Date: 20081201
Docket: IMM-2227-08
Citation: 2008 FC 1341
Vancouver, British Columbia, December
1, 2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HUGO FRANKLIN VILLANUEVA CRUZ
aka
HUGO FRANKLIN VILLANEUVA CRUZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Mr. Hugo
Franklin Villanueva Cruz, is a citizen of El Salvador who came to Canada in 1997 and was found to be a Convention
refugee in 1999. On March 17, 2006, he was convicted of Trafficking in a
Controlled Substance and sentenced to serve three years and ten months. In a
decision dated October 17, 2007, a delegate of the Minister of Citizenship and
Immigration (the Minister’s delegate) determined that the Applicant constituted
a danger to the public in Canada pursuant to s. 115(2)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicant seeks
judicial review of that decision.
[2]
The
Applicant raises three issues:
- In making the
danger assessment, did the Minister’s delegate err by failing to have
regard to evidence of the Applicant’s rehabilitation and his low risk of
re-offending?
- In making the
danger assessment, did the Minister’s delegate impose too high a burden of
proof on the Applicant to show that he was not a risk to re-offend?
- In determining
whether that there were insufficient humanitarian and compassionate
grounds to overcome his removal from Canada, did the Minister’s delegate fail to
adequately consider the best interests of the Applicant’s Canadian
children?
[3]
Having
reviewed the record and the oral and written submissions of the parties, I am
not persuaded that the Minister’s delegate erred by imposing too high a burden
or by failing to consider the best interests of the children. However, it is
not necessary to make final determinations on these two issues since I
conclude, for the reasons set out below, that the Minister’s delegate erred by
failing to have regard to certain of the evidence related to the Applicant’s
danger assessment. On this basis, the decision was unreasonable and should
be overturned.
[4]
The
test to be used by the Minister in forming a danger opinion was summarized by
Justice Strayer in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646
(C.A.) at paragraph 29:
In the
context the meaning of "public danger" is not a mystery: it must
refer to the possibility that a person who has committed a serious crime in the
past may seriously be thought to be a potential re-offender. It need not be
proven -- indeed it cannot be proven -- that the person will reoffend. What I
believe the subsection adequately focusses the Minister's mind on is
consideration of whether, given what she knows about the individual and what
that individual has had to say in his own behalf, she can form an opinion in
good faith that he is a possible re-offender whose presence in Canada creates
an unacceptable risk to the public. [Emphasis added]
[5]
Justice
Beaudry offered further comments on this standard as it related to individuals
convicted of narcotics-related offences Do v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 493 at paragraphs 42-43:
This
Court has consistently held, including in cases dealing with narcotics-related
offences, that the mere fact of conviction on one or more criminal offences
does not itself support a determination that a person is, may be, or is likely
to pose a danger to the public, although some offences by their nature may be
of a type that invite such a conclusion: Salilar v. Canada (Minister of Citizenship
and Immigration), [1995] 3 F.C. 150 (T.D.) at page 159; Thai v. Canada
(Minister [page 510] of Citizenship and Immigration) (1998), 42 Imm.
L.R. (2d) 28 (F.C.T.D.) at paragraph 16; Tewelde v. Canada (Minister of Citizenship and
Immigration) (2000), 89
F.T.R. 206 (F.C.T.D.).
Rather,
in forming an opinion as to whether an individual constitutes a danger to the
public, natural justice and procedural fairness require the Minister to take
into account all of the relevant and particular circumstances of each case, and
the circumstances of each case must, over and above the conviction, indicate a
danger to the public: Fairhurst v. Canada (Minister of Citizenship and Immigration)
(1996), 124 F.T.R. 142 (F.C.T.D.) at paragraph 10; Thompson v. Canada
(Minister of Citizenship and Immigration) (1996), 41 Admin. L.R. (2d) 10
(F.C.T.D.) at paragraph 19.
[6]
In
reaching her conclusion that the Applicant was a present and future danger to
the public, the Minister’s delegate wrote:
[The
Applicant] has committed and has been convicted of one major crime - trafficking.
