Date: 20070727
Docket: IMM-4316-06
Citation: 2007
FC 785
Ottawa, Ontario,
July 27, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
MINH
TRUNG TIN
LE
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review of the July 6,
2006 decision of the Minister’s delegate (the Delegate) wherein it was
determined that the Applicant constitutes a danger to the public in Canada
within the meaning of paragraph 115(2)(a) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act).
2. Facts
[2]
The Applicant is a 34 year old Vietnamese citizen. He left
Vietnam in 1990 and subsequently spent three years in a refugee camp in Indonesia. On July
16, 1993, he obtained from the Canadian High Commission in Singapore a
permanent resident visa in the Convention Refugee category. He arrived in Canada on
August 4, 1993.
[3]
In 2002, the Applicant was convicted of possession of
cocaine for the purpose of trafficking, possession of cocaine, and conspiracy
to traffic cocaine. He received one 3 year and two concurrent 5 year sentences
resulting in a total prison term of 8 years. He was incarcerated from August
21, 2002 until December 31, 2003 when he became eligible for day parole.
[4]
On June 11, 2003, the Applicant became the subject of an
inadmissibility report on grounds of serious criminality under paragraph
36(1)(a) of the Act. On September 23, 2003, the applicant was notified that the
Minister intended to request a danger opinion under paragraph 115(2)(a)
of the Act. The Minister’s danger opinion dated July 6, 2006, is the decision
presently under review.
3. Relevant
Legislation
[5]
The legislation relevant to this application for judicial
review is the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
and, in particular, paragraph 115(2)(a) which reads:
|
Protection
115. (1) A protected person or a person who is recognized as a
Convention refugee by another country to which the person may be returned shall
not be removed from Canada to a country where they would be at risk of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion or at risk of torture or cruel
and unusual treatment or punishment.
Exceptions
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality
and who constitutes, in the opinion of the Minister, a danger to the public
in Canada; or …
|
Principe
115. (1) Ne
peut être renvoyée dans un pays où elle risque la persécution du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques, la torture ou des traitements ou peines
cruels et inusités, la personne protégée ou la personne dont il est statué
que la qualité de réfugié lui a été reconnue par un autre pays vers lequel
elle peut être renvoyée.
Exclusion
(2) Le
paragraphe (1) ne s’applique pas à l’interdit de territoire:
a) pour grande criminalité qui, selon le ministre, constitue un danger
pour le public au Canada; […]
|
4. Issues
A. Did the Delegate breach the rules of procedural fairness?
B. Did the Delegate err in concluding that the Applicant is a danger
to the public in Canada?
C. Did the Delegate err in failing to consider the interests of the Applicant’s
children?
5. Standard of
Review
[6]
In Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada held that considerable
deference is owed in respect of the Minister’s determination of whether a
person constitutes a danger to the security of Canada. At page 27 of its
reasons, the Court wrote:
[…] The court's task, if called upon to review the
Minister's decision, is to determine whether the Minister has exercised her
decision-making power within the constraints imposed by Parliament's
legislation and the Constitution. If the Minister has considered the
appropriate factors in conformity with these constraints, the court must uphold
his decision. It cannot set it aside even if it would have weighed the factors
differently and arrived at a different conclusion.
[7]
The decision of whether Mr. Le constitutes a danger to the public in Canada
is also essentially a fact driven inquiry. As such, the Court must adopt a
deferential approach to these questions and intervene only if the delegate’s
decision is patently unreasonable. A patently unreasonable decision is one that
is made arbitrarily, or in bad faith, or without regard to the appropriate
factors, or the decision cannot be supported on the evidence. The Court is not
to re-weigh the factors considered or interfere simply because the Court would
have reached a different conclusion. See Suresh at paragraphs 29 and 39.
[8]
I therefore find that the standard of review applicable to the
Delegate’s decision that the Applicant is a danger to the public in Canada is
one of patent unreasonableness.
[9]
It is well established that questions of procedural fairness or
natural justice are subject to the correctness standard. See Ellis-Don Ltd.
v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at
paragraph 65. If a breach of the duty of fairness is found, the decision must
be set aside. See Congrégation des témoins de Jéhovah de
St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665.
6. Analysis
A. Did
the Delegate breach the rules of procedural fairness?
[10]
The Applicant states that he was never advised that, owing to his status
as a permanent resident in Canada, he would be subject to removal if he committed
a criminal offence. The Applicant argues that the government had a positive
duty to advise him of the terms and conditions of his stay in Canada and that
its failure to do so constitutes a breach of procedural fairness.
[11]
The Applicant’s argument on this issue is without merit. The law
concerning inadmissibility on grounds of serious criminality is not veiled in
secrecy. Even if the Applicant’s criminal defence counsel did not inform him of
the consequences of a criminal conviction on his immigration status, there is
no positive duty on the state to advise foreign nationals and permanent
residents that engaging in criminal activity may render them inadmissible and
subject to removal. Further, in the circumstances here, the Applicant did not
raise this issue before the Delegate. I find that no breach of procedural
fairness arises on these facts.
