Date: 20080325
Docket: IMM-2367-07
Citation: 2008 FC 373
Ottawa, Ontario, March 25,
2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
GREGORY
BARRY GITTENS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (Immigration Appeal Division) (IAD) of May 25, 2007 cancelling
the Applicant’s stay of deportation and dismissing the appeal of his
deportation order.
Facts
[2]
The
Applicant was born in Barbados in about 1968 and came
to Canada with his mother and siblings in 1980. He is a citizen of Barbados. Between his
arrival in Canada and the year
2000 he had a criminal record of about 40 convictions, over half of them
involving theft. In the year 2000, following a conviction for trafficking in
drugs, he was ordered deported to Barbados for serious
criminality. He appealed that order and on June 26, 2002 his deportation order
was stayed by the IAD for five years on condition that he keep the peace, be of
good behaviour, not commit further criminal offences, forthwith report any
change in employment, report forthwith in writing any criminal convictions, and
attend counselling with Dr. Alex Russell, a psychologist. This stay was
reviewed orally on February 24, 2004 by the IAD which noted that he had in the
meantime been convicted of several offences under the Highway Traffic Act.
His stay was, however, continued. On March 24, 2006 the IAD advised that it
would hold a closed review of the Applicant’s stay on May 29 and 30, 2006.
However, the Minister advised the IAD that after the 2004 hearing the Applicant
had been convicted of six further offences for theft, dangerous operation of a
motor vehicle, failure to stop for police and assault of a police officer. He
had been incarcerated for approximately five months from August 2005 until
January 30, 2006. The IAD decided to hold an oral review and in July, 2006, in
consultation with counsel for the Applicant, set a date of December 19, 2006.
On October 12, 2006 the Applicant’s counsel, who had been advised that Dr.
Russell would not be available on December 19, 2006 to appear as a witness for
the Applicant, asked for an adjournment. Subsequently, she suggested a
preferable date of April 26, 2007, some four months later. She was advised by
telephone on November 9, 2006 that the adjournment was denied. She made further
representations and was finally advised on December 13, 2006 that the hearing
would proceed on December 19, 2006. Prior to that hearing the Applicant had a further
meeting with Dr. Russell who submitted a lengthy report in writing. On the day
fixed for the hearing, counsel for the Applicant appeared and she opened with
the following remarks:
This is really just a renewed request for
an adjournment in this matter, and I’ll just tell you, briefly that we are
prepared to go. The history is Mr. Gittens has a psychologist, he is ordered to
attend for therapy.
She
referred to the report from Dr. Russell dated December 14 which was before the
IAD and she went on to say:
…but we really wanted to have
Dr. Russell up here in person to give viva voce evidence.
She
said that when the date had been originally chosen in July it was tentative in
her view, depending on Dr. Russell’s availability. After some discussion the
IAD member ruled as follows:
You have provided a written document. I
think that is a reasonable way to present evidence of a person who is not
available. As you know, the IAD does control its process. There is a
responsibility to act in a timely fashion. I don’t think it’s appropriate to
potentially postpone this matter until, well, some time, whether it’s when our
schedule allows for, which might be April or for after the further outstanding
charges which the Appellant is indicating might be resolved in July. I think
there is a public interest in these types of cases that we proceed in a timely
fashion. I will allow the Minister to have time to review what I would take to
be important evidence, the psychiatrist’s report – the psychologist’s report,
pardon me, so I am going to give Ms. Henrique half an hour to review that
document. I think that’s what I wanted to say.
We will proceed today.
[3]
The
IAD heard testimony from the Applicant and his wife, and from a Hearings
Officer for the Canada Border Services Agency who testified as a witness for
the Minister. It also had the report from Dr. Alex Russell. The general thrust
of Dr. Russell’s report was that while the Applicant had a long history of
criminality he had made progress through therapy and through relationships he
had developed, having fathered one child, in June, 2002 and then having married
in September, 2006 to a different women with whom he had a child in October,
2006. Dr. Russell acknowledged that he had not met the Applicant’s wife nor
apparently his infant son who would then have been approximately 2 months old.
Nevertheless, he described the Applicant as having a “strong bond with his wife
and children”. (He had observed the Applicant together with his older child
Kanisha, the daughter born in 2002). He expressed the opinion that the
Applicant’s continuing encounters with the criminal justice system ought to be
viewed as a “relapse” rather than an indication that he was likely to become
re-engaged in criminal activity. He went on to say that the removal of the
Applicant from Canada “would have a tremendously detrimental impact on his
family and the well-being of his children”. He noted that the Applicant’s
removal would sever his relationship with his daughter, Kanisha, which would be
a negative factor. He adds, however: “this would not necessarily be my opinion
if Mr. Gittens were to become immersed in a criminal lifestyle … .” He finishes
by saying that he has no hesitation finding that the Applicant’s presence in Canada “does more
good than harm in terms of the best interests of his children”.
