Date: 20060213
Docket: IMM-6577-05
Citation: 2006 FC 169
BETWEEN:
COCA
CAMARA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD
J.
[1] This is an application
for judicial review of a decision by the Immigration Appeal Division (the IAD),
dated October 4, 2005, dismissing the appeal filed by the applicant under
subsection 63(3) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act) against the removal order issued against him. This removal order had
been issued because the applicant is inadmissible on grounds of serious
criminality under paragraph 36(1)(a) of the Act and for criminality
under paragraph 36(2)(a).
[2] Coca Camara
(the applicant ) is a citizen of Guinea.
[3] On October 14, 1991, the applicant
arrived in Canada as a
stowaway.
[4] On June 18, 1992, he was recognized as a “Convention
refugee”.
[5] In September 1992, the applicant committed his
first criminal offence in Canada, i.e. the theft of a vehicle with a value
exceeding $5,000.
[6] On July 28, 2000, he was found guilty of
obstructing a peace officer in the execution of his duty and was ordered to pay
a fine of $150.
[7] On July 9, 2001, he was found guilty of possessing
property obtained by crime with a value exceeding $5,000 (Honda motor vehicle)
and was sentenced to 30 days in prison.
[8] On August 27, 2001, he was found
guilty of theft of a value not exceeding $5,000, of mischief in relation to
property valued in excess of $5,000, and of possession of break-in instruments.
He was
sentenced to one day for each count, concurrent to the first count, and to two
years of unsupervised probation.
[9] On August 29, 2001, he was found guilty of credit
card theft, assault and assaulting a peace officer with the intent to resist or
prevent his lawful arrest. He was sentenced to 14 days of imprisonment for each count,
concurrent to the first count, and to two years of unsupervised probation.
[10] On February 28, 2002, he was convicted
of several offences, namely:
- Theft of a value not exceeding $5,000 (motor vehicle),
for which he was sentenced to eight months of imprisonment and to one year of
supervised probation, followed by two years of probation with the usual
conditions;
- Obstruction
of a peace officer, for which he was sentenced to eight months of imprisonment
and to one year of supervised probation, followed by two years of probation
with the usual conditions;
- Two other thefts of a value not exceeding $5,000, for which he was
sentenced to eight months of imprisonment for each offence, concurrent to the
first count and one year of supervised probation, followed by two years of
probation with the usual conditions.
[11] On November 18, 2002, he was convicted of attempted
theft (of a motor vehicle) and was sentenced to eight months of imprisonment
and to two years of supervised probation, with the usual conditions. He was also found guilty
of possession
of break-in instruments
and was sentenced to eight months of imprisonment, concurrent, and to two years
of supervised probation, with the usual conditions.
[12] On November 22, 2002, because of the
multiple crimes he had committed, a removal order was issued against the
applicant. The applicant appealed this order to the IAD.
[13] On November 28, 2003, the applicant was also convicted
of assaults and was sentenced to four months of imprisonment and to two years
of unsupervised probation. He was also found guilty of failure to comply with a
condition, undertaking or recognizance and was sentenced to two months of
imprisonment.
[14] On February 23, 2004, he was also convicted of an attempt
to break and enter with intent and was sentenced to one year of imprisonment
and to two years of unsupervised probation.
[15] On September 30, 2004, Sonia Rodrigue, then the
applicant ’s counsel, informed the IAD that she could no longer represent the
applicant because she was unable to contact him.
[16] On October 25, 2004, the IAD dismissed the appeal
filed by the applicant against the removal order issued against him.
[17] On November 24, 2004, the applicant received a notice
from the Canada Border Services Agency (the Agency) stating that the Agency
intended to seek an opinion under paragraph 115(2)(a) of the Act,
as to whether he constituted a danger to the public.
[18] On February 24, 2005, on a motion filed by the
applicant ’s new counsel, Chantal Ianniciello, the IAD reopened the applicant
’s appeal.
[19] On June 14, 2005, Ms. Ianniciello advised the IAD
that she was no longer mandated to represent the applicant and asked that a
designated representative be appointed for him.
[20] On July 6, 2005, the IAD appointed Marian
Shermarke as the applicant ’s designated representative.
[21] On September 13, 2005, the Minister’s delegate made his
decision to the effect that the applicant is a danger to the public pursuant to
paragraph 115(2)(a) of the Act. This decision was the subject of an application
for judicial review in docket IMM-5903-05 (this application was dismissed on
this very day).
