Date: 20080808
Docket: IMM-48-08
Citation: 2008
FC 938
Ottawa, Ontario, August 8, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
SAMUEL
NATHANIEL BAILEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant contests the legality of a decision rendered by the Immigration
Appeal Division of the Immigration and Refugee Board (the Board), dated
December 3, 2007, in which the Board cancelled the applicant’s stay of removal
and appeal rights pursuant to section 197 of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (the Act).
[2]
The
applicant, Samuel Nathaniel Bailey, is a citizen of Jamaica and a permanent resident of Canada. On November 20, 2000, the
applicant was convicted of trafficking in cocaine contrary to paragraph 465(1)(c)
of the Criminal Code, R.S.C. 1985, c. C-46. The applicant pled guilty
and was sentenced to five years and three months of imprisonment. On June 12,
2001, an immigration adjudicator determined the applicant was inadmissible to Canada as a result of criminality
and issued a deportation order pursuant to paragraph 27(1)(d) of the
former Immigration Act, R.S.C. 1985, c. I-2 (the Former Act). The
applicant appealed the issuance of the removal order to the Board. With respect
to the disposition of said appeal, counsel made a joint recommendation to stay the
execution of the removal order upon a number of agreed terms and conditions. In
May 2002, the Board stayed the applicant’s removal order for a period of three
years on a number of conditions which include that the applicant “[k]eep the peace
and be of good behaviour”. The Board advised that it would reconsider the
applicant’s case in or about the fourth week of May 2005. In the meantime, the
Former Act was repealed and the new Act came into force on June 28, 2002. At
that time, the applicant’s case was pending before the Board. His treatment,
therefore, comes under the transitional provisions of the Act.
[3]
The
general rule, set out in section 192 of the Act, provides that cases pending in
the Appeal Division when the Act came into force are continued under the Former
Act. Nevertheless, some exceptions to this rule of general application are
provided in the Act. One such example is section 197 which states: “Despite
section 192, if an appellant who has been granted a stay under the former Act
breaches a condition of the stay, the appellant shall be subject to the
provisions of section 64 and subsection 68(4) of this Act.” Subsection 64(1)
provides: “No appeal may be made to the Immigration Appeal Division by a
foreign national or their sponsor or by a permanent resident if the foreign
national or permanent resident has been found to be inadmissible on grounds of
security, violating human or international rights, serious criminality or
criminality.” Further, according to subsection 68(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.
[4]
On April 13,
2005, the Board gave notice to the parties that on May 24, 2005, it would
conduct an in-chambers review of the stay. The respondent requested that the
applicant’s appeal be dismissed because of breaches to certain terms and
conditions of the stay order which did not concern the particular condition
that the applicant keep the peace and be of good behaviour. An oral review took
place on July 28, 2006. At the outset, the respondent agreed to withdraw its
allegations of previous breaches and the parties made joint recommendations,
which were accepted by the Board, to extend the stay for another year on the
same terms and conditions except for minor changes with respect to the
reporting requirements. On May 2, 2007, the Board notified the parties that,
pursuant to subsection 68(3) of the Act, it would reconsider the
applicant’s appeal without an oral hearing on June 13, 2007. This notification,
pursuant to Rule 26 of the Immigration Appeal Division Rules,
SOR/2002-230, required each party to provide the Board with a written statement
about whether the applicant had complied with the conditions of his stay of
removal.
[5]
By letter
dated June 13, 2007, the respondent requested that the applicant’s stay be
cancelled and his appeal rights removed due to the triggering of section 197 of
the Act. The respondent argued inter alia that the applicant had breached
the requirement to keep the peace and be of good behaviour by driving without a
valid driver’s licence on two occasions, in 2002 and 2003, contrary to British
Columbia’s Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the Motor Vehicle
Act). Subsection 24(1) of the Motor Vehicle Act provides that a person must not
drive or operate a motor vehicle on a highway unless he holds a subsisting
driver's licence issued to him or her under this Act. According to subsection
24(2), a person who contravenes subsection (1) commits an offence.
