Docket: IMM-260-17
IMM-261-17
IMM-262-17
Citation:
2018 FC 10
Montréal, Quebec, January 8, 2018
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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PEDRO GONZALES
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Applicant
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and
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MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The applicant has brought three applications for
judicial review challenging:
- Federal Court
file no. IMM-261-17: The decision dated May 13, 2016 of a Canada Border
Services Agency’s officer (the CBSA) to issue a report under subsection
44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
alleging that the applicant is inadmissible to Canada for serious
criminality pursuant to section 36 of the IRPA (the Decision to
Report);
- Federal Court file
no. IMM-260-17: The decision of a Minister’s delegate dated June 6, 2016
referring the applicant to an admissibility hearing under subsection 44(2)
of the IRPA (the Referral Decision); and
- Federal Court
file no. IMM-262-17: The decision of a member of the Immigration and
Refugee Board of Canada (IRB) dated September 27, 2016 to issue a
deportation order against the applicant (the Removal Decision).
[2]
The parties agree that the success or failure of
the challenge to the Removal Decision will turn on the success or failure of
the judicial review applications concerning the Decision to Report and the
Referral Decision.
II.
Facts
[3]
The applicant, Pedro Freddie Gonzales, is a 53
year old citizen of the Philippines. He entered Canada on May 25, 1979, as a
permanent resident with his grandmother at the age of 15. He had been adopted
by his grandmother at the age of 6 months, as his mother had him when she was
just 16 years old.
[4]
The applicant has two children aged 15 and 31 –
his minor child (Kaylan) provided a support letter in relation to the
inadmissibility proceeding against the applicant. The applicant has been in a
common law relationship with Nona Bridgman since 2001. The two have operated a
business under the name “K & N Exotic Fish”
for over 10 years. Ms. Bridgman also provided a support letter.
[5]
The applicant has a record of criminal
convictions mainly in the period between 1986 and 1994. In 1986, he was
convicted of (i) theft under $1,000, for which he was given a conditional
discharge and probation; and (ii) possession of a narcotic, for which he was
given an absolute discharge. Later the same year, he was convicted of
possession of a weapon and sentenced to one day in custody. In 1987, he was
convicted again of theft under $1,000, for which he was fined. In 1989, he was
convicted of credit card fraud and fined. In 1990, he was convicted of double
doctoring and fined. Later the same year, he was convicted again of possession
of a weapon. This time he was fined. In 1994, he was convicted of fraud over $1,000
and personation and given a two-year suspended sentence. In 1998, he was
convicted of possession of a scheduled substance and fined. In 2013, he was
convicted of failing to comply with a recognizance and, following 24 days of
pre-trial custody, sentenced to one additional day in custody.
[6]
On April 4, 2015, the applicant was convicted of
possession of a prohibited or restricted firearm with ready access to ammunition
(the Index Offence) contrary to section 95 of the Criminal Code of Canada,
RSC 1985, c C-46. On June 4, 2015, he was sentenced to about 29 ½ months in
jail. The firearm in question was a .45 caliber handgun with an obliterated
serial number. At the time of his arrest for this crime, the police also seized
the following items from his residence: ammunition, pellet guns, four grams of
marijuana, half an ounce of cocaine, a scale, a cell phone, and packaging
material.
[7]
The applicant served his time at the Stoney
Mountain Institution, outside of Winnipeg, Manitoba, in a minimum security
unit. He applied for parole but was denied in September 2015.
[8]
On January 26, 2016, the applicant was
interviewed by the CBSA for the purpose of determining whether he was
inadmissible to Canada on grounds of serious criminality. By letter dated March
31, 2016, the CBSA informed the applicant of the inadmissibility proceeding
being undertaken against him and provided him with the opportunity to make
written submissions thereon. The applicant made such submissions, and several
members of his family and friends submitted support letters.
III.
Impugned Decisions
A.
First Decision: Decision to Report
[9]
The applicant was reported as inadmissible to
Canada pursuant to paragraph 44(1) of the IRPA by Officer Jennifer
Genovey in a letter to the Minister of Citizenship and Immigration dated May
13, 2016.
[10]
Reasons in support of the Decision to Report
were prepared in the form of an A44 Narrative Report dated May 17, 2016 (the
Narrative Report) which was addressed to Acting Manager Chuck Desjarlais. The
Narrative Report includes sections addressing (i) the applicant’s relatives
(both inside and outside Canada); (ii) his reportable convictions; (iii) the
circumstances of the allegation(s) of inadmissibility; (iv) the applicant’s
degree of establishment in Canada; (v) humanitarian and compassionate factors;
and (vi) the applicant’s potential for rehabilitation. The Narrative Report
ends with a recommendation that the applicant be sent to an admissibility
hearing and that a deportation order be issued. The Decision to Report also
indicates that the case should be referred to a “Manager
for Long Term Permanent Resident”.
[11]
As regards the applicant’s relatives, the
Narrative Report notes his two children in Canada, one of whom is a minor, and
a common law spouse (Ms. Bridgman). He also has a cousin in Canada. The Narrative
Report also indicates that the applicant has a mother and four brothers in the
Philippines.
[12]
The Narrative Report details the circumstances
surrounding the applicant’s arrests related to his convictions in 1989, 1990,
1994 and 2015.
[13]
The Degree of Establishment section of the
Narrative Report notes that the applicant came to Canada at the age of 15. It
also notes the applicant’s long term relationship with Ms. Bridgman, but
indicates that the exact nature of that relationship is unknown because both
the applicant and Ms. Bridgman have been evasive about it. This section also
notes that their business struggled during the applicant’s incarceration and
has since closed.
[14]
The Humanitarian and Compassionate Factors
section of the Narrative Report considers that the applicant has a small
support network in Canada, but that he tends to gravitate toward negative
associates and the drug culture when times are stressful. This section also
notes that, though the applicant had no convictions for a significant period,
he admits that he was dealing drugs for financial gain during some of that
time. This section repeats that the applicant has his mother and brothers in
the Philippines, and states that he would have support if returned there. This
section ends with a brief discussion of the best interests of the applicant’s
minor child.
[15]
The Potential for Rehabilitation section notes
that the applicant is listed as a medium risk to reoffend by Corrections
Services Canada (CSC), and that he gravitates toward negative associates and
the drug trade for financial gain during stressful times. Though he admits his
guilt for the Index Offence, he portrays himself as a victim. This section also
includes the following extract from an assessment for decision from CSC that
arose from the applicant’s 2015 parole application (the Assessment for
Decision):
A review of the Offence Cycle indicates that
[the applicant] is quite comfortable with the criminal lifestyle. He associates
with criminalized peers and actively participates in criminal activities for
monetary gain. He has a lengthy criminal history and consistently distorts his
thinking and presents as a victim stance. It is really unclear if [the
applicant] has any insight into his offence cycle. He has a compromised value
system and has committed fraud against his own family supports. He is deceptive
around his personal situation and intimate relationships.
B.
Second Decision: Referral Decision
[16]
The Referral Decision is found in a one page
form that was signed by Acting Manager Bradley James-Thiessen, a CBSA
Enforcement Officer, on June 6, 2016. On the same day, Officer James-Thiessen
also signed the Narrative Report in the section entitled “Decision of the Minister’s Delegate” indicating that
the matter should be referred for an admissibility hearing.
C.
Third Decision: Removal Decision
[17]
The Removal Decision is provided in the form of
a transcript of part of a hearing before IRB member Michael McPhalen on
September 27, 2016. The transcript notes the conviction for the Index Offence
as well as the sentence. Member McPhalen indicates that the law requires a
deportation order. He signed such an order the same day.
IV.
Issues
[18]
The issues raised by the applicant fall into two
categories: (i) those related to the procedural fairness of the process that
led to the impugned decisions; and (ii) those related to errors in those
decisions.
[19]
The applicant’s arguments concerning procedural
fairness can be identified as follows:
- Whether the
proper procedures for considering the inadmissibility of a long term permanent
resident were respected;
- Whether the
failure to provide the applicant a copy of either the Narrative Report or
the Assessment for Decision quoted therein constituted a breach of
procedural fairness; and
- Whether the
failure to alert the applicant to the fact that CSC documents such as the
Assessment for Decision would be considered in the inadmissibility process
constituted a breach of procedural fairness.
[20]
The errors the applicant argues are present in
the impugned decisions can be identified as follows:
- The failure to
recognize that the Index Offence was an aberration after a lengthy period
without a conviction;
- The failure to
consider a job offer made to the applicant; and
- Reliance on a
quote from the Assessment for Decision that is not representative of the
applicant’s situation.
V.
Analysis
A.
