Date: 20050218
Docket: IMM-434-05
Citation: 2005 FC 267
Vancouver, British Columbia, Friday, the 18th day of February, 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
MICHAEL GEORGE LAMPROS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Michael George Lampros (the "Applicant") is a US citizen, a foreign national and a federal inmate at Mission Institution in British Columbia, having been convicted on August 23, 2004, in British Columbia Provincial Court of personation with intent to gain advantage contrary to section 403(a) of the Criminal Code and sentenced to 34 months in prison.
[2] In this proceeding Mr. Lampros who is self-represented seeks, pursuant to subsection 18.2 of the Federal Courts Act, a stay of a deportation order made against him on December 8, 2004, by a Minister's Delegate while Mr. Lampros was in prison. A deportation order was issued in respect of the Applicant based on his inadmissibility on grounds of serious criminality provided for in paragraph 36(1)(a) of the Immigration and Refugee Protection Act ("IRPA").
[3] I add that on December 8, 2004, Citizenship and Immigration Canada ("CIC"), pursuant to section 59 of the Act, ordered the Warden of the Mission Institution to deliver Mr. Lampros to an immigration officer at the end of his period of detention, presumably on the basis of CIC being advised by the FBI that a bench warrant had been issued on January 14, 1999, against Mr. Lampros by the Circuit Court of Fairfax County Virginia.
[4] Section 50(b) of IRPA Act provides for a statutory stay of a removal order "in the case of a foreign national sentenced to a term of imprisonment in Canada until the sentence is completed" [Emphasis mine].
[5] The reason Mr. Lampros wants the stay is because of the impact the removal order has upon his eligibility for release on day parole or release on an unescorted temporary absence ("UTA").
[6] Under subsection 128(4) of the Corrections and Conditional Release Act (the "CCRA"), enacted as a consequential amendment to IRPA, a removal order makes a federal inmate ineligible for day parole or UTA until the offender is eligible for full parole, and as a result extends the time in which his sentence would otherwise be completed, because if on day parole or UTA his sentence is deemed to be completed under subsection 128(3).
[7] Mr. Lampros says that he would be eligible for day parole or UTA on March 8, 2005, but only eligible for full parole on August 11, 2005. If he obtains a stay, subsection 128(6) of the CCRA restores his eligibility for day parole or UTA.
[8] Section 128 of the CCRA reads:
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128. (1) An offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law.
(2) Except to the extent required by the conditions of any day parole, an offender who is released on parole, statutory release or unescorted temporary absence is entitled, subject to this Part, to remain at large in accordance with the conditions of the parole, statutory release or unescorted temporary absence and is not liable to be returned to custody by reason of the sentence unless the parole, statutory release or unescorted temporary absence is suspended, cancelled, terminated or revoked.
(3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 40 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or revoked or the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.
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128. (1) Le délinquant qui bénéficie d'une libération conditionnelle ou d'office ou d'une permission de sortir sans escorte continue, tant qu'il a le droit d'être en liberté, de purger sa peine d'emprisonnement jusqu'à l'expiration légale de celle-ci.
(2) Sauf dans la mesure permise par les modalités du régime de semi-liberté, il a le droit, sous réserve des autres dispositions de la présente partie, d'être en liberté aux conditions fixées et ne peut être réincarcéré au motif de la peine infligée à moins qu'il ne soit mis fin à la libération conditionnelle ou d'office ou à la permission de sortir ou que, le cas échéant, celle-ci ne soit suspendue, annulée ou révoquée.
(3) Pour l'application de l'alinéa 50b) de la Loi sur l'immigration et la protection des réfugiés et de l'article 40 de la Loi sur l'extradition, la peine d'emprisonnement du délinquant qui bénéficie d'une libération conditionnelle d'office ou d'une permission de sortir sans escorte est, par dérogation au paragraphe (1), réputée être purgée sauf s'il y a eu révocation, suspension ou cessation de la libération ou de la permission de sortir sans escorte ou si le délinquant est revenu au Canada avant son expiration légale.
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(4) Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole.