[22] On October 4, 2005, the IAD dismissed the appeal filed
by the applicant against the removal order issued against him in 2002. That decision is the
subject of this application for judicial review.
[23] On December 15, 2005, the applicant
sought to stay the execution of the order for removal from Canada and his
motion was postponed sine die by Chief Justice Lutfy.
[24] It would be appropriate to refer to the wording of the
relevant paragraphs of the Immigration
and Refugee Protection Act:
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36. (1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
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36. (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants:
|
|
(a) having been convicted in Canada
of an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years, or of an offence under an Act of
Parliament for which a term of imprisonment of more than six months has
been imposed;
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a) être déclaré coupable au Canada d’une infraction à une
loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans
ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de
plus de six mois est infligé;
|
|
.
. .
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[…]
|
|
(2) A foreign national is inadmissible on grounds of criminality
for
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(2) Emportent, sauf pour le résident permanent, interdiction de
territoire pour criminalité les faits suivants:
|
|
(a) having been convicted in Canada
of an offence under an Act of Parliament punishable by way of indictment, or
of two offences under any Act of Parliament not arising out of a single
occurrence;
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a) être déclaré coupable au Canada d’une
infraction à une loi fédérale punissable par mise en accusation ou de deux
infractions à toute loi fédérale qui ne découlent pas des mêmes faits;
|
|
. . .
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[…]
|
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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;
|
|
(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.
|
|
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
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97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée:
|
|
. . .
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[…]
|
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant:
|
|
. . .
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[…]
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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[25] On October 4, 2005, after considering all of the
evidence and applying the factors set out in the case law on the subject, the
IAD determined that there were insufficient humanitarian and compassionate
grounds to justify special relief.
Legal background
[26] Before the IAD, the applicant was not disputing
the lawfulness of the removal order, but based his appeal exclusively on
paragraph 67(1)(c) of the Act, alleging that there were humanitarian and
compassionate grounds justifying special relief.
[27] In exercising this discretionary power conferred by
the provision, the IAD considered the non-exhaustive factors set out in Ribic v.
Canada (M.E.I.), [1985] I.A.B.D. No.4 (QL), factors which were affirmed by
the Supreme Court in Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84,
at page 108:
. . . These
circumstances include the seriousness of the offence or offences leading to the
deportation and the possibility of rehabilitation or in the alternative, the
circumstances surrounding the failure to meet the conditions of admission which
led to the deportation order. The Board looks to the length of time spent in
Canada and the degree to which the appellant is established; family in Canada
and the dislocation to that family that deportation of the appellant would
cause; the support available for the appellant not only within the family but
also within the community and the degree of hardship that would be caused to
the appellant by his return to his country of nationality. . . .
[28] The Federal Court of Appeal stated moreover that the
circumstances of the matter to consider, when exercising the discretion
provided under paragraph 67(1)(c),
include not only the circumstances of the person concerned but the
circumstances as a whole, including those relating to the good of society (Canepa
v. Canada (M.E.I.), [1992] 3 F.C. 270 (C.A.)).
[29] With regard to the burden of proof, as this Court
recently pointed out in Bhalru v. Minister of Citizenship and
Immigration, 2005 FC 777, the person relying on paragraph 67(1)(c)
is seeking a discretionary privilege and has the burden of establishing that
there are exceptional grounds justifying that he be allowed to remain in
Canada:
[16] In Prata
v. Canada (Minister of Manpower and Immigration) [[1976] 1 S.C.R. 376 at
page 380], the Supreme Court of Canada stated that a removal order “establishes
that, in the absence of some special privilege existing, [an individual subject
to a lawful removal order] has no right whatever to remain in Canada. [An
individual appealing a lawful removal order] does not, therefore, attempt to
assert a right, but, rather, attempts to obtain a discretionary privilege.”
[17] As a
person seeking “special relief” or a discretionary privilege, the onus was on
Mr. Bhalru to establish exceptional reasons why he should be allowed to remain
in Canada (Chieu v. Canada (M.C.I.) [[2002] 1 S.C.R. 84].
Standard of
review
[30] With regard to the judicial standard of review, this
Court has reiterated the applicable principles in a matter involving paragraph
70(1)(b) of the Immigration Act, the equivalent of paragraph
67(1)(c) of the current Act, and has determined that the standard of
judicial deference to be assigned to the IAD’s findings of fact is that of
patent unreasonableness (Badhan v. Minister of Citizenship and Immigration,
2004 FC 1050, Bhalru, supra and Jessani v. Canada (M.C.I.),
[2001] F.C.J. No. 662 (C.A.) (QL)).
