Date: 20111026
Docket: IMM-1665-11
Citation: 2011 FC 1184
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, October
26, 2011
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Marwan
Mohamad CHARABI
Applicant
and
MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a member of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board (IRB) made pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the Act) by Marwan Mohamad
Charabi (the applicant). The panel refused to grant a new stay of removal on
humanitarian and compassionate grounds.
[2]
The
applicant was born in Syria in 1965 and came to Canada in 1987. He
became a permanent resident. Between 1989 and 1996, he was convicted of the
following five offences:
·
1989:
obstructing a police officer
·
1992: assaults
·
1993: unlawful
manufacturing of tobacco
·
1994: uttering
threats
·
1996: conspiracy
to commit an indictable offence
[3]
On
March 9, 1999, the IAD issued a removal order against the applicant after finding
that he was inadmissible under subparagraph 27(1)(d)(ii) of the
former Immigration Act (a permanent resident convicted of an offence
punishable by a term of imprisonment of five years or more). The applicant
appealed this order before the IAD on humanitarian and compassionate grounds
and was granted a three‑year stay on August 11, 1999. On
November 6, 2002, an additional stay of one year was granted.
[4]
On
May 26, 2004, the IAD had to determine whether an additional stay was
warranted. It noted that the applicant had not complied with the conditions
imposed under the previous stays, notably a requirement to report any new
charges against him. In fact, the applicant had been charged in 2001 with
illegal possession of tobacco and also with theft and possession of stolen
property. Nonetheless, the IAD granted him an additional stay.
[5]
On
November 17, 2005, the IAD terminated the stay of removal order. The
applicant disputed that decision, and this Court allowed his application for
judicial review on August 17, 2006, remitting the matter to the IAD for
redetermination. At that time, the applicant was facing new criminal charges
and was awaiting trial. The file was therefore suspended.
[6]
On
October 1, 2010, the applicant admitted committing the offences he had
been charged with; he received a conditional discharge, a year of probation and
a $58,000 fine. As of today, the entire amount of the fine remains unpaid.
* * * * * * *
*
[7]
At
paragraph 13 of its decision, the panel considered the factors set out by the
Immigration Appeal Board in Ribic v. Minister of Employment and Immigration
(August 20, 1985), IAB 84-9623, to determine whether there were
circumstances justifying an additional stay.
[8]
The
panel noted that counsel for the applicant’s argument that he had committed
only two offences was not accurate. In addition, the panel noted that when the
applicant committed the 2005 offence he associated with Ibrahim Sobh, his
co‑perpetrator in the 2001 offence. The conditions of the stay prohibited
the applicant from associating with persons who have a lengthy criminal record.
The panel found that the applicant had therefore breached this condition as
well as the condition requiring him to report any new criminal charges. In the
panel’s view, the applicant’s affidavit attempted to minimize his criminal
activities. The panel also found that the applicant was not credible and that
his good behaviour since 2005 could be explained by his desire to not make his
situation before the criminal court worse.
[9]
The
panel noted that a stay had been granted to the applicant in 1999 because the IAD
had believed he would not reoffend. Moreover, the applicant has Canadian
children and their interests were taken into account. Because he reoffended
during the period of the stay, the panel was of the view that the applicant had
not considered the impact of his actions on his family.
[10] The IAD acknowledged
that, although the applicant would suffer hardship should he return to Syria, where he
has two sisters, he would not face a personalized risk.
[11] Last, the
panel found that this was not a case of an isolated offence but of a series of
criminal acts. The IAD was of the view that the applicant did not regret his
actions. Although he has a wife and children in Canada and his
departure would cause difficulties for them, and although the offences were not
violent, the IAD determined that the negative criteria were more important. The
IAD also found that nothing would prevent his family from visiting him in Syria. Last, the
IAD held that the applicant had had more than his share of opportunities to
change his criminal behaviour.
* * * * * * *
*
[12] The following
are the relevant statutory provisions:
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27:
|
Humanitarian
and compassionate considerations
65.
In an appeal under subsection 63(1) or (2) respecting an application based on
membership in the family class, the Immigration Appeal Division may not
consider humanitarian and compassionate considerations unless it has decided
that the foreign national is a member of the family class and that their
sponsor is a sponsor within the meaning of the regulations.
|
Motifs
d’ordre humanitaire
65.
Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision
portant sur une demande au titre du regroupement familial, les motifs d’ordre
humanitaire ne peuvent être pris en considération que s’il a été statué que
l’étranger fait bien partie de cette catégorie et que le répondant a bien la
qualité réglementaire.
|
|
Appeal
allowed
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.
|
Fondement
de l’appel
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.
|
|
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.
Effect
(2)
Where the Immigration Appeal Division stays the removal order
(a)
it shall impose any condition that is prescribed and may impose any condition
that it considers necessary;
(b)
all conditions imposed by the Immigration Division are cancelled;
(c)
it may vary or cancel any non-prescribed condition imposed under paragraph
(a); and
(d)
it may cancel the stay, on application or on its own initiative.
Reconsideration
(3)
If the Immigration Appeal Division has stayed a removal order, it may at any
time, on application or on its own initiative, reconsider the appeal under
this Division.
Termination
and cancellation
(4)
If the Immigration Appeal Division has stayed a removal order against a
permanent resident or a foreign national who was found inadmissible on
grounds of serious criminality or criminality, and they are convicted of
another offence referred to in subsection 36(1), the stay is cancelled by
operation of law and the appeal is terminated.
|
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.
Effet
(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.
Suivi
(3)
Par la suite, l’appel peut, sur demande ou d’office, être repris et il en est
disposé au titre de la présente section.
Classement
et annulation
(4)
Le sursis de la mesure de renvoi pour interdiction de territoire pour grande
criminalité ou criminalité est révoqué de plein droit si le résident
permanent ou l’étranger est reconnu coupable d’une autre infraction
mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
|
Criminal Code, R.S.C. 1985,
c. C-34:
|
Conditional
and absolute discharge
730.
(1) Where an accused, other than an organization, pleads guilty to or is
found guilty of an offence, other than an offence for which a minimum
punishment is prescribed by law or an offence punishable by imprisonment for
fourteen years or for life, the court before which the accused appears may,
if it considers it to be in the best interests of the accused and not
contrary to the public interest, instead of convicting the accused, by order
direct that the accused be discharged absolutely or on the conditions
prescribed in a probation order made under subsection 731(2).
. . .
|
Absolutions
inconditionnelles et sous conditions
730.
(1) Le tribunal devant lequel comparaît l’accusé, autre qu’une organisation,
qui plaide coupable ou est reconnu coupable d’une infraction pour laquelle la
loi ne prescrit pas de peine minimale ou qui n’est pas punissable d’un
emprisonnement de quatorze ans ou de l’emprisonnement à perpétuité peut, s’il
considère qu’il y va de l’intérêt véritable de l’accusé sans nuire à
l’intérêt public, au lieu de le condamner, prescrire par ordonnance qu’il
soit absous inconditionnellement ou aux conditions prévues dans l’ordonnance
rendue aux termes du paragraphe 731(2).
[…]
|
|
Effect of
discharge
(3)
Where a court directs under subsection (1) that an offender be discharged of
an offence, the offender shall be deemed not to have been convicted of the
offence except that
(a)
the offender may appeal from the determination of guilt as if it were a
conviction in respect of the offence;
(b)
the Attorney General and, in the case of summary conviction proceedings, the
informant or the informant’s agent may appeal from the decision of the court
not to convict the offender of the offence as if that decision were a
judgment or verdict of acquittal of the offence or a dismissal of the
information against the offender; and
(c)
the offender may plead autrefois convict in respect of any subsequent
charge relating to the offence.
|
Conséquence
de l’absolution
(3)
Le délinquant qui est absous en conformité avec le paragraphe (1) est réputé
ne pas avoir été condamné à l’égard de l’infraction; toutefois, les règles
suivantes s’appliquent :
a) le délinquant peut interjeter appel
du verdict de culpabilité comme s’il s’agissait d’une condamnation à l’égard
de l’infraction à laquelle se rapporte l’absolution;
b) le procureur général ou, dans le cas
de poursuites sommaires, le dénonciateur ou son mandataire peut interjeter
appel de la décision du tribunal de ne pas condamner le délinquant à l’égard
de l’infraction à laquelle se rapporte l’absolution comme s’il s’agissait
d’un jugement ou d’un verdict d’acquittement de l’infraction ou d’un rejet de
l’accusation portée contre lui;
c) le délinquant peut plaider autrefois
convict relativement à toute inculpation subséquente relative à
l’infraction.
|
Criminal Records Act, R.S.C.