[Emphasis added]
[6]
With
respect to the allegations of breach to the Motor Vehicle Act, the respondent adduced
a statutory declaration sworn by Leona H. Martin, Immigration Officer at
CIC/CBSA in Yellowknife (Certified Tribunal Record, pages
94-95). In Ms. Martin’s own words:
On 12 June 2007, I contacted the NWT
Motor Vehicle office and requested they perform a driver’s license verification
for Samuel Nathaniel BAILEY. I spoke with Kelley Merilees-Keppel, Manager of
Motor Vehicle Registrations. Ms. Merilees-Keppel advised that Mr. BAILEY had a
driver’s licence, in British
Columbia, from
June 12, 1990, to June 19, 1991. She also advised that Mr. BAILEY received
two motor vehicle tickets, one in Westminster, B.C., in 2003 and one in Burnaby, B.C. in 2002. Both tickets
were for driving without a licence under the [Motor Vehicle Act]. She also
performed a Canada-wide driver’s licence check and stated Mr. BAILEY had never
obtained a driver’s licence elsewhere but B.C.
[Emphasis added]
[7]
The following
day, the applicant responded to the respondent’s submissions and argued that
the motor vehicle allegations were not brought before the Board at the oral
hearing held on July 28, 2006. Given that the alleged breaches “occurred in
2002 and 2003 prior to the further year stay imposed by [the Board]”,
applicant’s counsel argued the applicant “cannot breach conditions on his
current stay retroactively before the stay was even issued.” [Emphasis in
original]. Additionally, it was submitted that it seems “vindictive in the
extreme for the Minister to call for Mr. Bailey’s stay to be cancelled and his
appeal rights removed because of trivial [Motor Vehicle Act] allegations from
2002 to 2003 […].”
[8]
On June
18, 2007, the respondent responded to the applicant’s submissions and conceded
that one of its arguments, namely that the applicant had failed to report a
change of address, was incorrect and withdrew its submissions in that regard.
Nevertheless, the respondent maintained its position that the applicant had breached
the condition to keep the peace and be of good behaviour as a result of the
motor vehicle infractions. Moreover, on July 6, 2007, the respondent further
noted that applicant’s counsel “does not dispute the fact that the applicant was
convicted in 2002 and 2003 of driving without a valid driver’s licence
contrary to the Motor Vehicle Act.” [Emphasis added] The respondent stated that
it was unaware of the motor vehicle violations until advised of them by Ms.
Martin in June of that year. A statutory declaration to that effect was
provided by David Macdonald, the Hearing Officer who was involved in the stay
review in July 2006, attesting to the fact that had he known of these breaches
at the time of the oral review, it would have influenced his conduct of the
case. Further, Mr. Macdonald stated that he did not consider driving without a
licence, twice over, to be a trivial or technical breach of a condition to keep
the peace and be of good behaviour.
[9]
Applicant’s
counsel filed its reply on July
16, 2007.
Counsel admitted that the applicant was in fact issued two traffic tickets:
“one in New Westminster, B.C. on November 9, 2002 and another in Burnaby, B.C. on January 13, 2003 for
driving without a licence contrary to s. 24(1) of the [Motor Vehicle Act].” Counsel
further acknowledged that breaches of the Motor Vehicle Act may “technically
violate” the condition of keeping the peace and being of good behaviour.
However, it was argued that the following circumstances should persuade the
Board to exercise its discretion and not deport the applicant based on the two
traffic tickets he received:
- the applicant held a Saskatchewan
Driver’s licence that expired two months before he received the first
ticket;
- the applicant had not received the
letter reminding him to renew his licence (and had simply forgotten to do
so);
- the applicant had no intent to keep
his traffic violations hidden;
- the applicant did not understand the
degree to which he was required to report any contact with the police
and/or courts;
- the applicant volunteered the
information that his licence had been revoked; and,
- the applicant’s entire life is
established in Canada (he came to Canada in 1985, he has two
children, he lives with his sister and is currently taking care of his
mother).
