandchildren. Her mother has Alzheimer's disease and is in a Toronto nursing home. Her three sisters and one brother are either citizens or permanent residents of Canada although her brother splits his time between Canada and Trinidad. Her abusive common-law husband is serving two life sentences for murder. Her 19-year-old son has been charged, along with a co-accused, of two counts of first-degree murder. No date has been set for his preliminary inquiry.
[4] The applicant has 21 criminal convictions and is charged with two criminal offences that will be withdrawn by the Crown should she be deported. On January 6, 2000, the Immigration Appeal Division of the Immigration and Refugee Board (IAD) granted an order that execution of a removal order dated March 10, 1999, with respect to the applicant be stayed (on specified conditions) and that the order be reviewed on January 6, 2005. The terms of the order required, among other things, that the applicant refrain from the illegal use or sale of drugs and that she keep the peace and be of good behaviour. Excluding the current charges that have yet to be prosecuted, between June 6, 2001 and December 29, 2004, the applicant accumulated an additional five convictions for theft under $5,000 and two convictions for possession of property obtained by crime. On July 22, 2004, the IAD cancelled the stay of the removal order and dismissed the applicant's appeal. The applicant applied for permanent residence on humanitarian and compassionate grounds (H & C) on March 23, 2005.
[5] The applicant alleges that the enforcement officer erred by failing to take into consideration: (a) the impact her removal would have on her son's ability to make full answer and defence in relation to his murder charges thereby violating his rights under section 7 of the Canadian Charter of Rights and Freedoms (the Charter), and (b) that the best interests of the 14-year-old child ought to be fully assessed before removal is effected.
[6] I am not satisfied that a serious issue exists. With respect to the first alleged error, the only evidence with respect to the son is the correspondence of the son's lawyer dated March 22, 2005 stating that the applicant "is a necessary and material witness for the defence and will be issued a subpoena for both the preliminary hearing and the trial" and the correspondence of that lawyer's assistant dated April 1, 2005, stating that: the lawyer is on holidays until April 7, 2005 and cannot be reached; the lawyer requires the applicant as a witness; other means may exist to obtain the applicant's testimony (other than her presence) but the lawyer requires the opportunity to consider whether those means meet the son's Charter rights; the lawyer requires a full interview with the applicant regarding her testimony; the lawyer requires 30 days to take whatever legal steps are necessary to ensure the applicant's attendance at trial.
[7] There is no indication as to the nature of the proposed evidence. Given that the applicant was incarcerated when the alleged murders occurred, some indication as to her contribution to her son's defence is, in my view, necessary. There is no suggestion that the applicant could not provide a summary of her proposed evidence to his lawyer's assistant nor is there any indication that it would be impossible for the applicant and her son's lawyer to confer, by telephone in the forthcoming months, prior to the preliminary inquiry which is not yet scheduled. The respondent notes that subsection 24(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides for the issuance of temporary resident permits in justified circumstances and that this Court is not the proper forum in which to advance arguments regarding alleged breaches of "full answer and defence" in criminal proceedings against the son. I agree.
[8] Moreover, the applicant is attempting to rely on an alleged violation of a third party's Charter right to advance her requested relief. Such an approach has been rejected by the Supreme Court of Canada: R. v. Edwards, [1996] 1 S.C.R. 128; Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575. The fact that the third party is an adult son is of no consequence. This argument does not raise a serious issue.
[9] With respect to the second alleged error, the fact that there has been no full assessment regarding the best interests of the applicant's 14-year-old child is not, in my view, determinative regarding the existence of a serious issue. The applicant relies on Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, but Martinez is distinguishable. There, the H & C application was filed several months before the removal arrangements were made. Here, the H & C application was filed less than two weeks before the scheduled removal notwithstanding that the stay of the applicant's removal was cancelled in July, 2004. There, the evidence revealed interdependency between the parent and the child. Here, there is scant evidence of interdependency beyond reference to "going to movies" and "going out to eat". There, there was no evidence that the parent had a criminal record. Here, the opposite is true. There, the evidence revealed the existence of the parent's role in the child's life and the material hardship that removal would occasion. Here, there is merely a generalized assertion that the child's rights will be breached.
[10] More importantly, the enforcement officer did consider the interests of the 14-year-old daughter and noted that the applicant had at least 11 periods of incarceration during her daughter's life, two of which were very lengthy. Additionally, there were indications in the file that the child had been in foster care for extended periods. It cannot be said that the enforcement officer failed to consider the child. I note, despite these circumstances, that the material filed by counsel indicates that the child is in grade 9, does well in school, participates in an after-school math program, recently won the school's "Loretto Idol" competition and studies hard. While I have sympathy for the applicant, I am not satisfied that she has demonstrated the existence of a serious issue in this regard.
[11] Even if I had been satisfied that a serious issue exists, irreparable harm has not been demonstrated. With the exception of the psychologist's report dated April 5, 2005 (which was not before the enforcement officer) there is no evidence beyond that referenced above. With respect to the report, the psychologist describes what I consider to be normal reactions to the proposed removal - sadness, crying, worry. While it is noted in the report that parental support and guidance is crucial for normal emotional development, there is no reference to any negative consequences, thus far, notwithstanding the repeated separations of mother and daughter. The report indicates that the child lives with her older sisters and I also note an apparent failure by the psychologist to explore the alternative option of the child going with her mother. In my view, the report does little to add to the evidence. Finally, I view the alternative request (of a stay for 30 days) as one that flies in the face of the applicant's position regarding the evidence of irreparable harm in relation to the child.
[12] The balance of convenience favours the respondent in that the Minister's obligation is "not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada's system of immigration control": Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261. Subsection 48(2) of IRPA mandates that a removal order is to be enforced as soon as is reasonably practicable. The applicant's criminality militates against her. The argument that she is not and will not be a danger to the public because she is in detention undermines her submissions regarding the best interests of the child both with respect to the serious issue and the irreparable harm aspects of the tri-partite test.
ORDER
THIS COURT ORDERS THAT the motion is dismissed.
"Carolyn A. Layden-Stevenson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2057-05
STYLE OF CAUSE: JOYCELYN CEBALLO v. SGC
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 5, 2005
REASONS FOR ORDER BY: Madam Justice Layden-Stevenson
APPEARANCES:
Ms. Leigh Salsberg FOR APPLICANT
Ms. Kareena R. Wilding FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario