Date: 20110718
Docket: IMM-3404-10
Citation: 2011 FC 895
Ottawa, Ontario, July 18,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
AUDLEY HORACE GARDNER
BY HIS LITIGATION GUARDIAN,
MARCIA REID
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of Jillan Sadek, Director
of Case Determination in the Case Management Branch of Citizenship and Immigration
Canada (the Officer) dated April 22, 2010. The Officer decided not to
grant the Applicant permanent resident status based on humanitarian and
compassionate (H&C) grounds. The Applicant sought to overcome
inadmissibility for serious criminality. This decision was communicated to the
Applicant by way of letter, dated May 28, 2010.
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. The
Facts
[3]
The
Applicant, Audley Horace Gardner, is a 48 year-old citizen of Jamaica. His sister
sponsored him to come to Canada in 1980, when he was just 18 years old. Eight
years later, the Applicant was diagnosed with paranoid schizophrenia and found
not criminally responsible following a violent offence. The Applicant received
in-patient care for a year and a half. After his discharge in 1993, the
Applicant received outpatient care in the form of weekly assessments and
medication monitoring. He was given antipsychotic medication by injection
until 2003, at which time he began taking pills instead. The Applicant is also
diabetic.
[4]
In
2004, the Applicant was evicted from his apartment. He was unable to secure
new housing and spent the next year and a half living in various homeless
shelters. The Applicant’s counsel indicated that this time period coincided
with the return of the Applicant’s schizophrenic symptoms as it became
increasingly difficult for him to take his medication regularly and manage both
his schizophrenia and his diabetes.
[5]
On
October 29, 2004, the Applicant stabbed a fellow resident at the shelter where
he lived. The Applicant was convicted of assault with a weapon in June of
2005. He was found inadmissible on the grounds of serious criminality and
ordered deported on April 24, 2007. He was also convicted of two other
assaults in the year following the 2004 stabbing, one with a weapon.
[6]
On
January 31, 2008 the Immigration Appeal Division (IAD) dismissed the
Applicant’s appeal of the deportation order. The panel found that while
“something must have happened” in 2005, they had no evidence before them
to explain what that “something” was, and no reliable medical evidence
demonstrating that the Applicant’s violent behaviour could be controlled. The
Applicant testified that he remained on antipsychotic medication. Based on the
lack of evidence to the contrary before the IAD, the panel found that the
Applicant had committed these violent assaults while on medication, and
therefore he posed too great a continuing threat to the health and safety of
the Canadian public for the panel to exercise its H&C jurisdiction under paragraph
67(1)(c) of the Immigration and Refugee Protection Act, RS 2001, c 27
[IRPA]. The Applicant applied for leave and judicial review of the IAD’s
decision. Leave was denied on June 3, 2008.
[7]
The
Applicant submitted a Pre-Removal Risk Assessment (PRRA) application on
February 11, 2008. A negative PRRA decision was rendered on April 30,
2008. The PRRA officer found that any risk to life the Applicant faced upon
returning to Jamaica was due to
the inadequacy of medical care available in Jamaica. Thus, the
Applicant fell within the medical exception under subparagraph 97(1)(b)(iv) of
the IRPA. The PRRA officer went on to review the documentary evidence and
concluded that “should the applicant require legal, medical, or financial
assistance, he would have avenues of recourse available to him.”
[8]
The
Applicant has been in detention at Toronto West Detention Centre since 2007.
[9]
The
Applicant applied for permanent residence on H&C grounds on November 28,
2008.
[10]
On
October 20, 2010, Justice John O’Keefe found the Applicant unfit to instruct
counsel and appointed the Applicant’s niece, Ms. Marcia Reid, as his litigation
guardian.
B. Impugned
Decision
[11]
The
H&C Officer weighed the possible danger the Applicant might pose to the
Canadian public against the possible risk to the Applicant upon return to Jamaica and found
that a waiver of the Applicant’s criminal inadmissibility was not warranted in
the circumstances.
[12]
The
Officer concluded that it was likely that the Applicant would pose a danger to
the Canadian public in the future. She relied on the IAD’s decision to
establish that the Applicant was a high risk offender who violently attacked strangers
without provocation.
[13]
The
Officer found that “Mr. Gardiner’s criminal offences appear to be tied to his
mental health – specifically whether or not he takes the medicine required to
treat his mental illness.” (Certified Tribunal Record (CTR) pg 6) She noted
that Dr. Siu’s medical report indicated that the Applicant had “poor insight
into his mental illness” and at the time of assessment the Applicant was at
risk of discontinuing his medication if not closely monitored (CTR pg 7). The
Officer then assessed the Applicant’s plan to ensure he remained medicated,
which included living with his niece (who works for an organization that helps
families of persons with mental illness), as well as participation in a
community mental health program five days a week. She concluded that this plan
was inadequate, since the Applicant had not consented to receiving his
medication by injection instead of orally, and all the elements of the plan
depended on the ongoing voluntary participation of both the Applicant and his
niece.
[14]
The
Officer then weighed the above potential to re-offend against the Applicant’s
connections to Canada and the hardship facing the Applicant if returned to Jamaica. She found
that the Applicant’s departure would not be a great hardship for his family
remaining in Canada, and that while
the Applicant had lived most of his life in Canada, he did not
demonstrate any economic establishment or positive involvement in the
community.
[15]
The
Officer found that the appropriate medication was available in Jamaica, as well as
subsidies to assist appropriately registered persons in meeting the cost of the
prescription. The Officer noted that the Canada Border Services Agency (CBSA)
had attempted to make suitable reception arrangements for the Applicant upon
his return.
[16]
The
Officer acknowledged Counsel’s submissions recounting the results of their
investigation of the CBSA arrangements. Counsel’s investigation revealed that
the organization that the individual responsible for arranging the Applicant’s
reception in Jamaica, Captain Rubin
Phillips, purportedly worked with had recently severed ties with him for
appropriating thousands of dollars. The Officer confirmed with the CBSA that
they continued to work with this individual and his new organization.
[17]
The
Officer also referred to a report from a prominent Jamaican psychiatrist,
Dr. Wendel Abel, regarding the availability of mental health services
in Jamaica. Dr. Abel
was also included as a participant in the CBSA’s arrangements for the
Applicant’s reception in Jamaica. His report included
comments indicating that the Applicant would be unlikely to be able to afford
the cost of medication in Jamaica, even if he were able
to get them at the subsidized rate. The psychiatrist indicated that the
Applicant could live in a shelter for a maximum of thirty days, and while there
was one mental hospital in Jamaica, it did not have enough
beds to provide transitional housing to unstable deportees. He noted that
since the Applicant did not have family members residing in Jamaica to support
him, “this man is more likely than not to end up on the streets of Jamaica.” (CTR pg
15)
[18]
The
Officer concluded that she had no reason to doubt the psychiatrist’s statements
regarding the treatment available in Jamaica, but accorded his
statements regarding the Applicant’s level of family support and ability to
afford medication little weight, since the doctor had not personally met the
Applicant and had no first-hand knowledge of the family’s whereabouts or
finances. The Officer then relied on the psychiatrist’s evidence that 30 days
of housing would be available, subsidized medication was available as long as
the Applicant secured a tax-payer registration number, and that the mental
hospital is able to serve acutely mentally ill patients.
[19]
The
Officer looked at a UK Home Office Report – which indicated that Jamaica
intended to move from centralized to community-based provision of mental health
services, and which observed that most psychiatric patients lived in the
community supported by family and nurses – as evidence that community-based
treatment was available.
[20]
Counsel
submitted that due to the inadequate care available in Jamaica, the
Applicant would likely become homeless and subject to public and police
brutality. The Officer looked at the documentary evidence and concluded that
the Jamaican authorities were aware of problems faced by the mentally-ill in
the system and were taking steps to address them. The Officer noted that the
Applicant might be subject to unprovoked attacks by prejudiced members of the
public, but noted evidence of community outrage at these attacks, indicating
that the public was “not all indifferent to the plight of mentally ill street
persons.” (CTR pg 20) The Officer referred to the PRRA officer’s conclusion
that state protection would be available. The Officer found that Counsel’s
submissions with regards to the likelihood of the Applicant being mistreated if
he becomes homeless or imprisoned were speculative, as there was insufficient
evidence to suggest that the majority of those with mental illness end up on
the street.
[21]
Counsel
submitted that the Applicant has no support system in Jamaica. The Officer
pointed to the fact that the Applicant’s father, who resides in Jamaica, visited him
in detention in 2009 and the Applicant had expressed interest in seeing him
again. The Applicant also has a brother there. She noted that “If Mr.
