Docket: IMM-1325-16
Citation:
2016 FC 1214
Ottawa, Ontario, November 2, 2016
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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HARDEEP SINGH
BRAR
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Applicant
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And
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Hardeep Singh Brar is a permanent resident of
Canada. After he was convicted of conspiracy to distribute cocaine in the
United States, a Minister’s Delegate referred Mr. Brar to an admissibility
hearing to determine whether he was inadmissible to Canada for serious
criminality, as well as organized criminality and involvement in transnational
crime.
[2]
Mr. Brar seeks judicial review of the
referral decision, asserting that it was unreasonable as it contained serious
factual errors, and failed to consider important evidence. Mr. Brar
further submits that the Minister’s Delegate failed to properly take “Charter values” into account in deciding
whether to refer him to an admissibility hearing.
[3]
For the reasons that follow, I am not persuaded
that the Minister’s Delegate erred as alleged. I am further satisfied that the
decision to refer Mr. Brar to an admissibility hearing was entirely
reasonable. Consequently, his application for judicial review will be dismissed.
I.
Background
[4]
Mr. Brar is a citizen of India who came to
Canada in 1998 when he was 15 years old.
[5]
In 2009, Mr. Brar agreed to take a rental
car from Canada to the United States and to drop it off there for use by a drug
courier. After meeting with the drug courier in the United States, Mr. Brar
was arrested and charged with being part of a conspiracy to distribute 15
kilograms of cocaine, which was intended to be shipped to Canada.
[6]
Mr. Brar expressed remorse for his actions,
and he co‑operated with US law enforcement during the investigation and
prosecution processes. Mr. Brar evidently told investigators about others
involved in the drug trafficking scheme, which led to the indictment of two
other individuals.
[7]
Mr. Brar subsequently pled guilty to the
conspiracy offence. He was deemed by the prosecution to have accepted
responsibility for his actions, and he was sentenced to 24 months in prison.
After serving 21 months of his sentence, Mr. Brar was deported to India.
He returned to Canada a month later, admitting to his criminal conviction when
he was interviewed by a Canada Border Services Agency (CBSA) Officer at the
Vancouver International Airport.
[8]
Mr. Brar was subsequently given notice that
reports may be prepared declaring him to be inadmissible to Canada for serious
criminality, organized criminality and transnational crime. He was then interviewed
by a CBSA Inland Enforcement Officer, and was given the opportunity to provide
written submissions to the Officer prior to a decision being made as to whether
to refer him for an admissibility hearing. In support of his request not to be
referred to an admissibility hearing, Mr. Brar and his counsel provided the
Officer with several sets of submissions and supporting materials over a three
and a half year period.
[9]
Among other things, Mr. Brar submitted that
even though his offence was serious, it had not involved violence or firearms.
Several years had passed since his one criminal offence, and he had not engaged
in any further criminal activity. A psychologist’s report provided by Mr. Brar
had, moreover, indicated that he posed a low risk of re-offending. Mr. Brar
also noted that he had come to Canada as a child, that he had lived in Canada
for many years, and that he had minimal ties to India. All of Mr. Brar’s
immediate family, including his wife, were in Canada, and he was gainfully
employed.
[10]
An initial decision to refer Mr. Brar to an
admissibility hearing was set aside on consent, after he sought judicial review
of that decision. After receiving further submissions from Mr. Brar, the
Inland Enforcement Officer once again recommended that he be referred for an
admissibility hearing in relation to his serious criminality, as well as his
involvement in organized criminality and transnational crime. A Minister’s Delegate
subsequently adopted that recommendation, and referred Mr. Brar’s case to the
Immigration Division of the Immigration and Refugee Board, and it is this
decision that underlies this application for judicial review.
[11]
Mr. Brar has never claimed that he would be
at risk if he were returned to India. He further concedes that he is
inadmissible to Canada as a result of his American drug conviction, and that he
would inevitably be found to be inadmissible by the Immigration Division. He
notes, however, that if his case goes to an admissibility hearing, the Immigration
Division would have no equitable jurisdiction to consider humanitarian and
compassionate factors before issuing a removal order against him.