Standard of review
[21]
The parties do not appear to disagree on the
issue of standard of review. Procedural fairness is reviewed on a standard of
correctness and the alleged errors in the impugned decisions are reviewed on a
standard of reasonableness: Sharma v Canada (Public Safety and Emergency
Preparedness), 2016 FCA 319 at para 15 [Sharma].
B.
Procedural Fairness Issues
(1)
Procedures for Considering Inadmissibility of a
Long Term Permanent Resident
[22]
The applicant notes the following about the
Narrative Report:
- It is addressed
to Acting Manager Desjarlais;
- It recommends
that the case be referred to a Manager for Long Term Permanent Resident;
and
- In her
recommendations, Officer Genovey did not tick the box for review by a Minster’s
delegate.
[23]
As it turns out, Acting Manager Desjarlais does
not appear to have had any role in the Referral Decision. As indicated above,
that decision was made by another manager, Acting Manager James-Thiessen.
[24]
The applicant argues that the procedures
followed to assess inadmissibility in this case were inappropriate because he
is a long term permanent resident. The applicant notes that these procedures
are set out in Immigration Manual ENF 6: Review of reports under subsection
A44(1) (Immigration Manual ENF 6), which provides at section 19.3 that
receiving a report of inadmissibility and referring it for an admissibility
hearing are to be done “at the Manager or Director
level in the regions.”
[25]
The applicant notes that, in the present case,
no additional procedure was taken to reflect the fact that he is a long term
permanent resident. The applicant argues that if Officer James-Thiessen was
conducting the required regional review at the Manager or Director level, then
there is no indication that any delegate of the Minister properly referred the
case to an admissibility hearing.
[26]
In response, the respondent argues that there is
no requirement that the managerial review be separate from the review by the
Minister’s delegate. No such separate review is contemplated either in the IRPA
or in any regulations or policies thereunder. The respondent argues that
Immigration Manual ENF 6 dictates the level of review for long term permanent
residents but does not provide for an additional step.
[27]
I agree with the respondent. The evidence shows
that the Decision to Report was reviewed by Officer James-Thiessen and that he
was properly delegated to conduct that review. The fact that the Narrative
Report was originally addressed to a different manager is not of concern. In addition,
Officer James-Thiessen acted as the Minister’s Delegate as clearly indicated on
the one-page form he signed on June 6, 2016. The fact that the managerial-level
reviewer and the Minister’s Delegate were one and the same person does not fall
afoul of the procedures contemplated in an inadmissibility process, even for a
long term permanent resident.
[28]
The applicant’s concern that no particular
attention was paid to the fact that the applicant was a long term permanent
resident is contradicted by the various references thereto in the Narrative
Report.
(2)
Failure to Provide the Narrative Report or the
Assessment for Decision
[29]
The applicant complains that he was not provided
a copy of the Narrative Report until after all of the impugned decisions had
been made. He also argues that, even if the failure to produce such a document
would sometimes not amount to a breach of procedural fairness, it does in this
case because: (i) the Narrative Report misrepresents the applicant’s situation
in ways that could have been explained if he had been given notice of the
document; and (ii) the misrepresentation is such that the Narrative Report
amounts to an instrument of advocacy that entitled the applicant to the
opportunity to respond.
[30]
Some of the passages in the Narrative Report
that the applicant complains about are as follows:
- The reference in
the Degree of Establishment section that financial struggles are part of
the reason that the applicant returned to the drug trade prior to his
arrest (he argues that, given the chance, he could have pointed out that
he had a job offer that would prevent such financial struggles);
- The reference in
the Humanitarian and Compassionate Factors section that he admits to
dealing drugs for financial gain during some of his conviction-free time
(he argues that, given the chance, he could have pointed out that the
admissions were limited to a period of time long before the Index Offence,
and that this would have been evidence that the Index Offence was indeed
an aberration);
- The references
in the Potential for Rehabilitation section that the applicant (i)
gravitates toward negative associates and the drug trade for financial
gain during stressful times; and (ii) portrays himself as a victim (he
argues that, given the chance, he could have argued that these passages
misrepresent him); and
- The quote from
the Assessment for Decision (he argues that the quoted passage
misrepresents him which, given the chance, he could have shown).