1985, c. C-47:
|
Restrictions
on application for pardon
4.
A person is ineligible to apply for a pardon until the following period has
elapsed after the expiration according to law of any sentence, including a
sentence of imprisonment, a period of probation and the payment of any fine,
imposed for an offence:
|
Restrictions
relatives aux demandes de réhabilitation
4. Nul n’est admissible à
présenter une demande de réhabilitation avant que la période consécutive à
l’expiration légale de la peine, notamment une peine d’emprisonnement, une
période de probation ou le paiement d’une amende, énoncée ci-après ne soit
écoulée :
|
|
(a) 10
years, in the case of a serious personal injury offence within the meaning of
section 752 of the Criminal Code, including manslaughter, for which
the applicant was sentenced to imprisonment for a period of two years or more
or an offence referred to in Schedule 1 that was prosecuted by indictment, or
five years in the case of any other offence prosecuted by indictment, an
offence referred to in Schedule 1 that is punishable on summary conviction or
an offence that is a service offence within the meaning of the National
Defence Act for which the offender was punished by a fine of more than
two thousand dollars, detention for more than six months, dismissal from Her
Majesty’s service, imprisonment for more than six months or a punishment that
is greater than imprisonment for less than two years in the scale of
punishments set out in subsection 139(1) of that Act; or
(b)
three years, in the case of an offence, other than one referred to in
paragraph (a), that is punishable on summary conviction or that is a service
offence within the meaning of the National Defence Act.
|
a) dix ans pour les sévices
graves à la personne au sens de l’article 752 du Code criminel,
notamment l’homicide involontaire coupable, en cas de condamnation à
l’emprisonnement de deux ans ou plus ou pour une infraction visée à l’annexe
1 qui a fait l’objet d’une poursuite par voie de mise en accusation, ou cinq
ans pour toute autre infraction qui a fait l’objet d’une poursuite par voie
de mise en accusation, pour une infraction visée à l’annexe 1 qui est
punissable sur déclaration de culpabilité par procédure sommaire ou pour une
infraction qui est une infraction d’ordre militaire au sens de la Loi sur
la défense nationale en cas de condamnation à une amende de plus de deux
mille dollars, à une peine de détention de plus de six mois, à la destitution
du service de Sa Majesté, à l’emprisonnement de plus de six mois ou à une
peine plus lourde que l’emprisonnement pour moins de deux ans selon l’échelle
des peines établie au paragraphe 139(1) de cette loi;
b) trois ans pour l’infraction,
autre qu’une infraction visée à l’alinéa a), qui est punissable sur
déclaration de culpabilité par procédure sommaire ou qui est une infraction
d’ordre militaire au sens de la Loi sur la défense nationale.
|
* * * * * * *
*
[13] This case
raises the following issues:
1. Is the decision reasonable?
2. Did the IAD breach the principles of
natural justice by denying the applicant the right to testify?
[14] Questions of
fact and questions of mixed fact and law from the
IAD are reviewed on a reasonableness standard (see Bodine v. Minister
of Citizenship and Immigration, 2008 FC 848 at paragraph 17 and Singh v.
Minister of Citizenship and Immigration, 2010 FC 378 at paragraph 12). In
particular, the IAD’s assessment of humanitarian and compassionate considerations
falls within its expertise (Gonzalez v. Minister of Citizenship and
Immigration, 2006 FC 1274, 302 F.T.R. 81 at paragraph 21 and Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 39 at
paragraphs 65‑66).
[15] Questions of
procedural fairness at the hearing, like pure questions of law, are reviewed on
a correctness standard (Karami v. Minister of Citizenship and Immigration,
2009 FC 788, 349 F.T.R. 96 at paragraph 18, citing Canada (Minister of
Citizenship and Immigration) v. Suresh, 2002 SCC 1, [2002] 1 S.C.R. 3).
* * * * * * *
*
A. Is the decision reasonable?
[16] The applicant
argues that it was unreasonable for the IAD to focus on his convictions between
1989 and 1996 and to minimize the post‑2005 period, a period without
further charges. Since the 2005 charges resulted in a conditional discharge, he
relies on the Criminal Code, which at subsection 730(3) provides
that the effect of a conditional discharge is that the offender is “deemed not
to have been convicted”.