[10]
In its
decision dated December 3, 2007, the Board first emphasized the respondent’s allegation
that the applicant “was convicted in 2002 and 2003 of driving without a valid
driver’s licence contrary to the Motor Vehicle Act and the said conviction[s
were] not contested by the [applicant].” The Board then reasoned that a breach
of a federal, provincial, municipal or regulatory statute does not
automatically lead to the conclusion that there has been a breach of a
condition to keep the peace and be of good behaviour. The Board relied on the
Board’s decision in Cao v. Canada (Minister of Citizenship and Immigration),
[2006] I.A.D.D. No. 101 (QL) (Cao) and the Federal Court’s decision in Avalos
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 830, [2005] F.C.J. No. 1035 (Q.L.) (Avalos). The Board therefore
considered the applicant’s explanations with respect to the two provincial
offences.
[11]
With
regard to the first offence, the Board accepted the applicant’s explanation
that his licence expired two months before and that he had not received his
notice of renewal and that he had inadvertently failed to renew his licence.
However, turning to the second offence, the Board stated it would have expected
the applicant, in 2003, to renew or to get a new driver’s licence which he
obviously chose not to do. Accordingly, the Board found that the applicant “did
breach in 2003 a provincial statute, the Motor Vehicle Act knowingly or ought
to have known by driving without a valid driver’s licence for which he was put
a notice on [sic] his prior conviction in 2002 for the same offence.
Therefore, the [applicant] breached the condition of his stay to keep the peace
and be of good behaviour.” Accordingly, the Board determined that the applicant
is subject to section 197 of the Act. As a result, the stay of the removal
order was cancelled and the appeal was terminated by operation of the law.
[12]
According
to the applicant, in initiating the review of the stay, the respondent bore the
burden of proving that the applicant had breached a condition of his stay. This
means the respondent bore the burden of proving that the applicant failed to
abide by federal, provincial, and municipal statutes and regulations. In this
regard, the applicant submits that the respondent cannot tender allegations of
an offence as proof of a conviction. This follows not only from the presumption
of innocence enshrined in the Canadian Charter of Rights and Freedoms,
but also the duty of fairness owed to the applicant. In the case at bar, the
Board erred in finding that the applicant had been “convicted” of certain motor
vehicle offences in 2002 and 2003. First, there was no direct evidence on the
record and no admission that the applicant was ever convicted of driving
without a licence. Second, the statutory declaration of Leona H. Martin
constituted inadmissible hearsay evidence as proof of a conviction to support
the cancellation of the applicant’s stay.
[13]
For the
reasons that follow, this application for judicial review is dismissed
[14]
In Huynh
v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1426, [2003] F.C.J. No. 1844 (QL) (Huynh), which is referred to
by the Board in the impugned decision, Justice O’Reilly considered the
meaning of a stay condition requiring the applicant to be of “good behaviour”:
I note that in the criminal law the
requirement to "keep the peace and be of good behaviour" is a
statutory condition in all probation orders: Criminal Code, R.S.C. 1985,
c. C-46, s. 732.1(2)(a). To be of "good behaviour", one must abide
by federal, provincial or municipal statutes and regulations: R. v. R.(D.)
(1999), 138 C.C.C. (3d) 405 (Nfld. C.A.). I see no reason why the same approach
should not apply in this context.
[Emphasis added]
[15]
Huynh was cited with approval by
Justice Mactavish in Cooper
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1253, [2005] F.C.J. No. 1519 (QL) (Cooper) at para. 15. In Cooper,
which is also referred to by the Board in the impugned decision, the issue
before the Court was whether the applicant’s convictions in relation to
provincial automobile offences constituted a breach of the condition of the
stay of his deportation requiring him to "keep the peace and be of good
behaviour and not commit further criminal offences". The answer is yes.
