Date: 20090401
Docket: IMM-3244-08
Citation: 2009 FC 338
Ottawa, Ontario, April 1, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SHERLOCK
ALBERTSON HARDWARE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(Act) for judicial review of a decision by the Immigration and Refugee Board,
Appeal Division (IAD) dated July 2, 2008 (Decision), refusing the Applicant's
request to continue the stay of his deportation order.
BACKGROUND
[2]
The
Applicant is a citizen of Jamaica who has a biological
child (Olivia) with Justina Botano and a step-son (Joshua) who is the
biological child of the Applicant’s current wife, Patricia Gayadat.
[3]
The
Applicant became a permanent resident of Canada on June 14,
1986. He has returned to Jamaica for four brief visits since he was landed in Canada. The
Applicant has amassed 15 criminal convictions during his time in Canada, 12 of
which occurred prior to the Applicant being granted a stay of the removal order
against him.
[4]
From
February 1992 until October 1999, the Applicant was twice convicted of assault
with a weapon, failure to comply with a recognizance four times, assault twice,
as well as escaping lawful custody, possession of a weapon, driving with over
80 mg, and failure to stop at the scene of an accident. One of the Applicant’s
assault convictions involved his former girlfriend as the victim.
[5]
From
March 1993 until November 2001, the Applicant was convicted of five provincial
offences: three offences under the Highway Traffic Act and two offences
under the Liquor Licence Act. Four of these convictions were made
against the Applicant in absentia and he made arrangements to pay all the fines
levied against him within 60 days.
[6]
The
Applicant was found criminally inadmissible to Canada under paragraph 36(1)(a)
of the Act and was ordered deported from Canada after his July 31, 1996 conviction
for assault with a weapon contrary to section 267 of the Criminal Code
of Canada.
[7]
However,
the IAD granted the Applicant a stay of his deportation order for three years
at a June 24, 2004 hearing, subject to his abiding by the following terms and
conditions:
1.
Inform the
Department of Citizenship and Immigration (Department) and the Immigration
Appeal Division in writing in advance of any change in your address.
The address of the Department is:
Citizenship and Immigration, The Greater Toronto Enforcement Centre, 6900 Airport Road, P.O. Box
290, Mississauga, Ontario L4V 1E8.
The address of Immigration Appeal
Division is:
74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7.
2.
Provide a
copy of your passport or travel document to the Department or, if you do not have
a passport or travel document, complete an application for a passport or a
travel document and to provide the application to the Department.
3.
Apply for
an extension of the validity period of any passport or travel document before
it expires, and provide a copy of the extended passport or document to the
Department.
4.
Not commit
any criminal offences.
5.
Respect
all parole conditions and any court orders.
6.
Keep the
peace and be of good behaviour.
[8]
The
June 24, 2004 IAD decision stated that a key factor in granting the stay of removal
was the possibility of rehabilitation and the non-likelihood of the Applicant
re-offending. The IAD did not find that the Applicant’s convictions were overly
serious. As well, the IAD noted that the Applicant’s last criminal conviction
occurred in 1999 and that it had been over four years since he had offended.
[9]
The
IAD sent the Applicant and the Minister a Notice of Interim Reconsideration of
Appeal dated April 17, 2007, which indicated that a closed review of the stay
granted to the Applicant would be considered on June 24, 2007. The Applicant
was directed to provide the Minister with a written statement of his compliance
with the terms and conditions of his stay order no later than 20 days prior to
June 24, 2007, but the Applicant failed to provide a statement of compliance.
Counsel for the Minister requested an oral review while noting that the
Applicant had been charged and convicted of three subsequent criminal offences
on May 24, 2007, which included impaired driving, assault (upon his wife) and a
failure to comply with bail.
[10]
The
Minister alleged that the Applicant had failed to keep the peace and be of good
behaviour, had failed to report a change of address to immigration officials,
and had failed to provide an updated copy of his Jamaican passport, thus
violating subsections 251(b) and (c) of the Immigration and Refugee
Protection Regulations, SOR 2002-227 (Regulations). The Minister applied
under paragraph 68(2)(d) of the Act to reconsider the IAD’s earlier
decision and to cancel the stay of execution of the removal order against the
Applicant. The oral review of the Applicant’s stay was held on June 9, 2008.
[11]
The
assault upon the Applicant’s spouse involved the Applicant punching his wife on
the right side of her face and throat. He then forced his way into the washroom
where his wife was hiding from him in fear, and began to strangle, kick and
slap her. At the hearing, the Applicant and his wife indicated that they would
like to reconcile in the future and the wife said that she regretted having
reported the Applicant’s criminal misconduct. The wife suffers from a health
condition that necessitates the drainage of fluid from her brain two to three
times each year, after which procedure she is disabled for about three days.
The Applicant is precluded from contacting his wife as part of his current
probation order.
[12]
The
Applicant was injured in a car accident in November 2001 and has had a history
of lower back pain for the past 12 years. He was able to work on a part-time basis
as a personal care worker and as a glass worker from 2002 until September 2006,
until he was injured on the job. He received benefits from the Workplace Safety
and Insurance Board (WSIB) from October 2006 until January 2008, when his
benefits ceased. He appealed the denial of his WSIB benefits. He is currently
not working and resides with his parents while being supported by several of
his five sisters who are in Canada. The Applicant has acquired no assets in
Canada and is not in debt.
[13]
The
Applicant desires to resume his work as a personal care giver. His family wishes
him to remain in Canada and has filed letters of support.