[12]
Moreover, because the punishment for Mr. Brar’s
offence could have exceeded 10 years, had the offence been committed in Canada,
he is not entitled to appeal the Immigration Division’s finding to the
Immigration Appeal Division of the Immigration and Refugee Board. Mr. Brar
is also permanently barred from seeking humanitarian and compassionate relief
under section 25 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, because he is inadmissible to Canada under section 37 of the Act
for organized criminality and transnational crime. Consequently, the only
place where Mr. Brar’s humanitarian and compassionate considerations can
be considered is at the referral stage.
II.
Analysis
[13]
Before addressing Mr. Brar’s arguments with
respect to the alleged deficiencies in the referral decision, I would start by
observing that there is some debate as to the scope of the discretion conferred
on Minister’s Delegates in deciding whether to refer an individual for an
admissibility hearing. Some cases suggest that a Minister’s Delegate has no
discretion in this regard, while other cases indicate that a Minister’s Delegate
does possess some, albeit it limited discretion not to refer cases for
admissibility hearings: Faci v. Canada (Public Safety and Emergency
Preparedness), 2011 FC 693 at paras. 22-31, [2011] F.C.J. No. 893.
[14]
I do not need to resolve this question in this
case, as it is clear that the Minister’s Delegate considered that he had
discretion to decide whether or not Mr. Brar’s case should be referred for
an admissibility hearing. The Minister’s Delegate determined, however, that the
circumstances of Mr. Brar’s case did not justify the exercise of that discretion
in his favour.
[15]
In his submissions to the Inland Enforcement
Officer, Mr. Brar made brief reference to the potential breach of his
rights under section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11. It will be recalled that section 7 states that “[e]veryone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice”.
[16]
Because of the serious consequences that removal
from Canada would have for him, Mr. Brar submits that his section 7 rights
were engaged in the referral process. As a consequence, Mr. Brar submitted
that the Officer had to exercise his discretion in accordance with the
principles of fundamental justice. According to Mr. Brar, this required
that his case not be referred for an admissibility hearing on the basis that
there are sufficient compelling humanitarian and compassionate grounds to
permit him to retain his permanent resident status, and removal would violate
his constitutional rights.
[17]
Citing the Supreme Court of Canada’s decision in
Doré v. Barreau du Québec, 2012 SCC 12 at paras. 55-57, [2012] 1 S.C.R. 395,
Mr. Brar argues that the Supreme Court has held that in considering Charter
values in the exercise of statutory discretion, administrative
decision-makers must balance the Charter values with the statutory
objectives. The decision-maker must then ask how the Charter value at
issue can best be protected in view of those statutory objectives. According to
Doré, “[t]his is at the core of the
proportionality exercise, and requires the decision-maker to balance the severity
of the interference of the Charter protection with the statutory
objectives”: at para. 56.
[18]
The Supreme Court went on in Doré to note
that on judicial review, the question for the reviewing Court is “whether, in assessing the impact of the relevant Charter
protection and given the nature of the decision and the statutory and factual
contexts, the decision reflects a proportionate balancing of the Charter
protections at play”. This determination is to be made applying the
reasonableness standard of review: at para. 57.
[19]
According to Mr. Brar, because Charter values were at play in this case, the Minister’s Delegate
was required to exercise his discretion in a manner that best protected Mr. Brar’s
security of the person. This required that the Minister’s Delegate not refer Mr. Brar’s
case to the Immigration Division for an admissibility hearing.
[20]
There are several reasons why I do not accept Mr. Brar’s
submission.
[21]
First of all, I have serious doubts that Mr. Brar’s
section 7 rights were engaged in this process. The jurisprudence is clear that
deportation per se does not engage section 7 of the Charter, and that
section 7 is, moreover, not engaged at the stage of determining admissibility
to Canada: see, for example, B010 v. Canada (Citizenship and Immigration),
2015 SCC 58 at paras. 74-75, [2015] 3 S.C.R. 704; Torre v. Canada
(Citizenship and Immigration), 2015 FC 591, [2015] F.C.J. No. 601; Stables
v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240.
[22]
The Supreme Court teaches that in determining
whether section 7 of the Charter is engaged, regard has to be had to the nature
of the interests at stake: Charkaoui v. Canada (Citizenship and Immigration),
2007 SCC 9 at para. 18, [2007] 1 S.C.R. 350.
[23]
There has never been any suggestion that Mr. Brar
is at risk in India. Indeed, the types of harm that Mr. Brar asserts will
befall him if he is removed from Canada are typical consequences of deportation
including family separation, loss of establishment and the need to become re‑established
in a country left years before. This distinguishes Mr. Brar’s situation
from cases such as Charkaoui, above, where the named individual’s
liberty interests had been affected by his detention under a Security
Certificate, and Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, where individuals faced the
prospect of deportation to torture.
