Date: 20050908
Docket: IMM-8906-04
Citation: 2005 FC 1218
BETWEEN:
SUKHVIR SINGH KHOSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY C.J.
INTRODUCTION
[1] The applicant, Sukhvir Singh Khosa, is a citizen of India who immigrated to Canada with his parents in 1996 when he was fourteen. He now faces a removal order for reasons of serious criminality under paragraph 36(1)(a) of the Immigration Refugee and Protection Act (IRPA). The applicant filed an appeal with the Immigration Appeal Division (IAD), pursuant to paragraph 67(1)(c) of Division 7 of the IRPA, seeking special relief on humanitarian and compassionate grounds. The majority decision of the three-person panel of the IAD dismissed the applicant's appeal. The dissenting member also dismissed the appeal but would have granted special relief and stayed the execution of the removal order for a period of three years.
[2] The applicant now seeks judicial review of the decision of the IAD. The legal validity of the removal order is not in issue.
FACTUAL BACKGROUND
[3] Mr. Khosa and a second accused, Bahadur Singh Bhalru, were convicted of criminal negligence causing death as a result of their participation in an automobile "race" during the evening of November 13, 2000 along Marine Drive in Vancouver which ended in the death of an innocent pedestrian. It was Mr. Khosa's vehicle which fatally struck the pedestrian.
[4] A conditional sentence of two years less one day was imposed against both Mr. Khosa and Mr. Bhalru, including house arrest with limited exceptions and community work. The sentence was followed by probation for a term of three years. Both individuals were prohibited from driving until 2008. A salient feature of these sentences is that there would be no period of incarceration if the terms and conditions of the sentences were respected.
[5] The accused and the Crown appealed the convictions and the sentences respectively. The Court of Appeal for British Columbia dismissed all appeals.
THE DECISION OF THE IMMIGRATION APPEAL DIVISION
[6] In considering the exercise of its discretionary jurisdiction to grant special relief, the IAD panel properly, in my view, considered the Ribic factors which include: the seriousness of the offence leading to the removal order, the possibility of rehabilitation, the length of time spent and the degree to which the appellant is established in Canada, the family and community support available to the individual, the family in Canada and the dislocation to the family that removal would cause, and the degree of hardship that would be caused by the individual's return to the country of nationality. See: Chieu v. 2002 SCC 3">Canada (Minister of Citizenship and Immigration), 2002 SCC 3, at paragraphs 40, 41 and 90 which approved Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL).
[7] It is the second of the Ribic factors, the possibility of rehabilitation including the applicant's risk to the public and his expression of remorse, which appears to have been central in the IAD assessment of Mr. Khosa's case.
[8] It is useful to recite at some length the opinion of the majority members of the IAD panel concerning rehabilitation, risk to the public and remorse:
[15] In looking to the second of the Ribic factors, I have considered the appellant's expressions of remorse for his involvement in the offence, the possibility of the appellant's rehabilitation and the likelihood of re-offence. It is troublesome to the panel that the appellant continues to deny that his participation in a "street-race" led to the disastrous consequences. In my view, his continued denial at hearing of the extent of his culpability reflects a lack of insight into his conduct. At the same time, I am mindful of the appellant's show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge's finding of this remorse as reflected in the court documents. This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of the appellant's admissions at this hearing. His continued denial that he was involved in a race with another vehicle and that it was this conduct, rather than speed coupled with a tire breakdown, that let to [the victim's] death, is not to his credit. While the appellant takes responsibility for his excessive speed, he does not acknowledge or take responsibility for his specific reckless conduct, involving, as it does, street-racing on a public roadway.
...
[23] ... While noting the trial judge's conclusions with respect to likelihood of re-offence and the absence of a prior criminal record, the fact is that, given the failure of the appellant to acknowledge his conduct and accept responsibility for his reckless behaviour, particularly street-racing with another vehicle on a public roadway, there is insufficient evidence upon which I can make a determination that the appellant does not represent a present risk to the public. Even were I to do so, in balancing all the relevant factors, I determine the scale does not tip in the appellant's favour and decline to exercise favourable discretion in all the circumstances of this case.
[24] ... The appellant's failure to acknowledge or take responsibility for his specific reckless conduct does not suggest that any purpose would be served by staying the present removal order.
THE TESTIMONY OF MR. KHOSA BEFORE THE IMMIGRATION APPEAL DIVISION
[9] Mr. Khosa did not testify in the criminal proceedings. His testimony before the IAD was facilitated through interpretation from Punjabi to English.
