IMM-4182-96
Between:
RICHARD NARTEY DARBOE
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
TEITELBAUM, J.:
On November 13, 1996, the applicant, Richard Nartey Darboe filed into the Federal Court Registry an Application for Leave and for Judicial Review of a decision of Peter Palmer, an Immigration Officer, who had issued on November 12, 1996 a Direction to Report for removal. Mr. Palmer directed the applicant to report for removal on November 21st, 1996 at 6:50 p.m.
On the same date the applicant filed a notice of Motion presentable on November 18, 1996 wherein he requests a stay of the removal order until such time as the applicant's Application for Leave and for Judicial Review is disposed of.
At the hearing of the applicant's application for stay, counsel for the applicant gave, as the ground for the application for stay, s. 50(1)(a) of the Immigration Act:
| 50. (1) A removal order shall not be executed where |
| (a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or |
| (b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings. |
In his Affidavit dated November 13, 1996, the applicant states, in paragraph 2 the following:
| 2. That I am currently in detention under the Immigration Act, having been granted release on my own recognizance under the Criminal Code for the criminal charges that I am currently facing. I am innocent of the current charges. After a four day trial in General Division, the jury deadlocked and the matter was put over for trial to another date. On November 7th, 1996, the crown told the Judge that they have agreed with the Immigration to just send me away. The charges have not been stayed or dropped officially and on record in court. |
In a Supplementary Affidavit of the applicant dated November 15, 1996, the applicant states:
| 1. That I will be required to attend court at the Ontario Court, General Division on November 27th, 1996. The Order for me to attend court is contained within an Undertaking Given to a Justice or a Judge that I signed in Court on November 7th, 1996. I attach that Undertaking as exhibit "A" herein. The Respondent wants me to leave Canada on November 21st, 1996 that would be in breach of my Undertaking and of a Court Order. |
The Respondent filed the affidavit of Jennifer Lucchetta dated November 18, 1996 in which is attached as Exhibit "A" a letter dated November 4, 1996 from the Ministry of the Attorney General in which it is stated:
| Further to our telephone discussions last week, I am writing to confirm that Richard Nartey Darboe was charged with Fraud Over on April 9, 1996 and committed for trial following a preliminary hearing. |
| The accused was granted a surety bail on the criminal charge but was detained on an immigration hold. He was tried in the General Division last week and on October 31, 1996 a mistrial was declared. He was ordered to appear again on November 7, 1996. |
| In view of the fact that there is a removal order against the accused, the Crown will be prepared to withdraw the charge on receiving confirmation from you that the accused has been removed from Canada. In addition, the Crown would be prepared to vary the bail to provide for the accused's release on his own recognizance and this can be done on November 7 assuming that he will continue to be detained in custody by Immigration Canada until his removal. |
Counsel for the applicant submits that the Court must stay the execution of the removal order because the execution of the Removal Order "would directly result in a contravention of any other order made by any judicial body or officer in Canada" (s. 50(1)) that is, the order of the Ontario Court (General Division) for the applicant to appear on November 27, 1996 for trial of a criminal charge of "Attempt Fraud Over" (see Exhibit "A" Darboe supplementary affidavit).
Counsel for the respondent submits that because the Ministry of the Attorney General of the Province of Ontario has stated that the Crown (in right of the Province) would be prepared to withdraw the charge "on receiving confirmation" that the applicant "has been removed", s. 50(1) is no longer applicable.
Counsel for the respondent, in support of his position submits the case of Johnny Orellana Leon et al and The Minister of Citizenship and Immigration, IMM-2894-96, unreported, August 28, 1996 (F.C.T.D.) wherein Mr. Justice MacKay states:
| UPON the Court concluding that it is not persuaded a serious issue is before the Court, or that a statutory stay is applicable pursuant to s-s. 50(2) of the Act, or that the applicants will suffer irreparable harm if they are now removed from Canada and their application for leave and for judicial review is subsequently allowed, and noting that the Court is satisfied that outstanding criminal charges in relation to a driving offence allegedly committed by the male applicant will be withdrawn if he is removed from Canada before prosecution; |
| (underlining mine) |
Discussion and Conclusion
The case of Johnny Orellana Leon et al is distinguishable for the present case, in that, in Leon s. 50(2) was in issue. Mr. Justice MacKay gives no reasons relating to his comment on the issue of the withdrawing of charges.
In the present case, the applicant is under an Order to report before the Ontario Court (General Division) on the 27th of November 1996 for alleged criminal activity.
I am satisfied that pursuant to s. 50(1)(a) of the Immigration Act, that so long as such an order validly exists, the order of removal, which order I consider valid, cannot be executed.
I have no hesitation in saying that I would dismiss, as totally frivolous, the application for stay of the execution of the Removal Order if not for the fact of the outstanding order of the Ontario Court (General Division).
When and if the criminal charges presently outstanding against the applicant in the Ontario Court are withdrawn, the respondent can and should immediately execute the Removal Order issued by the respondent.
Therefore, the application for stay is allowed but only for so long a period as the applicant is subject to the Ontario Court's (General Division) Order that the applicant must appear before it pursuant to the criminal charges pending against the applicant. In the event the said criminal charges are withdrawn, the present stay is annulled and the Respondent may execute the Removal Order presently issued against the applicant whether the removal takes place on or after November 21, 1996.
"Max M. Teitelbaum"
Judge
Toronto, Ontario
November 19, 1996
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4182-96
STYLE OF CAUSE: RICHARD NARTEY DARBOE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: NOVEMBER 18, 1996
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: NOVEMBER 19, 1996
APPEARANCES:
Mr. Munyonzwe Hamalengwa
For the Applicant
Ms. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa
Barrister and Solicitor
2 Sheppard Avenue East
North York, Ontario
M2N 5Y7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-4182-96
Between:
RICHARD NARTEY DARBOE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER