Date: 20001025
Docket: IMM-3351-99
BETWEEN:
ARETHA CARLINE PERKINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
Factual Background
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board Appeal Division (the "Appeal Division") rendered on May 22, 1999 wherein the Appeal Division cancelled its earlier Order (signed April 11, 1996) staying the applicant's deportation and directing that the Deportation Order (Removal Order), originally made on January 5, 1995, be executed as soon as reasonably practicable.
[2] The applicant is a 27 year old citizen of Jamaica who became a landed immigrant in Canada in August, 1987. On September 24, 1993, the applicant was convicted of importing a narcotic contrary to subsection 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, as rep. By Controlled Drug and Substances Act, S.C. 1996, c. 19, s. 94, an offence for which she was sentenced to nine months imprisonment. The applicant had attempted to import three to four kilograms of marijuana into Canada upon her return from a visit to Jamaica.
[3] As a result, the applicant was subsequently determined to be a person described by paragraph 27(1)(d) of the Immigration Act, 1976-77, c. 52 (the "Act") -- a person convicted of an offence for which a term of imprisonment of more than five years may be imposed, and more than six months have been imposed. A Deportation Order was issued against the applicant by an immigration adjudicator on January 5, 1995.
[4] The applicant appealed the Deportation Order to the Appeal Division pursuant to paragraph 70(1)(b) of the Act on the grounds that "having regard to all the circumstances of the case, the [applicant] should not be removed from Canada". Psychiatric evidence about the applicant's need for counselling in light of her rejection in childhood was led -- the crime was characterized by the psychiatrist as "impulsive". Both the psychiatrist and the probation officer felt that the applicant could comply with directions from the Appeal Division.
[5] The Appeal Division granted the applicant's application on April 11, 1996. While the Removal Order was held to be valid in law, the Appeal Division considered that having regard to humanitarian and compassionate considerations, the applicant's Removal Order should be stayed for a period of five years. The Appeal Division agreed with the psychiatrist that the applicant had, in a moment of greed and thoughtlessness, committed "a solitary act of criminal and antisocial behaviour". The Appeal Division was of the opinion that the applicant was unlikely to re-offend.
[6] The following conditions were attached to the stay:
| And further orders that the Appellant shall be allowed to remain in Canada under the following terms and conditions: |
| report by mail, using the reporting form provided by the Appeal Division, to the Manager, Immigration Appeals, P.O. Box 6479, Station A, Toronto, Ontario, M5W 1X3 on July 29th, 1996, and every 5 months thereafter on the following dates: |
| May 29, 1997 October 29, 1997 |
| March 29, 1998 August 29, 1998 |
| January 29, 1999 June 29, 1999 |
| November 29, 1999 April 29, 2000 |
| September 29, 2000 February 28, 2001 |
| The appellant shall also report in person as and when directed to do so by the Manager, Immigration Appeals. For purposes of reporting by mail, the postmark on the envelope containing the reporting form will constitute the official reporting date. Failure to mail a reporting form by the reporting date will be considered to be a violation of your reporting condition and may result in the Appeal Division dismissing your appeal and directing that the Deportation Order be executed as soon as possible; |
| report 48 hours prior to moving, any change of address by writing to: |
1. Registrar, Immigration and Refugee Board, 1 Front St. West,
4th Floor, Toronto, Ontario, M5J 1A4;
2. Manager, Immigration Appeals, P.O. Box 6479, Station "A",
Toronto, Ontario, M5W 1X4;
make reasonable effort to seek and maintain employment after completion of post-secondary education;
attend Humber College of Applied Arts and Technology, to April, 1997, as required to complete pre-requisites to the Certified General Accountants' Program, (C.G.A.), thereafter, enrolment in C.G.A. program;
engage in psychotherapy or counselling as required, specifically, with Marlie Manning, DCS., M.ED. Note: If the appellant withdraws her consent to the foregoing conditions she must immediately bring an application to the Appeal Division to have the condition removed;
not knowingly associate with individuals who have a criminal record or who are engaged in criminal activities;
refrain from the illegal use or sale of drugs (and improper use of prescription drugs);
keep the peace and be of a good behaviour.
Appellant to file a report updating her circumstances with the Appeal Division on a yearly basis on the anniversary of the hearing held on December 14, 1995; report to provide information on her educational progress, family circumstances and psychotherapy or counselling sessions attended and the benefits derived from the latter sessions.
[7] On June 5, 1997, the applicant received conditional sentences and 24 months
probation with respect to charges under the Criminal Code of Canada, R.S.C. 1985, c.
C-46 (the "Criminal Code") for the offence of possession and use of stolen credit cards.
[8] The Minister filed an application under Rule 33 of the Immigration Appeal
Division Rules, SOR/93-46 on February 12, 1999 seeking an Order cancelling the Board's earlier Order. At the hearing conducted on May 18, 1999, the Appeal Division was of the opinion that the applicant had failed to comply with the terms on which her Deportation Order was stayed.
[9] On June 17, 1999, the Appeal Division granted the Order sought and removed the
stay on the Removal Order.
[10] On September 3, 1999, the applicant married her common law partner. The
parties had lived together for eight years, during which time the applicant gave birth to two children. Both parties are employed.
Issue
[11] Did the Immigration Appeal Board make a reviewable error by granting an Order
which removed the stay on the Removal Order?