[10] When asked by the presiding member of the panel whether he had apologized to the victim's family, Mr. Khosa first referred to statements made on his behalf by counsel in the criminal proceedings and then added: "I am apologizing right now that I made a horrible mistake." He further explained his regret for the family members, in particular for the loss of a mother and concluded: "All I can is that I am sorry for what I have done, from bottom of my heart I am. ... I do apologize from the bottom of my heart. I have been sorry and I was sorry."
[11] The applicant acknowledged that he was "speeding" and that his "driving behaviour was exceptionally dangerous" (page 74 of the tribunal record). However, he did not admit that he was racing:
Q So your statement in front of the panel today was there was no race and you were not in it, correct?
A Yes, sir.
...
Q Do you agree with that or not?
A I am not agree that I was criminal negligence.
Q You didn't. Okay. You think that they're wrong.
A Yes.
Q And you still maintain that.
A Yes, sir.
Q So you have not accepted the verdict of the Court, have you?
A I took the responsibility -
Q It's a simple question.
A - for dangerous driving -
Q Mm-hmm.
A - for what have happened and I am taking the responsibility now what that charge, but because of race, I wasn't racing, so I didn't took the responsibility of I was racing.
Q ... The learned judge says you were racing. Do you disagree or agree?
A I disagree.
Q You disagree?
A I disagree that I was racing.
[Emphasis added. Pages 82-85 of the tribunal record]
[12] In plea bargain negotiations with the Crown shortly after the incident, Mr. Khosa was prepared to acknowledge his guilt for dangerous driving causing death, an offense for which he would be liable for imprisonment for a term not exceeding fourteen years.
[13] There was no plea bargain. Mr. Khosa was convicted of the more serious charge of criminal negligence causing death, an offense for which he would have been liable to imprisonment for life. Criminal negligence means showing "wanton or reckless disregard for the lives or safety of other persons."
[14] Mr. Khosa testified before the IAD some six months after his conviction and sentence had been confirmed by the B.C. Court of Appeal.
[15] It is against this background that I have reviewed Mr. Khosa's willingness to accept responsibility for dangerous driving and his refusal to agree with the finding of criminal negligence and that he was racing.
[16] The statements in the judgments of the criminal courts concerning the issues of remorse and racing are also helpful in understanding Mr. Khosa's testimony.
The decisions of the criminal courts
[17] The trial judge in the criminal case found that Mr. Khosa had expressed remorse, R. v. Khosa, 2003 BCSC 221 at paragraph 56:
¶ 56 I do not accept Crown's suggestion that Mr. Khosa has shown no remorse for his acts. I find, by his actions immediately after learning of [the victim's] death and since the accident, that he has expressed remorse.
[18] This finding of Mr. Khosa's remorse for his conduct was noted by the British Columbia Court of Appeal in R. v. Bhalru, 2003 BCCA 645 at paragraph 11:
¶ 11 Mr. Khosa was 18 years of age at the time of the offence and 21 at the time of sentencing. He was born in India, emigrated to Canada in 1996 at the age of 14, and has landed immigrant status. Mr. Khosa lives at home with his parents. Although he dropped out of high school in grade 11, he completed the first year of a two year automobile mechanic's course in December 2002. He is waiting to complete this course pending the outcome of this appeal. Mr. Khosa has held a variety of part-time jobs and was employed most recently washing cars at an automobile dealership from May 2002 to September 2002. The public attention surrounding this case led to his dismissal from that position. Mr. Khosa has no prior criminal record and no prior driving record. Loo J. was satisfied that he has shown remorse for his conduct.
[19] Further on in its reasons, the Court of Appeal commented on Mr. Khosa's favourable prospects for rehabilitation (at paragraph 38):
¶ 38 The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case. Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. ...
[20] Concerning the issue of "racing", the trial judge concluded that the Crown must prove both accused were engaged in a race to secure a conviction of criminal negligence causing death against Mr. Bhalru. No such finding was required to establish the guilt of Mr. Khosa. The trial judge dealt with this issue in R. v. Bhalru, 2002 BCSC 1852 at paragraphs 46 and 49 through 51:
¶ 46 I do not accept Mr. Khosa's contention that in order to support a conviction of criminal negligence in his case, the Crown must prove that the two men were racing. I do accept, however, that Mr. Bhalru cannot be convicted of criminal negligence causing death unless I find that he and Mr. Khosa were engaged in a race and thereby contributed to the death of [the victim]. ...
...
¶ 49 ... Mr. Khosa and Mr. Bhalru drove in a city thoroughfare at freeway speeds that caused [two witnesses] to be frightened for their lives. I find they drove recklessly, irresponsibly and mindless of the consequences that could ensue in total disregard for others, especially law abiding citizens using the sidewalks and the roads.
