Date: 20091001
Docket: IMM-3418-08
Citation: 2009 FC 992
Ottawa, Ontario, October 1, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
DE
BING LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by De Bing Li challenging a decision of
the Immigration Appeal Division of the Immigration and Refugee Board (IAD)
which declined to stay his removal to China.
I. Background
[2]
Mr.
Li became a permanent resident of Canada on May 1, 2000. He is
38 years old. He is married to a Canadian citizen and they are the parents of
two young Canadian children ages four years and one year.
[3]
In
2003 Mr. Li quit his job and became involved in a marijuana grow operation.
This led to a charge under ss. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, to which
Mr. Li pleaded guilty on August 25, 2005. He was sentenced on February 3,
2006 to 16 months of community detention and conditions.
[4]
On
November 30, 2006, Mr. Li was declared inadmissible to Canada because of
serious criminality. He appealed that decision to the IAD. Notwithstanding a
recommendation from counsel for the Minister that a conditional stay of deportation
be ordered, the IAD, in a decision issued on July 2, 2008, confirmed Mr. Li’s
deportation. It is from that decision that this application for judicial
review arises.
II. Decision
Under Review
[5]
The
IAD was not impressed by Mr. Li’s evidence and it found him not to be
credible. This negative assessment was based on Mr. Li’s attempts to minimize
the significance of his criminal conduct including some testimony that he did
not know at the time that stealing power and growing marijuana were illegal. This,
in turn, led the IAD to conclude that Mr. Li’s expression of remorse and his
claim to be rehabilitated were not genuine.
[6]
The
IAD apparently felt that Mr. Li had been treated rather leniently in the
criminal court and that the principle of general deterrence had not been
satisfied. At the same time, the IAD did acknowledge that this was a
consideration which had not been previously recognized among the so-called Ribic factors.
All of this is evident from the following passages from the IAD decision:
[27] This reaction on the
appellant’s part and his performance in the appeal hearing bring to mind how
important it is to have a result which will discourage foreign nationals and
permanent residents from getting involved in these types of criminal activities
in the first place.
[28] Appellant’s testimony was quite
eloquent on this point. Mr. Wang basically seeks out people such as
himself, the appellant, and very easily convinces them that there is money to
be made with grow-ops and that he need not to worry about the sanctions. One
can only imagine how Mr. Wang described the leniency of the Canadian legal
system to the appellant while he was selling him on the idea of getting
involved in the narcotics business. I find that this is a very serious matter and
I also find that granting a stay as an automatic reaction to the fact that this
appellant has young children in Canada,
would only go a step further in confirming to permanent residents that they
need not be overly concerned about getting involved in such operations. Even
should they eventually get caught, they will serve time in the community and
will not be deported from Canada.
[…]
[35] This panel finds that the
appellant’s attitude and his claim of blissful ignorance, in the presence of
direct evidence of the contrary, simply cannot merit special relief from the
deportation order made against him. Further, I find that allowing special
relief in circumstances where, such as this one, the appellant, is not
rehabilitated and has not shown remorse, would only reinforce the hand of
individuals such as Mr. Wang, who prey upon newly-arrived people in Canada, and
make them easy marks when these predators can, in fact, show them that illegal
operations of the magnitude of grow-ops do not merit any other form of
retribution than time served, or restriction of movement to an individual’s
home and business or place of work, and no deportation order inasmuch as you
can establish that you have young children who financially depend on you. This
is one of the circumstances which was not enumerated in Ribic, but which
needs to be considered when allowing special relief.
[7]
The
IAD also linked the issues of remorse and rehabilitation to its assessment of
the best interests of Mr. Li's children in the following way:
[30] The fact that the appellant
would accept to be part of such an organization speaks volumes about his value
system. This value system is important because of his claim that his presence
in Canada is required in the best
interest of his two children. His counsel asked the panel to conclude that
this would be the case as the best interest of the children would, of
necessity, be well-served by this individual’s presence in Canada. I do not agree.
[31] The panel cannot presume as to
the nature of the education that this individual would give to these two young
children in the future years, and this presumption cannot exist in either
direction, except with regards to the previous conclusion of this panel, as to
this appellant’s lack of remorse in rehabilitation. When there is remorse and
rehabilitation, then a fairly strong argument can be presented that the
appellant, having learned the errors of his ways, will transmit this knowledge
to his own children. The contrary argument is just as convincing. In a case
where there is no rehabilitation, and no remorse, then it is fairly clear that
this individual may well, impart his values on his children as he is charged
with their education. As things now stand with the appellant, the only
objective finding in his favour is that he is bringing in a revenue to this
household. Again, on that ground the panel cannot help but notice that he
failed to do so apparently from 2003 until 2006. So again, the argument that
he is recently employed does not carry much weight, given his past inaction
from 2003 until 2006.
III. Issues
[8]
(a) Did
the IAD err in law in the exercise of its discretion under ss. 67 and 68 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) by
taking into account the principle of general deterrence?
(b) Did
the IAD err in its assessment of the evidence concerning the best interests of
the children affected by the Applicant’s deportation?
IV. Analysis
[9]
The
scope of the IAD’s humanitarian and compassionate discretion in this case is
defined by ss. 67 and 68 of the IRPA, above. Those provisions state:
|
67.
(1) To allow an appeal, the Immigration Appeal Division must be satisfied
that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in
law or fact or mixed law and fact;
(b) a principle of natural justice has
not been observed; or
(c) other than in the case of an appeal
by the Minister, taking into account the best interests of a child directly
affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of
the case.
Effect
(2) If the Immigration Appeal Division
allows the appeal, it shall set aside the original decision and substitute a
determination that, in its opinion, should have been made, including the
making of a removal order, or refer the matter to the appropriate
decision-maker for reconsideration.
Removal
order stayed
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.
|
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé
:
a) la décision attaquée est erronée en
droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe
de justice naturelle;
c) sauf dans le cas de l’appel du
ministre, 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.
Effet
(2) La décision attaquée est cassée; y
est substituée celle, accompagnée, le cas échéant, d’une mesure de renvoi,
qui aurait dû être rendue, ou l’affaire est renvoyée devant l’instance
compétente.
Sursis
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.
|
In Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, the Court dealt at length with the standard of review pertaining to
the IAD’s discretion under these provisions. The issue of whether the discretion
includes the consideration of the principle of general deterrence is one of law
which must be assessed on the standard of correctness. The issue of whether
the IAD erred in its assessment of the best interests of the children is one of
mixed fact and law which dictates a review on the deferential standard of
reasonableness.
[10]
It
is not for the Court to reweigh the evidence or to revisit the IAD’s
credibility findings: see Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339. Even if I had such a discretion, I would not be disposed to
exercise it because Mr. Li’s attempts to minimize the significance of his conduct
justified the IAD’s negative views about the prospects for his rehabilitation.
[11]
Having
regard to the Ribic factors, it was entirely appropriate for the IAD to
examine Mr. Li’s apparent lack of remorse and the absence of a serious
commitment to rehabilitation and, on the evidence before it, to come to a
conclusion different from that reached in the criminal proceeding. These are
matters which are obviously relevant to the risk of re-offending. The question
before me is whether, in denying relief to Mr. Li, it was correct in law for the
IAD to take into consideration general deterrence, which is a criminal law principle
of sentencing.
[12]
I
would note that the Ribic factors focus on the individual seeking relief
and not on broad public interest concerns. The public interest may, of course,
be served by a deportation especially where there is a perceived recidivism
risk, but the emphasis is clearly placed on the personal circumstances of the
offender in the context of affording possible relief from deportation. The IAD
is required to consider whether the individual before it should be allowed to
remain in Canada on humanitarian
and compassionate grounds.
[13]
Given
the frequency with which the Ribic factors have been applied since 1985
one might well have expected to see an earlier recognition of general
deterrence if it was a relevant and meritorious consideration in the exercise
of the IAD’s mandate. Instead, what authority there is indicates that it is
not appropriate for the IAD to act as some sort of an adjunct to the criminal
courts.
[14]
The
recognition that the IAD’s function is not to mete out punishment or to serve
the principle of general deterrence goes back at least as far as the decision of
the Court of Appeal in Hurd v. Canada
(Minister of Employment and Immigration) (1988), [1989] 2 F.C. 594, 12 A.C.W.S. (3d) 328 (F.C.A.). There the
Court was concerned with a challenge brought under ss. 11(h) of the Canadian
Charter of Rights and Freedoms based on the argument that deportation as a
consequence of a criminal conviction constituted impermissible double
punishment. The Court rejected that argument on the following basis:
The implication of all this case law is
that a deportation proceeding should not be considered to be within subsection
11(h) of the Charter. Besides authority, there is, moreover, good reason to
come to the same conclusion. The necessary redressing of the wrong done to
society, and the goal of deterrence of others, has already been accomplished
through the criminal conviction. The purpose of the deportation proceedings is
not any larger-than-personal social purpose, but merely to remove from Canada an undesirable person. It is
individual deterrence, as it were, not social deterrence. Deportation under
the Immigration Act, 1976 is thus to be distinguished from the older
criminal sanctions of banishment or transportation to a penal colony, in which
a citizen was deported from his country of birth as part of his punishment, and
so was just another penal consequence. It cannot be supposed that deportation
to a deportee’s country of birth is a true penal consequence. It may, in
particular circumstances, amount to a grave personal disadvantage, but not to
the kind of larger-than-merely-personal disadvantage to which subsection 11(h)
of the Charter is directed. Deportation is analogous, rather, to a loss of a
licence or to dismissal from a police force, or to the forfeiture of a right to
practice a profession.
