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REMOVAL AND DEPORTATION - Removal from Canada - Removal order - Humanitarian and compassionate grounds

Thursday, July 27, 2017 @ 8:24 AM  


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Appeal by Lewis from the dismissal of his application for judicial review of a Canada Border Services Agency (CBSA) Inland Enforcement Officer’s (Enforcement Officer) decision, refusing his request to defer his deportation to Guyana pending the determination of his humanitarian and compassionate (H&C) application. Lewis requested the deferral largely based on the impact his removal would have on his nine-year-old daughter, a Canadian citizen of Indigenous heritage. She was a member of the Gwich'in First Nation (Inuvik) by virtue of her maternal lineage. Her mother was unable to care for her due to substance abuse issues. Lewis was a permanent resident of Canada and a citizen of Guyana. He arrived in Canada as a child in 1966 and had no family remaining in Guyana. He had a criminal record which included convictions from 1979, 1985 and 2003 for assault causing bodily harm. His immigration status was reviewed after his 2003 conviction, which resulted in a 12-month conditional sentence. Lewis was determined inadmissible and ordered deported in 2004. His appeal to the Immigration Appeal Division (IAD) resulted in a stay of the deportation order for one year, subject to conditions, including the requirement that he report any change of address to Citizenship and Immigration Canada (CIC). Lewis advised CIC of an intention to move from Edmonton to Yellowknife, then remained in Edmonton and became homeless for several months in late 2006 and early 2007. The stay was subsequently cancelled by the IAD and Lewis’s appeal of the deportation order was dismissed in March 2007. A warrant was issued for his arrest. Lewis’s daughter was born in 2007 and Lewis was awarded sole custody of her in 2011. He was arrested on the outstanding warrant in November 2007 and was placed briefly in immigration detention. Upon his release, he continued to breach his reporting conditions. In 2013, Lewis moved to Toronto to be closer to his own family. He took steps to ensure his child remained connected with her Aboriginal culture, including enrolling her in an afterschool First Nations Study Program. Guyanese authorities approved travel documents for Lewis in September 2013. A Pre-Removal Risk Assessment (PRRA) officer determined that there would be no risk to Lewis if he were returned to Guyana that would justify his remaining in Canada. Lewis unsuccessfully applied to re-open his appeal, to gain permanent resident status on H&C grounds, and to defer his removal in July 2014. The Enforcement Officer found that Lewis failed to make his applications in a timely manner, failed to show he would be unable to find gainful employment in Guyana, and failed to demonstrate that the child’s removal from Canada would prevent her from maintaining a close connection with her Aboriginal community, its culture and traditions. The Enforcement Officer noted that the child could return to Canada at any time to participate in Aboriginal cultural events and indicated that she could enter Canada whenever her legal guardian permitted it to visit her mother, her mother's family and the Gwich'in band in Yellowknife. The Federal Court dismissed Lewis’s judicial review application. It considered the Enforcement Officer’s decision reasonable, rejecting the assertion that Gladue principles, applicable to the sentencing of Aboriginal offenders, were also applicable in the immigration context. The Court considered it premature to assume that Lewis’s daughter would be leaving Canada with him when he was removed to Guyana.

HELD: Appeal allowed. The rights of Lewis and his daughter to life, liberty and security under section 7 of the Canadian Charter of Rights and Freedoms (Charter) were not impacted by the removal order, where there was no suggestion that either of them would be at risk in Guyana. The child’s indigenous heritage did not mandate a different conclusion with respect to her Charter-protected interests. The Court rejected the argument that the Kanthasamy decision and the Children’s Convention required the Enforcement Officer to undertake a full-blown assessment of the best interests of Lewis's daughter or to grant the requested deferral until Lewis's last minute H&C application was decided by a ministerial delegate. The Enforcement Officer was only required to consider the short-term best interests of the child. However, the Enforcement Officer failed to give due consideration to the impact of a move to Guyana on the child’s connection with her Aboriginal heritage. The Enforcement Officer’s assumption that the child could return to Canada was pure speculation and therefore unreasonable. Her father was inadmissible and therefore likely could not accompany her on a return trip. The Enforcement Officer did not explain how it would be feasible for the child to make the journey back to Canada on her own, and there was no suggestion that anyone else would be able to accompany her. Further, the Enforcement Officer’s description of the type of connection that would be important for the child to maintain with her indigenous roots revealed that his treatment of these issues was insensitive and antithetical to the requisite analysis of the child’s best interests. Based on the facts before the Enforcement Officer, there was no realistic basis for concluding that the child could maintain any connection with her indigenous roots if she were in Guyana. The Federal Court’s conclusion that it was premature to assume the child would leave Canada with Lewis was without merit, as the CBSA was prepared to purchase a ticket to Guyana for the child and the Enforcement Officer had already accepted that the child would be accompanying Lewis to Guyana.

Lewis v. Canada (Minister of Public Safety and Emergency Preparedness), [2017] F.C.J. No. 629, Federal Court of Appeal, D.W. Stratas, W.W. Webb and M.J.L. Gleason JJ.A., June 21, 2017. Digest No. TLD-July242017010