Said v. Canada

Said v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7860 (FCA)

• This is a petition directly to the FCA for a stay of removal to Afghanistan
• Said came to Canada in 1986 as a refugee and then found guilty in 1992 of five counts of trafficking heroine – sentenced to five years in prison
• Deportation order issued in 1993 as a result
• Danger opinion subsequently issued, as well as a removal order
• Said JR’d the danger opinion and ensuing removal order – was granted a stay
• JR’s dismissed, but FC issued two certified questions (e.g. one of questions is on the eventual Suresh exception)
• In meantime, another removal order was issued so applicant had to apply urgently to FCA (this is this decision)
• It’s clear that there is a serious issue, as FC certified questions
• Clear that irreparable harm is satisfied, given changing country conditions and Hazra ethnic group being targeted by Taliban
• Focus was on the balance of convenience test, analysed in the passages below:
• Counsel for the government relied on RJR Macdonald for the following passage:

In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

• Basically, counsel for the Respondent submitted that irreparable harm to the public interest would result from a stay of the removal order because it is costly to keep the Appellant in custody. In addition, she argued that there is always a possibility that the Appellant be released after a detention review. I might say in relation to this second argument that this is unlikely to happen as long as the Appellant constitutes a danger to the public in Canada. If he ceases to be a danger to the public and is released, then I would think he does not have to be removed from this country.

There is no doubt that the Appellant’s case is not a sympathetic one from a public interest perspective, especially as the Appellant’s removal pursuant to the first ministerial decision in 1993 has been delayed by his failure to cooperate.

However, what we are concerned with in the present instance for the purpose of a stay of the removal order is a balancing of the Appellant’s interests and the public interest. 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.

As against these inconveniences lies the public interest expressed in terms of costs of detention. This is not a case where the public interest considerations involve a large number of persons likely to be detrimentally affected by the decision to order a stay of removal, save for the costs of the Appellant’s custody. The solution, I would have thought, is more in trying to speed up the legal process on the litigious issues than denying the Appellant a trial of these issues by means of deportation and jeopardizing his security. As the Supreme Court said in the MacDonald case4:

public interest considerations will weigh more heavily in a “suspension” case than in an “exemption” case. The reason for this is that the public interest is much less affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.

• We are not dealing here with suspension of or exemption from the law. But the rationale is applicable to the Appellant’s motion for a stay since this Court’s decision will apply only to him. In my view, the balance of convenience favours the Appellant.