B. Did the
Delegate err in concluding that the Applicant is a danger to the public in Canada?
[12]
The Applicant argues that the Delegate erred by misinterpreting or ignoring
evidence and reaching conclusions unsupported by the evidence before him. The
crux of the Applicant’s argument is that, given that he was assessed by parole
authorities as posing a low risk of re-offending, it was patently unreasonable
for the Delegate to conclude that the Applicant is a danger to the public in Canada.
[13]
I am satisfied on review of the comprehensive reasons for decision that
the Delegate did not misapprehend or ignore the evidence and that the decision
was made with regard to the material before him. The Delegate identified the
relevant facts and reviewed the applicable law pertaining to the Applicant’s
risk upon removal and danger to the public in Canada.
[14]
At the outset, the Delegate noted that a criminal conviction, on its
own, is an insufficient foundation for a danger opinion. The Delegate indicated
that he had to consider two factors, first the consequences of future criminal
activity for the Canadian public and, second the probability of future criminal
activity. The Delegate indicated in considering the danger opinion, he was
required to turn his mind to the relative significance of each of these two
factors, and their combined effect, in order to assess the danger posed to the
public.
[15]
With respect to the consequences of future criminal activity, the
Delegate noted that the Applicant’s criminal convictions were, as stated by the
sentencing judge, for serious offences which caused direct and indirect damage
to Canadian society. The Delegate cited at paragraph 13 of his opinion the
reasons of Justice Park at the Applicant’s trial on August 21, 2002:
[…] Cocaine causes damages and damage to our society.
Cocaine, because of its physical addiction propensities, is an extremely
dangerous drug. Crack cocaine is an extremely addictive substance. The usage of
both drugs can lead an individual to commit other crimes in order to finance
its extremely addictive use. Here Le, as I am given to understand, was not an
addict but an individual who was in it for profit, and involved in this insidious
scheme for greed and profit and without regard for the misery and suffering of
addicts and of the general public who will suffer indirectly.
[16]
The Delegate inferred from Justice Park’s comments, reasonably in my
view, that the Applicant’s cocaine trafficking operation caused significant
damage to society and thus constituted a danger to the public. In reaching this
conclusion, the Delegate noted the comments of Justice Blais in Arinze v. Canada
(Solicitor General), 2005 FC 1547 at paragraph 22:
…The wording of section 115 does not include limitations to
only particular types of offences. It leaves the consideration of whether an
individual constitutes a danger to the public to the discretion of the
Minister's delegate. The Minister's delegate considered that violence was not
used in the commission of the applicant's offences, but also acknowledged … the
serious effect such crimes can and do have on the Canadian public. …
[17]
With respect to the probability of the Applicant’s future criminal
activity, the Delegate noted the institutional reports indicating that the Applicant’s
motivation level and reintegration potential were both high and that he was “at
a low risk to re-offend”. The low risk assessment, however, was condition upon
the applicant adequately addressing “…his criminogenic factors through the
appropriate institutional/counseling with follow up application in the
community”. The Delegate noted that the evidence indicated that the applicant
did not complete institutional counseling because his level of language skill
was inadequate, although he did begin an addictions program while at a half-way
house. The Delegate identified several factors relevant to his assessment of
the Applicant’s motivation to re-offend: the effectiveness of his family support,
his prospects for legitimate employment, financial factors, the effectiveness
of deterrence, and his pattern of criminal associations.
[18]
The Delegate considered that Mr. Le was involved in a large scale
cocaine trafficking criminal enterprise. The Applicant was not an addict, but
was in it for the profit motivated by gambling addiction. In the Delegate’s
view, the financial factor was important since the Applicant had limited
employment prospects due to his low language skills and education and poor English
ability. The Applicant, under pressure to provide for his family, turned to
gambling. As the Applicant accrued gambling debts, he was introduced to the
drug trafficking and used this trade as a means of financing his debts. The
gambling continued, however, and so too did the Applicant’s cocaine trafficking
operation. The Delegate noted that there was no evidence that the Applicant
successfully retired his gambling debts, which on the Applicant’s account
reached $7,000, but which according to police information were as high as
$70,000. The Delegate stated at pages 5 and 6 of his opinion:
…If at any point he did retire his gambling debts, I have
been unable to identify any specific evidence that he took that opportunity to
cease participating in a sophisticated cocaine trafficking criminal enterprise
as a result. Either he retired his gambling debts prior to incarceration,
and remained nonetheless in the cocaine business, or he carried them over
post-incarceration, and is still indebted to the people who allegedly lured him
into the trafficking business. Even if gambling can be credibly linked as
contributing to his incentive for narcotics trafficking and conspiracy for
“greed and profit”, successful completion of a brief two month addiction
program, while a potentially positive indicator, will not provide adequate or
satisfactory assurance that he will avoid further gambling indebtedness in the
absence of long term professional or organizational support for his gambling
addiction. [My emphasis]
[19]
After thoroughly reviewing the evidence before him, the Delegate
concluded at page 8 that the Applicant retained the capability to re-offend
should he decide to do so:
On balance I believe Mr. Le has strong financial incentive
to return to lucrative trafficking as soon as he believes he can do so safely
and undetected. Mr. Le has been described as having been motivated by
“profit and greed”. I do not believe that his subsequent self-serving
statements of intent to rehabilitate can be accepted at face value in the overall
context of the evidence. I am not satisfied that “…the structure in place
while on parole is enough”, as claimed in submissions on his behalf. Disturbing
indicators of probable complicity or active involvement in trafficking on the
part of his spouse, and her own gambling (she lost $1,000 in one night),
mitigate her own support for him. Whether or not he is formally a member of
an established, traditional criminal syndicate, Mr. Le participated in an
organized criminal endeavour over a lengthy period of time. His long term
pattern of criminal association further increases the probability of continued
serious criminality and a return to the lucrative criminal enterprise of
narcotics trafficking, even if incarceration and susceptibility to deportation
while this decision has been pending may have motivated a temporary lull in
those activities and associations.
