Date:
20100107
Docket:
IMM-1396-09
Citation:
2009 FC 1243
Ottawa, Ontario,
January 7, 2010
Present:
The Honourable Mr. Justice Shore
BETWEEN:
ERNST
SAINT JEAN
Applicant
and
MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
AMENDED REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
The
only issue in this case is determining whether the applicant is subject to the
exception under paragraph 36(3)(e) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), namely whether his offences
are contraventions under the Contraventions Act, SC, 1992, c 47 or
an offence under the Young Offenders Act. This last law has been
repealed and replaced, since April 1, 2003, by the Youth Criminal
Justice Act, SC 2002, c. 1 (YCJA).
[2]
It
appears from the transcript of the hearing of August 29, 2007, that the
applicant was advised of the Crown’s request to impose an adult sentence on him.
Counsel for the applicant stated that his client had no objection to the
sentencing (transcript of the hearing of August 29, 2007, at p. 3;
Exhibit “D” of the affidavit of Dominique Toillon).
[3]
The
YCJA states that when a decision is made to sentence a young person, it is that
it is considered that the person can no longer be protected like another young
person by the YCJA—the person must be treated like an adult and tried under the
Criminal Code, RSC 1985, c. C-46 (Cr.C). That is exactly Mr. Saint Jean’s
situation.
[4]
That
is why the offences that Mr. Saint Jean was charged with cannot be
characterized as contraventions under the Contravention Act or offences
under the YCJA. Therefore, the exception set out in paragraph 36(3)(e)
of the IRPA is not applicable to Mr. Saint Jean and he should have been
inadmissible for serious criminality.
[5]
Also,
the Court refers to the objectives of the IRPA described in paragraphs 3(h)
and (i) of this Act, which specifies that the purpose of the IRPA is
|
3. …
(h)
to protect the health and safety of Canadians and to maintain the security of
Canadian society;
(i)
to promote international justice and security by fostering respect for human
rights and by denying access to Canadian territory to persons who are
criminals or security risks; and
…
|
3. [...]
h) de protéger la
santé des Canadiens et de garantir leur sécurité;
i) de promouvoir, à
l’échelle internationale, la justice et la sécurité par le respect des droits
de la personne et l’interdiction de territoire aux personnes qui sont des
criminels ou constituent un danger pour la sécurité;
[...]
|
[6]
[1] In the words of Justice Marshall
Rothstein of the Federal Court of Appeal, sitting with Justices Marc Noël and
Brian Malone, in Poshteh v Canada (Minister of Citizenship and
Immigration), 2005 FCA 85, [2005] 3 FCR 487:
[56] The
Immigration Division found that Mr. Poshteh continued his activity with the MEK
until he was seventeen years and eleven months. Where a minor of that age knows
of the violent activity of the organization, becomes involved of his own volition,
continues for over two years and leaves only after he is arrested, it cannot be
said that it is unreasonable for the Immigration Division not to accept his
arguments based on his status as a minor and to find him to be a member of the
terrorist organization.
...
[59] I do not
think that the Convention on the Rights of the Child is relevant in this
case. For purposes of the Convention, the action in this case is the proceeding
and decision of the Immigration Division. However, at the time the matter was
considered by the Immigration Division, Mr. Poshteh was no longer a minor. He
was eighteen when he arrived in Canada. As I read the Convention, it is
concerned with the interests of children while they are children. It does not
purport to confer rights on adults.
…
[64] I would
answer the certified question in the following manner:
...
(b) the
Convention on the Rights of the Child does not apply when the proceedings and
decision involving an individual take place when the individual is no longer a
minor;
(Toussaint v Canada (Minister
of Public Safety and Emergency Preparedness), 2009 FC 688, [2009] FCJ No
828 (QL)).
II. Introduction
[7]
This
is an application for judicial review of a decision by Rolland Ladouceur,
member of the Immigration Division (ID) of the Immigration and Refugee Board
(Board), rendered on March 5, 2009.
[8]
The
Board found the applicant inadmissible for serious criminality within the
meaning of paragraph 36(1)(a) of the IRPA and that he was not
covered by the exception under paragraph 36(3)(e) of that Act.
[9]
Specifically,
the member found that the applicant was not a Canadian citizen, that he was 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 was
imposed and finally that the exception under paragraph 36(3)(e) of
the IRPA was not applicable in this case since he was given an adult sentence.
III. Preliminary remarks
Application for Judicial Review of
the Refugee Protection Division
[10]
The
applicant also appealed the Board’s decision before the Immigration Appeal
Division (IAD).
[11]
On
May 26, 2008, the ID dismissed the appeal for lack of jurisdiction in accordance
with subsections 64(1) and 64(2) of the IRPA, as appears from the IAD
decision, Exhibit “A” of the affidavit of Dominique Toillon.
[12]
The
IAD also found that the exception under paragraph 36(3)(e) of the
IRPA did not apply to the applicant and the panel had not erred on this topic (IAD
decision of May 26, 2009: Exhibit “A” of the affidavit of Dominique
Toillon).
[13]
On
June 22, 2009, the applicant filed with the registry of this Court an
Application for Leave and for Judicial Review (ALJR) of the IAD decision in
docket IMM-3195-09.
[14]
After
the applicant appealed the ID decision before the IAD, the IAD found that it
did not have jurisdiction to hear the appeal and upheld the ID decision
regarding the inapplicability of the exception under paragraph 36(3)(e)
of the IRPA. The applicant submitted an ALJR of this decision in docket
IMM-3195-09. The authority request in this file has not yet been determined by
the Court.
Criminal Convictions
[15]
The
applicant reiterated several times in his memorandum that he was innocent of
the criminal charges against him. He claimed that he was simply in the wrong
place at the wrong time and blamed his former counsel for having given him the
bad advice of pleading guilty to the charges.
[16]
First,
the applicant’s claims of innocence and the serious charges against his counsel
and the serious accusations against his lawyer are not even supported by his
own affidavit, which is also completely silent on these key points. This is
true for several other allegations in his memorandum, in particular his version
of events that led to his arrest and conviction (affidavit of Ernst Saint Jean
of May 14, 2009, Applicant’s Record (AR) at p. 32).
[17]
As
regards the defamatory allegations against his former counsel (AR at p. 59,
para. 12), it should be noted that the applicant failed to provide any
evidence that a complaint was allegedly filed against this counsel with the Barreau.
[18]
In
this case, the evidence on the criminal charges was presented before the proper
court, evidence that this Court does not have before it. The applicant pleaded
guilty to these charges and was convicted (Sentencing Order of August 29,
2009: AR at p. 32).
[19]
There
is no evidence that the applicant allegedly disputed the criminal conviction or
even the sentence imposed by the Court of Quebec acting as a Youth Justice
Court.
[20]
He
is now attempting to dispute indirectly that which he saw no need to dispute
directly.
[21]
Moreover,
it is not the role of this Court to assess the merits of this previous
decision. In this case, it concerns res judicata.
Error in the
Application for Leave and for Judicial Review
[22]
The
ALJR underlying this stay motion erroneously indicated that the Board’s
decision was rendered by Louis Dubé, member, as appears on page 7 of the
Applicant’s Record.
[23]
In
this case, the impugned decision was rendered on March 5, 2009, by Rolland
Ladouceur, as appears from the transcript of the hearing on page 7 of the Applicant’s
Record. Thus, the ALJR is amended to avoid any confusion.
III. Facts
[24]
The
applicant, Ernst Saint Jean, born on May 15, 1989, is a citizen of Haiti. He
arrived in Canada, on February 26, 2003, as a permanent resident, sponsored
by his father (transcript of the hearing of March 5, 2009, at p. 5, AR
at p. 12).
[25]
He
is still a permanent resident and has never become a Canadian citizen (Confirmation
of Permanent Residence, in a bundle: Exhibit “B” of the affidavit of Dominique
Toillon).