Gardner’s family in Canada is indeed attached and committed enough to help him
in Canada it is not evident why they would be disinterested in redirecting their
energies and financial resources to assist him in Jamaica.” (CTR pg 22)
[22]
The
Officer found that the level of care the Applicant would receive in Jamaica might be
less than in Canada, but that
some level of care was available. The Officer acknowledged that the Applicant
would benefit from assistance with daily tasks, but found that he had family
members interested in his welfare who appeared to be willing to offer
assistance. The Officer concluded that while it was possible that the Applicant
would end up homeless, abused and imprisoned, she was not satisfied that this
was more likely than not to occur.
[23]
Given
the conclusion that the Applicant poses a danger to the public and was not at
more than a mere risk of harm upon being returned to Jamaica, and after
considering the Applicant’s special needs, the Officer declined to waive the
Applicant’s inadmissibility for serious criminality on H&C grounds,
notwithstanding his long residency in Canada.
II. Issues
A. Did
the Officer draw unreasonable conclusions from the evidence before her?
(i) Did the Officer unreasonably reject
the proposed plan of care, based on an exaggerated perception of the Applicant’s
danger to the public?
(ii) Did
the officer unreasonably conclude that the Applicant would have family support
in Jamaica?
(iii) Did
the officer unreasonably conclude that the Applicant would not face risk in Jamaica?
B. Does
subsection 36(1) of the IRPA affect permanent residents with mental illness in
a discriminatory manner contrary to section 15 of the Charter?
III. Analysis
Standard of
Review
[24]
The
standard of review for questions of law is correctness, and the standard of
review for questions of fact and questions of mixed fact and law is
reasonableness. This is a judicial review of an H&C decision. The Applicant
submits he raises a question of law. However, in my view, the applicant raises
three questions of fact and a Charter challenge. As discussed in Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174
D.L.R. (4th) 193 at para 61, the standard of review for discretionary decisions
made on H&C grounds is reasonableness: “The decision about whether to grant
an H&C exemption involves considerable appreciation of the facts of a
person’s case, and is not one that involves definitive legal rules.” The
Supreme Court held in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 53 that “Where the question is one of fact, discretion or policy,
deference will usually apply automatically [citations omitted].” Therefore, the
three issues raising questions of fact should be reviewed according to the
reasonableness standard.
[25]
Reasonableness
has been held to require consideration of the existence of justification,
transparency, and intelligibility within the decision-making process. It is
also concerned with whether the decision falls within a range of acceptable
outcomes that are defensible in respect of facts and law (Dunsmuir,
above, at para 47).
[26]
A
Charter challenge raises neither a question of law or question of fact. It
raises a question of constitutional validity and therefore falls outside of the
standard of review.
A. Did
the Officer Draw Unreasonable Conclusions from the Evidence Before Her?
(i) Did the Officer
Unreasonably Reject the Proposed Plan of Care, Based on an Exaggerated Perception of the Applicant’s
Risk to the Public?
[27]
The
Applicant argues that the Officer set an unrealistic and unreasonable standard
for what would constitute a sufficient plan of care and exaggerated the
Applicant’s risk of relapsing once stable and properly medicated.
[28]
The
Respondent submits that the Applicant is asking the Court to re-weigh the
evidence. The Respondent argues that it was open to the Officer to come to the
conclusion she came to, since the proposed plan relied on the voluntary
participation of the Applicant.
[29]
In
my view, the Officer undertook a detailed analysis of the Applicant’s file and
came to a reasonable conclusion. As a long-time Canadian resident suffering
from mental illness, the Applicant presents a sympathetic fact scenario.
However, I am unable to say that she erred in concluding that the proposed care
plan was insufficient.
[30]
The
Officer noted that the likelihood of the Applicant’s rehabilitation was closely
linked to the Applicant’s ability to regularly take his medication. The
Applicant indicated to the psychiatrist who interviewed him in September 2009
that he was unwilling to resume taking his medication by way of injection, as
he had between 1993 and 2005 during which time he committed no crimes. The
Applicant submits that he only stopped taking his medication regularly when he
lost his housing and the Applicant’s niece has offered to have the Applicant
move in with her and her children to provide stable housing and ensure that he
takes his medication daily. Although the Officer acknowledged that the
Applicant’s niece appears to be well-connected to resources that would be of
great help to the Applicant, the Officer nonetheless had several concerns
regarding the proposed plan and put them to the Applicant. The concerns were
not abated after further submissions were received and the Officer remained
concerned that the plan was weak because it relied on the continued voluntary
participation of both the Applicant and his niece and involved exposing young
children to the Applicant on a daily and intimate basis.
