Charles v. Canada ( Minister of Citizenship and Immigration )
IMM-3445-99
Gibson J.
16/7/99
5 pp.
Application to stay execution of order removing applicant to Scotland pending decision on application for leave and for judicial review to compel respondent to deal with application for landing from within Canada on humanitarian and compassionate grounds (H and C application)-Applicant father of 7-month old daughter-Stay of execution of removal order allowed-While too early to forecast all implications of Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), that decision raising serious question to be tried on application for leave and for judicial review underlying this matter: whether, in light of Baker, open to respondent to deport from Canada individual who has before respondent H and C application where (a) H and C application filed in timely manner; (b) no evidence individual imminent danger to public in Canada; (c) individual has Canadian-born child for whom applicant assuming parental responsibility-Irreparable harm for purposes of stay application not implying serious likelihood of jeopardy to applicant's life or safety-On facts herein, execution of deportation order would result in irreparable harm to applicant-As to balance of convenience, while respondent has obligation to execute outstanding deportation order "as soon as reasonably practicable", latter flexible test-Fact respondent has backlog of H and C applications precluding her from dealing with applicant's application, and will apparently continue to preclude her from dealing with application for number of months, should not work against applicant-In view of findings on serious issue and irreparable harm, conclusion balance of convenience favouring applicant.