Fabian v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14859 (FCA)
http://canlii.ca/t/4lfg
• Assessment of balance of convenience: “public danger” has to be real, not speculative, even where the Minister has issued a danger opinion against the person (as they had in this case); if person is detained, they cannot logically be dangerous to the public
• [2] Contrary to the opinion of the learned motions judge, we believe that the balance of convenience favours the appellant, Niranjan Claude Fabian. In our view, she erred when she concluded that the fact that the appellant had committed crimes in Canada as opposed to abroad and was found to constitute a danger to the public weighed against him and in favour of the public interest. She failed to consider whether the public was in any danger from the appellant during the relevant time at issue here, i.e., between the possible granting of an interlocutory injunction against the deportation order and the hearing of the Charter challenge. The appellant is detained and as long as he so remains and that there is no evidence that he is conducting his criminal activities from his cell, we endorse the following statement made in the Said case:
The Appellant is in custody and is likely to remain there for the whole of the proceedings and he, therefore, presents very little risks of recidivism. If a stay is not granted, it is evident that his appeal will be rendered nugatory since, as a result of his deportation, he would not be able to benefit from any relief that the Canadian courts could grant him. Violations of his section 7 Charter rights, if any, would remain without remedy. Moreover, his deportation would, according to the evidence, jeopardize his life and security.
• [3] It is not sufficient to look at the concept of “public danger” or “danger to the public” when there is in fact no likelihood of a contact between the public and the “dangerous” person during the time for which interlocutory relief is sought.
Fabian in other case-law:
• Omar v. Canada (Citizenship and Immigration), 2009 FC 94 (CanLII), <http://canlii.ca/t/22hr8>
o [57] In Fabian v. Canada, the Federal Court of Appeal held that the trial judge had failed to consider whether the public was in any danger from the applicant during the relevant time period: between the possible grant of a stay application and the hearing of his Charter challenge. The Court held that because the applicant was in custody he presented very little risk of recidivism, stating: “the applicant is detained and as long as he so remains and that there is no evidence that he is conducting his criminal activities from his cell, we endorse the following statement made in the Said case…”. The Federal Court of Appeal granted the stay and reversed the trial decision (Fabian v. Canada (2000), 94 A.C.W.S. (3d) 958, [2000] F.C.J. No. 75 (QL) at para. 2).
o However, in Omar the facts were distinguishable as there was evidence the applicant continued to assault people and cause problems in prison, also necessitating substantially greater costs for the public (two guards for one person, segregation)
• In Thamotharampillai v. Canada (Solicitor General), 2004 FC 583 (CanLII), <http://canlii.ca/t/1gzjb>
o [10] On the question of balance of convenience, the applicant relied on two decisions of the Federal Court of Appeal for the proposition that the balance should favour the applicant as he posed no danger to the public in his present circumstances: Fabian v. Canada, [2000] F.C.J. No. 75 (C.A.)(QL) and Said v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 663 (C.A.)(QL). However, in both of these cases the applicant was incarcerated and likely to remain in custody pending the outcome of the proceedings. In this matter, I was advised that the applicant would shortly be released. With regard to his history in this country, it would appear to be in the public interest to see that the deportation order is executed. Any inconvenience that he may suffer as a result would not, in my view, outweigh that public interest.