KEVON CONROY BLACKWOOD Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2020 FC 72

Date: 20200117 Docket: IMM-286-20 Citation: 2020 FC 72 Ottawa, Ontario, January 17, 2020 PRESENT: The Honourable Mr. Justice Roy BETWEEN:KEVON CONROY BLACKWOODApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] Mr. Blackwood has had a somewhat checkered past with his ability to abide by the rules of the immigration system of this country.He now comes to this Court in extremis, with his ordered departure date from Canada to Jamaica set for January 19, 2020.

As he was setto be removed from Canada in 2017, having been unsuccessful before the Refugee Protection Division (RPD) and the Refugee AppealDivision (RAD) in his attempt at receiving the protection of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.2001, c 27 [the Act], he failed to appear for his removal interview on February 4, 2017. A warrant for his arrest had to be issued and hehad to be arrested on December 3, 2018. [2] That prompted counsel for the Minister to seek that the judicial stay sought by Mr.

Blackwood not be heard by the Court. [3] A strongly worded letter was delivered to the Court on January 16. In it, counsel for the Minister stressed that this applicant hasfailed to appear, leading to an arrest warrant being issued and having to be executed some 21 months later, as the applicant did notcommunicate with the authorities following his failure to appear. Thus, argues the respondent, this applicant does not appear before theCourt at this stage with clean hands in order to obtain what is presented as an equity remedy.

Furthermore, counsel refers to a number ofinstances where this Court has refused to hear an application for a judicial stay because it was made late. Counsel referred to a number ofcases over the years and, for my part, I would add to the mix of decisions that of my colleague, Mr. Justice Grammond, in Beros vCanada (Citizenship and Immigration), 2019 FC 325, in which a review of the principles and case law was usefully undertaken. [4] I heard the parties on the issue of whether the motion for a judicial stay ought to be entertained.

I had refused on January 16 toconsider further the contention of Crown counsel because an opportunity ought to be offered to counsel for the applicant to submit whythe Crown’s request should not be dispositive of the issue. Having heard the parties, I chose to park the issue and to consider the meritsof the motion for a stay. [5] Having heard the parties, I am not convinced that this matter ought to be disposed of on the basis of the lateness of the application.Although it is true that Mr.

Blackwood has been advised of his departure date of January 19, 2020 (and indeed claims that he haspurchased his airline ticket for that date) on December 9, 2019, I was told that he was not able to hire counsel for some weeks followingDecember 9, 2019, the date on which he was advised of his date of departure. That may explain why a request for deferral was made tothe removals officer only on January 9, 2020. As for the question raised by the counsel about Mr.

Blackwood coming to this Courtwithout having clean hands, I chose to consider the matter as part of the third prong of the tripartite test, which calls for an assessment ofthe balance of convenience, if there is a need to reach that third prong of the test. [6] As a result, I considered the three prong test which calls for positive answers to the following three questions: 1. Is there a serious issue to be considered in the underlying judicial review application? 2. In the words of the Supreme Court of Canada in R v.

Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196, at paragraph12, is the Court convinced by clear and compelling evidence that the applicant "“will suffer irreparable harm if an injunction isrefused”"? 3. Does the balance of convenience favour the applicant in the circumstances? (RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 and Toth v Canada (Minister ofEmployment and Immigration), (1988) 86 NR 302, (FCA)). [7] In the case at hand, the applicant does not satisfy the second and third prongs of the test.

However, I conclude that the first prong isnot satisfied either and it will suffice to address the "“serious issue”" prong to dismiss the stay motion. [8] Mr. Blackwood is ordered to leave Canada for his country of nationality, Jamaica, this Sunday. He benefited from temporary workpermits in 2013, 2014 and 2015, but did not leave Canada at the expiration of his last permit, in December 2015. He soughtunsuccessfully refugee status instead.

