Ahani v. Canada (Attorney General)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Feldman, J.A.
• Citation: (2002), 155 O.A.C. 1 (CA)
• Date: 16 January 2002

Ahani v. Can. (A.G.) (2002), 155 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JA.058

Mansour Ahani (applicant/appellant) v. Her Majesty the Queen, Attorney General of Canada and The Minister of Citizenship and Immigration (respondents/respondents in appeal)

(M28156; C37565)

Indexed As: Ahani v. Canada (Attorney General)

Ontario Court of Appeal

Feldman, J.A.

January 17, 2002.

Summary:

Ahani, a citizen of Iran, was granted Convention refugee status. Subsequently, the Solicitor General and the Minister of Citizenship and Immigration found Ahani to be a member of an inadmissible class. In particular, they alleged that Ahani was or had been a member of the Iranian Security Service, a terrorist organization. The Minister of Citizenship and Immigration held that Ahani was a danger to the security in Canada and ordered him deported to Iran, holding that he faced only a minimal risk of torture. Ahani exhausted his rights of appeal (see 280 N.R. 201). He filed a petition with the United Nations Human Rights Committee alleging that Canada was in breach of its international obligations under the International Covenant on Civil and Political Rights. He applied for an injunction to prevent the execution of the deportation order.

The Ontario Superior Court dismissed the application. Ahani filed notice of appeal and applied for an interim stay of the deportation order pending the appeal.

The Ontario Court of Appeal, per Feldman, J.A., allowed the application.

Aliens - Topic 1800

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Stay of - Ahani, an Iranian Convention refugee, was ordered deported where he was a danger to security in Canada and only faced minimal risk of torture - He exhausted his rights of appeal - He filed a petition with the United Nations Human Rights Committee alleging that Canada breached the International Covenant on Civil and Political Rights - Ahani sought an injunction to prevent deportation - He argued that because Canada ratified the Convention and acceded to the relevant Protocol, he had a s. 7 Charter right not to removed until his petition had been considered and determined - The motions judge refused the injunction - Ahani appealed and sought a stay pending appeal - The Ontario Court of Appeal, per Feldman, J.A., stayed the deportation order pending the appeal - Ahani raised a serious issue to be tried - He would suffer irreparable harm if deported because it would effectively end the process - The balance of convenience favoured Ahani.

Aliens - Topic 1800

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Stay of - Jurisdiction - Ahani, an Iranian Convention refugee, was ordered deported where he was a danger to security in Canada and only faced minimal risk of torture - Ahani exhausted his rights of appeal - He filed a petition with the United Nations Human Rights Committee alleging that Canada breached the International Covenant on Civil and Political Rights - His application for an injunction to prevent the deportation order's execution was denied - He appealed and sought a stay pending appeal - The Ontario Court of Appeal, per Feldman, J.A., held that it had jurisdiction to issue a stay under s. 134(2) of the Courts of Justice Act which permitted the court to "make any interim order that is considered just to prevent prejudice to a party pending an appeal" - See paragraphs 5 and 6.

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See second Aliens - Topic 1800 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See first Aliens - Topic 1800 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See first Aliens - Topic 1800 ].

Practice - Topic 8968

Appeals - Stay of proceedings pending appeal - To prevent prejudice - [See both Aliens - Topic 1800 ].

Cases Noticed:

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 6].

Circuit World Corp. v. Lesperance et al. (1997), 104 O.A.C. 59; 33 O.R.(3d) 674 (C.A.), refd to. [para. 7].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 7].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 13].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R 1 (S.C.C.), refd to. [para. 13].

Thomas v. Baptiste, [2000] 2 A.C. 1 (P.C.), consd. [para. 14].

Briggs v. Baptiste, [2000] 2 A.C. 40, refd to. [para. 19].

Higgs v. Minister of National Security, [2000] 2 W.L.R. 1368, refd to. [para. 19].

Lewis v. Jamaica (Attorney General), [2000] 3 W.L.R. 1785, refd to. [para. 19].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 134(2) [para. 5].

Authors and Works Noticed:

Schabas, W., International Human Rights Law and The Canadian Charter (2nd Ed. 1996), pp. 71 to 76 [para. 22, footnote 1].

Counsel:

Barbara Jackman, for the appellant;

Donald MacIntosh and Neeta Logsetty, for the respondents.

This application was heard in Chambers on January 16, 2002, by Feldman, J.A., of the Ontario Court of Appeal, who delivered the following judgment on January 17, 2002.