[26]
On
August 29, 2007, Mr. Saint Jean was convicted of the following charges,
committed in 2005 when he was 15 years old: one count of aggravated
assault (268 Cr.C.), one count of assault with a weapon (267(a) Cr.C.), one
count of assault causing bodily harm (267(b) Cr.C.) and one count of possession
of a weapon for a dangerous purpose (88(2) Cr.C. (Sentencing Order, in a
bundle: Exhibit “C” of the affidavit of Dominique Toillon)).
[27]
Mr.
Saint Jean was sentenced to five months, in addition to the 25 months that
were credited to him for the preventive time served.
[28]
Mr.
Saint Jean was sentenced as an adult. On August 29, 2007, he was ordered
to be placed in an adult correctional facility, a penitentiary (Sentencing
Order of August 29, 2009; AR at p. 32).
[29]
Mr.
Saint Jean did not dispute the application for an adult sentence (transcript of
the judgment of August 29, 2007; Exhibit “D” of the affidavit of Dominique
Toillon).
[30]
On
March 5 2009, the Board found that Mr. Saint Jean was inadmissible on
grounds of serious criminality under paragraph 36(1)(a) of the IRPA.
The Board also found that the exception under paragraph 36(3)(e) of
the IRPA did not apply to Mr. Saint Jean as he had received an adult sentence. The
Board issued a removal order against Mr. Saint Jean.
[31]
Following
the Board’s negative decision, Mr. Saint Jean filed a Pre-Removal Risk
Assessment (PRRA). He also filed an application to appeal the Board’s decision before
the IAD.
[32]
On
March 20, 2008, Mr. Saint Jean filed this ALJR against the Board’s
decision.
[33]
On
May 4, 2009, a negative decision was rendered on the PRRA.
[34]
On
May 15, 2008, Mr. Saint Jean filed a stay application for the removal
order to Haiti planned for May 9, 2009. The stay was attached to this application
for judicial review.
[35]
On
May 18, 2008, the Court granted the stay in this case, finding that the removal
order was not effective, given Mr. Saint Jean’s appeal to the IAD the Board’s
decision and the absence of a decision on this application for appeal (Order of
May 18, 2008: Exhibit “E” of the affidavit of Dominique Toillon).
[36]
On
May 19, 2008, Mr. Saint Jean filed an ALJR against the negative PRRA decision
in docket IMM-2495-09.
[37]
On
May 26, 2008, the IAD dismissed Mr. Saint Jean’s appeal for lack of
jurisdiction, as requested by the Minister of Public Safety and Emergency
Preparedness. The IAD also found that the exception provided under paragraph 36(3)(e)
of the IRPA was not applicable to Mr. Saint Jean (IAD decision of May 26, 2009:
Exhibit “A” of the affidavit of Dominique Toillon).
IV. Issue
[38]
Is
the Board’s decision is correct in law?
V. Analysis
[39]
This
case raises only one question of law.
[40]
Mr.
Saint Jean is still a permanent resident. He never obtained his Canadian citizenship
(Confirmation of Permanent Residence, in a bundle: Exhibit “B” of the
affidavit of Dominique Toillon).
[41]
The
Court concurs with the respondent. There is no doubt that the sanctions imposed
on Mr. Saint Jean for the offences committed in Canada constitute serious
crimes within the meaning of subsection 36(1) of the IRPA:
|
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(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;
|
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) être convicted 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;
|
[42]
For
the single offence of aggravated assault (268 Cr.C.), the maximum term of
imprisonment is of 14 years. Since Mr. Saint Jean was convicted of
this offence, it is sufficient for him to be inadmissible on grounds of serious
criminality.
[43]
Similarly,
the Court is of the view that Mr. Saint Jean’s imprisonment was significantly greater
than 6 months (see file regarding criminal activities; sentence—global
sentence of 30 months following his sentence).
[44]
In
this case, in accordance with paragraphs 62(b) and 72(1)(b) of
the YCJA, there is no doubt that the adult sentence was imposed on Mr. Saint
Jean:
|
Imposition
of adult sentence
62. An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to
imprisonment for a term of
more than two years in the
following cases:
(a) in the case of a presumptive offence, if the youth justice court makes an order
under
subsection 70(2) or paragraph 72(1)(b); or
(b) in
any other case, if the youth justice court makes an order under subsection 64(5) or paragraph 72(1)(b)
in relation to an offence committed
after the young person attained the age of fourteen years.
