On August 30, 2013, Ms. Gerami succeeded on a stay of removal motion before the Honourable Mr. Justice Zinn in Etienne v. Minister of Public Safety and Emergency Preparedness. This is an important decision in that it clarifies the meaning of “as soon as possible” under section 48 (2) of the Immigration and Refugee Protection Act (S.C. 2011, c. 27), which states as follows:
48. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible. [My emphasis] 48. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être exécutée dès que possible. [soulignement ajouté]
The Applicants’ removal in this case was scheduled for August 31, 2013. However, as a consequence of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, SC 2011, C 27, they were not eligible for a pre-removal risk assessment until September 4, 2013. Despite presenting evidence from a psychiatrist to the CBSA Officer that the family’s youngest child would suffer significant worsening of his post-traumatic stress disorder if he was removed from Canada, he denied their removal deferral request.
At the stay motion Ms. Gerami relied on international human rights conventions, as well as Supreme Court of Canada jurisprudence, including Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 to argue that removal of the Applicants in this case violates section 7 of the Canadian Charter of Rights and Freedoms (‘Charter’). Justice Zinn agreed that just as the Supreme had decided in Suresh the Applicants in this case did not have any assessment of the risk that they would face if they were removed from Canada to the Turks and Caicos. As such, although the Canada Border Services Agency Officer was required to remove the Applicants as soon as “possible,” this means “as soon as legally possible”. In effect, any removal from Canada that breaches the Charter is “an illegal removal”.
In this case, based on the fact that no assessment of risk had been made, and there was evidence which prima facie established a case of risk to the Applicants youngest child, and considering the binding authority of Suresh the Justice Zinn held that the Applicants had met the serious issue threshold and there was a likelihood of success in the underlying judicial review of the CBSA Officer’s decision (refusal to defer the removal of the Applicants). The Applicants had also successfully demonstrated there was irreparable harm by presenting “strong evidence that significant harm will befall a young child if he is removed to the Turks and Caicos”. Finally, the balance of the convenience lay in the Applicants’ favour, given that the public had “an interest ensuring that a child is not removed from Canada without having his risk properly assessed”.
The Court granted the stay of removal motion, staying the removal order against the Applicants until the final disposition of the application for leave and judicial review.