Date: 20100527
Docket: IMM-5206-09
Citation: 2010 FC 582
Toronto, Ontario, May 27, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
EUGJEN
BRACE
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
Since
immigrating at the age of 16 to Canada in 2001, Eugjen Brace has
amassed 12 criminal convictions, leaving aside outstanding criminal charges
against him. A deportation order was issued against him because he was
convicted of an offence punishable by a maximum term of imprisonment of at
least ten years, which makes him inadmissible to Canada on grounds
of serious criminality, in accordance with Section 36(1)(a) of the Immigration
and Refugee Protection Act (IRPA). He was ordered deported.
[2]
He
was entitled to and did appeal that decision to the Immigration Appeal Division
(IAD) of the Immigration and Refugee Board, as per Section 63(3) of the IRPA.
His appeal was dismissed. This is the judicial review of that decision.
[3]
The
validity of the deportation order is not in issue. However, the IAD’s
jurisdiction in matters such as this embraces humanitarian and compassionate considerations,
and so it may stay removal and impose conditions. A list of non-exhaustive
factors was set out in Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (QL), which was later approved by the
Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
[4]
These
factors are:
In each case the Board looks to the same
general areas to determine if having regard to all the circumstances of the
case, the person should not be removed from Canada. 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. While the general areas of review
are similar in each case the facts are rarely, if ever, identical.
[5]
Counsel
for Mr. Brace submits that any one of three grounds justifies granting judicial
review:
a. The first is
that Mr. Brace’s first conviction occurred when he was still a youth and should
not have been taken into account.
b. The second is
that at the time of the hearing before the IAD, Mr. Brace had a girlfriend who
was three months pregnant. No consideration was given as to the interests of
this unborn child.
c. And finally,
the decision maker used the word “convinced” three times indicating that she
was not assessing the case on the proper standard of proof, which is the
balance of probabilities, always a difficult task when one is not assessing
whether or not an event has occurred, but rather what will happen in the
future, i.e. will Mr. Brace be rehabilitated, will he be a risk to society,
should he be given another chance?
YOUTH CRIMINAL JUSTICE
ACT
[6]
It
must be kept in mind that the offence that triggered the determination that Mr.
Brace was inadmissible was an offence committed when he was an adult. Section
36(3)(e) of the Immigration and Refugee Protection Act provides that
inadmissibility under subsections 1 and 2 may not be based on an offence for
which a foreign national or permanent resident was found guilty under the Youth
Criminal Justice Act.
[7]
Nevertheless,
in considering humanitarian and compassionate factors, in my opinion, it was
not only proper, but also essential, that the Member consider all of
Mr. Brace’s criminal activity while in Canada. Part 6 of
the Act deals with the protection of privacy of young persons. Under sections
119(g) and (h), records can only be accessed under specified circumstances for
three years after the completion of the sentence, for an offence prosecuted by
summary conviction, or five years for an indictable offence. However, if during
the access period the youth is subsequently convicted of an offence committed while
an adult, s. 119(9)(b) provides that the youth records are deemed to be adult
records and Part 6 of the Act no longer applies.
[8]
In
the case of Mr. Brace, it is unnecessary to examine the timeline in great
detail: he was sentenced for assault as a youth in 2002 On June 21st,
2003, when he was nineteen years old, the record indicates that he committed
theft under $5000 and failed to comply with a probation order, offences for
which he was subsequently convicted. These offences were committed less than
three years after his youth sentence was completed: in fact, they were
committed less than one year after his youth sentence was imposed. Mr. Brace’s
youth records are thus clearly covered by s. 119(9)(b), and so are discoverable
in any event.
[9]
Furthermore,
I cannot see how assessing only 11 offences, including the one which led to the
deportation order, instead of 12 could have significantly affected the IAD’s
conclusions.
BEST INTERESTS OF THE
CHILDREN
[10]
Mr.
Brace testified at the hearing before the IAD that he had a pregnant girlfriend
who was in the room. His counsel, however, who is not the counsel on this
application for judicial review, did not call her as a witness. The Member
stated that she was taking into account the interests of any children, but the
submission is that this is simply a boiler plate remark and that no analysis
was done.
[11]
To
find the answer to this submission, one need go no further than the decision of
the Federal Court of Appeal in Owusu v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 in which Mr. Justice Evans,
speaking for the Court, stated at para. 5:
An
immigration officer considering an H & C application must be "alert,
alive and sensitive" to, and must not "minimize", the best
interests of children who may be adversely affected by a parent's deportation: Baker
v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817 at para. 75. However, this duty only arises when it is sufficiently
clear from the material submitted to the decision-maker that an application
relies on this factor, at least in part. Moreover, an applicant has the burden
of adducing proof of any claim on which the H & C application relies.
Hence, if an applicant provides no evidence to support the claim, the officer
may conclude that it is baseless.
[12]
It
is not enough to say one has a pregnant girlfriend. The burden on the applicant
goes much further than that. What was the girlfriend’s health? What was her
financial situation? Were they living together? Did he intend to support the
child? If so, how? There was an insufficient evidentiary basis for the IAD to
make any meaningful assessment.
BURDEN OF PROOF
[13]
The
Member of the IAD stated at the outset that the burden of proof was on the
balance of probabilities. This is correct, keeping in mind that one is
attempting to predict the future, rather than to assess what happened in the
past. However she used the word “convinced” three times in her reasons, which has
led to the submission that the burden of proof was only observed in the breach.
I cannot agree.
[14]
Words
have to be considered in context, and so may take on different flavours.
However there is nothing in the reasons, read as a whole, to suggest that the
IAD was assessing the situation on a standard more stringent than on a balance
of probabilities. In this respect, see Rodriguez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 320. Unless a statute provides
otherwise, there is only one standard of proof before civil tribunals, and that
is the balance of probabilities. See F.H. v. McDougall, 2008 SCC 53,
[2008] 3 S.C.R. 41. There is nothing to indicate that the IAD derogated from
that principle.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
Email this Content