Date: 20080103
Docket: IMM-3556-06
Citation: 2008 FC 2
Ottawa, Ontario, January 3,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CEYMOUR JOHNSON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Ceymour
Johnson’s inland application for permanent residence in Canada was refused
because he was found to be inadmissible on grounds of serious criminality. The
criminal convictions that led to the finding of inadmissibility were later set
aside. Mr. Johnson brings this application for judicial review of the
decision refusing his application for permanent residence.
[2] For
the reasons that follow, the application for judicial review is dismissed.
[3] The
issues raised in this application arise out of the following facts.
[4] Mr.
Johnson is a citizen of Jamaica who was without legal status in Canada when he
married a Canadian citizen on November 11, 2000. In early 2001, he submitted
an inland application for permanent residence on humanitarian and compassionate
grounds.
[5] On
November 6, 2002, his application for humanitarian and compassionate relief was
approved in principle. He was advised that this did not exempt him from
meeting the other statutory requirements of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), as set out in subsection 72(1)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). Mr. Johnson was advised that a separate decision would be made
with respect to his compliance with the other statutory requirements.
[6] On
November 6, 2002, Mr. Johnson filed an updated humanitarian and compassionate
form in which he declared, among other things, that:
·
He had not been charged with a crime or offence in Canada.
·
He understood that the government would contact police
authorities in order to obtain records that would be used in evaluating whether
he was admissible to Canada.
·
He would report to a Canada Immigration Centre (CIC) if the
answer to any question he had answered on his updated humanitarian and
compassionate form changed.
[7] Thereafter,
the relevant chronology unfolds as follows.
[8] In
March of 2004, a number of criminal charges were laid against Mr. Johnson.
[9] On
September 16, 2004, CIC asked Mr. Johnson to provide details concerning all
criminal charges laid against him.
[10] On
October 15, 2004, counsel for Mr. Johnson informed CIC that Mr. Johnson had
been charged with assault, forcible confinement, and sexual assault.
[11] On
June 20, 2005, Mr. Johnson was convicted of sexual assault and forcible
confinement. Mr. Johnson was sentenced to seven months of imprisonment, to be
served concurrently.
[12] On
August 26, 2005, Mr. Johnson was advised by an immigration officer that his
application for permanent residence was refused on the basis that he was
inadmissible on account of serious criminality, pursuant to paragraph 36(1)(a)
of the Act. That provision is set out in the schedule to these reasons.
[13] On
July 24, 2006, Mr. Johnson’s convictions were set aside and a new trial was
ordered. The appellate judge noted that the Crown might consider not pursing a
new trial because Mr. Johnson had already served his sentence.
[14] The
Crown later advised that it would not be proceeding with a new trial.
[15] On
January 14, 2007, Mr. Johnson was charged with assault with a weapon.
[16] On
May 27, 2007, Mr. Johnson was charged with carrying a concealed weapon,
possession of a weapon obtained by crime, unauthorized possession of a firearm
in a motor vehicle, careless storage of a firearm with ammunition, possession
of a firearm with ammunition without a certificate, and possession of a
dangerous weapon.
[17] On
July 11, 2007, Mr. Johnson was fined for possession of open liquor in a motor
vehicle.
The Issues
[18] Mr.
Johnson raises the following two issues on this application for judicial
review:
1. Did the officer err by refusing Mr. Johnson's application for
permanent residence when the officer knew, or ought to have known, that Mr.
Johnson's conviction was under appeal?
2. Did the officer breach the duty of fairness he owed by failing
to provide Mr. Johnson with an opportunity to respond to his criminal
convictions?
Did the officer err by refusing
Mr. Johnson's application for permanent residence when the officer knew, or
ought to have known, that Mr. Johnson's conviction was under appeal?
[19] Mr.
Johnson argues that the officer erred in reaching the decision to refuse his
permanent residence application by ignoring relevant evidence. That evidence is
said to be that Mr. Johnson’s convictions were under appeal. Mr. Johnson
further submits that, now that the convictions have been set aside, it would be
contrary to logic, unjust, and unfair to allow the decision to stand.
[20] In
my view, the jurisprudence of this Court supports neither submission.