[14]
At
the June 9, 2008 hearing, the Applicant intended to call his wife and his
father as witnesses. However, his father did not attend the hearing, but
provided letters of support. The Applicant’s former counsel requested an
adjournment during the hearing to permit the Applicant’s father’s testimony. However,
that request was objected to and the hearing went ahead.
DECISION UNDER REVIEW
[15]
The
Officer found that the Applicant’s account of the incidents leading up to his
conviction of impaired driving were implausible and that the Applicant had assaulted
his wife knowing that she suffers from a medical condition. The Officer
concluded that the Applicant could not control his temper, had not benefited
from his previous anger management courses, and had violated his bail.
[16]
The
Officer found that the Applicant had been given a chance by the IAD to prove
that he could be a law-abiding citizen and obey the terms and conditions
imposed upon him, but he had not done these things. The Officer found that the
Applicant’s criminal conduct outweighed the positive aspects of his case,
including his close relationship with his family, daughter and stepson.
Therefore, the Officer quashed the stay order and dismissed the Applicant’s
appeal.
ISSUES
[17]
The
Applicant raises the following issues:
1)
Whether
the IAD made reviewable errors by engaging in a “microscopic” assessment of
issues that were peripheral to the claim, and arrived at unreasonable
inferences on credibility that were not supported by facts or logic;
2)
Whether
the IAD breached the principles of fairness in failing to adequately assess the
best interests of the Applicant’s children, Joshua and Olivia;
3)
Whether
the IAD erred in law in failing to provide adequate reasons for its decision;
4)
Whether
the IAD breached the principles of natural justice by denying the Applicant’s
request for an adjournment to admit his father’s oral testimony in support of
his appeal.
STATUTORY PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
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;
Enforceable removal order
48. (1) A removal order
is enforceable if it has come into force and is not stayed.
Effect
(2) If a
removal order is enforceable, the foreign national against whom it was made
must leave Canada immediately and it must be enforced as
soon as is reasonably practicable.
68. (1) To stay a
removal order, the Immigration Appeal Division must be satisfied, taking into
account the best interests of a child directly affected by the decision, that
sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case.
(2) Where the Immigration Appeal Division stays the
removal order
…
(d) it may cancel the stay, on application or on its own initiative.
|
36. (1) Emportent interdiction de territoire pour grande
criminalité les faits suivants :
a) être déclaré coupable 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;
Mesure de renvoi
48. (1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
Conséquence
(2) L’étranger visé par la mesure de renvoi exécutoire
doit immédiatement quitter le territoire du Canada, la mesure devant être
appliquée dès que les circonstances le permettent.
68. (1) Il est sursis à la mesure de renvoi sur preuve qu’il
y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des
motifs d’ordre humanitaire justifiant, vu les autres circonstances de
l’affaire, la prise de mesures spéciales.
(2) La section impose les conditions prévues par
règlement et celles qu’elle estime indiquées, celles imposées par la Section
de l’immigration étant alors annulées; les conditions non réglementaires
peuvent être modifiées ou levées; le sursis est révocable d’office ou sur
demande.
|
[19]
The
following provision of the Regulations is applicable in this proceeding:
251. If the Immigration
Appeal Division stays a removal order under paragraph 66(b) of the Act, that
Division shall impose the following conditions on the person against whom the
order was made:
(a) to inform the Department and the Immigration Appeal
Division in writing in advance of any change in the person's address;
(b) to provide a copy of their passport or travel document
to the Department or, if they do not hold a passport or travel document, to
complete an application for a passport or a travel document and to provide
the application to the Department;
(c) to apply for an extension of the validity period of any passport or
travel document before it expires, and to provide a copy of the extended
passport or document to the Department;
|
251. Si la Section
d’appel de l’immigration sursoit à une mesure de renvoi au titre de l’alinéa
66b) de la Loi, elle impose les conditions suivantes à
l’intéressé :
a)
informer le ministère et la Section d’appel de l’immigration par écrit et au
préalable de tout changement d’adresse;
b) fournir
une copie de son passeport ou titre de voyage au ministère ou, à défaut,
remplir une demande de passeport ou de titre de voyage et la fournir au
ministère;
c) demander la prolongation de la validité de tout
passeport ou titre de voyage avant qu’il ne vienne à expiration, et en
fournir subséquemment copie au ministère;
|
STANDARD OF REVIEW
[20]
In Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), the Supreme Court of Canada
recognized that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, “the analytical problems that arise in trying to
apply the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review”: Dunsmuir
at paragraph 44. Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of
"reasonableness" review.
[21]
The Supreme Court of
Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[22]
The Applicant’s first
issue involves a negative credibility finding. In the past, it has been held
that the standard of patent unreasonableness should apply to issues of
credibility: Perera v. Canada (Minister of Citizenship and Immigration)
2005 FC 1069 (Perera). As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant the intervention of the court,
its findings are not open to judicial review: Aguebor v. Canada (Minister of
Employment and Immigration), [1993]
F.C.J. No. 732 (F.C.A.) (Aguebor).
[23]
The Applicant’s
second issue involves the consideration of the best interests of the child. In Baker
v.
Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph
61 (Baker), the Supreme Court of Canada said that reasonableness simpliciter
is the appropriate standard for such considerations.
[24]
In light of the
Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this
Court, I find the standard of review applicable to issues one and two raised by
the Applicant to be reasonableness. When reviewing a decision on the standard
of reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the
Court should only intervene if the Decision was unreasonable in the sense that
it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
[25]
The
Applicant has also raised procedural fairness issues to which the standard of
review is correctness: Suresh v. Canada (Minister of Citizenship and
Immigration) 2002 SCC 1.
ARGUMENT
The Applicant
Failure to Consider the
Totality of the Evidence
[26]
The
Applicant says that the IAD had an obligation to consider all aspects of his
case: Immigration Appeal Divisions Online Manual, section 9.2. He says
that the following non-exhaustive factors from Ribic v. Canada (Minister of Employment
and Immigration), [1985] I.A.B.D. No. 4 are relevant:
(a) The seriousness of the
offence leading to the Deportation Order: If the offences are of a serious
nature and there is a concern that the person is a danger to the public, the
Board will often consider a psychological report dealing with the reasons for
the behavior, and will examine whether the person has in fact rehabilitated
himself and the likelihood of the further commission of offences;
(b) The possibility of
rehabilitation and the risk of re-offending;
(c) The length of time spent
in Canada and the degree to which the applicant is established here;
(d) The family in Canada and the dislocation to
the family that deportation will cause;
(e) The support available to
the applicant within the family and the community; and
(f) The degree of hardship
that would be caused to the applicant by his or her return to the country of
nationality.
[27]
The
Applicant submits that the IAD focused on the Applicant’s criminality and
failed to consider the totality of the evidence concerning his circumstances.
The IAD is entitled to conclude that an applicant is not credible because of
implausibilities in the evidence, as long as its inferences are not
unreasonable and its reasons are set out in “clear and unmistakable terms”: Hilo
v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228
(F.C.A.) and Aguebor; Zhou v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 1087
(F.C.A.). As well, the IAD is entitled to make reasonable findings based on
implausibilities, common sense and rationality: Shahamati v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) at
paragraph 2.
[28]
The
Applicant says, however, that not every kind of inconsistency or implausibility
in the evidence can support a negative finding of credibility and it is
improper for the IAD to base its findings on extensive “microscopic”
examination of issues irrelevant or peripheral to an applicant’s claim: Attakora
v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.) (Attakora)
at paragraph 9 and Owusu-Ansah v. Canada (Minister of Employment and
Immigration), [1989] F.C.J. No. 442 (F.C.A.) (Owusu-Ansah).
[29]
Adverse plausibility findings should only
be made in the clearest of cases, where the facts are inherently implausible: Fok
v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 800
(F.C.A.). As well, a tribunal cannot base credibility findings on irrelevant
considerations: Attakora and Owusu-Ansah. Also, the
inconsistencies must be serious and related to matters that are sufficiently
relevant to the issues being adjudicated in order to make an adverse
credibility finding: Lorne Waldman, Immigration Law and Practice
(Toronto: Butterworths Canada Ltd., 1992) at p. 814 and Djama v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 531.
[30]
The
Applicant says it is an error in law for the IAD to make a decision without
having regard to the totality of the evidence: Owusu-Ansah; Toro v. Canada (Minister of
Employment and Immigration), [1981] 1 F.C. 652 (F.C.A.) and Irarrazabal-Olmedo
v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 125 at
126 (F.C.A.). The Applicant alleges that, in the present case, the following
evidence was ignored:
1)
The extensive period of time that the Applicant has been in Canada;
2)
The Applicant’s establishment in Canada including, but not
limited to, his family in Canada (mother, father and five (5) sisters) and the
hardships they would suffer if the Applicant was removed from Canada;
3)
The extent of the support that is available to the Applicant
in his community in Canada. His father’s letter indicates that he has had
discussions with criminality; and his mother’s letter details the Applicant’s
involvement in her life and how he assisted her in locating employment and
taking her around the city;
4)
The reliance which the Applicant’s wife, Patricia, places on
the emotional and physical support that the Applicant provides. The wife
provided oral evidence during the hearing that the Applicant does everything
for her as if “she was a baby”;
5)
The intent of the parties (the Applicant and his wife) to
reconcile in order to keep their family together;
6)
The lack of ties that the Applicant has in Jamaica. The
Applicant indicated that he had only been back to Jamaica on four (4) previous
occasions when his mother was living in that country and that he had no
remaining family members in Jamaica;
7)
The hardship associated with the Applicant’s injuries as set
out in correspondence from Dr. Klein. The Applicant has sustained serious
injuries that have thwarted his ability to work as a personal support worker;
8)
The Applicant’s oral evidence regarding his remorse and
rehabilitation. In particular, the Applicant stated that he was embarrassed
about the assault that he committed against his wife and that he had lost
control. The Applicant stated that he had turned himself in to the authorities
once it had come to his attention that there was a warrant for his arrest. He
undertook an anger management course and a course on domestic violence wherein
he learnt the following tools to assist him with his anger management issues: self
control, time outs, and conflict resolution… . The Applicant’s wife, Patricia,
also stated that she was not concerned about the Applicant assaulting her
again. She indicated in her oral evidence that if counseling was necessary, she
would engage in it and do “whatever is necessary” to put her family back
together again. This was evidence that related to the issue of rehabilitation
and recidivism which was ignored by the IAD;
9)
The evidence that related to the best interests of the
affected children. The Applicant led the following evidence which was ignored
by the IAD:
a.
Olivia’s mother, Justina…stated that she and the Applicant
have joint custody of Olivia, that he is actively involved with Olivia’s
schooling, Olivia and Mr. Hardware do a number of recreational activities
together, and that “Olivia has cried many times when she heard that her father
was leaving the country”;
b.
The letters from Olivia’s school teachers/principals from Silverthorn
Junior Public School.