Thus, he has been without status since the end of 2015. [9] He received a Pre Removal Risk Assessment on January 22, 2019, which also proved to be unsuccessful. [10] The applicant got married on July 9, 2018 and the couple are now the parents of a child born on August 26, 2019. Mr. Blackwood’sspouse is the mother of two other children aged 14 and 19 years of age.

[11] A request for a deferral of the removal of the applicant was made late, on January 9, 2020, given that the applicant was advised onDecember 9, 2019 of that departure date. The decision of the deferral officer came on January 17, 2020. [12] The "“serious issue”" prong of the tripartite test requires that an applicant show that there is a likelihood of success to the challengeof the underlying judicial application (Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682[Wang], at paras 10-11).

Indeed, the Federal Court of Appeal, which endorsed fully Wang, found in Baron v Canada (Minister of PublicSafety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311, that "“for an applicant to succeed on a judicial review challengeof such a decision, he or she must be able to put forward quite a strong case” (para 67)". The challenge is made even more daunting bythe fact that an applicant must show that the deferrals officer’s decision is not reasonable. Thus, the reviewing court does not substituteits view of the matter for that of the officer.

Moreover, it does not suffice that the issue raised not be futile nor vexatious. There must beshown that there is a likelihood of success that the decision was not reasonable. [13] The applicant’s task is not made easier by the fact that the removals officer has a very limited jurisdiction and discretion to defer aremoval. First, the jurisdiction is limited because Parliament has spoken by requiring that a removal order "“be enforced as soon aspossible”" (s. 48 of the Act), thus removing a measure of discretion the courts had carved out where the test was "“reasonablypracticable”".

The remaining discretion is limited to when the removal must take place, not whether it will take place. In Simoes vCanada (Minister of Citizenship and Immigration), (2000) (FC), 187 FTR 219 — 7 Imm LR (3d) 141 [Simoes], ourCourt found: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when aremoval order will be executed.

In deciding when it is "reasonably practicable" for a removal order to be executed, aremoval officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.7 For instance, inthis case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and wasrescheduled for May 31, 2000.

Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.8 [Footnote omitted.] The paragraph took a special importance, giving it a binding effect, where it was endorsed by the Court of Appeal in Baron, (para 49). Ascan be seen from the examples offered in Simoes, the discretion is not to be exercised in an open-ended fashion.

Indeed, there is anelement of imminence that is required. [14] The applicant referred the Court to Ortiz v Canada (Public Safety and Emergency Preparedness), 2017 FC 931 for the propositionthat there is no particular outside limit to the duration of a deferral. I certainly agree that a deferral may be longer in appropriatecircumstances, but as long it fits within parameters analogous to those in Simoes. But the imminence of a decision, for instance an H&Cdecision, is in my view clearly relevant because the Simoes Court spoke of a pending H&C application brought on timely and not yetresolved because of a backlog.

As repeated in Baron, at paragraph 50, "“… mere existence of an H&C application did not constitute a barto the execution of a valid removal order”". [15] If ever there is a doubt about the currency of precedents like Wang, Baron or Simoes, the doubt should have disappeared sinceLewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 FCR 229 [Lewis] (para 54, among others): thelimited discretion under

section 48 is "“very limited”" (see also para 51 on the change from "“reasonably practicable”" to the current"“as soon as possible”)". [16] Here, the removals officer considered the four arguments submitted on behalf of the applicant: (1) the submission of a spousalsponsorship application; (2) best interests of the children; (3) intention to submit an H&C application; (4) risk upon return to Jamaica.The applicant had to show the likelihood of success that the decision on any of those four arguments was not reasonable. That burden hasnot been discharged. [17] I begin with the risk upon return to Jamaica.

Both the RPD and the RAD dismissed the Applicant’s contention that he would facerisk in Jamaica. More importantly perhaps, the PRRA officer addressed specifically the country conditions in the January 22, 2019PRRA decision: The applicant provided a number of articles on the crimes and violence in Jamaica. He stated that the crime rate is extremelyhigh in Jamaica and that returning residents are seen as targets by criminals.