[21] As
for the obligation to consider the existence of the pending appeal, in Kalicharan
v. Canada (Minister of Manpower and Immigration), [1976] 2 F.C. 123 (T.D.),
Mr. Justice Mahoney considered the situation where a deportation order had
issued as a result of a conviction under the Criminal Code, R.S.C. 1970,
c. C-34. On the appeal of the sentence imposed in respect of that conviction,
a conditional discharge was substituted for the original sentence. At
paragraph 3 of his reasons, Mr. Justice Mahoney wrote:
[…] Whatever the
practical considerations that ought to have prevailed, the Special Inquiry
Officer was under no legal obligation to await the result of the appeal before
issuing the deportation order. A person convicted at trial is a convicted
person notwithstanding that he may have an unexhausted right to appeal that
would render him otherwise. The applicant was, on February 5, 1976, a
person described in subparagraph 18(1)(e)(ii) and, thus, subject to
deportation. [footnote omitted and emphasis added]
[22] A
deportation order has a clear and imminent effect upon a person's right to
remain in Canada. If, in that context, there is no obligation to await the
result of an appeal of a criminal conviction, it is my view that there can be
no obligation to defer consideration of a humanitarian and compassionate
application because of an outstanding appeal. This is so because one may file
a new inland application for permanent residence if circumstances later change
as a result of a successful appeal.
[23] As
for the fact that it may appear to be illogical to allow the decision to stand
when the criminal conviction has been set aside, in Smith v. Canada
(Minister of Citizenship and Immigration), [1998] 3 F.C. 144 (T.D.), my
colleague, Mr. Justice MacKay, considered the situation where Mr. Smith had
been found to be inadmissible because two criminal convictions and a
deportation order issued. Shortly thereafter, Mr. Smith was granted a pardon. Justice MacKay
found that, since the deportation order was issued before the pardon, the
adjudicator did not err by issuing the deportation order. The pardon was to be
given prospective, not retrospective, effect.
[24] By
analogy, in the present case, the officer did not err by refusing Mr. Johnson’s
application for permanent residence. The convictions were in force when the
negative decision was made and they remained in force until set aside on
appeal. Again, I note that the consequence of upholding a deportation order on
the basis that the conviction giving rise to it was valid at the time that the
order was issued is of much more imminent effect than upholding, on the same
basis, a negative decision on an inland application for permanent residence. A
new inland permanent residence application can be filed if a subsequent appeal
is successful. This makes the analogy with the decision in Smith apt.
[25] Moreover,
while an officer cannot exercise bad faith in deciding when to make a decision about
inadmissibility, there must be some discretion in an officer as to when a
decision may be rendered. Otherwise, long periods of time could go by awaiting
the outcome of appeals or pending criminal charges. As Mr. Johnson’s
circumstances show, the state of a criminal record is not always static. In my
view, in the absence of compelling circumstances, it would be contrary to the
scheme of the Act to require decisions about inadmissibility, made in the
context of a humanitarian and compassionate application, to be delayed until
all criminal proceedings, including all rights of appeal, are exhausted.
[26] Mr.
Johnson relies upon the decision of my retired colleague, Mr. Justice Muldoon,
in Nagra v. Canada (Minister of Citizenship and Immigration),
[1996] 1 F.C. 497 (T.D.), to argue that the decision on inadmissibility cannot continue
to stand in the face of the decision overturning the underlying criminal
conviction. In my view, this decision does not assist Mr. Johnson.
[27] Mr.