[24]
Indeed, as Justice de Montigny noted in Stables,
above at para. 42, “[i]t was the risk of torture on
removal, though, and not the fact of removal itself, that engage the applicant’s
section 7 interests in [Suresh]”.
[25]
Similarly, in Torre, above, Justice
Tremblay-Lamer concluded that section 7 of the Charter was not engaged
where a long-term resident of Canada was being deported for having been
convicted of trafficking in cocaine, because the individual in question was not
being deported to a country where he faced torture: at para. 71.
[26]
Even if I were to accept that Mr. Brar’s
section 7 rights were engaged in the process at issue in this application,
however, that would not be the end of the matter. Section 7 Charter rights
are not absolute: individuals can be deprived of their life, liberty or security
of the person, provided that this occurs through a process that accords with
the principles of fundamental justice.
[27]
In this case, Mr. Brar had a face-to-face
interview with the Inland Enforcement Officer. He was repeatedly afforded the
opportunity to provide written submissions in support of his request not to be
referred for an admissibility hearing, and he provided the Officer with copious
submissions that had been prepared with the assistance of counsel. Mr. Brar was
provided with draft recommendations prepared by the Inland Enforcement Officer
for consideration by a Minister’s Delegate, and he was given the right to
comment on them. Any errors in the draft reports that were identified by Mr. Brar
were corrected, and a thorough analysis of Mr. Brar’s case was provided to
the Minister’s Delegate. This analysis is considered to be part of the Minister’s
Delegate’s reasons: Huang v. Canada (Public Safety and Emergency
Preparedness), 2015 FC 28 at para. 88, 473 F.T.R.
91.
[28]
Moreover, the Minister’s Delegate had regard to
the objectives of the Immigration and Refugee Protection Act and the
seriousness of Mr. Brar’s criminal offence. He then weighed these considerations
against Mr. Brar’s humanitarian and compassionate factors, as he was
required to do by both Canadian and international law.
[29]
In other words, the Minister’s Delegate balanced
the severity of the interference with what Mr. Brar asserts was his Charter-protected
right to security of the person right against the statutory objectives and the
nature of Mr. Brar’s criminal conviction. He then came to the conclusion that
the seriousness of Mr. Brar’s criminal conviction outweighed the
humanitarian and compassionate factors that supported the exercise of
discretion in Mr. Brar’s favour.
[30]
This was a conclusion that was reasonably open
to the Minister’s Delegate on the record before him. I am, moreover, satisfied
that it represents a proportionate balancing of the competing interests at
stake: Doré, above at para. 57, Singh v. Canada (Citizenship and
Immigration), 2016 FCA 96 at para. 57, [2016] F.C.J. No. 315.
[31]
Mr. Brar has not identified any further information
that he was unable to provide to either the Inland Enforcement Officer or the
Minister’s Delegate that could possibly have assisted his case. Nor has he
identified any principle of fundamental justice that was not complied with in
relation to the Minister’s Delegate’s determination that Mr. Brar should
be referred to the Immigration Division for an admissibility hearing.
[32]
In essence, what Mr. Brar says is that the
Minister’s Delegate gave too much weight to the seriousness of his criminal
conviction and not enough weight to his humanitarian and compassionate factors,
and that this breached principles of fundamental justice. It is not, however,
this Court’s role to usurp the role of the Minister’s Delegate and reweigh the
evidence to reach a different conclusion.
[33]
Mr. Brar also argued in his memorandum of
fact and law that the Minister’s Delegate made certain findings of fact that
were unsupported by the evidence. The respondent’s memorandum of fact and law identified
the evidence in the record that supported the findings in question, and no
reviewable error has been demonstrated by Mr. Brar in this regard. Indeed,
the fact that evidence from the psychologist’s report was referred to in the
Inland Enforcement Officer’s analysis simply confirms the thoroughness that was
applied to the review of Mr. Brar’s submissions.
III.
Conclusion
[34]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case is fact-specific,
and does not raise a question for certification.
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