MARVIN FABIAN BYRD Applicant v. THE MINISTER OF PUBLIC SAFETY, 2021 FC 640

Date: 20210621Docket: IMM-4131-21 Citation: 2021 FC 640Ottawa, Ontario, June 21, 2021PRESENT: The Honourable Mr. Justice LafrenièreBETWEEN: MARVIN FABIAN BYRD ApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER UPON URGENT MOTION by the Applicant for a stay of the Applicant’s removal, currently scheduled to take place on June 23, 2021at 00:20 (20 minutes past midnight), pursuant to

section 18.2 of the Federal Courts Act, until such time as the Applicant’s application forleave and judicial review is considered and finally determined; AND UPON reading the Applicant’s motion record and correspondence from the Respondent dated June 20, 2021; The Applicant is scheduled to be removed from Canada to Jamaica shortly after midnight on June 23, 2021. He received his removalinstructions on May 26, 2021. The deferral request was submitted to Canada Border Services Agency [CBSA] on June 15, 2021. CBSA denied the deferral request onJune 16, 2021.

The present motion for a stay of the Applicant’s motion was filed on June 18, 2021. The Respondent submits that the Court should decline to hear the Applicant’s stay motion given its extreme lateness and its failure tocomply with the Court’s February 18, 2021, Practice Guidelines for Urgent Stay Motions for Removals from Canada [Guidelines]. For the following reasons, I agree with the Respondent that the motion should not be entertained on such short notice. In any event, theCourt need not wait for a responding motion before disposing of a matter: ViiV Healthcare Company v.

Gilead Sciences Canada, Inc.,2021 FCA 122 at par. 23. On the sole basis of the motion material filed by the Applicant, I am not inclined to grant the motion. The Guidelines and Rule 362(1) of the Federal Courts Rules, SOR/98-106 provide that parties must serve and file motions for stays ofremoval at least three (3) clear business days in advance of the hearing date. Alternatively, an applicant must provide a letter to the Courtand the respondent containing a satisfactory explanation for any delay in bringing on the motion justifying the need for urgency. No suchexplanation has been provided by the Applicant.

The Applicant’s Rule 35 letter dated June 19, 2021 requesting an immediate telephone conference baldly states that the matter is ofextreme urgency. I note from reading the Applicant’s affidavit in support of the motion that he retained new counsel on June 4, 2021. The Applicant wasasked to obtain further records relating to his military service and letters from his former colleagues in his unit in support of a deferralrequest letter. However, the Applicant was required to provide compelling and unavoidable circumstances to explain his three-weekdelay in submitting the deferral request.

As a result of the Applicant’s delay, the Respondent’s ability to respond to the Applicant’s motion has been severely prejudiced. Moreover, the Applicant has had three full weeks’ notice of his scheduled removal, but did not advise the Court or the Respondent of hisintention to bring a stay motion until after-hours on a Friday, leaving the Respondent with only one full business day to prepare aresponse.

In any event, the Applicant’s motion materials do not disclose that this motion for a stay of removal satisfies all three prongs of the testin Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302 (FCA). The test is aconjunctive one and the Applicant has not established that he faces irreparable harm in the event the stay is not granted or that thebalance of convenience lies in his favour.

First, the Applicant claims he would face a risk to his life or to cruel and unusual treatment or punishment if he returns to Jamaicabecause he was a member of the Jamaican Defence Force involved in the interdiction of drug smuggling. According to the Applicant,after participating in two major drug busts in 2011, he had several encounters with strangers who threatened his life. I note, however, from reading the deferral officer’s decision that this very same risk was assessed by a Pre-Removal Assessment [PRRA]officer and that a negative PRRA decision was rendered on March 2, 2018.

The PRRA officer specifically noted that the Applicant hadprovided little evidence to support his risk allegations and that state protection was available to him in Jamaica. Second, the Applicant was reported for serious criminality on November 4, 2020 and a deportation order was issued under section36(1)(

a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] on January 5, 2021. Subsection 48(2) of IRPA imposes aduty on the Respondent to enforce a removal order as soon as is reasonably practicable.

The Federal Court of Appeal has confirmed that in considering the balance of convenience the public interest must be taken into consideration. It has also confirmed that the fact that an applicant has exercised a number of remedies since arriving in Canada, and all have been unsuccessful, may be taken into consideration in determining the balance of convenience. For the above reasons, the Applicant’s motion is dismissed. THIS COURT ORDERS that : The motion is dismissed. Blank "Roger R. Lafreniѐre" Blank Judge