Sannes v. Canada ( Minister of Citizenship and Immigration )
IMM-1008-95
Teitelbaum J.
26/6/95
11 pp.
Motion for interlocutory injunction staying execution of deportation order made against plaintiff-applicant pending determination of action against Minister-Applicant, born in Norway of Canadian mother, granted permanent resident status-As result of series of convictions, inquiry to effect applicant not Canadian citizen and person described in Immigration Act, s. 27(1)(d)(i)-At outset of inquiry, applicant claiming to be Canadian citizen-Adjudicator issuing deportation order; Appeal Division dismissing appeal of adjudicator's decision-Benner v. Canada (Secretary of State), [1994] 1 F.C. 250 (C.A.), holding provisions of Citizenship Act not discriminatory with respect to children of married Canadian women, pending appeal before Supreme Court of Canada-Applicant commencing action in Federal Court claiming status of Canadian citizen by virtue of Citizenship Act, s. 3(1)(e) in light of Constitution Act 1867 and Charter-Three-part test regarding stay of deportation order: (1) serious issue; (2) irreparable harm; and (3) balance of convenience-As citizenship issue identical for Benner and applicant, arguable case requirement satisfied-Irreparable harm requiring consideration of three elements: (1) kind of harm; (2) level of risk; and (3) whether harm compensable in damages-Case at bar distinguishable on facts from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 holding harm irreparable where Charter issue-At present time, and until Supreme Court reversing Benner decision, applicant not Canadian citizen and thus cannot be deprived of any fundamental right of Canadian citizen-Applicant not suffering irreparable harm if deported to Norway even though would be (1) deprived of extensive support network of friends and family established in Canada to help applicant deal with rehabilitation; (2) thrust into foreign environment; (3) separated from girlfried; (4) would lose opportunity to have case reviewed by Immigration and Refugee Board-Application dismissed-Immigration Act, R.S.C., 1985, s. 27(1)(d)(i) (as am. by S.C. 1992, c. 47, s. 78; idem, c. 49, s. 16)-Canadian Citizenship Act, R.S.C. 1970, C-19, s. 3(1)(e)-Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5]-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].