[15]
Although
the majority decision in Canada (Minister of Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 noted that the Ribic factors
were not exhaustive of the scope of the IAD’s humanitarian and compassionate
discretion, the need for it to maintain a clear separation from the criminal
process was noted at paragraphs 65 and 66:
65 In terms of transparent and
intelligible reasons, the majority considered each of the Ribic factors.
It rightly observed that the factors are not exhaustive and that the weight to
be attributed to them will vary from case to case (para. 12). The majority
reviewed the evidence and decided that, in the circumstances of this case, most
of the factors did not militate strongly for or against relief. Acknowledging
the findings of the criminal courts on the seriousness of the offence and possibility
of rehabilitation (the first and second of the Ribic factors), it found
that the offence of which the respondent was convicted was serious and that the
prospects of rehabilitation were difficult to assess (para. 23).
66 The weight to be given to the
respondent’s evidence of remorse and his prospects for rehabilitation depended
on an assessment of his evidence in light of all the circumstances of the
case. The IAD has a mandate different from that of the criminal courts.
Khosa did not testify at his criminal trial, but he did before the IAD. The
issue before the IAD was not the potential for rehabilitation for purposes of
sentencing, but rather whether the prospects for rehabilitation were such that,
alone or in combination with other factors, they warranted special relief from
a valid removal order. The IAD was required to reach its own conclusions
based on its own appreciation of the evidence. It did so.
[Emphasis added]
[16]
Even,
in its own decisions, the IAD has respected this distinction. The IAD’s
decision in Khosa v. Canada (Minister of Citizenship
and Immigration), [2004] I.A.D.D. No. 1268 (QL), offers an example
of this where the majority held as follows:
23 Counsel for the appellant made
lengthy submissions contending that it is not the function of the Division to
mete out further punishment to this appellant for his offence. Counsel is
entirely correct that it would be inappropriate for the panel to take that role
upon itself. The criminal justice system has spoken with respect to the appellant's
guilt and handed down a sentence consistent with principles of sentencing in Canada. The role of the Division is
distinct and separate from the criminal courts. This is an application for
discretionary relief. Domestic immigration legislation provides that a removal
order may be made as against permanent residents who are inadmissible on the
grounds of serious criminality. When an appeal is taken from a removal order,
the Division must look at all the circumstances in any given case, weigh the various
factors both supportive and non-supportive of special relief and reach a
determination. […]
In the dissenting opinion, the same point
was made:
31 [5] It is not for the IAD to
exercise its discretion for punishment or deterrence, as it is prohibited by
law from doing so. It goes without saying that the actions of the Appellant are
not condoned. However, the IAD must apply the proper legal test and therefore
must consider all the circumstances.
[17]
The
rationale for the principle of general deterrence in criminal sentencing is to
send a message into the community. The imposition of a criminal sanction for
the purpose of setting an example is clearly an aspect of punishment which has
no place in the process of immigration deportation. One of the other dangers
associated with the blurring of the IAD’s humanitarian and compassionate
discretion into the criminal sphere is that the resulting decision may look, as
in this case, like an attempt to redress a perceived sentencing inadequacy.
That point and the risk of turning the IAD hearing into a quasi-criminal proceeding
were noted by Justice Robert Décary in Khosa v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 24, [2007] 4 F.C.R. 332 at
paragraph 18.
[18]
Although
it is not strictly necessary to deal with the IAD’s assessment of the best
interests of the children, this is a sufficiently important consideration that
it bears some scrutiny. The IAD’s comments about the interplay between Mr.
Li’s lack of insight into his conduct and his role as a parent appear somewhat
overstated and speculative. But in any event, the IAD’s reduction of the best
interests consideration to a balancing between Mr. Li’s financial contribution
and the potential for inculcating his children with the wrong set of values is
an oversimplification. There was far more evidence of Mr. Li’s positive
contributions to the welfare of his children than is fairly captured by his
acknowledged role as a financial contributor to the household. Mr. Li’s wife
testified that he was directly involved in a caregiving role and that she could
not handle those responsibilities on her own. She also noted in her 2007
statement to the IAD that Mr. Li had formed a healthy and meaningful bond with
their eldest son and that Mr. Li was a good father. The failure by the IAD to
acknowledge this evidence and to focus instead on its contrary perception of
him as a poor role model to his children constitutes a capricious finding made
without regard to the evidence and the decision must also be set aside on that
basis.
V. Conclusion
[19]
I
am satisfied that the IAD erred in law by applying the principle of general
deterrence in the exercise of its humanitarian and compassionate discretion. I
am also satisfied that the IAD erred in its treatment of the evidence
concerning the best interests of the children. In the result, this matter must
be returned to a differently-constituted panel of the IAD for reconsideration
on the merits.
[20]
Because
the Respondent had expressed an interest in proposing a certified question with
respect to the issue of general deterrence, I will allow 10 days to make that
submission. The Applicant will have 7 days to respond.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be returned to a differently-constituted panel of the IAD for
reconsideration on the merits.
“ R. L. Barnes ”
Email this Content