…
Test —
adult sentences
72. (1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the
seriousness and circumstances
of the offence, and the age,
maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and
(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose
and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to
hold the young person accountable for his or her offending behaviour, it shall order that the young
person is not liable to an
adult sentence and that a youth sentence must be imposed; and
(b) if it is of the opinion that a youth sentence imposed in accordance with the
purpose and
principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the
young person accountable for his or her offending behaviour,
it shall order that an adult sentence be
imposed.
|
Assujettissement à la peine applicable aux Adultes
62. La peine applicable aux adultes est imposée à l’adolescent convicted d’une infraction pour laquelle un adulte serait passible d’une peine d’emprisonnement de plus de
deux ans lorsque :
a) dans le cas d’une infraction
désignée, le tribunal rend l’ordonnance
visée au paragraphe 70(2) ou
à l’alinéa 72(1)b);
b) dans le cas d’une autre infraction
commise par l’adolescent
après qu’il a atteint l’âge de
quatorze ans, le tribunal rend l’ordonnance visée au paragraphe 64(5) ou à l’alinéa 72(1)b).
[...]
Order d’assujettissement ou de non assujettissement
72. (1) Pour décider de la demande entendue conformément à paragraph 71, le tribunal pour adolescents tient compte de la gravité de l’infraction et des circonstances de sa
perpétration et de l’âge, de
la maturité, de la personnalité, des antécédents et des condamnations antérieures de l’adolescent et de tout autre élément
qu’il estime pertinent et :
a) dans le cas où il estime qu’une
peine spécifique conforme aux
principes et objectif énoncés
au sous-alinéa 3(1)b)(ii) et à paragraph 38 est d’une durée suffisante pour tenir l’adolescent responsable de ses actes délictueux, il ordonne le non-assujettissement à la peine applicable aux adultes et l’imposition d’une peine spécifique;
b) dans le cas contraire, il
ordonne l’imposition de la peine applicable aux adultes.
(Emphasis added.)
|
(Sentencing order; AR at p. 32: transcript of
the hearing of August 29, 2007, at p. 24; Exhibit “D” of the
affidavit of Dominique Toillon).
[45]
This
is why the offences alleged against Mr. Saint Jean could not be characterized
as contraventions under the Contraventions Act or as an offence under
the YCJA. The exception provided under paragraph 36(3)(e) of the
IRPA does not apply to Mr. Saint Jean and he must be found inadmissible on
grounds of serious criminality.
[46]
In
the matter of Tessma v Canada (Minister of Citizenship and Immigration),
2003 FC 1126, 240 F.T.R. 43, which involved the old Young Offenders Act
(YOA), Justice Michael Kelen found that a youth who was initially subject to
the YOA youth court and who was subsequently convicted under the Criminal
Code was not covered by the exception under paragraph 36(3)(e) of
the IRPA. The paragraphs of the reasons state:
[13] There
is no ambiguity or gap in IRPA with respect to a young offender who was
initially subject to the jurisdiction of the YOA youth court, but is
transferred by a youth court judge to ordinary court, and subsequently
convicted of Criminal Code offences in ordinary court as if he were an
adult.
[14] Under
subsection 16(7) of YOA, after the youth court judge has made an order
transferring the proceedings to ordinary court, the proceedings under the YOA
are discontinued, and the proceedings with respect to the criminal charges are
taken before the ordinary court.
[15] One
of the reasons for transferring a young offender from youth court to adult
court is to protect the public. The youth court shall take into account the
seriousness of the alleged offences and the circumstances in which they were
allegedly committed.
