CAREN JAE PITPIT Applicant v. MINISTER OF PUBLIC SAFETY AND, 2022 FC 315

Date: 20220308 Docket: IMM-8852-21 Citation: 2022 FC 315 Ottawa, Ontario, March 8, 2022 PRESENT: The Honourable Mr. Justice Zinn BETWEEN:CAREN JAE PITPITApplicantand MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicant moves for an Order staying her removal to the Philippines, scheduled to be executed on March 9, 2022, until herapplication for leave and judicial review of a deportation order made March 5, 2020 [the Deportation Order], is considered and finallydetermined.

In that application and on this motion, she also seeks an anonymity Order. [2] The Respondent opposes both requests on several grounds. First, it is submitted that the motion should be dismissed because theunderlying application for leave and judicial review was filed late and the request for an extension of time ought to be denied. Second, itis submitted that the Applicant comes to this Court with unclean hands.

Lastly, it is submitted that the Applicant has failed to meet thetripartite test of serious issue, irreparable harm and balance of convenience established in Toth v Canada (Minister of Employment andImmigration), (1988) (FCA), 86 NR 302 (FCA). [3] The Respondent also says that the proper respondent is the Minister of Public Safety and Emergency Preparedness.

I agree, and anOrder will issue with immediate affect amending the style of cause. [4] Having read the parties’ materials and heard counsel at the Court’s General Sittings in Toronto by Zoom platform, I conclude thatthis motion for a stay of removal and an anonymity Order must be dismissed. [5] I agree with the Respondent that the anonymity Order requested is overbroad and unsubstantiated. [6] The Applicant states that she is requesting anonymity to protect her privacy based on fears that disclosure of her identity and personalcircumstances could affect her parents’ health and safety in the Philippines. [7] The Respondent notes that in her meeting with the Minister’s Delegate on October 7, 2019, the Applicant stated that she had no fearof returning to the Philippines.

It is also noted that in the supporting affidavit in the application record, the Applicant refers to loansharks and states that she fears for her life in the Philippines; however, that allegation was previously assessed and rejected by a Pre-Removal Risk Assessment [PRRA] officer on September 10, 2021.

Lastly, the Applicant now states that she is at risk due to an allegedbisexual gender orientation; however, as the Respondent notes, she did not mention any risk related to sexual orientation at her detentionreview, in her PRRA, or in her affidavit that she filed in support of her initial stay motion in December 2021.

The Applicant has notdemonstrated that an anonymity Order is warranted. [8] While there may be considerable merit to the Respondent’s submissions regarding the lateness of the application and the conduct ofthis Applicant, the motion for a stay may be quickly disposed of based on the tripartite test analysis. [9] The alleged serious issue raised in the underlying application is stated to be "“whether the conditional sentence and probation of theApplicant should be considered as conviction by indictment under section 36(2)(

a) of the [Immigration and Refugee Protection Act, SC2001, c 27] [IRPA] and the corresponding consequences to the Applicant will amount to being inequitable and unreasonable.”" [10] The record shows that on September 25, 2019, the Applicant was charged with two counts of assault contrary to

section 266 of theCriminal Code, RSC 1985, c C-46. On February 3, 2020, one count was withdrawn and she pled guilty to the other. She was convictedand given a four-month conditional sentence of imprisonment and three years of probation. The Deportation Order was based onparagraph 36(2)(

a) of IRPA which provides that a "“foreign national is inadmissible on grounds of criminality for having been convictedin Canada of an offence under

an Act of Parliament punishable by way of indictment … .”" [11] The Applicant accepts that

section 266 of the Criminal Code may be prosecuted either summarily, as it was in her case, or byindictment. Paragraph 36(3)(

a) of IRPA provides that "“an offence that may be prosecuted either summarily or by way of indictment isdeemed to be an indictable offence, even if it has been prosecuted summarily.”" [12] The Applicant submits: "“Surely, it would not have been the intent of Parliament to distinguish an offence under the Code such thatit can either be punishable by indictment or summarily when the consequences to a convicted person would be one and the same, andmore importantly inequitable and unreasonable.”" [13] The Applicant is asking this Court to either ignore paragraphs 36(2)(

a) and 36(3)(a), or to interpret them in a way that is contrary totheir clear and express language, because the result to the Applicant is unfair and unreasonable. She seems to base her submission on the

fact that she was sentenced to a conditional order and probation, rather than a custodial sentence. However, paragraph 36(2)(

a) does not address sentencing, it speaks to a person who has been " “convicted” " of an offence. She has been so convicted. It is not this Court’s role to ignore the plain language used by Parliament in IRPA , or to interpret a statutory provision in a manner contrary to its obvious intent. [ 14 ] For these reasons, I find that the Applicant has failed to raise a serious issue in the underlying application, even on the standard of being neither frivolous nor vexatious. In my view, the issue raised is frivolous and vexatious. [ 15 ] I further find that irreparable harm is not established.

The harms she now raises were assessed previously by the PRRA officer, are unsubstantiated, or relate to her parents. To satisfy the irreparable harm prong of the test, the harm alleged must be harm to the Applicant. [ 16 ] Lastly, the balance of convenience rests with the Respondent. The Applicant overstayed her work permit, has been convicted of assault, and has been less than frank with the Court concerning her conviction. [ 17 ] The motions will be dismissed. ORDER AND REASONS in IMM-8852-21 THIS COURT ORDERS that : 1 .

The style of cause is amended with immediate effect to substitute The Minister of Public Safety and Emergency Preparedness for the Minister of Citizenship and Immigration; 2 . The motion for an anonymity Order is dismissed; and 3 . The motion for a stay of removal is denied. "Russel W. Zinn" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8852-21 STYLE OF CAUSE: CAREN JAE PITPIT v MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: held by videoconference DATE OF HEARING: march 8, 2022 ORDER AND REASONS: ZINN J. DATED: March 8, 2022 APPEARANCES : GEORGE M.

GARVIDA For The Applicant LEILA JAWANDO DIANE GYIMAH For The Respondent SOLICITORS OF RECORD :

THE LAW OFFICES OF GEORGE M. GARVIDA PROFESSIONAL CORPORATION TORONTO, ONTARIO For The Applicant DEPARTMENT OF JUSTICE CANADA TORONTO, ONTARIO For The Respondent