¶ 50 I have addressed my mind to the question of whether Mr. Bhalru, at the point he slowed down, just before the median about two seconds before the collision, had withdrawn from the race. I find he did not. He was still in the race.
¶ 51 I have no hesitation in concluding that Mr. Khosa and Mr. Bhalru showed wanton or reckless disregard for the safety of other persons and find them both guilty as charged.
[Emphasis added]
[21] In its decision confirming the conviction of Mr. Khosa, the British Columbia Court of Appeal also concluded that Mr. Khosa's participation in a race was not essential to a finding of his guilt: see R. v. Bhalru, 2003 BCCA 644 at paragraph 85:
¶ 85 The trial judge held that proof of Mr. Khosa's participation in a race was not essential to a finding that he was criminally negligent. I respectfully agree. While his participation in a race may, or may not, explain why he drove as he did, his criminal responsibility rests upon whether there was evidence of his driving on which the trial judge could find that the test under s. 219 was met.
[22] The Court of Appeal also placed into context the relevance of the "street racing" issue in its decision dismissing the Crown's appeal against the sentences in R. v. Bhalru, 2003 BCCA 645 at paragraph 27:
¶ 27 The label "street race" does not automatically attribute this offence and these offenders with a higher degree of moral blameworthiness than other criminal negligence causing death cases. The Criminal Code does not speak of "street racing" as an offence, nor is it listed as an aggravating circumstance for criminal negligence causing death. In my view, it is more important to focus on the particulars of the offence and the offenders rather than to rely simply on the label "street race" to determine how to sentence the respondents.
[Emphasis added]
[23] Other comments from the Court of Appeal concerning "the race" are also instructive in R. v. Bhalru, 2003 BCCA 645 at paragraphs 33 and 36:
¶ 33 In terms of the extent to which the conduct of Mr. Khosa and Mr. Bhalru departs from the acceptable standards of behaviour in the community, I agree with the Crown that it is significant that the respondents were racing. They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties. They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads.
...
¶ 36 The "spontaneous" nature of the race also mitigates the severity with which it should be assessed. The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public.
ANALYSIS
[24] The standard of review for decisions of the IAD on appeals under paragraph 67(1)(c), and the corresponding provisions of the former legislation, has consistently been characterized as patently unreasonable. Probably because of the factual context of these appeals, in none of the cases relied upon by the respondent has the four-point analysis required by the Supreme Court of Canada been undertaken: Dr. Q v. 2003 SCC 19">College of Physicians and Surgeons of British Columbia, 2003 SCC 19 and Law Society of New Brunswick v. 2003 SCC 20">Ryan, 2003 SCC 20.
[25] Each of the four factors, when applied to this proceeding, generally argues for curial deference.
[26] Concerning the first factor, the IAD decision disposing of an appeal under Division 7 of the IRPA is not shielded by a privative clause nor subject to any appellate process. However, judicial review is available but only on the granting of leave.
[27] The IAD has developed expertise in appeals based on humanitarian and compassionate considerations and an analysis of the Ribic factors for over two decades.
[28] The third factor, in this case the purpose of the statutory provision, also favours deference. The legality of the removal order issued against Mr. Khosa is not being challenged. The real issue before the IAD was whether a stay of the removal order should issue, pursuant to subsection 68(1), on the ground "that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case". While the IAD decision relates to the rights and interests of an individual as opposed to those of the state, the relief sought constitutes an exemption from the usual consequences of the removal order.
[29] Finally, the principal issue for determination in this application for judicial review is whether the IAD erred in its appreciation of the evidence, taking into account the several Ribic factors. Again, the nature of the problem is substantially, if not completely, factual.
[30] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 57-62, the decision of a ministerial delegate refusing an application for humanitarian and compassionate consideration was reviewed on the standard reasonableness simpliciter. However, Baker can only be fully understood in the light of the subsequent decision of the Supreme Court of Canada in Suresh v. 2002 SCC 1">Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraphs 34-41. According to Suresh, the decision of a ministerial delegate that a refugee constitutes a danger to the security of Canada should be upheld unless shown to be patently unreasonable. In particular, the Supreme Court noted at paragraph 37:
¶ 37 ... Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors.
See also: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at paragraphs 8-12.
[31] In the light of this analysis, I must conclude that the appropriate standard of review is one of patent unreasonableness.
[32] In an appeal such as Mr. Khosa's seeking the exercise of the IAD's discretionary jurisdiction, he has the onus as the person facing removal to establish why he should be allowed to remain in Canada. If he fails to meet the burden, the default position is removal. As a non-citizen, he does not have an unfettered right to enter or remain in Canada: Chieu, supra, at paragraph 57.
