A Lebanese immigrant ordered deported in December 2019 after he was convicted for possession of fentanyl and hydromorphone for the purposes of trafficking has won another chance to stay in Canada.
Mohamad Kassar, who arrived in Canada as a permanent resident about 35 years ago, was scheduled to be removed to Lebanon on Feb. 13. Instead, Federal Court Justice Angus Grant stayed his removal because Kassar has a preliminary diagnosis suggesting he might have a lung tumour.
“Given (Kassar’s) medical vulnerability, and given his dependence on uninterrupted treatment to avoid morbidity and potential mortality, I am satisfied that (he) has provided clear, convincing, and non-speculative evidence of the harm that he would experience if his removal is not deferred,” Grant wrote in a recent decision out of Toronto.
Over the years, fentanyl has become the dominant street drug across Canada, taking thousands of lives.
But the judge was “convinced that the balance of convenience in this matter rests with” Kassar.
“I do not take this fact lightly. The opioid crisis in this country is real, and it has harmed many people,” Grant said in his decision dated Feb. 11.
“In most circumstances, the balance of convenience would favour the strong public interest in removing non-citizens who have played a role in that crisis.”
An inland enforcement officer rejected Kassar’s pre-removal risk assessment — his last-ditch bid to stay in Canada. Kassar had requested a deferral of his removal while he waits to see what happens with his pending applications to stay here on humanitarian and compassionate (H&C) grounds, as well as a temporary resident permit (TRP).
“I am convinced that a serious issue arises as to whether the officer adequately considered whether Mr. Kassar’s medical conditions, when considered in light of the healthcare system in Lebanon, posed an immediate impediment to removal,” said the judge.
“Finally, while Mr. Kassar’s health concerns may well be chronic and lifelong, it is important to note that his request for a deferral was not an indefinite one, and was not tied to his health improving. Rather, it was tied to his request that his removal be deferred until a determination could be made on his H&C or TRP applications. While the request to defer pending a first level H&C determination may amount to an indeterminate and lengthy one, the same cannot necessarily be said about the TRP application.”
The court heard that Kassar was convicted in 2018 of possession of fentanyl and hydromorphone for the purposes of trafficking. “He was sentenced to 36 months imprisonment for the fentanyl conviction, and nine months for the hydromorphone conviction, to be served consecutively. He was released on parole in June 2021.”
As a result of his convictions, Kassar was ordered deported in December 2019.
“However, despite its statutory duty to enforce removal orders as soon as possible, the Canada Border Services Agency (CBSA) appears to have taken no steps to remove Mr. Kassar for several years,” Grant said.
Last April, he applied for permanent residence in Canada on humanitarian and compassionate grounds.
In January, Kassar applied for a temporary resident permit.
Decisions on both applications are still pending, said the decision.
When an inland enforcement officer turned down Kassar’s requests to put off his deportation until those applications could be heard, he asked the Federal Court to review that decision.
Grant found “that a serious issue does arise in relation to the officer’s treatment of the medical evidence.”
The officer concluded that Kassar’s “claim that he would be unable to obtain treatment in Lebanon was speculative.”
The officer’s finding “was based, at least in part, on the absence of a specific treatment plan in Canada,” said the judge.
The same officer acknowledged “that the healthcare system in Lebanon is imperfect but also noted that healthcare remains available,” said Grant’s decision.
Letters from Kassar’s doctor state “his medical conditions include chronic pain, chronic obstructive pulmonary disease, major depression disorder, and he is currently being investigated for a suspicious lung lesion that may be lung cancer,” said the decision.
The officer who turned down Kassar’s bid to delay deportation failed “to consider the evidence on (Kassar’s) other healthcare needs, and their interplay with the evidence on the healthcare crisis in Lebanon,” said the judge.
His doctor had noted that “Kassar is presently stable, but that this stability is tied to his current treatment, without which, his condition may deteriorate significantly,” said the judge. “If unable to access medication, the doctor stated that Mr. Kassar was at risk not only of morbidity, but also of mortality.”
The officer dismissed the medical evidence, said the judge, “finding that it contained speculation” as to Kassar’s “ability to obtain treatment in Lebanon, and that it lacked detail on follow-up tests related to the malignancy of the lung lesions.”
The officer “also found that while the news articles provided by (Kassar) demonstrated that healthcare in Lebanon is imperfect, it remains available.”
Grant had concerns about the officer’s “consideration of the evidence on the healthcare system in Lebanon,” said the decision. “The overwhelming thrust of this evidence is that the Lebanese healthcare system is in a state of acute crisis, that it struggles to provide routine treatment for chronic diseases, and that it is essentially on the verge of collapse. Instead of grappling with this evidence, the officer quoted isolated passages from the reports of two emergency relief organizations indicating that they do everything in their power to offer care to those in need.”
The judge agreed with Kassar “that the reports on which the officer relies do not support a finding that Lebanese healthcare is available, if imperfect. On the contrary, they paint a picture of a serious healthcare crisis in which basic, essential care for chronic, but potentially life threatening, conditions is routinely interrupted.”
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