[4]
The
IAD after hearing the matter in December, 2006 issued its decision on May 25,
2007. It decided to cancel the stay of the Applicant’s removal order and to
dismiss his appeal of that order. It found that he had breached the conditions
of his stay by committing a number of further criminal acts and it was not
prepared to characterize this criminal behaviour as a “relapse” as did Dr.
Russell. The panel identified various factors that it considered: the lack of
rehabilitation displayed by the Applicant; his inability to comply with
conditions imposed for his remaining in Canada; the threat to public safety and
well-being that his behaviour presented; and the fact that he had been a
long-term resident of Canada and had a wife and two Canadian-born
children. The panel spent some time analysing the nature of the Applicant’s
offences since the last stay hearing of 2004 and it concluded for reasons
stated that the criminal and highway offences revealed separate and deliberate
violations of the law which did not demonstrate any adequate sense of social
responsibility. After some considerable discussion of the Applicant’s family
circumstances the Panel recognized that his relationship with his wife and two
children “is the strongest factor in his favour” and it had no doubt that these
people would be affected if he were removed. The panel expressly referred to
the factors for the exercise of its decision first outlined in Ribic
case and endorsed by the Supreme Court of Canada in Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 and in Al
Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R.
133. All of those factors are referred to specifically in the reasons. The panel
said it had given particular weight to the Applicant’s criminality after he was
allowed to stay in Canada following his deportation order and was not satisfied
that he had demonstrated that he could rehabilitate. It concluded by saying:
The panel has the responsibility to
consider the health and safety of the wider community and it’s [sic]
conclusion in this case is that the appellant may well offend again given his
behaviour to date. The appellant’s stay is cancelled and the appeal is
dismissed.
[5]
The
Applicant attacks this decision on several grounds. First, he says that the IAD
denied him procedural fairness by refusing to adjourn the hearing so that the
psychologist could attend and present viva voce evidence. Second, the
IAD misconstrued and ignored evidence by concluding that the Applicant’s recent
criminality could not be seen as a relapse, because this conclusion
contradicted the opinion set out in the report of the psychologist. Third, the
IAD erred in law by minimising the best interests of the Applicant’s children
and by ignoring the evidence in the psychologist’s report. Fourth, the IAD
erred in law by exercising its discretion in a “capricious and vexatious
manner”, in particular by “disregarding the submissions of counsel” and by
failing to consider patently relevant factors. Fifth, the IAD erred in law by
drawing conclusions without regard to the evidence before it.
[6]
At
the hearing of this judicial review, counsel for the Respondent sought to put
in new evidence showing that after the decision of the IAD on May 25, 2007 the
Applicant had been charged with new offences and that his pre-hearing criminal
record included a number of offences not disclosed to the IAD before it made
its decision. The evidence indicated that he had been arrested on August 29,
2007 and thereafter spent time in custody. I refused to admit this evidence on
the judicial review of the decision of the IAD of May 25, 2007 because it
concerned facts arising after the IAD hearing or was evidence of previous
events which was not before the IAD. The Court records do disclose, however,
that the Applicant’s removal was ordered for December 17, 2007, that he sought
a stay of that removal, and the application for stay was dismissed. I am
advised that he has been removed from Canada.
Analysis
[7]
I
think the only issue of substance raised by the Applicant is that the IAD might
have denied him procedural fairness by refusing to grant the adjournment to
enable the psychologist to testify viva voce. The authoritative factors
for consideration by the IAD in deciding in whether or not to grant an
adjournment are set out in the Immigration Appeal Division Rules, subsection 48(4)
which states as follows:
|
48(4) In deciding the application, the Division must
consider any relevant factors, including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party's arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice;
(f)
the knowledge and experience of any counsel who represents the party;
(g)
any previous delays and the reasons for them;
(h)
whether the time and date fixed for the proceeding were peremptory;
(i)
whether allowing the application would unreasonably delay the proceedings;
and
(j)
the nature and complexity of the matter to be heard.
