Moore v. Canada (Citizenship and Immigration)

Moore v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2009-08-06
Neutral citation
2009 FC 803
File numbers
IMM-3940-09
Decision Content
Date: 20090806
Docket: IMM-3940-09
Citation: 2009 FC 803
Ottawa, Ontario, August 6, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KYON ROGER MOORE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS[1]
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] An applicant for an equitable remedy must come before the Court with clean hands.
The well established principle "he is who has committed Iniquity ... shall not have Equity." Jones v. Lenthal (1669) 1 Ch. Ca. 154 needs to be applied in this case. I see no reason to extend equity to the Applicant in light of his deeds. It follows as a logical corollary that where the Applicant does not come with clean hands, the balance of convenience does not tilt his way.
It is obvious to me that the Court in exercising its discretion must have regard and must take into account a number of factors not the least of which is the public interest. Public policy dictates that I bar the plaintiff's claim. The maxim that "no one should take benefit from his own wrong" has been adopted and followed for centuries. This principle was enunciated quite succintly in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 at 156, where Fry, L.J., said:
It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person....This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.
(Reference is made to Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661, [1999] F.C.J. No. 1093 (QL) (C.A.); Ksiezopolski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1402, [2004] F.C.J. No. 1715 (QL); Basu v. Canada, [1992] 2 F.C. 38, [1991] F.C.J. No. 1272 (QL) (T.D.)).
[2] Mr. Kyon Roger Moore, the Applicant, a citizen of Jamaica, is a repeat criminal offender with eight criminal convictions in Canada since 2002. These convictions include violent and weapons related offences including breaking and entering. A deportation order for criminality was appealed to the Immigration Appeal Division (IAD); the IAD issued a stay of proceedings during which Mr. Moore re-offended and was again convicted of serious criminality. Pursuant to ss. 68(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), the stay of proceedings was terminated:
68. …
Termination and cancellation
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
68. […]
Classement et annulation
(4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l’étranger est reconnu coupable d’une autre infraction mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
[3] Failure to appear for several immigration proceedings led to a warrant for Mr. Moore’s arrest in March of this year. Mr. Moore remains in detention pending removal further to a negative Pre-Removal Risk Assessment (PRRA). The Applicant is scheduled for removal on August 7, 2009. A deferral of Mr. Moore’s removal was refused by the Immigration Authorities.
[4] Mr. Moore is not entitled to the Court’s discretion on the merits of the matter as he has come to Court with unclean hands due to serious criminality and disregard for Canada’s immigration laws.
JUDGMENT
THIS COURT ORDERS that the matter not be heard on its merits as Mr. Moore does not come before this Court with clean hands.
“Michel M.J. Shore”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3940-09
STYLE OF CAUSE: KYON ROGER MOORE v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 6, 2009 (by teleconference)
REASONS FOR JUDGMENT
AND JUDGMENT: SHORE J.
DATED: August 6, 2009
APPEARANCES:
Mr. Waikwa Wanyoike
FOR THE APPLICANT
Ms. Judy Michaely
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
WAIKWA WANYOIKE
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENTS
[1] As both Ministers have been named in the proceedings, both appear on the Style of Cause.