[17] The applicant
also contends that since subsection 4(a) of the Criminal Records
Act, R.S.C. 1985, c. C-47, provides that a person may apply for a pardon
five years after the expiration of his or her sentence for a non‑violent
indictable offence, this period is indicative of the length of a rehabilitation
period.
[18] Last, the
applicant submits that, contrary to the IAD’s findings, he has always complied
with the conditions of previous stays. He did not know that Mr. Sobh was
considered a criminal. In any event, the mere fact of having associated with
him should not neutralize his 23 years of permanent residence with a family
accustomed to Canadian life.
[19] After
reviewing the evidence, it appears that the IAD properly applied the criteria
in Ribic, above, and that the panel made a reasonable decision in
refusing to exercise its discretion under subsection 67(1) of the Act.
[20] As the
respondent submits, since the standard of review is reasonableness, it is not
for this Court to reassess the evidence on judicial review. This type of assessment
is within the IAD’s jurisdiction (Sharma v. Minister of Citizenship and Immigration,
2009 FC 277; Barm v. Minister of Citizenship and Immigration, 2008 FC
893 at paragraph 23 and Gonzalez, above).
[21] In my
opinion, the IAD properly assessed the evidence by taking into account the
entire history of the case. Moreover, because of the discretion granted to this
panel under subsection 67(1) of the Act and because of its expertise, this
Court must review its findings with a high degree of deference (Khosa and
Gonzalez). The applicant has therefore failed to discharge his burden of
establishing exceptional grounds justifying a stay (Camara v. Minister of
Citizenship and Immigration, 2006 FC 169; Bhalru v. Minister of
Citizenship and Immigration, 2005 FC 777).
[22] It is well
established that the weight to be accorded to each factor will vary according
to the particular circumstances of the case (Ribic, above, decision cited
with approval by the Supreme Court of Canada in Chieu v. Canada (Minister
of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 77). The
respondent is correct in maintaining that the IAD was justified in taking the
old convictions into account in light of the jurisprudence that indicates that
it must consider what gave rise to the removal order. The applicant benefited
from the privileges of a stay for a ten‑year period. He only had to
carefully comply with the conditions set out in the stay order, which he failed
to do.
[23] Furthermore, the
respondent correctly emphasizes the IAD’s right to consider the applicant’s
admission and finding of guilt as a factor in refusing the stay. On this point,
I concur with the written representations of counsel for the respondent in
paragraphs 50 to 57 inclusive of the respondent’s further memorandum,
supporting the proposition that the IAD may consider the admissions and the finding
of guilt even in discharge cases. These paragraphs read as follows:
[translation]
50. The
criminal courts have frequently had to question the scope of admissions made in
a criminal case that ends with an absolute or conditional discharge.
51. In R.
v. Pearson, [1998] 3 S.C.R. 620, the Supreme Court clearly confirmed that a
finding of guilt is a completely different stage from a conviction in the
criminal process. Although the conviction stage may be challenged in a case, this
does not challenge the finding of guilt.
52. Thus, a
person who pleaded guilty or was found guilty remains guilty even if he or she subsequently
receives a lenient sentence, i.e. a discharge.
53. The Quebec Court of Appeal in R. v.
Doyon, 2004 CanLII 50105 (QCCA), confirmed the distinction between a
finding of guilt and a conviction. It also established that, in discharge
cases, although the offender is deemed not to have been convicted and has no
criminal record for that offence, the offender nonetheless pleaded guilty or
was found guilty, which subsists in spite of the discharge. Also according to
the Court of Appeal, the absence of a conviction does not make the plea or the
finding of guilt disappear retroactively, any more than a pardon expunges a
conviction retroactively. See also: Ascenseurs Thyssen Montenay inc. v.
Aspirot, 2007 QCCA 1790.
54. Moreover,
the Federal Court confirmed that even though a person has been granted a
conditional discharge following a guilty plea, this does not prevent the
Minister from exercising his or her discretion to decide whether to issue a
transportation security clearance to that person. Lavoie v. Canada (A.G.), 2007 FC 435.
55. Similarly,
in Montréal (City) v. Québec (Commission des droits de
la personne et des droits de la jeunesse), [2008] 2 S.C.R. 698, the Supreme
Court established that, unlike a person who is pardoned, there is no basis for
concluding that a person who is discharged under section 730(1) benefits
from the effects of a pardon as soon as the order of discharge is made.
