Date: 20100923
Docket: IMM-812-10
Citation: 2010 FC 951
Toronto, Ontario, September 23,
2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ROGER
ANTHONY HAYDEN
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review, pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board that denied an appeal from a
Deportation Order issued by the Immigration Division of the Board. The applicant
had asked the IAD to exercise its discretionary authority to grant him special
relief on humanitarian and compassionate (H&C) grounds. For the reasons
that follow, this application is dismissed.
[2]
The applicant is a 46-year-old
citizen of Jamaica. He initially came to Canada under the farm worker
program, and later married a Canadian citizen who sponsored him for permanent
residence. Shortly after he received permanent residence status the marriage
broke down.
[3]
The applicant has four children in
Jamaica, two children in Canada, and one child in Canada for whom he stands in the
place of parent. He claims that he has supported these children financially,
despite his very limited means.
[4]
In 2006 the applicant was
convicted of dangerous operation of a motor vehicle and assault. The police
report stated that the applicant became upset when the victim refused to
perform fellatio, that he struck her on the back of the head, and that he then
drove away while still holding the victim by her sweatshirt. Notwithstanding
the conviction, the applicant disputes this version of events.
[5]
In September 2007 the applicant
was convicted of sexual assault and was subsequently sentenced to and served 15
months in jail, reduced for time served. This conviction related to an
incident where the applicant raped a woman after a night of drinking and
marijuana smoking. Again, notwithstanding the conviction, the applicant
continues to inform others that the sex was consensual.
[6]
The applicant’s conviction for
sexual assault led the Canada Border Services Agency to prepare a report
pursuant to section 44 of the Act recommending an inadmissibility
hearing. The hearing was held and the applicant was ordered deported.
[7]
Upon appeal of the Deportation
Order to the IAD, the IAD determined that there were insufficient H&C
considerations to warrant special relief, and declined to either allow the
appeal or stay the Deportation Order.
[8]
The Board Member reviewed the
applicant’s background, relationships, children, and employment history, and
then proceeded to review guiding principles applicable to the decision. She
considered the following:
a.
the serious nature of the offence,
the significant trauma sexual assault inflicts on its victims, and the
applicant’s criminal history;
b.
the possibility of the applicant
becoming rehabilitated and the degree of remorse shown by the applicant, both
of which she determined to be minimal based on the applicant’s minimising of
the seriousness of his conduct, failure to fully accept responsibility for his
conduct, lack of proof of rehabilitation, and lack of a practical plan for
rehabilitation;
c.
the likelihood that the applicant
could re-offend given the recent conviction, escalation in the seriousness of
his offences, and lack of a practical plan for rehabilitation;
d.
the applicant’s establishment in
Canada, which the panel found to be a neutral factor after considering the
length of time spent in Canada, the applicant’s lack of economic establishment,
and the lack of evidence about the nature and extent of his emotional
relationship with his children in Canada;
e.
the applicant’s community support
in Canada, to which the Board ascribed little positive weight;
f.
hardship the applicant would face
if returned to Jamaica, which the Board determined to be a neutral factor given
his roots there and his many family members who still live on the island; and
g.
the best interests of his
children, to which the Board did not ascribe much weight because the applicant
had been incarcerated for much of their lives, had lost contact with his son,
provided no cogent evidence regarding his emotional relationship with his
daughter, and because there was no evidence the applicant was a positive
influence on his children.
[9]
I do not accept the applicant’s
submission that the IAD fettered its discretion by focusing extensively on the
applicant’s previous criminal convictions, thereby losing sight of the changes he
has made since. First, it is clear on a reading of the decision as a whole
that the Member considered many factors, including the applicant’s criminal
past. Second, she was correct in the factors she did consider as they are the
relevant factors identified in Ribic v. Canada (Minister
of Employment and Immigration),
[1985] I.A.B.D. No. 4 (QL) and confirmed by the Supreme Court of Canada in
Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12
and Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC
3. The first of those factors is the seriousness of the offences that led to
the Deportation Order. Here the applicant had engaged in two extremely serious
offences of a sexual nature against women. I cannot find on reading of the
entire decision that the Member let the nature of these offences cloud her
consideration of the other factors. She examined each individually and
independently and made no reference to the offences, except as relevant for her
consideration.
