Said v. Canada ( Minister of Citizenship and Immigration )
A-149-99
Létourneau J.A.
30/4/99
7 pp.
Motion to stay removal order from Canada to Afghanistan-Appellant, recognized as Convention refugee in 1986, found guilty on five counts of trafficking in heroin in 1992 and sentenced to five years in jail-Deportation order followed by danger opinion-Danger opinion as well as removal order challenged by judicial review and removal order stayed-Applications for judicial review dismissed but Motions Judge certified two questions for appeal: whether, in judicial review of danger opinion, Court has jurisdiction to determine constitutional validity of Immigration Act, s. 53(1)(d); whether danger opinion under Act, s. 53(1)(d) that includes risk assessment of returning refugee to country of origin and balancing of danger to public in Canada against risk to Convention refugee conform to requirements of fundamental justice under Charter, s. 7-Motion granted-No doubt two certified questions raise serious issues-First question has given rise to conflicting decisions in Trial Division as to whether constitutionality issue can be challenged on application for judicial review or only by way of action-Second question found by F.C.A. to be serious issue: Sivakumar v. Canada, [1996] 2 F.C. 872 (C.A.)-No dispute as to irreparable harm appellant could suffer if deported to Afghanistan-Potential threats against appellant and violations of Charter, s. 7 rights to be assessed as of time application for stay of removal order heard, especially where conditions in country to be deported have, as here, worsened for deportee-Basically, counsel for respondent focussed on balance of convenience, arguing irreparable harm to public for stay of removal order because of cost of keeping appellant in custody-However, concern herein balancing of appellant's interest and public interest-Appellant presenting little risk of recidivism as now in custody and likely to remain there for whole of proceedings-If stay not granted, appeal will be rendered nugatory since, as result of deportation, would not be able to benefit from any relief Canadian courts could grant him-Charter, s. 7 rights violation, if any, would remain without remedy-Moreover, deportation would, according to evidence, jeopardize his life and security-On other hand, public interest expressed in terms of costs of detention-Solution more in trying to speed up legal process on litigious issues than denying appellant trial of these issues by means of deportation and jeopardizing his security-Application of rationale in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at page 346: since Court's decision will apply only to him, balance of convenience favours appellant-While not proper case for granting solicitor-client costs, appellant entitled to costs fixed at $1,000-Difficult to understand why removal order brought to appellant's attention only four days before its execution-No valid reasons as to why better time frame could not have been provided for hearing of motion to stay and why such unnecessary urgency created-Immigration Act, R.S.C., 1985, c. I-2, s. 53(1)(d) (as am. by S.C. 1992, c. 49, s. 43)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.