I accept that crimes and violence exist inJamaica; however, I find that the risk of being a victim of crime is a risk faced generally by the population of the country.Although it is submitted that the applicant would be perceived as someone with wealth due to the fact that he would bereturning from Canada, I find that this perception of wealth, which could increase the likelihood of him being a victim ofcrime, constitutes a generalized risk if the entire population of the country generally faces the same risk.

I find that theapplicant has provided insufficient evidence to demonstrate that he will face personalized risks in Jamaica. (p. 6) The PRRA decision was not challenged and stands. The record before the removals officer was not any better than before the PRRAofficer, such that it can be said to be unreasonable for the removals officer to find like another officer whose duty it is to assess risk. Forgood measure, I add this other finding of the PRRA officer at page 7: According to findings based on the 2017 Human Rights Reports from the U.S.

Department of State, arbitrary and otherunlawful killings by government security forces were reported, the judicial system remained overburdened, and officialcorruption persisted; however, I find that the applicant has provided insufficient evidence to demonstrate how he would bepersonally abuse, including sexual abuse, violence and discrimination against women and sexual minorities, and sex tourismremained substantial problems; however, I find that the applicant has provided insufficient evidence to demonstrate how

these issues would subject him to risks as described in A96 or A97. [18] Mr. Blackwood argues that he should not be removed until an H&C application he intends to make has been decided. As seenearlier, such is not the state of the law as per Baron and Simoes. Indeed, other types of applications that are pending as a removal is totake place have not been deemed sufficient (see also Canada (Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286,[2012] 2 FCR 133 [Shpati], concerning PRRA applications) to stay removals.

The reasoning remains the same: there is no automatic staywhen such applications are launched (Shpati, para 35; Simoes, para 13; Francis v MCI, IMM-156-97, January 14, 1997) because avalidly issued removal order cannot be stayed at the will and leisure of an application. Such is not the will of Parliament. [19] The same is true of a spousal sponsorship application. As explained by the applicant, an application made in February 2019 did not,and will not, proceed because the sponsor, the applicant’s spouse, has not completed paying a debt incurred when she sponsored aprevious spouse.

At this stage, she does not know the amount owed but professes her intention to find the required financial resources.There has not been any argument made that the refusal to defer the removal on that account is unreasonable, or that there is a likelihoodthat it could be found unreasonable. As stated earlier, the applicant had to put forward quite a strong case. There was no such thing. [20] That leaves the best interests of the children. Even though Mr.

Blackwood does not have a work permit, the argument is that Mr.Blackwood supports his child and his spouse’s children (who offered letters of support) in different ways. The applicant refers to Baker vCanada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 for his contention that the interests ofchildren should be considered. No one doubts that. But what is to be considered is the short-term best interests.

As the Court of Appealnotes in Lewis (supra), "“(t)hat said, the case law of the Federal Court recognizes that an enforcement officer, in appropriate cases, maybe required to engage in a truncated consideration of the short-term best interests of children who might be affected by their parents’removal”" (para 58). Such analysis was conducted by the removals officer.

It was concluded that there is insufficient evidence submittedto show that the separation will indefinite; separation is an unfortunate but inherent result of the removal order. [21] It must be noted that the Supreme Court in Baker concluded that a decision maker must consider the interests of children as animportant factor to be given substantial weight.

But, "“"(t)hat is not to say that children’s best interests must always outweigh otherconsiderations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given thisconsideration"”" (para 75). [22] The Court of Appeal, in Lewis, acknowledged that the best interests of a child is not a trump card: [59] In Munar v. Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2006] 2 F.C.R. 664 [Munar], deMontigny J. (as he then was) concluded that the narrow discretion prescribed by the previous version of

section 48 of theIRPA was not inconsistent with Canada’s obligations under the Children’s Convention both because the Supreme Court ofCanada in Baker (the seminal case dealing with the principles applicable to assessing children’s best interests in theimmigration context) and the Children’s Convention, itself, recognize that the best interests of the child principle is not atrump card that automatically renders any state-driven separation of parent from child unenforceable.