56. Also in Houle
v. Barreau du Québec, REJB 2002-35348, [2002] J.Q. No. 4834 (C.A.), (leave
to appeal dismissed [2003] 1 S.C.R. xi), a case involving the Professional Code,
the Quebec Court of Appeal determined that a finding of guilt following a
guilty plea does not disappear as a result of a conditional discharge and that
only a pardon has that effect.
57. Accordingly,
in the current state of Canadian law, a discharge is and always remains a
sentence. Although it is a lenient sentence because of the circumstances of a
case, there is nonetheless a finding of guilt.
(Please note that the above reference to
the Doyon case, at paragraph 53, was clarified at the hearing
before me.)
[24] The respondent
notes that, although the applicant was granted a conditional discharge for the
2005 charges, he admitted committing those crimes and negotiated this
discharge. Before the IAD, his probation had not ended and there was no
evidence that he had finished paying his $58,000 fine. Moreover, the applicant
obtained a number of stays in the past and is therefore not in the same
situation as a person who is requesting a stay for the first time.
[25] Thus, although
the applicant had been discharged, the conditions of his discharge had not been
satisfied at the time of the decision at issue, notably because the probation
period was to end in October 2011. Moreover, paragraph 6.1(1)(b) of
the Criminal Records Act provides that the protection against disclosure
of information with respect to persons who are conditionally discharged does
not take effect until three years after the conditional discharge (see Montréal
(City) v. Québec (Commission des droits de la personne et des
droits de la jeunesse) above).
[26] In conclusion,
I find that in the circumstances the IAD’s decision is not unreasonable. The
removal order was issued in 1999 and imposed conditions that the applicant
failed to satisfy. It was not unreasonable to find that the applicant had
associated with a criminal and that he had not reported the charges laid
against him. It would have made no sense for the panel to consider only the
events that occurred since 2005 and not what had happened since the conditions
were imposed in 1999. Thus, the panel could properly find that the applicant was
not rehabilitated because he had failed to comply with these conditions and
admitted at his trial before the criminal court that he had committed the
alleged offences. In this entire context, the fact that the panel took into consideration
the overall picture of the applicant’s case was reasonable and does not warrant
the intervention of this Court.
B. Procedural fairness and
the applicant’s testimony
[27] The applicant
contends that, although an affidavit may take the place of testimony, this
proceeding was so important that the IAD should have let him testify since he
was present at the hearing, was ready to testify and his credibility was at
stake. When the applicant stated that he wished to speak, the IAD told him that
his counsel had chosen to proceed by way of a detailed affidavit.
[28] The
respondent, for his part, maintains that the applicant, with his counsel at the
time, chose to proceed by way of affidavit and that written testimony is as
valid as oral testimony. The respondent adds that the applicant cannot complain
about his own choice and, furthermore, that the IAD clearly considered his
written testimony.
[29] It is
important to point out that the applicant should have been aware of the fact
that he had the choice of testifying orally because he had done so at the
previous hearings in 1999, 2002 and 2004. I find that the IAD was correct to
proceed as requested by counsel for the applicant. If the applicant had wanted
to testify orally, he should have instructed his counsel to that effect. It is
clear from the transcript of the hearing that the IAD intended to respect the
choice made by the applicant and his counsel to proceed without oral testimony.
The IAD clearly explained why it would have been unfair for the other party to change
the procedure previously agreed to at the end of the hearing. The applicant
therefore has not persuaded me, in the circumstances, that there was a breach
of procedural fairness.
* * * * * * *
*
[30] For all these
reasons, the application for judicial review is dismissed.
[31] Following the
hearing before me, counsel for the respondent submitted the following question
for certification:
[translation]
Did the IAD err in law by considering a
criminal offence for which a conditional discharge had been granted?
[32] Counsel for
the applicant stated that he did not believe there was a question for certification
in this case.
[33]
For
my part, given the relatively recent and relevant jurisprudence above, which is
unequivocal and uncontradicted, I fail to see, at this stage, how this question
can be characterized as of general importance. Moreover, taking into account
the generally reasonable nature of the IAD’s decision, I am not persuaded that
the question proposed for certification is determinative. Consequently, the proposed
question is not certified.
JUDGMENT
The
application for judicial review of the decision by the Immigration Appeal
Division of the Immigration and Refugee Board refusing to grant the
applicant a new stay of removal on humanitarian and compassionate grounds is
dismissed.
“Yvon
Pinard”
Certified
true translation
Mary
Jo Egan, LLB
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