10)
The Applicant’s wife, Patricia, also described the
Applicant’s relationship to Olivia as follows: “[I]t is a very loving
relationship…they go rollerblading, we would cook dinner…do the traditional
family thing and he sees her every other weekend.” Patricia also stated that
the Applicant cares for his nieces and nephews over the weekends.
[31]
The
Applicant submits that the IAD made perverse and capricious findings without
evidence, ignored evidence, misstated evidence and denied him procedural rights
so that the Decision ought to be set aside.
Best
Interests of the Child
[32]
The Applicant submits that there was no analysis in the
Decision of the best interests of Olivia or Joshua. Also, there was no analysis
of how the Applicant’s deportation would affect Olivia’s mother, Justina, as
well as Olivia and Joshua, if the Applicant was uprooted from their lives. The
Applicant says that the IAD did not provide detailed and cogent explanations,
which were alive, alert and attentive to the best interests of the children.
[33]
The Applicant notes that there are immigration guidelines
available to officers to assist them in rendering their decisions. The
Applicant also relies upon Baker regarding section 25 of the Act and the
analysis of the best interests of the children.
[34]
The Applicant cites and relies upon Love v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1904
at paragraphs 12-18:
The result on this application for judicial
review will turn solely on the Counsellor's evaluation of the best interests of
the children although a number of other issues are raised on the material
before the Court.
In Hawthorne v. Canada (Minister
of Citizenship and Immigration), Justice Décary, for the majority, wrote at
paragraph [4]:
The “best interests of the child” are
determined by considering the benefit to the child of the parent's non-removal
from Canada as well as the hardship the child would suffer from either her
parent’s removal from Canada or her own voluntary departure should she wish
to accompany her parent abroad. Such benefits and hardship are two sides of the
same coin, the coin being the best interests of the child.
Justice Décary continued at paragraph [6]:
To simply require that the officer determine
whether the child’s best interests favour non-removal is somewhat artificial --
such a finding will be a given in all but a very few, unusual cases. For all
practical purposes, the officer’s task is to determine, in the circumstances of
each case, the likely degree of hardship to the child caused by the removal of
the parent and to weigh this degree of hardship together with other factors,
including public policy considerations, that militate in favour of or against
the removal of the parent.
Justice Evans, concurring in the result, and
adopting the phrase “alert, alive and sensitive” from the majority reasons of
the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and
Immigration), wrote at paragraph [32] of the reasons in Hawthorne:
... Rather, the interests of the child must be “well
identified and defined” ... and “examined ... with a great deal of attention”
... . For, as the Supreme Court has made clear, the best interests of the child
are “an important factor” and must be given “substantial weight” ... in the
exercise of discretion under subsection 114(2).[citations omitted]
Justice Evans’ reference to subsection 114(2)
is of course to that provision of the Immigration Act. That provision has been
superceded by subsection 25(1) of the Immigration and Refugee Protection Act
which, while carrying forward the discretionary authority of the Minister to
grant landing from within Canada on humanitarian and compassionate grounds,
specifically incorporates an obligation to take into account the best interests
of a child directly affected by the considerations there before the Minister.
At paragraph [44] of Hawthorne, Justice
Evans concluded that, on the facts before him, the Officer’s, here the
Counsellor’s, treatment of the issues concerning the child, here the children,
satisfied him that the Officer was not “alert, alive and sensitive” to the
child’s best interests. I reach the same conclusion here. The Applicant’s and
Ms. Williams’ four (4) children have not lived for long in their relatively
short lives without some positive influence from the Applicant. The only
evidence from the children themselves is that, at least in the years following
the Applicant’s incarceration in 1997, that incarceration flowing from his last
criminal conviction, his positive influence has been substantially more than
minimal. That evidence is confirmed by Ms. Williams who attests that, in the
absence of the Applicant, she could not support their four (4) children and her
fifth child and that she would have to resort to welfare.
I am satisfied that a substantially more
thorough-going analysis on the part of the Counsellor than is demonstrated by
the materials before the Court would be required to meet the “best interests of
the children” requirement on the facts of this matter.
Counsel for the Respondent noted the burden
that conclusions such as the one that I have reached here places on the
Respondent. Once again, In Hawthorne, Justice Evans responded
succinctly to this concern. He wrote at paragraph [52]:
The requirement that officers’ reasons clearly
demonstrate that the best interests of an affected child have received careful
attention no doubt imposes an administrative burden. But this is as it should
be. Rigorous process requirements are fully justified for the determination of
subsection 114(2) applications that may adversely affect the welfare of
children with the right to reside in Canada: vital interests of the vulnerable are at
stake and opportunities for substantive judicial review are limited.
[35]
The Applicant submits that a more thoroughgoing analysis was
required by the IAD in this matter in order to comply with the standard set by
the Court in the assessment of the best interests of the child: Jack v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1189 (F.C.T.D.). The Applicant concludes on this issue by stating that the
IAD’s Decision was unreasonable.
Failure
to Provide Adequate Reasons
[36]
The Applicant also submits that the IAD decided that the
factors against the Applicant outweighed those in his favour. However, the IAD
does not explain why one set of factors outweighs the other. The Applicant
submits that such an explanation is required because there is so much at stake
for him. The reasons are inadequate and constitute an error in law. The
Applicant relies upon R. v. Sheppard, [2002] 1 S.C.R. 869 (QL)
which sets out 10 factors for consideration by an Appellate Court in deciding
the sufficiency of a trial judge’s reasons. The Applicant finds the following
three relevant:
…An accused person should not be left in doubt about why a
conviction has been entered. Reasons for judgment may be important to clarify
the basis for the conviction but, on the other hand, the basis may be clear
from the record. The question is whether, in all the circumstances, the
functional need to know has been met.