Although he has expressed remorse for his action and seems to display exemplary
behaviour in the prison setting, I am not convinced that this one time act
could not happen again. The 46 month sentence imposed by the judge is
significant and indicates the grave seriousness of his offence. Prior to the
offence, Mr. Villanueva Cruz did not seem to have a steady lifestyle by
continually residing in a certain area or having continuous employment in any
field for any length of time. After arrival, he was on social assistance, then
had seasonal employment at a Fencing company for four months each summer, then
worked at various labor type jobs…
In
rendering my decision that Mr. Villanueva Cruz is a danger to the public
in Canada, I fully realize that I am basing my
decision on a single conviction. Despite some positive reinforcement
in Mr. Villanueva Cruz’s life such as a supportive ex-mother-in-law, his children
and a possible future employer, these same factors were not sufficient to keep
him at bay from a huge criminal act. It is my opinion based on the information
before me that he could reoffend and traffic in a drug, promoting an unwanted,
dangerous drug into the community and society. This remains foremost in my mind
when making a determination that he is a present and future danger to the
public in Canada.
[7]
The evidence
before the delegate included the following:
- The Applicant had
one conviction for trafficking and was sentenced to 46 months; he had no
prior convictions.
- Following his
arrest in 2004, he was released on bail and remained in the community for
over a year and a half without incident, meeting all the conditions of his
bail.
- The Applicant was
granted full parole after serving only 15 months of his 46-month sentence.
As indicated in the “Criminal Profile Report,” Correction Services found
that the Applicant was a strong candidate for reintegration. The report
also found:
- His criminality
related mainly to his financial pressure and manipulation by criminal
associates;
- He was not a
member or an affiliate of any gang; and
- He exhibited
pro-social tendencies and high motivation to follow his correctional
plan.
- The Applicant had
not been charged with any other offences since being released on parole.
[8]
The delegate’s
decision centered on the Applicant’s motivation to commit the crime. Based on
the evidence, the delegate concluded (reasonably, in my opinion) that the
Applicant was motivated to commit the offence by financial stresses. Since he
was not in a better financial position at the time of the danger opinion, the
Minister’s delegate found that there was no evidence to conclude that he would
not re-offend. However, in my view, this finding fails to take into account the
evidence that the Applicant had made arrangements to address the financial
stresses that led to the commission of the original trafficking offence;
specifically, he planned to accept employment (which apparently had been
guaranteed) in the construction industry.
[9]
This
evidence was not adequately addressed by the Minister’s delegate. The only
reference that the delegate made to the Applicant’s potential future employment
was found in her conclusion: “despite some positive reinforcement in Mr.
Villanueva Cruz’s life such as a supportive ex-mother-in-law, his children and
a possible future employer, these same factors were not sufficient to keep him
at bay from a huge criminal act.” Reading this part of the decision, it seems
that the delegate misconstrued the evidence by assuming that the Applicant had
employment options available to him at the time he committed the offence. In
fact, there is no support for this based on the evidence. More importantly,
this indicates that the delegate failed to properly consider this evidence as
part of her conclusion that the Applicant’s financial situation had not changed
for the better following his incarceration.
[10]
There
are other problems with the delegate’s decision. In concluding that the
Applicant “could re-offend and traffic in a drug”, the Minister’s delegate
makes no reference to much of the evidence that supports his claim of
rehabilitation. For example, the Applicant was out on bail, in the community,
and crime free for 18 months, prior to his conviction. The “Criminal Profile
Report”, prepared for his intake into incarceration, makes reference to the low
likelihood that he would re-offend. He was given early release from custody,
partly on the basis of a low risk of re-offending.
[11]
Finally,
it also appears that the Minister’s delegate relied on her conclusion that the
Applicant was “submerged with associates in the drug trade” to support her
overall finding that the Applicant was likely to re-engage in drug-related crimes.
In my view, the finding that the Applicant was “submerged” in the drug trade is
capricious or made without regard to the evidence. While the Applicant may
have, at the time of his crime, associated with participants in the drug trade
and had used cocaine, there was no evidence that he was ever “submerged” in
this world of crime. In any event, there is even less evidence that would lead
the delegate to conclude that, subsequent to his incarceration, he had
continued these associations.
[12]
For
these reasons, I find that the decision of the Minister’s delegate was
unreasonable and the application for judicial review will be allowed.
[13]
I
wish to be clear that, by my decision, I am not concluding that this Applicant
cannot be found to be a danger to Canada. I am also not opining that a danger opinion
cannot follow a single conviction. However, in order to do so, it is imperative
that the Minister’s delegate have regard to the evidence before him or her. In
this case, that was not done.
[14]
Neither
party proposed a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
- The application for
judicial review is allowed and the matter sent back to the Minister for
re-determination by a different Minister’s delegate; and
- No question of
general importance is certified.
“Judith
A. Snider”
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