Nagra had arrived in Canada as a visitor and subsequently married a Canadian
citizen. Like Mr. Johnson, Mr. Nagra was granted an exemption from the
requirement that he apply for a resident’s visa from abroad. However, before
landing, Mr. Nagra was convicted of two criminal offenses. An adjudicator
determined that Mr. Nagra was a person described in paragraph 27(2)(d)
of the Immigration Act, R.S.C. 1985, c. I-2, which at the time provided:
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27(2) An immigration officer or a peace officer shall, unless the person
has been arrested pursuant to subsection 103(2), forward a written report to
the Deputy Minister setting out the details of any information in the
possession of the immigration officer or peace officer indicating that a
person in Canada, other than a Canadian citizen or permanent resident, is a
person who
[…]
(d) has been convicted of an offence under the Criminal Code or
of an indictable offence, or of an offence for which the offender may be
prosecuted by indictment or for which the offender is punishable on summary
conviction, under any Act of Parliament other than the Criminal Code or
this Act;
|
27(2) L’agent d’immigration ou l’agent de la paix doit,
sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2),
faire un rapport écrit et circonstancié au sous-ministre de renseignements
concernant une personne se trouvant au Canada autrement qu’à titre de citoyen
canadien ou de résident permanent et indiquant que celle-ci, selon le
cas :
[…]
d) a été déclarée coupable d’une infraction prévue au Code
criminel ou d’un acte criminel ou d’une infraction dont l’auteur peut
être poursuivi par mise en accusation ou par procédure sommaire en vertu
d’une loi fédérale autre que le Code criminel ou la présente loi;
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[28] The
adjudicator then issued a conditional removal order. The Immigration Appeal
Division of the Immigration Refugee Board (IAD) granted a motion to dismiss an
appeal to it on the ground that the IAD lacked jurisdiction. Subsequently, the
criminal convictions were set aside and a new trial was ordered.
[29] While,
on the application for judicial review of the decision of the IAD, the Court
incidentally set aside the removal order, the Court noted, at paragraph 27,
that pending the new criminal trial "the applicant is not shown to have
completed the second stage for obtaining permanent residence, because of the
then quite legitimate report under subsection 27(2)" of the Act. I take
from this that the setting aside of the criminal conviction did not affect the
validity of the report about inadmissibility.
Did the officer breach the duty
of fairness he owed by failing to provide Mr. Johnson with an opportunity to
respond to his criminal convictions?
[30] Mr.
Johnson argues that, because the officer never told him that his application
was being rejected on the basis of his criminal convictions, the officer
deprived him of a meaningful opportunity to address the officer's concerns.
[31] In
my view, the officer did not breach the duty of fairness for the following
reasons.
[32] First,
while Mr. Johnson argues that the officer erred by failing to advise him that
information had been received in respect of his criminal convictions, it was
Mr. Johnson who had signed a form in which he agreed to notify CIC of any
changes to the information he had provided to it, including changes to his
answer that he had not been charged or convicted of a crime in Canada. His
failure to meet that obligation should not shift the onus to the officer to
communicate with Mr. Johnson about his convictions.
[33] Further,
in that same form, Mr. Johnson acknowledged his understanding that his criminal
records would be obtained to verify his admissibility.
[34] Second,
to the extent that Mr. Johnson argues that the officer was under an obligation
to advise him not of the fact of the convictions but rather of the officer’s
concerns as to his inadmissibility, Mr. Justice MacKay, in Parmar v. Canada
(Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203
(T.D.), wrote at paragraph 36 of his reasons that "there is no requirement
for notice of an officer's concerns where these arise directly from the Act and
Regulations that the officer is bound to follow in his or her assessment of the
applicant." This principle has been applied in a number of decisions of
this Court, including the recent decision of Ayyalasomayajula v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 320, and the
cases cited therein. In the present case, the officer’s concerns arose
directly from the Act and Regulations.
[35] Finally,
it was always open to Mr. Johnson to advise the officer of both his convictions
and his appeal, and to request a deferral of the officer's decision until the
appeal had been decided. Mr. Johnson requested no postponement of the
officer’s decision.
[36] For
these reasons, the application for judicial review will be dismissed.
[37] Counsel
for Mr. Johnson posed the following questions for certification:
1. Is
there some discretion in the second stage of a humanitarian and compassionate
application?
2. Given
the length of time it takes to complete humanitarian and compassionate
applications and the ongoing variability of such applications is there not some
duty on the officer to advise the applicant of information he relies upon in
coming to his decisions?
[38] The
Minister opposed certification of either question.
[39] In
my view, both questions are too vague. Further, the answer to the second
question will vary with the facts of each case. Accordingly, no question will
be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
SCHEDULE
Paragraph 36(1)(a)
of the Act reads as follows:
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36(1) A
permanent resident or a foreign national is inadmissible on grounds of serious
criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed;
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36(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
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