The lawyers for the parties may require reasons to assist them in
considering and advising with respect to a potential appeal. On the other hand,
they may know all that is required to be known for that purpose on the basis of
the rest of the record.
…
Reasons perform an important function in the appellate process.
Where the functional needs are not satisfied, the appellate court may conclude
that it is a case of unreasonable verdict, an error of law, or a miscarriage of
justice within the scope of s. 686(1)(a) of the Criminal Code, depending on the
circumstances of the case and the nature and importance of the trial decision
being rendered.
[37]
The Applicant also cites and relies upon Canada (Minister
of Citizenship and Immigration) v. Mann, [2004] F.C.J. No. 1611,
citing Via Rail v. National Transportation Agency, [2001] 2 F.C. 25 at
paragraph 63:
…The duty to give reasons is only fulfilled if
the reasons provided are adequate. What constitutes adequate reasons is a
matter to be determined in light of the particular circumstances of each case.
However, as a general rule, adequate reasons are those that serve the functions
for which the duty to provide them was imposed. In the words of my learned
colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy that
must be met before a tribunal can be said to have discharged its duty to give
reasons must ultimately reflect the purposes served by a duty to give reasons.”
The obligation to provide adequate reasons is
not satisfied by merely reciting the submissions and evidence of the parties
and stating a conclusion. Rather, the decision maker must set out its findings
of fact and the principal evidence upon which those findings were based. The
reasons must address the major points in issue. The reasoning process followed
by the decision maker must be set out and must reflect consideration of the
main relevant factors.
[38]
The Applicant concludes that the IAD’s reasons in the present
case were inadequate.
Breach
of Principles of Natural Justice
[39]
On this issue the Applicant submits that there was a breach
of natural justice because the IAD did not allow an adjournment to admit his
father’s oral testimony in support of his appeal. The Applicant cites Rule 48
of the Immigration Appeal Division Rules which states as follows:
CHANGING THE
DATE OR TIME OF A PROCEEDING
Application to
change the date or time of a proceeding
48.
(1) A party may make an application to the Division to change the date or
time of a proceeding.
Form and
content of application
(2) The party
must
(a)
follow rule 43, but is not required to give evidence in an affidavit or
statutory declaration; and
(b)
give at least six dates, within the period specified by the Division, on
which the party is available to start or continue the proceeding.
Application
received two days or less before proceeding
(3) If the
party's application is received by the recipients two working days or less
before the date of a proceeding, the party must appear at the proceeding and
make the request orally.
Factors
(4) In
deciding the application, the Division must consider any relevant factors,
including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party's arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice;
(f)
the knowledge and experience of any counsel who represents the party;
(g)
any previous delays and the reasons for them;
(h)
whether the time and date fixed for the proceeding were peremptory;
(i)
whether allowing the application would unreasonably delay the proceedings;
and
(j)
the nature and complexity of the matter to be heard.
Duty to appear
at the proceeding
(5) Unless a
party receives a decision from the Division allowing the application, the
party must appear for the proceeding at the date and time fixed and be ready
to start or continue the proceeding.
|
CHANGEMENT
DE LA DATE OU DE L'HEURE DE LA PROCÉDURE
Demande
de changement de la date ou de l'heure d'une procédure
48. (1) Toute partie peut
demander à la Section de changer la date ou l'heure d'une procédure.
Forme
et contenu de la demande
(2)
La partie :
a) fait sa demande selon la règle 43,
mais n'a pas à y joindre d'affidavit ou de déclaration solennelle;
b) indique dans sa demande au moins six
dates, comprises dans la période fixée par la Section, auxquelles elle est
disponible pour commencer ou poursuivre la procédure.
Procédure
dans deux jours ouvrables ou moins
(3)
Dans le cas où les destinataires reçoivent la demande deux jours ouvrables ou
moins avant la procédure, la partie doit se présenter à la procédure et faire
sa demande oralement.
Éléments
à considérer
(4)
Pour statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et
l'heure de la procédure après avoir consulté ou tenté de consulter la partie,
toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été
faite;
c) le temps dont la partie a disposé
pour se préparer;
d) les efforts qu'elle a faits pour être
prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a besoin
d'un délai supplémentaire pour obtenir des renseignements appuyant ses
arguments, la possibilité d'aller de l'avant en l'absence de ces
renseignements sans causer une injustice;
f) dans le cas où la partie est
représentée, les connaissances et l'expérience de son conseil;
g) tout report antérieur et sa
justification;
h) si la date et l'heure qui avaient été
fixées étaient péremptoires;
i) si le fait d'accueillir la demande
ralentirait l'affaire de manière déraisonnable;
j) la nature et la complexité de
l'affaire.
Obligation
de se présenter aux date et heure fixées
(5)
Sauf si elle reçoit une décision accueillant sa demande, la partie doit se
présenter à la date et à l'heure qui avaient été fixées et être prête à
commencer ou à poursuivre la procédure.
|
[40]
The Applicant submits that his father’s evidence was
necessary and may have changed the outcome of the Appeal. He says, therefore, that
the adjournment should have been granted.
The
Respondent
[41]
The Respondent submits that, when considering a cancellation
of a stay of a removal order, the IAD must be satisfied, taking into account
the best interests of any child directly affected by the decision, that
sufficient humanitarian and compassionate considerations warrant special relief
in light of all of the circumstances in the case. The IAD must also consider
the Ribic factors. These factors are questions of fact. In Chieu v.