|
48(4) Pour statuer sur la demande, la Section prend en
considération tout élément pertinent. Elle examine notamment :
a) dans
le cas où elle a fixé la date et l'heure de la procédure après avoir consulté
ou tenté de consulter la partie, toute circonstance exceptionnelle qui
justifie le changement;
b) le
moment auquel la demande a été faite;
c) le
temps dont la partie a disposé pour se préparer;
d) les
efforts qu'elle a faits pour être prête à commencer ou à poursuivre la
procédure;
e) dans
le cas où la partie a besoin d'un délai supplémentaire pour obtenir des
renseignements appuyant ses arguments, la possibilité d'aller de l'avant en
l'absence de ces renseignements sans causer une injustice;
f) dans
le cas où la partie est représentée, les connaissances et l'expérience de son
conseil;
g) tout
report antérieur et sa justification;
h) si la
date et l'heure qui avaient été fixées étaient péremptoires;
i) si le
fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable;
j) la
nature et la complexité de l'affaire.
|
I would first observe that the opening words of
the subsection direct the Division to consider “relevant factors” including the
ones enumerated. This does not mean that the IAD must expressly consider each
of the factors enumerated whether relevant or not to the particular case. I do
not take that to be a direction to the IAD to recite in its reasons a formulaic
consideration of each enumerated point whether relevant or not. The spirit of
this exercise is, I think, described in Siloch v. Canada (Minister of
Employment and Immigration) (FCA), [1993] F.C.J. No. 10 where Justice
Décary in speaking of a similar situation not governed by the specific rules
said that in exercising his discretion whether to grant an adjournment or not,
an adjudicator should direct his attention to factors “such as” and then listed
a number of factors similar to those in subsection 48(4) of the Immigration
Appeal Division Rules.
[8]
I
believe a careful reading of the IAD decision would indicate that attention was
paid to the relevant factors referred to in the Appeal Division Rules,
subsection 48(4). With respect to (a), the tentative date of December 19, 2006
was set in consultation with counsel. Thereafter counsel made several requests
for an adjournment all for the same reason, namely that Dr. Russell could not
be available on December 19th. It is apparent that the IAD did not
think that was such an exceptional circumstance as to require an adjournment,
having regarded to the fact that Dr. Russell’s written opinion would be
available. Factor (b) was therefore not important: the request for an
adjournment was made in a timely fashion and was dismissed on the merits, the
IAD feeling that the written report would suffice. Relevant to these
considerations is the fact that the Applicant and his counsel knew since
September that it was the intention of the IAD to go ahead and they therefore
had ample time to prepare. Therefore factors (c), (d), and (e) were irrelevant.
Factor (f) was also irrelevant: there was no question as to the knowledge and
experience of counsel for the Applicant nor that she was in any way unavailable
to represent her client at the time in question. Factors (g) and (i) were
obviously considered by the IAD, having regard to the seven years that the
Applicant had been under order of deportation subject to stays whose conditions
he had not respected. Factor (h) is irrelevant on its terms. Factor (j) was
obviously taken into account by the IAD in considering that the issues which
the psychologist could usefully address could be adequately treated by the
written report.
[9]
I
believe it was open to the trier of fact to reach that conclusion, considering
the nature of the Tribunal and the fact that it often receives evidence in
writing. Counsel for the Applicant suggests that a quite different result might
have flown from having the psychologist testifying in person. The fundamental
issue was whether the Applicant’s many breaches of the terms of his stay,
involving criminal and quasi criminal acts, could simply be treated as a “relapse”.
It was certainly open to the IAD to come to an independent conclusion on that
and it was not bound to follow the pronouncements of the psychologist whether
written or oral. I am not satisfied that the Applicant suffered any injustice
from not having the oral evidence of Dr. Russell placed before the IAD: see Tripathi
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1232.
[10]
The
Court owes no deference to the Tribunal in respect of questions of procedural
fairness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539.
However, I am satisfied that the hearing by the IAD was procedurally fair even
though an adjournment was refused. It must be kept in mind that this was not a
case where, by reason of refusal of an adjournment, the Applicant had no
counsel. There are numerous cases where a refusal to adjourn because counsel is
not available have been held to be procedurally unfair because the presence of
counsel adds a quality to the whole presentation which may not be available
otherwise. In the present case the issue had to do with one witness, a witness
who had provided his opinion in writing, and which the Panel clearly considered
seriously. I might add also that the Panel had before it Dr. Russell’s curriculum
vitae which disclosed that he was not an authority on recidivism of
criminals but rather on family relations. This would be a factor to be
considered if the matter were sent back for re-hearing and which suggests to me
that there would be no point in sending it back.