(5) If, before the full parole eligibility date, a removal order is made under the Immigration and Refugee Protection Act against an offender who has received day parole or an unescorted temporary absence, on the day that the removal order is made, the day parole or unescorted temporary absence becomes inoperative and the offender shall be reincarcerated.
(6) An offender referred to in subsection (4) is eligible for day parole or an unescorted temporary absence if the removal order is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act.
(7) Where the removal order of an offender referred to in subsection (5) is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act on a day prior to the full parole eligibility of the offender, the unescorted temporary absence or day parole of that offender is resumed as of the day of the stay.
[Emphasis mine]
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(4) Malgré la présente loi ou la Loi sur les prisons et les maisons de correction, l'admissibilité à la libération conditionnelle totale de quiconque est visé par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés est préalable à l'admissibilité à la semi-liberté ou à l'absence temporaire sans escorte.
(5) La libération conditionnelle du délinquant en semi-liberté ou en absence temporaire sans escorte devient ineffective s'il est visé, avant l'admissibilité à la libération conditionnelle totale, par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés; il doit alors être réincarcéré.
(6) Toutefois, le paragraphe (4) ne s'applique pas si l'intéressé est visé par un sursis au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
(7) La semi-liberté ou la permission de sortir sans escorte redevient effective à la date du sursis de la mesure de renvoi visant le délinquant pris, avant son admissibilité à la libération conditionnelle totale, au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
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[9] On January 25, 2005, Mr. Lampros served and filed an application for leave and judicial review to which he joined a request for an extension of time. That application challenges the December 8, 2004 removal order and seeks to quash it.
[10] In support of his stay application, the Applicant filed an affidavit and memorandum of argument. In his memorandum, the Applicant indicates that in his leave application "the applicant asks this Court to quash and/or hold moot and/or unconstitutional section 128(4) of the CCRA as being a violation of section 15 of the Charter."
[11] As serious issues, he lists:
(a) the fact that the Act is only partly implemented (lack of Refugee Appeal Process) contrary to Section 7 of the Charter.
(b) section 128(4) of the CCRA violates section 15 of the Charter.
(c) section 128(4) is contrary to the Federal Court of Appeal decision in Chaudry v. Canada, (1999) 168 F.T.R. 318 (CA).
(d) his section 7 Charter rights have been violated because "the 5 minute meeting with an Immigration Enforcement Officer who came with the removal order, which was already completed and ready for the Applicant's signature . . . and issued by a person who is not an independent and impartial tribunal."
(e) the Applicant is being denied his day in court to put forward his Charter challenges.
[12] Under balance of convenience, he states there is no detriment to the Respondent, "the Applicant is seeking the stay in order to be allowed to exercise his right to voluntary deportation under section 238 of the Immigration and Refugee Protection Regulations ("IRPR") to a place in the United States of his choosing and at his own expense on the earliest possible date which is March 8, 2005." He states he is a agreeing to voluntary deportation ". . . the only delay to the Applicant's deportation 'is the needed paperwork from the Respondent'."
[13] He concludes by stating "being allowed voluntary deportation, the Applicant will waive his right to the Pre-Removal Risk Assessment."
[14] The Applicant's stay application was first heard via teleconference in Vancouver on Monday, February 7, 2005.
[15] During the hearing a question arose as to whether, in his leave application, Mr. Lampros was challenging the validity of the December 8, 2004 removal order made by the Minister's Delegate pursuant to section 44(2) of IRPA and section 228(1)(a) of the IRPR.
[16] Mr. Lampros, without referring to the attack contained in his written memorandum, indicated for the first time that he was challenging the removal order because it was based on a defective indictment, conviction, and warrant of committal, all being in the wrong name of Michael Gregory Lampros and not in his real name Michael George Lampros.
[17] I permitted supplementary memoranda to be filed and heard submissions on the point via teleconference from Vancouver on Monday, February 14, 2005.
[18] I should say that, in his supplementary memorandum, the Applicant focussed his attack on the invalidity of section 128(4) of the CCRA and requested an order of mandamus requiring the National Parole Board to immediately conduct an Accelerated Parole Review of his case.