Canada (Minister of Citizenship and Immigration) 2002 SCC 3 at paragraphs
40-41, 46-49 and 66 it was held that the IAD has considerable expertise in
determining the weight to be given to all of the factors it considers when
exercising its discretionary jurisdiction. The Supreme Court of Canada also
recognized in Chieu that it was Parliament’s intention that the IAD should
have a broad discretion to allow permanent residents facing removal to remain
in Canada if it would be equitable to do so.
[42]
The Respondent submits that, in the case at bar, the IAD set
out the relevant factors and considered them in relation to the Applicant’s
circumstances.
Reasons for Decision
[43]
The Respondent submits that the conclusion that the IAD came
to was reasonably open to it: Olaso v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J.
No. 1265 at paragraph 17 (F.C.T.D.). No evidence was ignored by the IAD and the
IAD discussed the length of time the Applicant had been in Canada and his
establishment and ties to Canada.
Best Interests of the Child
[44]
The
Respondent submits that the IAD’s Decision and reasons have to be looked at
cumulatively, and in the context of the previous decision of the IAD regarding the
stay of the deportation order: Gittens v. Canada (Minister of Public Safety
and Emergency Preparedness) 2008 FC 373 and Legault v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No. 457
(F.C.A.). The IAD previously considered the best interests of the children in
staying the Applicant’s deportation. The IAD also considered the best interests
of the Applicant’s children when they made the proposition for the Applicant to
remain in Canada. The IAD weighed the “positive aspects” of the Applicant’s
application, including his close relationships with his daughter and stepson.
[45]
The
Respondent submits that while the IAD is required to consider the best
interests of the child, this duty arises when it is sufficiently clear from the
material submitted that the application relies on that factor: Owusu-Ansah at
paragraph 5. However, in the present case the Applicant failed to raise the
impact of his potential deportation on his children.
Adequate
Reasons
[46]
The
Respondent submits that perfection is not the standard to be applied on a
judicial review of the adequacy of reasons: Lara v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 264 (F.C.T.D.) at paragraph
9. The Respondent submits that the reasons provided by the IAD were adequate.
Denial of
the Adjournment Request
[47]
On
this point, the Respondent submits that the IAD reasonably declined the
Applicant’s request for an adjournment for his father to attend the hearing.
The Respondent relies upon Tripathi v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1232 which held
that it was not a breach of natural justice to deny an adjournment of an appeal
to permit the attendance of two witnesses. It was within the discretion of the
IAD to refuse the adjournment: Prassad v. Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 and Howard
v. Stoney Mountain Institution, [1984] 2 F.C. 642.
ANALYSIS
The Wife and
Child
[48]
The Applicant says that the IAD’s reasons and conclusions
with regard to the best interests of Olivia and hardship to the Applicant’s
wife were both unreasonable and inadequate.
[49]
It is clear from the Decision that the IAD was alert, alive
and sensitive to Olivia’s interests because the IAD addressed the relevant
evidence at paragraph 28 and found that “the best interests of the appellant’s
daughter would be directly affected by the decision.” At paragraph 39, however,
the IAD concludes that “the appellant’s criminal conduct outweighs the positive
aspects of his case including his close relationship with his family, daughter
and stepson.”
[50]
Clearly then, the IAD considered the impact of the
Applicant’s removal upon Olivia but concluded that her interests could not
outweigh the Applicant’s criminal conduct. The Applicant says this was not
enough and that the IAD should have explained why it chose to strike the
balance in the way it did.
[51]
The Federal Court of Appeal in Legault v. Canada (Minister
of Citizenship and Immigration) 2002, 212 DLR (4th) 139 at
paragraph 12 has provided the following guidance:
12 In
short, the immigration officer must be “alert, alive and sensitive” (Baker,
para. 75) to the interests of the children, but once she has well identified
and defined this factor, it is up to her to determine what weight, in her view,
it must be given in the circumstances. The presence of children, contrary to
the conclusion of Justice Nadon, does not call for a certain result. It is not
because the interests of the children favour the fact that a parent residing
illegally in Canada should remain in Canada
(which, as justly stated by Justice Nadon, will generally be the case), that
the Minister must exercise his discretion in favour of said parent. Parliament
has not decided, as of yet, that the presence of children in Canada constitutes in itself an
impediment to any “refoulement” of a parent illegally residing in Canada (see Langner
v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.),
leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995).
[52]
It is well established that the duty to give reasons is only
fulfilled if the reasons provided are adequate. Once again, the Federal Court
of Appeal has provided comprehensive guidance on this issue in VIA Rail
Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at
paragraphs 17-22:
17 The duty to provide reasons is a
salutary one. Reasons serve a number of beneficial purposes including that of
focussing the decision maker on the relevant factors and evidence. In the words
of the Supreme Court of Canada:
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.
18 Reasons also provide
the parties with the assurance that their representations have been considered.
19 In addition, reasons
allow the parties to effectuate any right of appeal or judicial review that
they might have. They provide a basis for an assessment of possible grounds for
appeal or review. They allow the appellate or reviewing body to determine
whether the decision maker erred and thereby render him or her accountable to
that body. This is particularly important when the decision is subject to a
deferential standard of review.
20 Finally, in the case of
a regulated industry, the regulator's reasons for making a particular decision
provide guidance to others who are subject to the regulator's jurisdiction.
