Federal court stays removal order in favour of Jamaican man facing threats due to sexual offences

Petitioner would suffer 'irreparable harm' if removed from Canada: court

Federal court stays removal order in favour of Jamaican man facing threats due to sexual offences

The Federal Court has issued a stay order favouring a convicted Jamaican sex offender facing removal from Canada because of violent threats against him concerning his previous offences.

In Flowers v. Canada (Citizenship and Immigration), 2022 FC 370, the applicant arrived in Canada in 1976. Since his arrival, he has received 18 convictions for various offences. In 1996, he was diagnosed with HIV but failed to disclose his condition to his past sexual contacts.

In 2012, the applicant was charged with 13 counts of aggravated sexual assault. When the arrest warrant was issued, he had already gone to Jamaica. The government filed extradition proceedings against him relating to three charges and his failure to inform his sexual partners of his HIV status.

In 2017, the applicant was extradited to Canada. He pled guilty to the three charges and was taken into immigration detention due to a removal order issued against him. In Feb. 2022, he requested a Pre-Removal Risk Assessment (PRRA), alleging that he should not leave Canada as he had been receiving violent threats in Jamaica due to his previous offences. The PRRA officer denied his request.

As a result, the applicant applied for a judicial review of the PRRA decision and requested a stay of his removal from Canada pending review of the decision. He argued that the PRRA officer failed to consider the risks he faced in Jamaica after his case received extensive media coverage.

In its decision, the Federal Court granted the applicant’s request for a stay of removal, pending determination of his application for judicial review of the PRRA decision.

The applicant must meet the tripartite test set out in Toth v. Minister of Employment and Immigration for the court to stay a removal order. In particular, he must prove the following:

  • There is a serious issue to be tried in the underlying application;
  • He would suffer “irreparable harm” if he were removed from Canada;
  • The balance of convenience favours granting the stay.

According to the court, the applicant had met the first element as his arguments about the PRRA decision are neither frivolous nor vexatious.

“I do not need to say more because if the applicant obtains leave on his application for judicial review, a future judge will have an opportunity to assess the merits of the arguments based on more fulsome arguments and with more time to consider it,” Justice William Pentney wrote.

To meet the second test, the applicant submitted evidence showing that he faces a risk to his life and security if he returns to Jamaica. He provided copies of Jamaican newspaper articles reporting on the crimes that gave rise to his extradition proceedings, anonymous online comments he had received following the newspaper coverage, and his brother’s affidavit recounting the most recent threats made against him.

The court noted that while the anonymous online comments concerning newspaper coverage of the applicant’s case lack evidentiary value to establish irreparable harm, his brother’s affidavit cannot be entirely discounted and must be assessed considering his brother’s interest in the outcome of the matter. The applicant, therefore, met the irreparable harm threshold.  

Regarding the third test, the court determined that elements were weighing in favour of the applicant, particularly the question he raised about the PRRA decision, the finding by the PRRA officer that he was at a “heightened” risk if he would return to Jamaica, and his brother’s statement regarding the “risk of vigilante or mob justice” that the applicant faces if he would stay in Jamaica.

“Based on that record, I find that the harm to the respondent’s interests associated with a delay in the removal of the applicant does not outweigh the harm to his interests associated with removal in the current circumstances,” Justice Pentney wrote.

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