Denial of mental illness
[31] The applicant argues, first, that the evidence
in the record indicates unequivocally that he suffers from a psychiatric
pathology of the psychotic registry in the form of schizoaffective disorder.
[32] Second, he submits that the expert opinion of Dr. Jacques
Talbot and the documents entitled “Co-occurring Substance Abuse and
Schizophrenia: Treatment Approaches and Practices” and “A Training Session on
the Integrated Model of Dual Disorders Intervention” clearly illustrate that
patients suffering from psychiatric illness often deny their disease and that
this denial is in itself a symptom of the disease.
[33] Accordingly, the applicant contends
that the IAD could not find there was a lack of compassionate grounds on the pretext
that the applicant, in the past, denied and/or currently has difficulty
acknowledging his mental illness problems. This finding is capricious in light of the
evidence filed regarding denial of mental illness by the mentally ill.
Accordingly, the determination refusing special relief is tainted with an error
of mixed fact and law.
[34] However, the evidence was clear with regard to the
fact that the applicant
denied or had difficulty acknowledging his mental health problems. In my
opinion, the fact that the denial of psychiatric problems may be a consequence
of the applicant ’s illness does not preclude the IAD’s consideration of
that denial in the context of the circumstances as a whole.
[35] In fact, during the many years that he was living in Canada, the
applicant was able to benefit from care and assistance, but it did not have any
positive result.
[36] Further, nothing in the evidence suggests that this
situation could
change significantly even with all of the assistance offered
to the applicant. Indeed, at the last page of his expert’s report, after
listing the treatment suggestions formulated by Dr. Levy in her expert’s
report, Dr. Talbot stated that [TRANSLATION]
“these recommendations must be considered illusory”.
[37] In the circumstances, therefore, the fact that the
applicant’s attitude of denial regarding his psychiatric problems
could be a symptom of his illness could not be a determinative consideration.
The refusal to acknowledge his criminality problems
[38] The applicant submits that Dr. Levy’s
psychiatric examination reveals that the applicant’s diagnosis is a
schizoaffective disorder of the bipolar type; he also refers to an earlier
diagnosis of schizoaffective disorder by Dr. Lévesque in October 2000. Dr. Lévy also states that the ability
to introspect is very weak and the judgment is altered; she also mentions in
her report that the applicant has delusions of persecution as well as delusions
of reference.
[39] The applicant also refers to the following
opinion of Dr. Talbot, at page 9 of his expert’s report:
[TRANSLATION]
Before, it appears that his depression and the
negative symptoms that he presented could have prevented him from expressing
himself, or to express himself in a negative manner, which is currently not the
case.
[40] The applicant contends that it is reasonable to
believe that the applicant’s altered judgment led him to deny or minimize his
criminal past, as stated by Dr. Talbot.
[41] The applicant therefore argues that this
decision refusing to grant him special relief because of his lack of remorse
and his refusal to acknowledge his problems with crime was capricious, in view
of the evidence filed before the IAD.
[42] However, Dr. Talbot, who met the applicant
less than one week prior to his hearing before the IAD, stated that, even
though the negative symptoms could have prevented the applicant from expressing
himself in the past, this was no longer the case.
[43] Furthermore, a simple review of the transcript of
hearing before the IAD suggests that the applicant was expressing himself
coherently and that he was able to give details and particulars. Yet at no time during
his testimony did the applicant express remorse and, moreover, he practically
denied the multiple criminal offences of which he had been convicted.
[44] Furthermore, since reaching the age of majority the applicant has
been convicted of 16 criminal offences. If the applicant ’s judgment had been
altered to the point that he did not understand the implications and
seriousness of his criminal acts, he would not have been convicted.
[45] Accordingly, it was entirely relevant for the IAD to
consider the fact that the applicant had no remorse and that he denied his
criminal conduct. These
factors were very important because, added to the fact that the applicant had
continued to commit offences even after the removal order was issued, they
establish a very slim chance of rehabilitation.
Possibility
of treating the applicant
[46] The applicant submits that Dr. Emmanuelle
Lévy, Psychiatrist, Clinical Pharmacology and Assistant Professor at the
Department of Psychiatry of McGill University, recommends
that he be treated by forcing him to take his medication.
[47] The applicant points out, with regard to Dr.
Talbot’s assessment, that he expressed the opinion that an order for forced
treatment as suggested by Dr. Lévy would be difficult to obtain,
considering the absence of psychiatric dangerousness as defined by the Mental
Patients Protection Act, R.S.Q., c. P-41. However, Dr. Talbot adds at page 8 of his
expert report that the alternative would be possible if the applicant were in
treatment in an environment like the Portage Program. Accordingly, the
applicant submits that the IAD’s finding with regard to the impossibility of
treatment in his case was made in an absurd manner and is not supported by the
evidence in the record.
[48] In my opinion, the applicant has
misunderstood the nature of the IAD’s determination. This is what the IAD
determined with regard to the issue of treatment:
[15] At the hearing,
the appellant barely acknowledged his mental health problems, and the panel is
not convinced that the appellant would take advantage of the various mental
health resources available.
Therefore, the IAD did
not determine that the applicant’s treatment would be impossible but rather
that the evidence did not suggest that the applicant would submit to the
available treatments.
[49] In my opinion, this finding is most
reasonable considering the evidence filed before the IAD.
[50] In fact, in his expert report, Dr. Talbot explains
that the treatments recommended referred to by Dr. Levy in her expert
report are illusory. At the end of his report, Dr. Talbot names the Portage
Program as a last resort. Indeed, it appears clearly that Dr. Talbot had little
hope that the program would be successful for the applicant:
[TRANSLATION]
The existence of a mixed
pathology, psychiatric and narcotic again reinforces the negative prognostic
factors.
One alternative is still
possible: that Mr. Camara be in treatment in an environment like the Portage
Program where “overlapping problems”, psychiatric illness and drug dependency,
can be treated.
This resource can either
be used within the framework of forced probation by the Court, or within a
voluntary agreement, which involves critical elements and a high level of
motivation. Such treatments must be spread out over several months, maybe over
more than a year . . . It therefore seems to me that Mr. Camara’s multiple
levels of pathology – in terms of social exclusion, socio-professional
alienation, positive experiences of autonomy, dependency and passivity, toxic
behaviours, a collateral psychiatric illness, the cumulative effects of very
significant social exclusion amplified even more by the negative symptoms that
had been often observed in him – are negative prognostic factors for him.
Even if the problems
presented are very serious, the use of a resource like the Portage Program
could ultimately be attempted . . .
[51] In my opinion, the negative prognosis set out by
Dr. Talbot and the use of elliptical points at the end of his remarks
establishes that, even if there were a possibility of treatment, he highly
doubted that it would be successful in the applicant’s case.
[52] Moreover, as Dr. Talbot stated and as revealed by the
documentation filed by the applicant on that point, the Portage Program is
applied on a voluntary basis. The person concerned must agree to submit to the
treatment. The
evidence filed before the IAD establishes clearly that, generally speaking, the
applicant did not want to submit to the care and to the medication offered to
him.
[53] In my opinion, considering all of the evidence, it was
not patently
unreasonable that the IAD was not satisfied that the applicant would not use
the various mental health resources available to him.
Family in Guinea
[54] According to the applicant, the IAD made an absurd
finding of fact without taking into account the evidence before it in deciding,
in terms of humanitarian and compassionate reasons, that the applicant would
have family in Guinea able to help him rebuild his life.
[55] The IAD stated the following:
. . . Although he left
his native land and has been away for a long time, he nevertheless has family
in Guinea who could
perhaps help him start his life over.
[56] The applicant submits that there is no evidence
indicating that the applicant had maintained meaningful contact with his family
over the last 14 years or that the family would support him in any way if he
were to return to Guinea.
[57] However, the evidence also indicates that the applicant did
not have any family members in Canada, as they all live in Guinea.
[58] In my opinion, however, the fact that the applicant has
family in Guinea was a relevant factor that the IAD could consider, particularly
since the applicant had testified that he was in contact with some of his
family members (Tribunal record, pages 392 and 393).
[59] It was therefore not patently unreasonable for the IAD to
consider the fact that the applicant had family in Guinea and that the
family could perhaps help him.
Risk of returning to Guinea
[60] The applicant argues that the IAD did not
analyze or properly weigh the evidence filed at the hearing with regard to the
situation in Guinea, with regard
to respecting human rights, safety, the availability of psychiatric care, the
applicant’s tenuous relationship with his family, the country’s deplorable
socio-economic situation, and all without taking into account the applicant’s
psychological state.
[61] The applicant points out that it is stated in
the Minister’s opinion filed as exhibit R-16 in the IAD’s record:
The presidential Guard,
or Red Berets, are accountable to virtually no one except the President. There
was no effective civilian control of the security forces. Some members
committed serious human right abuses. . . . Civilian and military security
forces beat and otherwise abused civilians, often with impunity. Prison
conditions were inhuman and life threatening. Arbitrary arrest and prolonged
pre-trial detention were problems. The Government infringed on citizens’
privacy rights.
The report Mission internationale
d’enquête, Guinée [“International Fact-Finding Mission – Guinea”] by
the International
Federation of Human Rights states:
[TRANSLATION]
. . . With 40% of its
population living below the poverty line and with deplorable sanitary and
social conditions, Guinea is one of the lowest on the scale in human
development worldwide. . . .
The applicant submits that, in this context, the IAD’s
determination that “the danger to Canadian society is greater than the risk of
the appellant’s return to Guinea” is entirely capricious, not taking into
account the evidence, or the legitimately foreseeable and far greater
expectation of danger for the applicant, considering his degree of
dangerousness for Canada.
[62] According to the applicant, without minimizing the
criminal convictions in Canada, his dangerousness should be questioned.
He submits that we must bear in mind that [TRANSLATION] “his
deviance was manifested mostly against property and not against people”.
Further, the Tribunal
administratif du Québec determined on March 2, 2001:
[TRANSLATION]
[17] The tribunal does not believe that the
accused poses a significant threat to society.
[63] The applicant contends that the assessment of
his degree of dangerousness in this matter must obviously refer to criminal
offences of the same nature as the examples given in the guidelines, all
referring to violent offences, which is not the case here, except a conviction for
an attempt to break and enter on February 23, 2004.
[64] With respect to the circumstances of his attempt to
break and enter, the applicant testified before the IAD that he was
walking, drinking and looking for a place to take shelter and spend the night,
to sit down.
[65] The applicant further submits that the offences
of which he was convicted were not crimes involving an unacceptable degree of
violence. He adds that it was on this premise that the Minister’s opinion under
paragraph 115(2)(a) of the Act, referred to by the IAD in paragraph 18
of its decision, was also the subject of an application for judicial review
before this Court in docket IMM-5903-05 (after this application for judicial
review was given leave and was heard, it was dismissed on this very date).
[66] Yet, at the hearing the applicant
stated the following with regard to the problem experienced in his country:
[TRANSLATION]
Q.
Did you . . . did you have. . . were you involved with the . . . the
authorities of your country when you were there?
A. Yes.
Q.
What happened?
A. Well, I was arrested once, all that,
that is why I left.
Q.
You were arrested, and that is why you left.
Why were you arrested?
A. Well, because I . . .
-
Try
to speak louder.
A. Because I was living just right next to the
port, so I went to the
port
. . . and the . . . big port of Conakry of (inaudible).
That is why I . . .
something happened like that and then there were some of my friends who were
arrested and then me, too, but I had the chance to slip away and leave.
It appears then that the
applicant had been the victim of an arbitrary detention shortly before leaving
his country. However,
there was no evidence establishing that, 14 years later, he was still at risk.
[67] With regard to the health care situation in Guinea, this
element could not be considered to create a risk for the applicant since the
evidence established that, generally, the applicant did not wish to avail
himself of the health care available to him. Further,
subparagraph 97(1)(b)(iv) of the Act states that the State’s
inability to provide adequate health or medical care cannot be considered a
risk to life or a risk of cruel and unusual treatment or punishment.
[68] Therefore, first, the applicant did not establish that
he could be personally subjected to danger in his country and, second, the
evidence established that:
- Since his arrival in Canada, the
applicant had committed multiple criminal offences, including several against
the person;
-
Despite a 14-year stay in Canada, the applicant had
practically no degree of establishment (almost no friends, worked very little,
etc.)
-
The applicant refused to acknowledge his criminality and mental health
problems;
-
There is no factor mitigating in favour of a possible rehabilitation.
[69] Moreover, at the end of the psychiatric
assessment he made in 2005, Dr. Talbot stated:
[TRANSLATION]
There will be a continued social or legal danger
with the combination of pathological elements in Mr. Camara’s case.
[70] I believe that considering all of these elements, it
was not patently
unreasonable for the IAD to determine that the danger for Canadian society was
greater than the danger to which the applicant could be subjected in his
country.
[71] For these reasons, it was not patently unreasonable, i.e.
clearly irrational (Law Society of New Brunswick v. Ryan, 2003 SCC 20), for the
IAD to determine that there were no exceptional reasons justifying the
applicant being allowed to remain in Canada. This Court’s intervention is therefore not justified
and the application
for judicial review is dismissed.
“Yvon Pinard”
OTTAWA, ONTARIO
February 13, 2006
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