Rather, the principlerequires consideration be given to the best interests of the children in question, but does not necessarily dictate particularoutcomes (Munar at paras. 33-34). In the oft-quoted passage at paragraphs 36-40 in Munar, Justice de Montigny describedthe type of assessment required by enforcement officers of the best interests of children whose parent(

s) seek to haveremoval deferred under

section 48 of the IRPA: 36. [… enforcement] officers cannot be required to undertake a full substantive review of the humanitariancircumstances that are to be considered as part of an H&C assessment. Not only would that result in a “‘preH&C’ application” […] but it would also duplicate to some extent the real H&C assessment. More importantly,[enforcement] officers have no jurisdiction or delegated authority to determine applications for permanentresidence submitted under

section 25 of the IRPA. They are employed by the Canada Border Services Agency,an agency under the auspices of the Minister of Public Safety and Emergency Preparedness, and not by theDepartment of Citizenship and Immigration. They are not trained to perform an H&C assessment. 37. Having said all of this, if the best interest of the child is to be taken seriously, some consideration must begiven to [their] fate when one or both of their parents are to be removed from this country. As is often the case, Ibelieve that the solution lies somewhere in between the two extreme positions espoused by the parties.

While anabsolute bar on the removal of the parent would not be warranted, an approach precluding the [enforcement]officers to give any consideration to the situation of a child would equally be unacceptable. […] 40. […] What [an enforcement officer] should be considering […] are the short-term best interests of the child.For example, it is certainly within the [enforcement] officer’s discretion to defer removal until a child hasterminated his or her school year, if he or she is going with his or her parent.

Similarly, I cannot bring myself tothe conclusion that the [enforcement] officer should not satisfy himself that provisions have been made forleaving a child in the care of others in Canada when parents are to be removed. This is clearly within hismandate, if

section 48 of the IRPA is to be read consistently with the Convention on the Rights of the Child. Tomake enquiries as to whether a child will be adequately looked after does not amount to a fulsome H&Cassessment and in no way duplicates the role of the immigration officer who will eventually deal with such anapplication […]. [My emphasis.] That was also found much earlier in Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358[Legault], at para 12.

In other words, such has been the state of the law for some time, and it continues to be the state of the law. [23] In the case at bar, the applicant has not shown how it can be that the exercise of discretion not to consider the interests of children as

a trump card was unreasonable. [ 24 ] The Supreme Court of Canada commented in Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 SCR 909 that " “(t)here will inevitably be some hardship associated with being required to leave Canada” " (para 23). There are much unpleasant and distasteful consequences to deportation. There are circumstances involving a child that will bring an important consideration, indeed a primary consideration, to the point of the interests of the child being sufficient to stay a removal. But this has not been shown here.

As the court of Appeal in Legault said, " “ " (p)arliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any " refoulement " of a parent illegally residing in Canada " ” " (para 12). In this case there was no evidence to challenge as unreasonable the decision of the removals officer. [ 25 ] It follows that there is no serious issue to be resolved in the judicial review application. There is no need to consider the other two prongs. Had I have to do it, I would have found against the applicant. The motion must be dismissed.

ORDER in IMM-286-20 THIS COURT ORDERS that : 1 . The motion for a stay of the removal to the applicant’s country of origin, Jamaica, scheduled for January 19, 2020, is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-286-20 STYLE OF CAUSE: KEVON CONROY BLACKWOOD v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA, oNTARIO AND TORONTO, oNTARIO DATE OF HEARING: january 17, 2020 ORDER AND REASONS: ROY J.

DATED: JANUARY 17, 2020 APPEARANCES : Cemone Morlese For The Applicant Leanne Briscoe For The Respondent SOLICITORS OF RECORD : Grice and Associates Barristers & Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent