Date: 20060117
Docket: IMM-3019-05
Citation: 2006 FC 34
Montréal, Quebec, January 17, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
ROGER
LUCAS
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is a citizen of Trinidad and Tobago. He arrived in Canada as a
permanent resident in 1990 at the age of ten. He is the father of a daughter
born in Canada. She is now four years of age.
[2]
In 1999
and 2000, the applicant was found guilty of various criminal offences: assault
with a weapon and assault on March 19, 1999; uttering threats on July 5,
2000. A first report was written under section 27 of the Immigration
Act, R.S.C., 1985, c. I-2 (the former Act). No deportation order was issued
against the applicant. He alleged having been the victim of mistreatment by his
uncle and aunt when he was a youngster in Trinidad and then by his mother in
Canada. In spite of a jail sentence of 12 months, the use of violence, and the
serious nature of the crimes committed by the applicant, in November 2001, the
investigator decided that the applicant [translation] “should have a chance of
showing that this was a mistake. He seems sincere in his desire to make
amends”.
[3]
Following
that, the applicant was convicted for other criminal offences, in March and
May 2002 respectively: on March 18, 2002, for breaking and entering,
failure to comply with a probation order, and failure to comply with a
recognizance; on May 1,
2002, for personation with intent, fraud not exceeding $5000, and uttering a
forged document. Meanwhile, a second report under section 27 of the former Act
was drafted. On April 22, 2002, under subsection 32(2) of the former Act, a
deportation order was issued against the applicant. He then appealed to the
Immigration Appeal Division of the Immigration and Refugee Board (the panel).
The appeal was heard following the coming into force of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the new Act). Because the
applicant’s jail sentence is less than the limit of 24 months imposed under
section 64 of the new Act, the panel considered that it still had
jurisdiction to hear this appeal.
[4]
Section 67
of the new Act defines the Court’s jurisdiction in the case of an appeal
validly brought under section 63 of the new Act. This section provides as
follows:
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67.
(1) To allow an appeal, the Immigration Appeal Division must be satisfied
that, at the time that the appeal is disposed of,
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67.
(1) Il est fait droit à l'appel sur preuve qu'au moment où il en est
disposé :
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(a) the
decision appealed is wrong in law or fact or mixed law and fact;
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a) la décision
attaquée est erronée en droit, en fait ou en droit et en fait;
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(b) a principle
of natural justice has not been observed; or
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b) il y a eu
manquement à un principe de justice naturelle;
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(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
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c) sauf dans le cas de
l'appel du ministre, il y a — compte tenu de l'intérêt supérieur de l'enfant
directement touché — des motifs d'ordre humanitaire justifiant, vu les autres
circonstances de l'affaire, la prise de mesures spéciales.
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(2)
If the Immigration Appeal Division allows the appeal, it shall set aside the
original decision and substitute a determination that, in its opinion, should
have been made, including the making of a removal order, or refer the matter
to the appropriate decision-maker for reconsideration.
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(2)
La décision attaquée est cassée; y est substituée celle, accompagnée, le cas
échéant, d'une mesure de renvoi, qui aurait dû être rendue, ou l'affaire est
renvoyée devant l'instance compétente.
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[5]
On the
merits, the panel decided to dismiss the applicant’s appeal. According to the
Court, the humanitarian reasons invoked by the appellant did not warrant the
stay of the deportation order. With regard to the best interests of the child
directly affected by the deportation order against the applicant, the panel
concluded that this argument was flimsy, even non-existent. In fact, the
applicant’s daughter lives with her mother, and the applicant admitted he had
no contact with her and does not provide her with any emotional or financial
support. On this point, the panel noted that the applicant’s life of wandering
and crime shows there is little hope of his providing this child with
significant support in the years to come.
[6]
As far as
the applicant’s chances of rehabilitation are concerned, the panel emphasized
that the evidence on this point was far from conclusive. Although the applicant
had not been convicted of other offences since May 2002, he admitted having
sold crack during the summer of 2002, and he continued to take crack, at least
until May 2004. Moreover, the Court noted the following at paragraphs 22, 23
and 25 of the decision:
[22] The
panel was not favourably impressed by the argument that a stay should be granted
because of the time he has spent in Canada. It is true that the appellant
arrived at an early age but, beginning in November 2001, when he persuaded the
investigator to [Translation] “give him a chance”, he sold one of the most
harmful drugs that exists and personally abused various substances that brought
him to our hospitals on many occasions. He has continued to be a burden on our
social assistance and healthcare systems and has made no serious effort to get
out of this way of life. He makes use of public resources and rehabilitation
centres, but has not solved his problems.
[23] The
panel agrees that it will be hard for him to reintegrate into his country of
origin, but it will not be more difficult than his situation in Canada, where
he depends entirely on public resources and has no family support system.
[25] Counsel
for the appellant stressed that his client has had no further convictions since
2002 and would like the panel to conclude that this points to his
rehabilitation. Unfortunately, the medical documents that were produced as
proof that the appellant suffers from a mental illness (paranoia) prove instead
that the appellant has not rehabilitated himself but has been engaged in
selling narcotics in order to get a “buzz”, as recently as May 2004. It goes
without saying that the anger he showed the doctor could also have been grounds
for criminal prosecution in view of the fact that he was on two years’
probation, but no complaint was filed.
[7]
The
applicant acknowledged that the deportation order issued against him was well
founded in law, but he submitted that this Court should, on humanitarian
grounds, set aside the panel’s decision dismissing his appeal. Essentially, the
applicant submitted that the panel erred in exercising its discretion by not
considering certain positive factors as being sufficiently important. On this
point, the applicant once again submitted that he suffered a lot in his
childhood, and he expressed his desire to overcome his problems and take
control of his life. Accordingly, in 2003, he voluntarily registered for a
live-in therapeutic program at the Maison Aleesen, and during the same year he
took a rehabilitation and reintegration program for alcoholics, drug addicts
and compulsive gamblers at the Maison l’Estime. In the circumstances, it is
unfair to criticize him for being a burden on the social welfare system and the
health network. In addition, the applicant explained that he had to take
Zyprexa, a medication which apparently helps to treat the paranoia from which he
has suffered since the time he [translation] “had to swallow seven pieces
of crack, because the police were there” [to arrest him] (notes of psychiatrist
L. Beaudry, whom the applicant consulted on May 11, 2004).
[8]
The
applicant’s criticisms of the panel’s decision concern its assessment of the
facts and the importance of certain factors considered by it. These criticisms
do not affect the validity of the panel’s general conclusion. In spite of the
fact that the best interests of the child were invoked in the applicant’s
written memorandum, this argument was not repeated by counsel for the applicant
at the hearing before this Court on January 10, 2006. As far as the mental
health issue is concerned, this argument was never expounded before the panel
by the applicant’s former counsel.
[9]
In
principle, the Court’s review must deal above all with the legality of the
decision, which was discretionary in nature, that was rendered by the panel,
and not the merits of this decision, unless it appears from the record that it
is patently unreasonable (see Boulis v. Canada (Minister of Manpower and
Immigration), [1974] S.C.R. 875 at page 877; Jessani v. Canada (Minister
of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 235, [2001]
F.C.J. No. 662 at paragraph 16 (F.C.A.) (QL)). In the case at bar, nothing
shows that the positive factors invoked by the applicant were not considered by
the panel. Having said this, it is obvious on reading the panel’s decision and
the exhibits on record that it took into consideration all the circumstances
and relevant factors, including the seriousness of the offences committed by
the applicant, the possibilities for rehabilitation, the applicant’s general
behaviour (especially his violent temperament), his young age, the number of years
he has spent in Canada, his parentage, his mental health (borderline and
antisocial personality disorder), the medication he was taking (Zyprexa), his
unhappy childhood, and the difficulties of reintegrating in his country of
origin.
[10]
It was up
to the panel alone to assess and attribute relative weight to each of the
abovementioned factors, considering all the circumstances in this case. This is
what the panel did in this case. The findings of fact and the negative
inferences made by the panel were based on the evidence on record and were not
seriously challenged by the applicant. The reasons invoked by the panel for
giving little weight to the positive factors underlined by the applicant are
not perverse or capricious. In general, the panel’s decision is not patently
unreasonable. Considering all the circumstances, the panel could conclude that
a stay was not warranted in this case and that the applicant’s appeal should
therefore be dismissed. Even thought the panel’s decision has significant
consequences — in fact, the applicant will end up without resources in a
country he left at the age of 19 — I is not my place to substitute my judgment
for that of the panel.
[11]
For these
reasons, this application for judicial review must fail. There is no question
of general interest to be certified in this case.
ORDER
THE COURT ORDERS that the application for
judicial review be dismissed.
“Luc
Martineau”
Certified
true translation
Michael
Palles
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