[31]
The
Applicant’s submissions on this point largely amount to a claim that the
proposed plan addressed all concerns raised by the psychiatrist, and as such,
it could not reasonably be rejected by the Officer. Unfortunately, I do not
accept this proposition. I understand that the Applicant’s family did their
utmost to put together a plan that they hope would be accepted. The Applicant
submits that a voluntary plan is the only type of plan that can be arranged
while the Applicant’s illness is under control and while he is stable. Given
the state of the law with regard to mental illness, I understand that the plan
had to rely on the voluntary participation of the Applicant. However, it was
still open to the Officer to find that the plan did not satisfactorily address
potential risk issues. Because of the voluntary and thus ongoing-optional
nature of the plan, the Officer was concerned that the Applicant’s niece and
her two children would be exposed to an unacceptable level of risk. Given the
psychiatrist’s finding that the Applicant lacks insight into his mental illness
and is “unable to identify significant consequences of discontinuing his
antipsychotic medication” (CTR 7), this concern was reasonably rooted in the
possibility that the Applicant might not remain stable. The Officer could have
come to the opposite conclusion, but given that her decision was justified,
transparent and intelligible, it must stand.
(ii) Did the Officer
Unreasonably Conclude the Applicant Would Have Family and Community Support in Jamaica?
[32]
The
Applicant submits that the Officer erred in finding that community-based
treatment is available in Jamaica and that the
Applicant’s family would be able to provide meaningful support to him there.
The Applicant argues that these factual findings are unreasonable in the face
of the evidence.
[33]
The
Respondent submits that the Applicant only asks the Court to re-weigh the
evidence and disturb findings that were reasonably open to the Officer.
[34]
The
Officer referred to counsel’s submissions relating to the unavailability of a
support system for the Applicant in Jamaica and noted that the
Applicant would only be offered a place in a group home for a period of 30
days. However, the Officer also noted that the Applicant would have access to
subsidized medication, and should he become acutely mentally-ill the one mental
hospital in Jamaica would still
be able to serve him. The Officer also referred to a UK Home Office Report
indicating the availability of community-based care:
Currently all Jamaicans have access to
free health care in the public system, hence all persons in the population who
need psychotropic medication have access…In addition all severe and some mild
mental disorders are covered in social insurance schemes. (CTR pg 17)
[35]
Although
the Applicant attempted to show that the arrangements made by CBSA for the
Applicant’s reception in Jamaica were inadequate, the
Officer followed up with the CBSA. CBSA confirmed that they were still
working with Captain Philip’s, but recognized that he was no longer associated
with the Family Unification Resettlement Initiative – Jamaica (FURI) agency. The
Officer also noted that Dr. Abel, who provided a declaration describing
the difficulties the Applicant will likely face should he be returned to Jamaica, was also
referred to as participating in CBSA’s reception plans for the Applicant.
[36]
The
Officer acknowledged that given the Applicant’s statements to the psychiatrist
indicating that he would only take his medication if it were provided to him
for free, he would likely need personal and financial assistance and
encouragement to ensure that he obtained the drugs required should he be
returned to Jamaica. Although
the Applicant submitted that he would have no support system in Jamaica, the
Officer was of the opinion that Counsel was overstating the case, as his father
visited him in 2009 at the Metro West detention centre and he has a brother in Jamaica. The
Applicant submits that the Applicant’s father is nearly 80 years old and
suffering from pancreatic cancer, and his brother is estranged. According to
the Applicant, the reason the CBSA needed to make reception arrangements at all
was because there is no available family support in Jamaica.
[37]
I
must acknowledge that the Applicant’s return to Jamaica will present
him with many challenges. No one disputes that the Applicant would have better
access to mental health resources and family support in Canada. Unfortunately,
this factor alone does not allow me to disturb the Officer’s findings, which
follow a thorough analysis, and which I find to be reasonable in that they fall
within a range of defensible outcomes. The documentary evidence suggests that
the Applicant will be able to access a community-based psychiatric care
network, partially-subsidized medication and hospitalization should his illness
become acute. The Applicant’s niece appears to be concerned with the
Applicant’s well-being, so, as noted by the Officer, the possibility exists
that she, and other family members, might be able to re-direct financial
assistance in order to help re-establish the Applicant in Jamaica. These
conclusions were open to the Officer.
(iii) Did
the Officer Unreasonably Conclude That the Applicant Would Not Face Risk in Jamaica?
[38]
The
Applicant submits that the Officer unreasonably dismissed the risks that the
Applicant would face in Jamaica. The Applicant points
to evidence showing that without family and financial support, the Applicant would
likely end up homeless and vulnerable. Although the government has “begun to
address” abuse of the mentally ill, this is no protection against the present
reality.