They provide a standard by which future activities of those affected by the
decision can be measured.
21 The duty to give
reasons is only fulfilled if the reasons provided are adequate. What constitutes
adequate reasons is a matter to be determined in light of the particular
circumstances of each case. However, as a general rule, adequate reasons are
those that serve the functions for which the duty to provide them was imposed.
In the words of my learned colleague Evans J.A., "[a]ny attempt to
formulate a standard of adequacy that must be met before a tribunal can be said
to have discharged its duty to give reasons must [page36] ultimately reflect
the purposes served by a duty to give reasons."
22 The obligation to
provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion. Rather, the decision
maker must set out its findings of fact and the principal evidence upon which
those findings were based. The reasons must address the major points in issue.
The reasoning process followed by the decision maker must be set out and must
reflect consideration of the main relevant factors.
[53]
In the present case, the Applicant’s complaint is that the
reasoning process followed by the IAD in deciding that his criminality
outweighed the interests of Olivia is not set out and does not show how the
relevant factors were balanced.
[54]
In my view, however, the reasoning process for the IAD’s
conclusions is easily understood from a reading of the Decision as a whole in
the context of the Applicant’s history. This was a review of an earlier
decision to grant the Applicant a stay of removal upon certain conditions. It
had been made clear to the Applicant that the positive factors in his case
warranted giving him a chance to stay in Canada, but
only if he fulfilled the stated conditions and, in particular, avoided further criminality.
The Applicant subsequently breached the conditions upon which the stay was
based and engaged in serious criminal conduct. The IAD reviewed the stay and
all of the Ribic factors and decided that the positive factors,
including Olivia’s interests, could no longer be used by the Applicant to
shield him from the consequences of his continued criminality.
[55]
In this context, I do not think that anything further in the
way of reasons was required. The Applicant fully understood that the stay he
was granted was conditional upon his fulfilling the conditions. He understood
that the positive factors, fully identified and assessed, could not be used to
shield him a second time. The Decision re-examines the Ribic factors but
it must be obvious to the Applicant that he has been given his chance and that
he cannot remain in Canada and behave the way he has chosen to behave, even if
that means that his daughter’s interests, if considered in isolation, are a
positive factor to keep him here.
Hardship
to the Applicant’s Wife
[56]
Once again, the IAD identifies the hardship to the
Applicant’s wife and concludes that this is another “positive aspect” that
cannot shield him from the consequences of his criminality. These matters are
identified and addressed at paragraphs 14, 26 and 39 of the Decision. And, once
again, in the context of the Decision as a whole and the history of this case,
it is obvious why the IAD reached this conclusion. The reasoning is plain and
the conclusion is reasonable.
Evidence
Ignored
[57]
The Applicant has provided a long list of evidence that he
claims the IAD either ignored or misconstrued. My review of the Decision leads
me to conclude that this evidence was not ignored. The IAD is careful to recite
the full facts and to identify the “positive aspects” of the Applicant’s claim.
In my view, what the Applicant is really complaining about is that, in weighing
all of the evidence, and applying the Ribic criteria, the IAD decided
that his recidivism meant that the stay of his deportation could no longer be
justified.
Breach
of Natural Justice
[58]
The Applicant says that the IAD breached the principles of
natural justice by failing to grant him an adjournment to admit his father’s
oral testimony.
[59]
The Applicant says that his father’s oral testimony was
important and his father’s letters of support were not sufficient because the IAD
did not accept the information and the reasoning in the letters, or the IAD
minimized the concerns raised in applying the Ribic factors, so that his
father’s oral testimony might have persuaded the IAD to come to different
conclusions and strike a different balance.
[60]
Rule 48(4)(e) from the IAD Rules of Procedure says
that “in the case of a party who wants more time to obtain information in
support of the party’s arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice” is one of the factors
that should be considered when a request for an adjournment is made.
[61]
It is also well established that a refusal to grant an
adjournment may amount to a denial of procedural fairness if the refusal is
unreasonable in the circumstances. See Jones & De Villars, Principles of
Administrative Law, 4th Edition, Thompson & Carswell, 2004
at page 309.
[62]
However, there is no absolute right to an adjournment and the
IAD clearly has the jurisdiction to grant or refuse an adjournment on proper
grounds.
[63]
The IAD gave its reasons for refusing the adjournment: “The
appellant’s father knew of the hearing. He filed two letters in support of the
appellant’s case. He chose not to attend the hearing.”
[64]
No explanation was, or has been, offered as to why the father
failed to appear to give oral evidence and left the IAD to consider his
letters.
[65]
In Gittens v. Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 373 at paragraphs 7-10, Justice Strayer
dealt with a refusal to adjourn to enable a psychologist to testify:
7 I think the only
issue of substance raised by the Applicant is that the IAD might have denied
him procedural fairness by refusing to grant the adjournment to enable the
psychologist to testify viva voce.
The authoritative factors for consideration by the IAD in deciding in whether
or not to grant an adjournment are set out in the Immigration Appeal Division
Rules, subsection 48(4) which states as follows:
48(4) In deciding the application, the Division must consider any
relevant factors, including
(a) in the case of a date and time that
was fixed after the Division consulted or tried to consult the party, any
exceptional circumstances for allowing the application;
(b) when the party made the
application;
(c) the time the party has had to
prepare for the proceeding;
(d) the efforts made by the party to be
ready to start or continue the proceeding;
(e) in the case of a party who wants
more time to obtain information in support of the party's arguments, the ability
of the Division to proceed in the absence of that information without causing
an injustice;
(f) the knowledge and experience of any
counsel who represents the party;
(g) any previous delays and the reasons
for them;
(h) whether the time and date fixed for
the proceeding were peremptory;
(i) whether allowing the application
would unreasonably delay the proceedings; and
(j) the nature and complexity of the
matter to be heard.
