Federal Court Decisions

IMM-4727-96

BETWEEN:

YOAV VOVA SEMENDUEV,

Applicant,

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

NOËL, J.:

     The Applicant seeks the stay of a departure order scheduled to be executed on January 20, 1997. The application for leave and for judicial review with respect to which the stay is being sought pertains to a decision rendered two years ago wherein it was determined that the Applicant was a danger to the public in Canada. The application for leave is dated December 17, 1996. In it, the Applicant also seeks, as he must, an extension of time to file his leave application.¹

     As an extension of time is a condition precedent to the consideration of his leave application, the Applicant must, in order to satisfy me that it raises a serious issue, also establish that his application for an extension of time raises a serious issue. To do so, the Applicant must put before me evidence from which I could conclude that there are grounds upon which this Court could extend the time. In this respect, the case law requires amongst other things that the Applicant establish that he had, throughout the period with respect to which the extension is being sought the intention to challenge, in the legal sense, the decision in issue, but that he was prevented from doing so by reason of factors which were beyond his control.

     In his affidavit sworn to on January 13, 1997, the Applicant states:

     Paragraph 10:

..., because I was incarcerated and was without any resources at the time, I was not able to retain a lawyer to make any submissions or indeed to retain a lawyer to challenge the Minister's certification. It is only now that I have been released and have become reconciled with my ex-wife that I have the resources to retain a lawyer and I retained Mr. Waldman in December 1996 when he was able to obtain my release from detention. I immediately instructed him to file an application for leave to commence an application for judicial review against the Ministerial certification.

     Paragraph 11:

If I did not commence the application sooner, it was only because I did not have the resources and was unaware that there was any possibility to appeal the process. If I did not make submissions, it was because I did not have any resources to retain a lawyer to make submissions.

     In a further affidavit sworn to on January 15, 1997, the Applicant adds:

     Paragraph 3:

With respect to my failure to apply for a Legal Aid certificate after I had been served with a notice from the Minister of Citizenship and Immigration on October 4, 1994, I wish to state that I did make inquiries at the time and was advised that I would not be granted a Legal Aid certificate for the purpose of preparing submissions. Given that I had no funds at the time to retain a lawyer privately and given that I was not familiar with the procedure involved in preparing submissions, I did not respond to the October 4, 1994 notice.

     In the application for leave and for judicial review it is further stated:

The grounds for the extension are that the Applicant had the intention of appealing but did not know about the procedure involved, ...

     I do not believe that this last allegation, nor the above quoted passages from the affidavits of the Applicant raise serious grounds upon which this Court

could conclude that the Applicant had the intention to avail himself of the legal recourse available to him throughout the relevant period.

     The position of the Applicant is capable of being construed in one of two ways. The first is that the Applicant did not act because he was unaware of the legal remedy available to him in which case he could not conceivably have formed and held throughout the relevant period the intention to avail himself of it as the case law requires. Pure ignorance of the law cannot be an excuse. To hold otherwise would mean that litigation involving those who can credibly assert to ignore their rights could never be brought to a definitive end.

     The second way to construe the Applicant's position is that he was aware of the legal remedy available to him and intended to avail himself of it throughout the two year period, but did not do so because he was incarcerated and impecunious.² However, if that be the Applicant's position, he has not placed before the Court evidence which establishes it. In my view it is inconceivable that a person in the position of the Applicant who was aware of his rights and who had the continuous intent to avail himself of those rights over a two year period would have limited his efforts to a single set of inquiries about legal aid at the time when the decision was rendered. Being incarcerated and impecunious does not result in one being legally incapacitated. In Canada, prisoners are not prevented from exercising legal actions and do so regularly. Quite obviously, if the Applicant took no steps of any sort towards overturning the certification over a two year period, it is because he ceased to hold the intention to do so.

     As for purposes of this stay application, the Applicant has failed to put before me evidence upon which I could conclude that his application for an extension raises a serious issue, it follows that I could not look upon his application for judicial review as raising a serious issue.

     The application for a stay is accordingly dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

January 17, 1997

__________________

     ¹      By virtue of section 82.1(3) of the Immigration Act, the Applicant had fifteen days from the date when the decision was communicated to him (i.e. December 9, 1994) to file his application. Section 82.1 provides that the Trial Division of the Federal Court may, for special reasons, extend this time period.

     ²      Applicant's submissions filed on January 16, 1997, paragraph 5.