[31]
The Federal Court of Appeal (FCA) decision in Sharma
dealt in detail with procedural fairness requirements in the context of an
inadmissibility process under section 44 of the IRPA. After considering
the factors mentioned in Baker v Canada (Citizenship and Immigration),
[1999] 2 S.C.R. 817, and the limited discretion in inadmissibility proceedings,
the FCA concluded that “the duty of fairness is clearly
not at the high end of the spectrum” (para 29), and “a relatively low degree of participatory rights is
warranted” (para 34). The FCA was satisfied that:
To the extent that the person is informed of
the facts that have triggered the process[,] is given the opportunity to
present evidence and to make submissions, is interviewed after having been told
of the purpose of that interview and of the possible consequences, is offered
the possibility to seek assistance from counsel, and is given a copy of the
report before the admissibility hearing, the duty of fairness will have been
met.
[Baker at para 34.]
[32]
All of the steps referred to in this quote were
followed in this case with the exception that the Narrative Report was not
given to the applicant before the admissibility hearing. However, I am not
convinced that there are any additional explanations that the applicant could
have given in respect of the issues identified in paragraph [30] above that could have altered the
Removal Decision, even if the Narrative Report had been produced earlier. These
issues are addressed in the section below concerning Alleged Errors in the
Impugned Decisions. It is also important to note the lack of discretion that
was available to IRB Member McPhalen in making the Removal Decision: Sharma
at paras 19 and 24. I conclude that the failure to give the applicant a copy of
the Narrative Report before the admissibility hearing did not prejudice the
applicant and therefore was not a reviewable error.
[33]
The applicant also argues that he was entitled
to earlier production of the Narrative Report because it constitutes an
instrument of advocacy. I disagree. Firstly, the Narrative Report is generally
considered a pro forma document, whose essential purpose is to list
relevant information from the file (regarding the criminal conviction and
related objective facts) and to provide a brief rationale for the Officer’s
actions and recommendation: Sharma at para 33. The officer making the
Decision to Report was expected to form opinions on the documents she reviewed
and it was entirely appropriate for her to express those opinions (even strong
ones) in the Narrative Report. The applicant must show more than this to
establish that the Narrative Report is an instrument of advocacy. In fact, I
have difficulty conceiving of any situation in which the Narrative Report could
be considered an instrument of advocacy without also being unreasonable, and hence
subject to being set aside for that reason as well. As discussed below, I am
not convinced that the Decision to Report or the contents of the Narrative
Report are unreasonable in any respect. I am also not convinced that the
Narrative Report is an instrument of advocacy.
[34]
The applicant argues that, even if the failure
to provide the Narrative Report does not normally amount to a breach of the
duty of fairness, it does in the present case because the Narrative Report
quotes from, and is guided by, a separate document (the Assessment for
Decision) which the applicant was not warned would be referred to as part of
the inadmissibility process.
[35]
I reject this argument. In Chand v Canada
(Public Safety and Emergency Preparedness), 2008 FC 548 at para 24 [Chand],
this Court found no obligation to produce documents referred to in a narrative
report (referred to there as a Highlights Report) because they were documents
that the Minister could reasonably expect the applicant to have. That is
certainly the case of the Assessment for Decision, which was part of a parole
application process that the applicant had initiated just a few months before.
(3)
Failure to Alert the Applicant that CSC
Documents Would be Considered
[36]
The applicant argues that the applicant should
have been given notice that the decision-maker would rely on the Assessment for
Decision. I disagree. This document addresses some of the same issues as are
relevant to the Decision to Report, including the nature and history of the
applicant’s crimes and his potential for rehabilitation. In my view, it could
not have been a surprise to the applicant that it was referred to in the
context of the inadmissibility process.
[37]
I am not convinced by the applicant’s argument
that the respondent failed to follow its own policy when it failed to give the
applicant notice of the documents it intended to rely on. The applicant refers
to Immigration Manual ENF 5: Writing 44(1) Reports, Appendix A, which provides
form letters to be sent to a person at the outset of an inadmissibility process
depending on whether the person will be interviewed or not. The form for cases
where no interview is foreseen provides for notice that information may be
obtained from other sources. The applicant argues that this form should have
been used in his case because it would have alerted him to the possibility that
documents emanating from CSC would be referred to. However, the applicant was
interviewed in this case. I am not convinced that the form for cases where no
interview is foreseen was called for.
[38]
I conclude that there was no error in using the
form letter intended for cases where an interview is foreseen, and that it was
not necessary to give the applicant advance notice that the Assessment for
Decision would be relied upon.
(4)
Conclusion on Procedural Fairness Issues
[39]
For the foregoing reasons, I am not convinced
that there was any breach of procedural fairness in this case with the possible
exception of the failure to give the applicant a copy of the Narrative Report
prior to the admissibility hearing. However, this failure did not amount to a
reviewable error.
