Executive Summary: Key Legal and Evidentiary Issues

• Legality of deporting a permanent resident with mental illness and criminal convictions in light of an active United Nations Human Rights Committee (UNHRC) Interim Measures Request.

• Application of the RJR-MacDonald three-part test for an injunction to stay deportation pending appeal.

• Assessment of whether irreparable harm would occur if deportation proceeds before appeal rights are exhausted.

• Consideration of the balance of convenience between the applicant’s rights and the public interest, given the applicant’s criminal history and current detention.

• Relevance and weight of non-binding international human rights requests in Canadian deportation proceedings.

• Impact of prior administrative delays and judicial findings on the appropriateness of continued injunctive relief.

Background and procedural history

Mahir Yahya Sharif, a Somali national who became a permanent resident of Canada in 2019 after being resettled from Egypt as a refugee, faces deportation due to serious criminal convictions, including sexual assault and drug trafficking. Mr. Sharif, who suffers from a major mental illness and has been repeatedly hospitalized, lost his permanent resident status after a 2023 Immigration Division finding of inadmissibility under s. 36(1)(a) of the Immigration and Refugee Protection Act. The Minister of Public Safety and Emergency Preparedness initiated removal proceedings, which Mr. Sharif challenged in court.

Mr. Sharif’s legal team sought judicial review of the Minister’s decision, particularly in light of an Interim Measures Request (IMR) from the United Nations Human Rights Committee. The IMR asked Canada to pause Mr. Sharif’s removal while the Committee considered his complaint. The Superior Court of Justice dismissed Mr. Sharif’s application for judicial review but extended an injunction against his removal for 30 days to allow him to seek further relief. As this injunction was set to expire, Mr. Sharif brought a motion before the Court of Appeal for Ontario for a further stay of removal pending his motion for leave to appeal and, if granted, the appeal itself.

Legal test and arguments

The parties agreed that the motion should be decided using the Supreme Court of Canada’s RJR-MacDonald three-part test for injunctive relief: (1) whether there is a serious issue to be tried, (2) whether irreparable harm would result if the injunction is not granted, and (3) the balance of convenience between the parties.

On the first branch, the court found that Mr. Sharif’s case was neither vexatious nor frivolous and raised substantial issues, as even the application judge had acknowledged.

On the second branch, the court rejected the Minister’s argument that the non-binding nature of the UNHRC’s IMR meant Mr. Sharif could not show irreparable harm. The court held that deporting Mr. Sharif before his appeal rights were exhausted would cause irreparable harm by rendering his appeal moot, regardless of the ultimate outcome or the binding effect of the UNHRC’s request. The court also noted that Canada’s usual practice is to pause removals upon receipt of an IMR, and that deportation could have serious consequences for Mr. Sharif’s health and safety.

On the third branch, the Minister argued that Mr. Sharif’s criminality and previous court findings tipped the balance of convenience in favor of immediate deportation. However, the court distinguished the present case from earlier decisions, noting that Mr. Sharif is currently detained and that previous administrative delays in his removal undercut the urgency claimed by the Minister. The court concluded that the balance of convenience favored maintaining the injunction, as the harm to Mr. Sharif from premature deportation outweighed the inconvenience to the Minister.

Outcome and next steps

The Court of Appeal granted Mr. Sharif’s motion, extending the injunction against his deportation until his motion for leave to appeal is decided and, if leave is granted, until the appeal is heard and determined. The Minister subsequently consented to leave being granted, reserving the right to cross-appeal. The court set an expedited schedule for the parties to file their materials.

In summary, Mr. Sharif succeeded in obtaining continued injunctive relief preventing his removal to Somalia while his appeal proceeds. No specific monetary award was ordered in this decision; the relief granted was the extension of the injunction against deportation.