[39]
The
Respondent submits that the Officer’s conclusion was reasonable. The PRRA
Officer found that legal, medical and financial assistance would be available
to the Applicant in Jamaica. This, combined with the Officer’s own
findings regarding the level of care in Jamaica, left it
open to the Officer to conclude that the Applicant’s allegations of risk were
based on a speculative chain of events.
[40]
I
agree with the Respondent that it was open to the Officer to find that the
Applicant’s allegations of risk did not necessarily result in the need for a
positive H&C decision, given all the avenues for assistance the Officer
found were available to the Applicant. The Applicant submitted evidence
illustrating risks of both homelessness and abuse faced by the mentally ill.
The Officer did not discount these risks but pointed out that it was not
necessarily certain that the Applicant would end up on the street, and if he
did it was not certain that he would be abused, for documentary evidence showed
that the state is attempting to reduce the generalized mistreatment and stigma
associated with the mentally ill. I find that it was reasonable for the
Officer to find that there was no more than a mere possibility that the
Applicant would face mistreatment if removed to Jamaica.
[41]
The
present matter is a difficult one. It vividly illustrates that citizens of Canada enjoy rights
not shared by permanent residents, who can lawfully be removed from the country
notwithstanding difficult personal circumstances or vulnerabilities. The
Officer noted that the Applicant has a mental disorder which will render his
life difficult no matter where he resides. It is important to remember that
H&C consideration is exceptional and discretionary, and is not a “back
door” through which to gain entry into Canada when the front door is closed (Mayburov
v Canada (Minister of Citizenship and Immigration), (2000), 183 FTR 280, 6
Imm LR (3d) 246 at para 39). Furthermore, jurisprudence of this Court
establishes that mental illness or other illness does not give non-Canadians
the right to remain in Canada (Beaumont v Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 787, 159 ACWS
(3d) 256 at para 14).
[42]
The
Officer gave thorough and detailed reasons. The decision is intelligible,
justified and transparent. The Applicant has not shown that evidence was
ignored or over-looked. Judicial deference is due to the decision and this
Court will not interfere.
B. Is
Subsection 36(1) of the IRPA Affect Permanent Residents with Mental Illness in
a Discriminatory Manner Contrary to Section 15 of the Charter?
[43]
The
Applicant submits that subsection 36(1) of the IRPA, while facially neutral,
adversely affects permanent residents with mental illness in a discriminatory
way because it fails to take into account the already disadvantaged position of
mentally ill foreign nationals. The result being that they are denied the
benefit of permanent residence and protection from removal because of their
disability, based on stereotypical assumptions that mentally ill people are
inherently dangerous and incapable of rehabilitation.
[44]
The
Respondent submits that the Applicant’s argument is speculative at best. The
Respondent points out that section 6 of the Charter distinguishes between the
right of citizens and non-citizens to remain in Canada. The
Respondent relies on Chiarelli v Canada (Minister of Employment and
Immigration), [1990] 2 FC 299, 67 DLR (4th) 697 (FCA) as authority for the
proposition that limiting the rights of non-citizens to remain in Canada in
accordance with section 6 does not infringe section 15 of the
Charter.
[45]
The
Applicant appears to be arguing for a positive duty to accommodate under
section 15. In my opinion, this argument cannot be supported on the facts
of this case.
[46]
The
current test for section 15 infringement is set out in R v Kapp, 2008
SCC 41. In order to satisfy the test, a claimant must establish that the
provision creates a distinction on the basis of an enumerated or analogous
ground, and that distinction must result in disadvantage or prejudice.
[47]
The
Applicant’s claim fails at the first stage of the Kapp test. As pointed
out by the Respondent, the Applicant’s principal complaint is that subsection
36(1) fails to differentiate between permanent residents or foreign nationals
without mental illness and permanent residents or foreign nationals with mental
illness, and that the provision results in harsher treatment for those with
mental illness. In Eldridge v British Columbia (Attorney General),
[1997] 3 S.C.R. 624, 151 DLR (4th) 577, the Supreme Court of Canada held that
once the government creates a right available to everyone, in that case free
health care, access to that right must be provided equally. However, in this
case, the government has not created such a right. Section 6 of the Charter and
Chiarelli, above, authoritatively establish that foreign nationals have
no right to remain in Canada, no matter their state of mental or
physical health. The Applicant’s argument fails.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
Email this Content