[16] I
am of the view that the proper interpretation of subsection 16(7) of the YOA is
that when an order is made transferring charges from youth court to ordinary
court, the applicant is not being tried for offences under the YOA, as that
term is used in the exception contained in subsection 36(3)(e) of IRPA. The
convictions against the applicant in this case are convictions for indictable
offences under the Criminal Code in ordinary court, and are not related to
offences under the YOA. For this reason the exception in IRPA is not applicable.
...
[Emphasis
added.]
[47]
Tessma was rendered under
the YOA, where the procedure was to refer the youth to an adult court. This referral
procedure is no longer in place under the YCJA (the differences between the old
and new law are explained in Canada (Minister of Public Safety and Emergency
Preparedness) v Toussaint, 2007 CanLII 60413 (IRB)).
[48]
For
all the reasons mentioned above, the Board did not err in finding that Mr. Saint
Jean could not benefit from the exception under paragraph 36(3)(e) of
the IRPA.
[49]
In
this case, the Board stated the following facts: Mr. Saint Jean is not a Canadian
citizen; he was given an adult sentence for committing offences under the Criminal
Code with a maximum sentence of more than 10 years; and the exception under
paragraph 36(3)(e) did not apply because he was given an adult sentence.
[50]
The
IRB did not make any error in finding that Mr. Saint Jean was inadmissible on
grounds of serious criminality and in issuing a deportation order against him.
[51]
Mr.
Saint Jean did not raise any serious questions against the Board’s decision.
[52]
Mr.
Saint Jean’s arguments deal with several questions that are not relevant to determining
whether there is an error in the Board’s decision.
[53]
In
this respect, Mr. Saint Jean’s argument on humanitarian and compassionate
grounds, Mr. Saint Jean’s de facto residence in Canada or the risk
of returning in Haiti, is not relevant for determining whether Mr. Saint
Jean must be found inadmissible.
[54]
The
role of the Immigration Division is not to decide the issue of Mr. Saint Jean’s
possible removal to Haiti. Rather, the Board’s role is to determine whether Mr.
Saint Jean must be found inadmissible on grounds of serious criminality within
the meaning of paragraph 36(1)(a) of the IRPA. The prevailing
situation in Mr. Saint Jean’s country of nationality has no bearing on the
decision that the Board must make.
[55]
Indeed,
the IRPA provides other mechanisms for assessing that issue, including an
application for protection through a PRRA.
[56]
Mr.
Saint Jean filed a PRRA application. The application was considered and
dismissed.
[57]
Mr.
Saint Jean filed an ALJR against this decision in docket IMM-2495-09. Indeed,
the ALJR of the PRRA decision in docket IMM-2495-09 was rejected by the Court on
September 21, 2009. It is in that context and not in this matter that Mr.
Saint Jean may dispute the merits of the assessment of his risks of return.
[58]
As
regards the allegation that Mr. Saint Jean should have the right to appeal the Board’s
decision before the IAD, this allegation goes against the IAD decision denying
the applicant’s right of appeal. These arguments are not relevant in the
application for judicial review of the Board’s decision.
[59]
With
respect to the argument related to the Canadian Charter of
Rights and Freedoms,
Part I, Schedule B to the Canada Act, 1982, 1982, c. 11 (U.K.) and Canada’s
commitments with respect to the rights of children, insofar as Mr. Saint Jean did
not comment on the relevant provisions of the YCJA that provide imposing adult
sentences on adolescents, his dispute is without merit.
[60]
The
YCJA also refers to the United Nations Convention on the Rights of the Child
in its preamble.
[61]
Mr.
Saint Jean also criticized the Board of misinterpreting Parliament’s intention at
paragraph 36(3)(e) of the IRPA. As indicated in Tessma,
below, it is not Parliament’s intention to prohibit the inadmissibility of a person
who has committed offences under the Criminal Code.
VI. Conclusion
[62]
In
light of the foregoing, the documents filed by Mr. Saint Jean in support of his
application for judicial review do not raise any serious grounds that would
warrant this Court’s intervention in this case so as to set aside the Board’s
decision.
[63]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for
judicial application is dismissed;
2. No
serious question of general importance will be certified.
“Michel
M.J. Shore”
Certified true
translation
Catherine Jones,
Translator
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