[33] Mr. Khosa's principal submission is that the IAD erred by misconstruing his evidence. In his view, the majority members of the panel, unlike the dissenting member, overly emphasized the relevance of his denial that he participated in a "race", one which the B.C. Court of Appeal described as "spontaneous". Also, in his view, concerning the assessment of his expression of remorse, the majority opinion underestimated the significance of his early willingness to plead guilty to dangerous driving causing death.
[34] Again, this Court's role is to determine whether the majority opinion is patently unreasonable. The merits of the dissenting opinion are not directly relevant. However, it is still of interest to compare the corresponding extracts from these opinions concerning the issues of remorse and the "race":
(I) the majority opinion
... It is troublesome to the panel that the appellant continues to deny that his participation in a "street-race" led to the disastrous consequences. ... At the same time, I am mindful of the appellant's show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge's finding of this remorse ... This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of the appellant's admissions at this hearing.
(ii) the minority opinion
... from early on he has accepted responsibility for his actions. He was prepared to plead guilty to dangerous driving causing death, ...
I find that the Appellant is contrite and remorseful. The Appellant at hearing was regretful, his voice tremulous and filled with emotion. ...
...
The majority of this panel have placed great significance on the Appellant's dispute that he was racing, when the criminal court found he was. And while they concluded this was "not fatal" to his appeal, they also determined that his continued denial that he was racing "reflects a lack of insight." The panel concluded that this "is not to his credit." The panel found that the Appellant was remorseful, but concluded it was not a "compelling feature in light of the limited nature of the Appellant's admission".
However, I find the Appellant's remorse, even in light of his denial he was racing, is genuine and is evidence that the Appellant will in future be more thoughtful and will avoid such recklessness.
[35] The criminal courts found that there was "a race", one whose "spontaneity" mitigated the severity of the sentence. Also, it appears that the participation in a race was more relevant, in legal terms, concerning the conviction against Mr. Bhalru. The transcript of the IAD hearing is of no assistance in determining whether the statements in the judgments of the criminal courts were related to Mr. Khosa's ongoing denial that he participated in a race.
[36] After careful consideration of the record, I am satisfied that the majority members took into consideration the relevant evidence, including the findings of the criminal courts on the issues of "the race" and remorse. In assessing Mr. Khosa's expression of remorse, they chose to place greater weight on his denial that he participated in a "race" than others might have. The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts. The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa's testimony.
[37] The three-person panel of the IAD, in this case all triers of fact, heard the same testimony and reviewed the same record. Their assessments differ, particularly on the issue of remorse. In the end, on all of the Ribic factors, this Court is being asked to weigh anew the evidence before the IAD. This is not the proper role for a court of judicial review.
[38] In Chieu, supra, at paragraph 66, the Supreme Court of Canada noted that Parliament intended the IAD to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. The statement of my colleague Justice W. Andrew MacKay in Mohammed v. 2002 SCC 3">Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 605 (QL) (T.D.) at paragraph 75 is still apt:
¶ 75 The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in s-s. 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard for all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.
[Emphasis added]
[39] In summary, I have not been able to conclude that the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4)(d) of the Federal Courts Act, one which was based on an erroneous finding of fact "made in a perverse or capricious manner or without regard for the material". Put simply, even if one were more attracted to the minority opinion, the record in this case is such that it would be legally wrong for the Court to set aside the majority decision.
CONCLUSION
[40] The death caused by Mr. Khosa's reckless driving was an unnecessary tragedy for the victim and her family.
[41] For Mr. Khosa, the outcome in this proceeding is a difficult one. From his point of view, the consequences of the immigration process may well appear to be disproportionate with those of the criminal proceedings. Neither party was able to provide the Court with a decision of the Immigration Appeal Division, other than those concerning Messrs. Khosa and Bhalru, refusing a stay of the removal order where the person to be removed for serious criminality had not been incarcerated. The analysis in these reasons for order may be of assistance to those who may be called upon to review Mr. Khosa's case.
[42] The applicant will have seven days from the date of these reasons to suggest a serious question for certification. An order would then issue dismissing this application for judicial review.
"Allan Lutfy"
Chief Justice
OTTAWA
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8906-04
STYLE OF CAUSE:
SUKHVIR SINGH KHOSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 30, 2005
REASONS FOR ORDER: The Chief Justice
DATED: September 8, 2005
APPEARANCES:
Daniel B. Geller FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Daniel B. Geller
Barrister & Solicitor
Vancouver, British Columbia FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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