[11]
The
remainder of the Applicant’s objections to the decision really amount to a
complaint that the IAD did not come to the right conclusion on the evidence or
that it did not assign the proper weight with respect to the interests of the
Applicant’s Canadian children. While it had been previously thought that the
standard of review for decisions by the IAD in reviewing a removal order on
humanitarian and compassionate grounds was that of patent unreasonability, a majority
in the Federal Court of Appeal in Khosa v. Canada (Minister of Citizenship
and Immigration), [2007] F.C.J. No. 139 has held that the standard is
reasonability. That decision is under appeal. I am prepared to assume that the
standard of review is reasonability but I find nothing unreasonable in the
conclusions of the IAD in this case on the issues of substance.
[12]
The
main issue is whether the IAD had proper regard to the totality of evidence in
regard to the relevant factors. Those factors were set out in Ribic v. Canada (Minister of Employment
and Immigration),
[1985] I.A.B.D. No. 4 which have been approved by the Supreme Court of Canada
as relevant factors: see Chieu, supra, at para. 40. These factors
were listed by Justice Nadon in Burgess v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1302 at para. 16 as follows:
(1)
the seriousness of
the offence leading to the deportation order;
(2)
the possibility of
rehabilitation;
(3)
the length of time
spent in Canada and the degree to which the appellant is
established here;
(4)
the family in Canada
and the dislocation to the family that deportation would cause;
(5)
the support available
to the appellant, not only within the family but also within the community;
(6)
the degree of
hardship that would be caused to the appellant by his return to his country of
nationality.
A careful and fair reading of the decision of
the IAD will disclose that it considered all of those factors in a meaningful
way. The Applicant complains that the IAD did not focus on the seriousness of
the offence leading to the deportation order. In the opening sentence of the
reasons for decision the IAD relates that the Applicant was ordered deported on
December 1, 2000 on the grounds that he had been convicted of “an offence for
which a term of imprisonment of six months was imposed or ten years or more may
have been imposed… .” It is implicit in the Applicant’s criticism that the
Board should have focused on the first part of the description of the offence
and not the last part: that is it is should have measured the seriousness of
the offence by the sentence the Applicant received and not by the sentence he
might have received. The IAD obviously was aware of the sentence actually
received. But it was at liberty to consider an offence of trafficking a
“serious offence”, regardless of the sentence imposed. This was only one of the
factors the Panel had to take into account. Given the history of the matter,
viewed from seven years from the original order of deportation, the Panel was
legitimately more concerned with the Applicant’s subsequent failures to observe
the conditions imposed on his remaining in Canada. In considering, for example, factor (2)
“the possibility of rehabilitation” the IAD could properly look at his previous
40 convictions and six convictions subsequent to the 2004 stay to see whether
this man’s record showed a pattern of criminality that was likely to change.
[13]
The
Applicant focuses much of his attack on the Panel’s decision in the charge that
the Panel did not have adequate regard for the best interests of the
Applicant’s children. But the IAD discusses those interests seriously and at
length. It stated that it was of the opinion
that
the best interests of the Appellant’s children would be to have him active in
their lives given their ages and the role the Appellant has played to date in
their lives. The Panel has given long and careful consideration of these facts.
But it goes on to say
that the appellant ultimately had only himself to blame for his actions when he
committed further crimes knowing full well the possible consequences and that
it had a responsibility to consider the health and safety of the wider
community and the fact that the appellant might well offend again given his
behaviour to date. It would certainly have been open to the IAD to conclude
that the person who had the least regard for the best interests of his children
was the Applicant himself: after having been ordered deported from Canada, he
had two children in Canada. By committing further offences,
he withdrew himself from the company and support of those children. On one
occasion he had custody of his daughter Kanisha which he lost when he went to
jail in August, 2005.
[14]
It
was the responsibility of the IAD to weigh the various factors and this it has
clearly done. The best interests of children are not necessarily determinative:
Legault v. Canada (Minister of Citizenship and Immigration) (2002), 212
D.L.R. (4th) 139 at para. 12 (F.C.A.). I am unable to conclude that
its decision was unreasonable.
Disposition
[15]
I
will therefore dismiss the application for judicial review. Counsel requested
an opportunity to see the reasons before making submissions on certified
questions. They will have fifteen days from the date of these reasons to make
any such submissions which can be made in writing (by e-mail if preferred) to
the Court. A copy of submissions should be sent to opposing counsel who will
have seven days from their receipt to make submissions to the Court.
“Barry
L. Strayer”
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