[10]
The applicant asserts that the
Board erred in finding that the applicant “poses a high risk to re-offend and a
high risk to public safety, in particular to women with whom he has a
relationship.” The basis for this alleged error is that the targets of the applicant’s
assaults were not random members of the public and because the probation report
states that he is at a medium risk of re-offending. Admittedly, the targets of
his attacks were not random; however, they most certainly are members of the
public. While the probation report says that he is at a medium risk, the
Member explained why this meant little to her as it was based on him having a
score of 16 on the test without any explanation of the data that supported that
finding. Her assessment cannot be said to be unreasonable in those
circumstances. In any event, it is clear on a reading of the decision that the
result would not have been different had the assessment of risk been lowered by
one step.
[11]
The applicant submits that the
Board erred by placing more weight on certain negative factors, especially
considering “evidence” that the applicant had given up drugs and alcohol.
However, the applicant presented no evidence beyond his own testimony that he
has not abused drugs or alcohol since his release from jail. The Board Member
addressed this at para. 17 of her decision:
Seemingly, drugs and alcohol
played a role in his criminal acting out. He claims since he was released from
jail in August 2008, he has not had substance abuse issues. Without other
proof, the panel does not consider that as capacity to rehabilitate himself.
That
is a reasonable finding based on the evidence that he had undertaken no
treatment programs or taken advantage of any services directed to substance
abuse since his release, particularly in light of the fact that the Member’s
decision was made only one year after his release.
[12]
The applicant further submits that
the IAD “ignored” his statement that he “feels bad” and treated his evidence
regarding remorse and rehabilitation in a “cursory” manner. This submission is
without merit. The Board Member’s decision demonstrates that she gave thorough
consideration to the issue of remorse and rehabilitation. The Board Member
addressed the very testimony the applicant alleges she ignored at para. 18:
The Appellant does not accept
responsibility for his conduct, yet at the hearing he utters that he “feels bad
about everything that happened … I really feel bad about it.” There might be
some contrition in his expression of remorse, but it is self-serving. The
ingredients of the possibility of rehabilitation are more than an expression of
remorse, even if sincere.
[13]
Most telling about the applicant’s
claim that he feels remorse for his action is the fact that when his current
girlfriend inquired about the circumstances that led to his conviction for
sexual assault, he reiterated the same position that was rejected by the Court
at trial, namely that the woman had consented but later changed her story. In
short, the applicant offered little evidence that he appreciates and understand
his past actions. In that light, as the member noted, his expressions of
“feeling bad” are empty.
[14]
Lastly, contrary to the
applicant’s submissions, the Board’s finding that there was a lack of evidence
of the applicant’s emotional relationship with his children is not at odds with
his testimony. The Board considered what he had to say and specifically noted
that he claims to support his daughter by providing $30 per week, that he has
lost touch with his son since he went to jail, that he has been incarcerated
for a significant period of his children’s lives, and that there is no evidence
to show that the applicant is a positive influence on his children.
[15]
The Board was alert, alive and
sensitive to the best interests of the applicant’s children both in Canada and Jamaica. The submission
that the Board failed to appreciate the objective of unifying family members in
Canada expressed in subsection 3(1)(d) of the Act is without merit; the Board
referred to this very section at para. 9 of its reasons and balanced this
consideration against the other equally important factors.
[16]
The Board’s decision was
transparent, well-reasoned, and thorough, and I find that it meets the standard
expected of administrative decision-makers. It falls within the range of
reasonable, acceptable outcomes which are defensible in fact and law.
[17]
No question for
certification was proposed by the parties and there is none on these facts.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application is dismissed; and
2. No
question is certified.
"Russel W. Zinn"
Email this Content