[19] It is well recognized that in order to obtain a stay order under section 18.2 of the Federal Court Acts one must meet the tri-partite test set out in RJR-MacDonald Inc. v. The Attorney General of Canada [1994] 1 S.C.R. 311 of: (1) serious issue to be tried, (2) irreparable harm, and (3) balance of convenience.
Serious Issue
[20] In my opinion, the Applicant raises no serious issue with respect to the invalidity of the removal order on the grounds his criminal offense was processed under the name Michael Gregory Lampros. He pleaded guilty to the charge, he mentioned to the provincial court judge that he was not Michael Gregory Lampros but Michael George Lampros and the removal order is in his proper or real name. When speaking to the provincial court judge, as I read the material Mr. Lampros provided me, he did not take objection to the name he was charged under but asked "have you created another alias for me?"
[21] I adopt the authorities referred me by counsel for the Respondent that a person's identity is corporeal and an individual may be convicted under a wrong name or no name at all. There is no doubt Michael George Lampros was convicted of the offence charged.
[22] But for Mr. Lampros' attack on the validity of the Minister's Delegate's December 8, 2004 removal order on procedural and Charter grounds, I would have found that the Applicant had not raised a serious issue with respect to the validity of the removal order [emphasis mine].
[23] Reading the entire record before me, there is no question Mr. Lampros' main complaint is with the operation of section 128(4) of the CCRA which he wants to have declared invalid.
[24] However, the Applicant cannot use his challenge to section 128(4) of the CCRA to challenge the validity of a removal order made under IRPA as such would constitute an impermissible collateral attack on the removal order.
[25] I am satisfied that the Applicant has raised a serious issue in his section 7 Charter challenge by raising the question whether the Minister's Delegate is an impartial decision-maker with respect to the issuance of a deportation order.
[26] I do not agree with counsel for the Minister that the case Sogi v. Canada (M.C.I.), 2004 FCA 212, or at trial, covers the issue. That case was not concerned with the point raised by the Applicant.
[27] The Applicant, in my view, has not met the other two prongs of the tripartite test. He has not established irreparable harm - a harm not compensable in damages. The harm he speaks of is the barrier which the removal order, but more specifidally section 128(4) of the CCRA, puts on his eligibility for day parole or UTA, ie. he is forced to stay in prison longer than he should.
[28] First, there is no nexus between the removal order and the reason for the extra length of his confinement. The cause of that harm is the CCRA Second, even if there was a nexus, the harm - the extra days in confinement - is speculative because it depends on the National Parole Board granting him early release or UTA and, in any event, the extra confinement if unlawful is compensable in damages. See Linden, Canadian Tort Law, 7th Edition, Butterworths, pages 50 and 51.
[29] As to balance of convenience, it favours the Minister. The Applicant's challenge is a Charter challenge. The Supreme Court of Canada's judgment in Manitoba (A.G.). v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at 129, instructs us that when the constitutional validity of a legislative provision is challenged, the public interest must be taken into account. Justice Beetz, in that case, indicated at page 135 that: "It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and - in quite a few exemption cases - is susceptible temporarily to frustrate the pursuance of the common good.
[30] In my view, the validity of the statutory scheme surrounding section 44 of the IRPA should not be impugned on an interlocutory injunction in this case. Again, it should be said that the Applicant's challenge to the removal order is primarily motivated by the impediment to his early or UTA release generated by the CCRA.
[31] I make no comment on the discussion during the last hearing on how the applicant could directly challenge section 128(4) of CCRA.
ORDER
For these reasons, this stay application is dismissed.
(Sgd.) "F. Lemieux"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-434-05
STYLE OF CAUSE: MICHAEL GEORGE LAMPROS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 14, 2005
REASONS FOR ORDER AND ORDER: LEMIEUX J.
DATED: February 18, 2005
APPEARANCES:
Mr. Michael George Lampros on his own behalf
Ms. Esta Resnick FOR RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada