Date: 20061120
Docket: IMM-7519-05
Citation: 2006 FC 1402
OTTAWA, Ontario, November
20, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
CARLTON ANTHONY
WILLIAMS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
made pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act dated November 22, 2005 by which the Immigration Appeal Division (IAD)
of the Immigration and Refugee Board granted the respondent’s application to
cancel the stay of deportation issued against the applicant. On July 7, 2006, Justice Layden-Stevenson granted the application for
leave.
[2]
The facts leading to
this application are as follows. The applicant, born in 1966, is a citizen of
Jamaica and came to Canada around the age of ten. He was landed on February 11, 1981. He is not a citizen of Canada.
[3]
The applicant has had
no contact with his father since that time and it is believed that he has
recently passed away. The applicant’s two sisters and mother live in Canada and arrived around the same time as he did. It is
believed that the applicant has no remaining family in Jamaica.
[4]
Since arriving in Canada, the applicant has amassed over at least 50 criminal
convictions, including assault, sexual assault, failure to comply, attempted
break and enter, drug trafficking, harassment and failure to appear, amongst
others. The applicant is also addicted to crack cocaine and is mentally ill,
having been diagnosed with paranoid schizophrenia in 1990 as well as a
personality disorder. The applicant’s antisocial traits cause him to be
generally aggressive and hostile to others. He is also troubled by frequent
psychotic episodes and paranoid delusions because of which he believes others
will harm him and can read his mind.
[5]
On July 3, 2002, a
deportation order was issued against the applicant. However, on April 22,
2003, IAD member Daniele A. D’Ignazio granted a stay of the deportation order
for a period of four years with conditions. She did so primarily on her finding
that there was a reasonable expectation that the applicant was able to complete
and comply with specific and strict undertakings. The testimony before the IAD
indicated that the applicant had a supportive family, and that he had made
significant progress in understanding his mental illness and its treatment.
[6]
On August 30, 2005, the
Minister brought an application to cancel the stay pursuant to subsection 68(3)
of the Immigration and Refugee Protection Act because the applicant had
failed to meet the following conditions:
- Report in person to Citizenship and Immigration.
- Make reasonable efforts to seek and maintain
full-time employment and report any change in employment immediately.
- Continue psychotherapy with Dr. Freidman or any
qualified psychiatrist.
- Make reasonable efforts to maintain himself in a
condition to prevent his mental illness and substance abuse from
conducting himself in a manner dangerous to himself and others from
committing further offences.
- Not knowingly associate with individuals who have a
criminal record or who are engaged in criminal activity.
[7]
Subsequent to the
Minister’s application, the applicant was convicted of two criminal offences
involving assaults against peace officers, and was found not criminally responsible
on account of a mental disorder for two other identical charges. On March 18,
2005, the Ontario Review Board (ORB) ordered that the applicant be detained at
the medium security Queen Street Mental Health Centre and that a program be
created for his detention in custody and rehabilitation.
[8]
In its ruling, the IAD
sought to determine whether the applicant had failed to meet the conditions of
his stay, and if so, whether this justified its cancellation. The IAD made a
number of findings that favoured the cancellation of the stay:
§
Upon release into Canadian society, the
applicant will be unable to comply with conditions imposed on him.
§
The applicant will not remain compliant of
taking his medications, nor will he avail himself of the support network.
§
The applicant will be unable to conduct himself
in a manner that his mental illness and tendency towards violent behaviour will
not result in his committing further crimes.
[9]
The IAD found that it
was required to consider the criteria of Ribic v. Canada (Minister of
Employment and Immigration), [1985] I.A.B.D. No. 4 and engage in a
“fundamental justice balance” in the context of section 7 of the Charter
and the decision of Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3.
[10]
In addressing the Ribic
factors, the IAD compared how the new evidence available at the time of the
application compared with the evidence at the time the stay was granted. In so
doing, it was noted the applicant was consistently non-compliant in respect of
taking medication and attending at his psychiatrist. Further, the evidence
provided by those responsible for assessing his state of health indicated that
he continued to be a risk to the public and was unaware of his aggressive
demeanour or the details of past criminal behaviour.
[11]
Turning to his
establishment, it was noted that valiant efforts had been made on the part of
his sisters and his mother, and even his solicitor, but all had been
unsuccessful in having any meaningful influence on his behaviour. While the IAD
concluded that his family would obviously be emotionally affected if he was
removed from Canada, there was no evidence that they would
suffer great personal hardship.
[12]
The IAD did find that
the applicant would suffer a potential hardship if removed to Jamaica. On this point, the IAD approached the issue in the
context of Romans v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 159 [Romans II].
The IAD concluded that the conditions in Jamaica for mentally ill persons such
as the applicant would be significantly worse than in Canada. However, in order to determine whether deportation would be in
accordance with the principles of fundamental justice, the IAD determined that
it was required to balance this conclusion with the danger that the applicant
would pose to Canadian citizens.
[13]
The IAD found that
where the removal of a permanent resident for serious criminality is done in
the interest of protecting Canadian society, the applicant’s foreign hardship
cannot be considered in isolation and should be done so in accordance with the
other Ribic factors. It is only when the balancing required by section 7
of the Charter confirms that the potential hardship faced by the
permanent resident would be grossly disproportionate to the government’s
interest that a deportation would not be in accordance with the principles of
natural justice.
[14]
On these findings, the
IAD notably found that while the applicant would face serious difficulties,
there was no evidence that he would be tortured, and according to the findings
in Romans, he would likely find himself on the street, the subject of
verbal and physical abuse. The IAD further noted that no country condition
documents were provided other than a letter from the Consulate General that the
main mental health institution in Jamaica could not
properly care for the applicant. While the evidence indicated that the
applicant would suffer substantially more unfortunate circumstances in Jamaica
that in Canada, they would not “shock the conscience” of the Canadian public
when considering the threat the applicant posed to the public safety in Canada.
[15]
The IAD noted that the
applicant would be released back into society given that the ORB had ordered
the applicant to be moved from the Forensic Division of the Mental Health
Centre in Penetanguishene to a medium secure unit of the Centre for Addiction
and Mental Health in Toronto for rehabilitation and temporary release.
Therefore, the IAD concluded that the applicant’s removal to Jamaica would not be grossly disproportionate to the
legitimate government interest of protecting the safety of the Canadian public.
There was therefore no infringement on principles of fundamental justice.
[16]
On these findings, the
IAD granted the Minister’s application pursuant to paragraph 68(2)(d) of the Immigration
and Refugee Protection Act, and cancelled the stay.
[17]
The applicant now seeks
to have that decision set aside on the grounds that the IAD incorrectly found
that the applicant would be released into the community where he would be
likely to re-offend and did so on its erroneous understanding of the Ontario
Review Board’s jurisdiction. It is argued that the ORB may only release an
individual without supervision where the individual does not pose a significant
threat to the safety of the public. It is submitted that the IAD ignored these
powers and duties and simply assumed that the applicant would be released while
still a danger to the public or without a proper assessment of his condition.
Alternatively, it is argued that if the Appeal Division did properly consider
Board’s powers, it ignored the limitations of the Review Board’s ability to
release the individual.
[18]
In addition, the
applicant argues that the IAD erred in its analysis of whether the applicant’s
deportation would be in accordance with the principles of fundamental justice
pursuant to section 7 of the Charter. It is argued that the standard
upon which the IAD must consider the principles of fundamental justice is the
risk of cruel and unusual treatment that the applicant would suffer upon return
to Jamaica.
[19]
The respondent submits
that the IAD is entitled to make its determination in respect of the
applicant’s danger to the public, regardless of the ORB’s determination and the
IAD must not submit to the discretion of the ORB as doing so would fetter its
discretion and render its decision on the Ribic factors meaningless. It
is further argued that there is no guarantee that the ORB will indefinitely
detain the applicant and should the applicant be declared a threat but not a
significant threat to the public, the ORB would not have jurisdiction to
continue to detain him.
[20]
With respect to the Charter,
the respondent maintains that the IAD undertook an appropriate balancing of the
interests of the applicant and Canadian society, noting in particular, that
only the applicant’s suffering in Jamaica militated in
his favour but was simply not satisfactory to convince against deportation,
given his lengthy history. It is further argued that section 12 of the Charter
is irrelevant to the present application given that the applicant did not
establish any cruel or unusual punishment or treatment or that his removal is
so excessive as to outrage the standards of public decency and shock the
conscience of Canadians.
[21]
I am granting the
application and returning the matter to the Immigration Appeal Division for the
following reasons.
[22]
In its decision the IAD
stated as follows at paragraph 36:
The only conditions this panel could impose on the respondent that
would give it any confidence in a positive outcome would be to have him kept in
a mental institution, and upon release, to be brought back before the IAD which
could then assess, at the relevant time, the situation concerning his possible
rehabilitation, removal or appropriate conditions that might attach to a
further stay. Such an outcome, that might be crafted to satisfy all interests,
is not within the panel’s jurisdiction. His treatment, and when and how he
will be released, are within provincial jurisdiction given to the Ontario
Review Board under the Ontario Mental Health Act. There is no reliable
mechanism that this panel is aware of, to bring the respondent back before the
IAD at the possible time of his future release into society. Failing such a
mechanism, the panel finds the respondent has not demonstrated that he will, in
the future when released from the institutional setting which now assures
public safety, be able to take care of himself or be taken care of by anyone
else in such a way that he will not pose a danger to the Canadian public.
[23]
In my view, the IAD has
misapprehended the broad jurisdiction which is bestowed upon it by section 68
of the Immigration and Refugee Protection Act. Regardless of what
action the Ontario Review Board takes, the Immigration Appeal Division
continues to have jurisdiction in this matter for as long as its stay is in
effect. Paragraph 68(2)(a) allows the tribunal to impose any condition
that it considers necessary when granting a stay of a removal order.
Accordingly, there is no reason why the IAD cannot impose a condition which
requires that, upon Mr. Williams being discharged by the ORB,
conditionally or otherwise, he report to the IAD, in whatever manner it deems
appropriate, in order to satisfy the Division that his rehabilitation and other
circumstances are such that he does not pose a danger to the Canadian public.
Provided this is done in a manner which accords with the principles of fairness
and natural justice, there is nothing to prevent the IAD from imposing a
condition of that nature. Given what is at stake here, I cannot see that Mr.
Williams would be opposed to appearing before the IAD from time to time during
the period of the stay to allow the Division to assess his situation on an
ongoing basis.
[24]
There is no dispute
that the humanitarian and compassionate considerations which initially led to
the stay of the removal order being granted still exist today. Therefore, the
appropriate course to follow is to set aside the IAD’s decision and refer the
matter back to the Division in order to allow it to impose whatever conditions
to its stay which it deems necessary.
JUDGMENT
The application for judicial
review is allowed and the matter is returned to the Immigration Appeal Division
in order to allow it to impose
whatever conditions to its stay which it deems necessary.
"Paul U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7519-05
STYLE OF CAUSE: CARLTON ANTHONY WILLIAMS v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 5, 2006
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Rouleau
DATED: November
20, 2006
APPEARANCES
BY:
Ronald Poulton
(416) 862-0000 for
the Applicant
Vanita Goela
(416) 952-6993 for
the Respondent
SOLICITORS
OF RECORD
MAMANN &
ASSOCIATES
Barristers
& Solicitors
74 Victoria
Street, Suite 303
Toronto,
Ontario
M5C 2A5 for
the Applicant
DEPARTMENT OF
JUSTICE
130 King Street
West, Suite 3400
Exchange Tower, Box 36
Toronto,
Ontario
M5X 1K6 for
the Respondent
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