[16]
However, in
Avalos, also cited by the Board, at para. 34, Justice Blanchard found
that section 197 does not prevent the Board from considering any reasonable
explanation relating to the breach of condition:
I am unable to accept the applicant's
argument that section 197 allows no analysis of the circumstances surrounding
the breach of condition and that in this case the applicant was unable to
proffer an explanation. Section 197 does not prevent the Appeal
Division from considering any reasonable explanation relating to the breach of
condition. In my opinion, the Appeal Division has an obligation to consider the
excuses provided by the applicant as an explanation of his failure, and it did
so in this instance. The Appeal Division expressly considered the applicant's
explanation for his failure and considered it insufficient. Accordingly, it is
my opinion that the principles of natural justice were complied with in this
case.
[17]
In Cao,
also cited by the Board, a panel of the Appeal Division took the Avalos
line of reasoning one step further, finding at paras. 16 and 19 as follows:
The panel is interested in this reference
in both Cooper and Huynh to R. v. R. (D.) and the identical statements made by
Justices Mactavish and O'Reilly in these decisions: "To be of good
behaviour", one must abide by federal, provincial or municipal statutes
and regulations. R. v. R. (D.)." The panel is of the opinion that the
Minister has concluded that this phrase "To be of 'good behaviour' means
one must abide by federal, provincial or municipal statutes and
regulations" means that any conviction under a federal, provincial or
municipal statute or regulation automatically means that a breach of the
condition "to keep the peace and be of good behaviour" has occurred.
The panel cannot agree based on its review of R. v. R. (D.) and further case
law.
[…]
The panel is satisfied, based on its
review of R. v. R. (D.) that R. v. R. (D.) more accurately stands for the
proposition that a failure to be of good behaviour requires a failure to
have abided by federal, provincial and municipal statutes and regulatory
provisions but that a failure to abide by a federal, provincial or municipal
statute does not necessarily mean that there has been a failure to be of good
behaviour.
[Emphasis added]
[18]
The panel
in Cao ultimately concluded:
The panel is firmly of the opinion that
it is not appropriate to conclude, as the Minister would want, that a breach of
this condition has occurred whenever an appellant has been convicted under any
federal, provincial or municipal statute. In the panel's opinion, following
Borland and Avalos, the appellant has the right to present evidence and
provide an explanation in support of a contention that such a conviction does
not necessarily mean that a breach has occurred and that a determination as to
whether a breach has taken place must be made in the context of evidence and
arguments on this specific issue. It is significant to the panel that the
Federal Court in both Cooper and Huynh was reviewing IAD decisions in which the
IAD ruled that breaches of the condition to keep the peace and be of good
behaviour had occurred following provincial offences after the IAD had
conducted an oral review in which the appellant was afforded the opportunity to
argue this issue. The panel is of the opinion this is quite a different
scenario than the IAD being asked to conclude that a breach has occurred simply
based on evidence that a conviction had occurred.
[Emphasis added]
[19]
I note
that Justice Campbell judicially affirmed the reasonableness of the approach
taken by the Board in Cao: Canada (Minister of Public Safety and Emergency Preparedness v.
Ali, 2008 FC
341, [2008] F.C.J. No. 518 QL. Moreover, Justice Campbell distinguished what
had been said in Canada (Minister of Citizenship and
Immigration v. Stephenson,
2008 FC 82, [2008] F.C.J. No. 97 (QL) (Stephenson), where Justice Dawson
cautioned against following the Cao decision too closely.