* * *
48(4) Pour statuer sur la
demande, la Section prend en considération tout élément pertinent. Elle examine
notamment :
a) dans le cas où
elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de
consulter la partie, toute circonstance exceptionnelle qui justifie le
changement;
b) le moment auquel
la demande a été faite;
c) le temps dont la
partie a disposé pour se préparer;
d) les efforts
qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où
la partie a besoin d'un délai supplémentaire pour obtenir des renseignements
appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces
renseignements sans causer une injustice;
f) dans le cas où
la partie est représentée, les connaissances et l'expérience de son conseil;
g) tout
report antérieur et sa justification;
h) si la date et
l'heure qui avaient été fixées étaient péremptoires;
i) si le fait
d'accueillir la demande ralentirait l'affaire de manière déraisonnable;
j) la nature et la
complexité de l'affaire.
I
would first observe that the opening words of the subsection direct the
Division to consider "relevant factors" including the ones
enumerated. This does not mean that the IAD must expressly consider each of the
factors enumerated whether relevant or not to the particular case. I do not
take that to be a direction to the IAD to recite in its reasons a formulaic
consideration of each enumerated point whether relevant or not. The spirit of
this exercise is, I think, described in Siloch v. Canada (Minister of Employment and Immigration)
(FCA), [1993] F.C.J. No. 10 where Justice Décary in speaking of a similar
situation not governed by the specific rules said that in exercising his
discretion whether to grant an adjournment or not, an adjudicator should direct
his attention to factors “such as” and then listed a number of factors similar
to those in subsection 48(4) of the Immigration Appeal Division Rules.
8 I believe a
careful reading of the IAD decision would indicate that attention was paid to
the relevant factors referred to in the Appeal Division Rules, subsection
48(4). With respect to (a), the tentative date of December 19, 2006 was set in
consultation with counsel. Thereafter counsel made several requests for an
adjournment all for the same reason, namely that Dr. Russell could not be
available on December 19th. It is apparent that the IAD did not think that was
such an exceptional circumstance as to require an adjournment, having regarded
to the fact that Dr. Russell's written opinion would be available. Factor (b)
was therefore not important: the request for an adjournment was made in a
timely fashion and was dismissed on the merits, the IAD feeling that the
written report would suffice. Relevant to these considerations is the fact that
the Applicant and his counsel knew since September that it was the intention of
the IAD to go ahead and they therefore had ample time to prepare. Therefore
factors (c), (d), and (e) were irrelevant. Factor (f) was also irrelevant:
there was no question as to the knowledge and experience of counsel for the
Applicant nor that she was in any way unavailable to represent her client at
the time in question. Factors (g) and (i) were obviously considered by the IAD,
having regard to the seven years that the Applicant had been under order of
deportation subject to stays whose conditions he had not respected. Factor (h)
is irrelevant on its terms. Factor (j) was obviously taken into account by the
IAD in considering that the issues which the psychologist could usefully
address could be adequately treated by the written report.
9 I believe it was
open to the trier of fact to reach that conclusion, considering the nature of
the Tribunal and the fact that it often receives evidence in writing. Counsel
for the Applicant suggests that a quite different result might have flown from
having the psychologist testifying in person. The fundamental issue was whether
the Applicant's many breaches of the terms of his stay, involving criminal and
quasi criminal acts, could simply be treated as a "relapse". It was
certainly open to the IAD to come to an independent conclusion on that and it
was not bound to follow the pronouncements of the psychologist whether written
or oral. I am not satisfied that the Applicant suffered any injustice from not
having the oral evidence of Dr. Russell placed before the IAD: see Tripathi v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1232.
10 The Court owes no
deference to the Tribunal in respect of questions of procedural fairness: Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. However, I am
satisfied that the hearing by the IAD was procedurally fair even though an
adjournment was refused. It must be kept in mind that this was not a case
where, by reason of refusal of an adjournment, the Applicant had no counsel.
There are numerous cases where a refusal to adjourn because counsel is not
available have been held to be procedurally unfair because the presence of
counsel adds a quality to the whole presentation which may not be available
otherwise. In the present case the issue had to do with one witness, a witness
who had provided his opinion in writing, and which the Panel clearly considered
seriously. I might add also that the Panel had before it Dr. Russell's curriculum vitae which disclosed
that he was not an authority on recidivism of criminals but rather on family
relations. This would be a factor to be considered if the matter were sent back
for re-hearing and which suggests to me that there would be no point in sending
it back.
[66]
In the present case, the issue, once again had to do with one
witness who had clearly articulated his support for the Applicant in writing,
and that letter was considered by the IAD. The Applicant simply complains that
his father might have been more persuasive in giving oral testimony and might
have changed the IAD’s mind.
[67]
Taking all of these factors into account, I do not think it
can be said that the refusal was unreasonable on these facts. The Applicant has
not shown that the refusal prevented him from presenting his case adequately or
that the hearing was rendered unfair. The father’s position was clearly before
the IAD in writing and was taken into account in the Decision. In the absence
of affidavit evidence from the Applicant or his father explaining the situation
and setting out what difference oral testimony would have made, there is
nothing to suggest that the IAD might have been persuaded to strike a different
balance if an adjournment had been allowed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”