Toronto, Ontario, March 29, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
THE MINISTER OF PUBLIC SAFETY and
EMERGENCY PREPAREDNESS
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by the Minister of Public Safety and Emergency Preparedness for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board dated April 21, 2006 in which it was ordered that the execution of a removal order issued against the Respondent Peter Lawson Simmonds be stayed for a period of three years subject to certain terms and conditions. For the reasons that follow, I find that the application is dismissed.
[2] The Respondent, Simmonds, was born in Jamaica. He entered Canada when he was fifteen years old as a permanent resident having been sponsored by his mother. Simmonds became addicted to serious drugs such as crack cocaine and was convicted of numerous criminal offences including those of assault and armed robbery.
[3] Simmonds has been in Canada some 32 years; he has been married to a Canadian citizen for some nine years, having previously been in a relationship with the woman who became his wife for some five years previous. He says that his convictions are a result of his drug addiction and that he intends to seek remedial treatment leading to a career as a cook. Since 1996, he argues, there have been no recorded incidents against him and his convictions arise from a Court finding in 1996 although sentence was not imposed until 2003 since he apparently could not be apprehended. He was apprehended when he sought re-entry into Canada from what he described as a short vacation to Jamaica.
[4] A decision was made by the Immigration Division dated December 4, 2003 that Simmonds should be removed from Canada pursuant to section 36(1)(a) of the Immigration and Refugee Protection Act. An appeal was taken from that decision to the Immigration Appeal Division of the Immigration and Refugee Board and that appeal was successful. In its decision dated April 21, 2006, which is the decision in respect of which judicial review is sought here, the Appeal Division stayed removal for a period of three years on terms and conditions set out in the formal Order. An interim reconsideration of the case was ordered to be made on or about June 1, 2007.
[5] The terms and conditions imposed were numerous. Without repeating all of them, Simmonds was not to commit any criminal offences, if charged or convicted he was to report it, he was to keep the relevant Agency aware of his whereabouts, he was to report every six months, and many more conditions were imposed. Most important were the terms as to Interim Reconsideration and Final Reconsideration which I repeat here:
INTERIM RECONSIDERATION
An interim reconsideration of the case by the Immigration Appeal Division will take place on or about the 1st day of June, 2007, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. You will receive a notice to appear prior to the hearing date.
FINAL RECONSIDERATION
Take notice that the Immigration Appeal Division will reconsider the case on or about the 21st day of April, 2009, or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal.
[6] The basis upon which I have rejected this application is a pragmatic one. A Removal Order was made against Simmonds in December, 2003. He nonetheless remained in Canada pending an Appeal. That Appeal was not heard until March, 2006 and a decision made April, 2006. Thus he remained for a period of two and a half years in Canada until the Appeal was determined. A further year has now gone by before the matter was heard in this Court at the end of March, 2007.
[7] The decision under review stays the removal for three years subject to compliance with many strict conditions. One of those years has already gone by.
[8] The decision under review itself will be reviewed in about two months time at which time it could be changed or even set aside. Even if I were to grant the Order sought and set aside that decision, nothing would be gained by the Minister since a review pursuant to a Court Order would probably not occur for several months, with a possibility of judicial review after that. By that time Simmonds would be near the end of the three-year stay of his Removal Order anyway.
[9] Since the Interim Review in two months and the Final Reconsideration in two years as provided in the decision under review in this Court both provide that the conditions imposed may be changed or cancelled, that the stay may be cancelled and the Appeal as to removal may be allowed or dismissed, there is little point in a Court judgment at this time.
[10] The Minister argues that even if the Appeal Division reviewed its decision as an Interim or Final bases, it would only do so on the basis that there have been events arising since the date of the decision that make the decision no longer appropriate. Whether or not this is the case, it does not appear from a pragmatic point of view to make any difference. If I were to certify a question, an appeal would take at least a year to be heard and disposed of. If I were to allow the application and retain the matter de novo to the Appeal Division, that would take a year plus a further period if judicial review were sought. The stay of the removal order expires in two years.
[11] I do not say that the matter is moot because the Appeal Division has undertaken an Interim as well as a Final Review. What I do say is, pragmatically, if I were to make decision to return the matter de novo it would make little difference since the remainder of the three year stay would be pretty much exhausted by the time a final determination of the new proceeding, including my judicial review, was completed. It would be a waste of the resources of the Board, Appeal Division and this Court. Therefore no question will be certified.
JUDGMENT
For the Reasons provided;
THIS COURT ADJUDGES that:
1. The Application is dismissed;
2. There is no question to be certified; and
3. There is no Order as to costs.
“Roger T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2419-06
STYLE OF CAUSE: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v. PETER LAWSON SIMMONDS
DATE OF HEARING: MARCH 28, 2007
REASONS FOR JUDGMENT
APPEARANCES:
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ANSHUMALA JUYAL
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J. NORRIS ORMSTON
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SOLICITORS OF RECORD:
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JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA
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ORMSTON, BELLISSIMO, ROTENBERG TORONTO, ON |