[20]
That being
said, the jurisprudence established by this Court in Huynh and Cooper,
and more recently in Stephenson, has consistently held that to “be of
good behaviour”, a person must abide by federal, provincial, and
municipal statutes and regulations [Emphasis added]. I pause here to note that
according to paragraphs 175(1)(b) and (c) of the Act, the Board
“is not bound by any legal or technical rules of evidence” and “may receive and
base a decision on evidence adduced in the proceedings that it considers
credible or trustworthy in the circumstances”. Given this statutorily mandated
flexible approach to evidentiary considerations, I am not persuaded by the
applicant’s contention that the Board erred in considering the declaration of
Ms. Martin. For the purpose of the proceeding before the Board, the respondent
could well assert that the applicant had breached subsection 24(1) of the Motor
Vehicle Act. I am equally of the view that there was ample evidence before the
Board, both direct and indirect, that would allow it to reasonably conclude
that the applicant had failed to abide by the Motor Vehicle Act.
[21]
In this
case, the statutory declaration of Ms. Martin constitutes proof that the
applicant had received two traffic tickets in 2002 and 2003 for driving without
a licence contrary to the Motor Vehicle Act. Ms. Martin further attested to the
fact that the applicant had not obtained a licence elsewhere in Canada. I note that the applicant never
denied the fact that he was driving a motor vehicle without a valid B.C.
driver's licence in either 2002 or in 2003. To the contrary, the applicant
voluntarily admitted that he was issued tickets for the offences of driving
without a licence on November 9, 2002 and January 13, 2003. Moreover, the
applicant readily admitted that his licence expired two months before he had
received the first ticket in New
Westminster,
B.C. on November 9, 2002. He also admitted that he was still driving without a
licence when he received the second ticket in Burnaby, B.C. on January 13, 2003. Moreover,
applicant’s counsel submitted to the Board that “[w]hile breaches of the [Motor
Vehicle Act] may technically violate the condition of keeping the peace and
being of good behaviour, given the circumstances of Mr. Bailey’s case, the
Board should not find that this breach is serious enough to dismiss Mr.
Bailey’s appeal.” [Emphasis added]. Clearly, this is an admission on the
part of the applicant that twice he committed the offence of driving without a
licence and thereby failed to abide by the relevant provincial law in 2002 and
2003.
[22]
The
Federal Court of Appeal decided in 2005 that it is “the offence itself that
constitutes the breach of the condition to keep peace and be of good
behaviour”. In this regard, a breach may be established without a conviction
“where there is other clear evidence of the offensive behaviour”: Singh v. Canada (Minister of Citizenship and
Immigration), 2005
FCA 417, [2005] F.C.J. No. 2046 (QL), at para. 28 (Singh). In this
instance, and given the clear and convincing evidence that was before the
Board, I do not think it was unreasonable for the Board to conclude, in the absence
of proof of a conviction, that the applicant “did breach in 2003 a Provincial
Statute, the Motor Vehicle Act knowingly or ought to have known by driving
without a valid driver’s licence for which he was put on notice…in 2002…” (that
is, when the applicant was issued a prior traffic ticket on November 9, 2002). Given
the specific factual context of this case, I am equally of the view that the
Board’s finding that the applicant breached the condition to be of good
behaviour is not unreasonable. Accordingly, the present application must fail.
[23]
The
applicant has proposed two questions for certification:
1. Does section 175 of the Act
permit the Board to consider allegations of a charge [made under a provincial
statute] as proof of a breach of the condition to keep the peace and good
behaviour, or must a breach [to the provincial statute] be proven by direct
evidence of a conviction before a stay is cancelled by operation of section 197
of the Act?
a.
Is a
conviction [under the provincial statute] required to trigger section 197 of
the Act [where a breach to the condition of keeping the peace and being of good
behaviour is alleged]?
[24]
It is
clear that the first question would not be determinative of an appeal in this
case. With respect to the second question, the pronouncement made by the
Federal Court of Appeal in Singh, at para. 15, is determinative, since
in this case, in the absence of direct proof of a conviction, there is “other
clear evidence of the offensive behaviour”. Accordingly, no question shall be
certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. No question is certified.
"Luc
Martineau"
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