[12] The Minister of Citizenship and Immigration, in support of the subsection 33(1)
application, relied on the declaration of John Helsdon which stated in part as follows:
3. I have reviewed The CPIC Printout of Criminal Convictions (Exhibit "C") and do confirm that the appellant was convicted for Possession of Credit Card and Use of Credit Card on 05 June, 1997;
4. I have reviewed the appellant's Reporting Forms and letters (Exhibits "D" to "M") and the entirety of the immigration file for the appellant and confirm that the appellant has not disclosed at any time information relating to the charges leading to the convictions cited above, or information regarding the convictions themselves, to the Manager, Immigration Appeals.
[13] The same argument about convictions is made in the Minister's Statement of Law
and Argument to the Appeal Division.
[14] It is obvious from the record that the Appeal Division did not give any reasons for
its decision to cancel the stay of the Deportation Order. By virtue of paragraph 69.4(5) of the Act, the Appeal Division is required to give reasons for its decision if either party so requests within 10 days after having been notified of the disposition of the appeal. In this particular case, a request not having been made, no reasons were given and only an order granting the respondent's application was signed.
[15] Subsection 74(3) of the Act gives the Appeal Division jurisdiction to cancel the
stay it had earlier granted with respect to the applicant's Deportation Order and to then dismiss her appeal and direct that the Deportation Order be executed as soon as reasonably practical. It would appear to me that in deciding to dismiss the applicant's appeal, the Appeal Division should have regard to all the circumstances of the case to decide whether the applicant should now be removed from Canada. That is what the Appeal Division did when it first granted the applicant's appeal and granted the stay of the Deportation Order on certain conditions on March 26, 1996.
[16] The respondent argued that this Court should uphold the decisions of the Appeal
Division unless they are patently unreasonable (see Tse v. Canada (Secretary of State) (1994), 72 F.T.R. 36 (F.C.T.D.) and further, that where the Appeal Division has considered all of the relevant factors in deciding the applicant's case and there is no indication that the Appeal Division ignored any relevant evidence, it is not up to this Court to re-weigh the evidence (see Cherrington v. Canada (Minister of Citizenship and Immigration) (1995), 94 F.T.R. 198 (F.C.T.D.). I do not disagree with those statements of the law but the problem in this case is that there are no reasons given to tell this Court what factors the Appeal Division considered in reaching its decision to dismiss the applicant's appeal. I am fully aware of the provisions of paragraph 69.4(5) of the Act whereby the Appeal Division must give written reasons for its decision, if requested, within 10 days of being notified of the disposition of the appeal.
[17] The decision to dismiss the applicant's appeal is the type of decision that will
have a profound effect on the applicant and her family. That is why it is so very important in cases like this to know why the Appeal Division came to such a conclusion. Paragraph 69.4(5) of the Act does not state that the Appeal Division does not need to give reasons, instead it states that in certain circumstances the Appeal Division must give reasons. I believe that the remarks by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration) 193 (S.C.C.) at pages 217 - 220 are important to the present case:
[38] Courts and commentators have, however, often emphasized the usefulness of
reasons in ensuring fair and transparent decision-making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring to the desirability of a common law reasons requirement:
| This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal . . . |
The importance of reasons was recently re-emphasized by this Court in Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at pp. 109-110, 150 D.L.R. (4th) 577 [para. 181].
[39] Reasons, it has been argued, foster better decision-making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R.A. Macdonald and D. Lametti, "Reasons for Decision in Administrative Law" (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, 147 D.L.R. (4th) 93 (C.A.), at para. 38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed., 1995), at pp. 459-60. I agree that these are significant benefits of written reasons.
and at pages 219 - 220:
[43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
[18] I agree with the respondent that normally I should grant deference to the decision
of the Appeal Division, but in cases where no reasons are given, then I can look at all of the circumstances of the case to determine if the decision of the Appeal Division was a reasonable decision.
[19] In March, 1996 when the applicant's Deportation Order was stayed by the Appeal
Division, one of the conditions imposed was that she "keep the peace and be of good behaviour". In June, 1997 she was convicted of two offences, namely the possession and use of a stolen credit card. These convictions caused the respondent to make application to have the stay of the Deportation Order lifted which the Appeal Division did by Order dated June 17, 1999.
[20] The applicant was 26 years of age in 1999 and she had two children aged five
years and one year and then lived with her common-law husband who she has now married. She is employed at Shoppers Drug Mart as an accounts payable clerk earning approximately $30,000 per year. Her husband has two jobs; one as a supervising steward at a hotel where he earns approximately $27,000 per year and the other as a labourer where he earns approximately $18,000 per year. The applicant has upgraded herself in the areas of accounting and business studies. She owes $30,000 on a student loan. She admitted her guilt to the offences and received a two year conditional sentence plus 200 hours of community service. The applicant satisfied all of the other conditions placed on her stay.
[21] In the total circumstances of this case, I do not believe that it was a reasonable
decision to cancel the Appeal Division's directive or Order staying the execution of the Removal Order, to dismiss the applicant's appeal and to direct her removal pursuant to the Execution Order. Accordingly, I would allow the application for judicial review and quash the Order of the Appeal Division dated May 22, 1999.
| [22] As this disposes of the application, I will not deal with the other grounds raised by |
the application for judicial review.
| [23] Counsel for the parties will be provided with an opportunity to make a request for |
certification of a serious question of general importance. Counsel for the respondent shall file written representations, if any, on or before November 2, 2000, concerning the certification of a serious question of general importance. Counsel for the applicant shall file a written response, if any, on or before November 9, 2000.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 25, 2000
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