[My emphasis]
[20]
In my view, it was open to the Delegate to conclude based on the
evidence before him that the Applicant’s continued presence in Canada poses a
danger to the public. The Delegate’s decision is not patently unreasonable.
C. Did the
Delegate err in failing to consider the interests of the Applicant’s children?
[21]
The Applicant argues that the Delegate failed to take into account the
best interests of the applicant’s children. In my view, the Applicant’s
argument on this issue is without merit. At paragraph 51 of his opinion, in a
section entitled “Humanitarian and compassionate considerations”, the Delegate
considers the potential hardship faced by the Applicant in reintegrating into
his country of origin. At paragraph 53, the Delegate turns his mind to the
impact of the Applicant’s potential deportation on the best interests of his
children:
Of more concern to me as the Minister’s Delegate is the
potential his deportation would have for an adverse impact on his family
members in Canada i.e. his Canadian citizen spouse and children, with specific reference to
IRPA s. 25(1).
… In a normal family situation I would in principle
consider separation of a father from his children as highly undesirable, and
significantly detrimental to the best interests of the children. But this is
not a normal family situation. This is a situation in which cocaine was cached
under a child’s bed, and packages of crack cocaine were casually left in
kitchen drawers. The family home was basically used as a base for running a
cocaine trafficking operation. I have already determined that Mr. Le
constitutes a danger to the public, and that there is an unacceptably high probability
that he will re-engage in criminal activities.
No information has been presented from social work or
mental health professionals on the developmental impact and emotional risks
attendant on being raised in a criminalized drug trafficking household. In the
absence of submission from qualified professionals, common sense dictates that
this cannot be an ideal environment in which to bring up a child.
Even if it could be conclusively demonstrated, however,
that the best interests of the children who will be impacted by this decision
would be more clearly served by Mr. Le’s continued presence in Canada, I must still
evaluate the balance between their interest and that of his common law spouse,
and that of other members of the Canadian public.
[22]
In my view, it cannot be said that the Delegate failed to consider the
interests of the Applicant’s children. His conclusion on this issue is not
patently unreasonable.
[23]
Although, not raised as an issue in this application, I also, find that
the Delegate’s determination with respect to the Applicant’s risk of return to
be well founded. The Delegate’s reasons with respect to risks reflect a correct
understanding of the law and consideration of the proper factors. The finding
was made with regard to the evidence and in my view, was reasonably open to the
Delegate.
[24]
The Delegate summarizes his decision at paragraphs 61 and 63 of his
reasons:
61. After fully
considering all facets of this case, I find that Mr. Le constitutes both a
current and future danger to the public in Canada. I have also assessed the
risks if Mr. Le is returned to Vietnam. Based on my review of the evidence
before me, I find that there is no indication that Mr. Le participated in any
activities that would support a finding that he faces a reasonable chance of
persecution or that it is more likely than not that he faces any of the risks
enumerated under s. 97 of IRPA upon return. I have carefully considered
humanitarian aspects of his case, including examination of the best interests
of children in the family unit. I have determined that removal from Canada will
result in separation from his spouse and children, or relocation of the family
unit to Vietnam to avoid that consequence. Both of these results would have an
emotional and financial impact on the family unit, including the children.
Humanitarian concerns are mitigated to some extent by the consequences for the
family unit of narcotics trafficking which has used both the family home and
family business for the distribution and trafficking of cocaine in the past and
concern that this pattern of activity will be repeated in future. I am
nonetheless of the opinion that any adverse consequences for Mr. Le’s spouse
and children of his removal from Canada do not outweigh the interests of
Canadian society and the need to protect Canadian society.
63. I have
therefore signed the attached certificate that Mr. Le constitutes a danger to
the public in Canada.
[25]
I find no reviewable error in the Delegate’s decision that would warrant
the Court’s intervention.
7. Conclusion
[26]
For the above reasons, this application for judicial review will be
dismissed.
[27]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act, and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question.
ORDER
THIS COURT ORDERS
that:
1. The application
for judicial review of the decision of the Minister’s delegate is dismissed.
2. No serious
question of general importance is certified.
“Edmond P. Blanchard”
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