C.
Alleged Errors in the Impugned Decisions
[40]
In the applicant’s arguments, there is some
overlap between those related to procedural fairness and those discussed in
this section. Of particular importance, the applicant notes that the standard
of review for conclusions that do not go to procedural fairness is
reasonableness. He argues that it is unfair that certain conclusions were
reached on the basis of information and documents that he was not given the
chance to challenge before the impugned decisions were made, such that he is
now faced with having to show that those conclusions were unreasonable rather
than simply incorrect. This point is discussed at the end of this section.
(1)
Failure to Recognize the Index Offence as an
Aberration
[41]
The applicant argues that the Index Offence is
an aberration for the applicant “after decades in
Canada as a law abiding person.” The applicant also argues that the
Narrative Report is misleading when it states that he admits that he was
dealing drugs for financial gain during some of that time. The applicant points
to a Preliminary Assessment Report by CSC that states that he quit selling
drugs around 2005. The applicant argues that it was misleading to indicate that
he was selling drugs “during some of that time”
without acknowledging that all of that time was before 2005, long before the
Index Offence.
[42]
The respondent notes that the period of time
referred to in the Narrative Report is that during which the applicant remained
conviction-free. Based on the information set out in paragraph [5] above, this would appear to be the period
from 1998 to 2013. The respondent argues that there is no suggestion in the
Narrative Report that any part of that period during which the applicant
admitted selling drugs was after 2005 and so the statement is not misleading.
[43]
I note first that it is an exaggeration to claim
that the applicant had been law-abiding for decades before the Index Offence.
By his own admission, only about seven years passed between the time he claims
he stopped selling drugs (around 2005) and his arrest for the Index Offence
(2012). I am not convinced that the applicant’s Index Offence was an aberration
of significance.
[44]
In any case, I am not convinced that anything in
the reference to the applicant’s admitted drug selling during some of the time
that he was conviction-free was misleading.
(2)
Failure to Consider a Job Offer Made to the
Applicant
[45]
The applicant argues that the following statements
in the Degree of Establishment section of the Narrative Report suggest that he
will likely turn to crime: (i) “financial struggles are
part of the reason why he returned to the drug trade prior to his arrest”;
and (ii) “had to close the business and liquidate the
assets”. The applicant contests both the implication that financial
pressure would push him toward crime, and the suggestion that he lacks means of
otherwise supporting himself. Specifically, the applicant notes a job offer
that he had received from an old acquaintance.
[46]
The applicant argues that it was misleading and
unreasonable to suggest in the Narrative Report that the applicant would turn
to crime, without acknowledging the evidence that he had a job offer that would
prevent the financial pressures that were of concern.
[47]
The respondent argues that the job offer was not
so probative on the issue of establishment in Canada that it was unreasonable
not to mention it. The respondent notes that the Narrative Report does not
suggest that the applicant would have any difficulty finding employment.
[48]
I agree with the respondent. I am not convinced
that Officer Genovey’s silence regarding the job offer was unreasonable or
misleading. I am also not convinced that she failed to consider the applicant’s
job offer.
(3)
Misrepresentation in the Assessment for Decision
[49]
The applicant argues that the quote in the
Narrative Report from the Assessment for Decision (reproduced at paragraph [15] above) misrepresents the applicant’s
situation. Specifically, he complains that the statements as to his comfort
with the criminal lifestyle and his lack of insight into his offence cycle are
sharply at variance with statements on the record from him, Ms. Bridgman, his
son Kaylan, Kaylan’s grandmother, and a friend.
[50]
The respondent argues that reports from CSC officials
can reasonably be viewed as having greater weight than statements from
interested non-professionals. I agree. Clearly, the respondent would prefer
that greater weight had been given to the submissions made on his behalf.
However, I am not convinced that Officer Genovey acted unreasonably in
determining the relative weight to be given to the documents before her.
Moreover, I am satisfied that the passage from the Assessment for Decision
quoted in the Narrative Report is a reasonable reflection of the Assessment for
Decision as a whole.
(4)
Conclusion on Alleged Errors in the Impugned
Decisions
[51]
I return now to the applicant’s argument that he
is prejudiced by the fact that he must establish that alleged errors in the
Narrative Report were unreasonable, whereas this hurdle would have been lower
if he had been given an opportunity to comment on the Narrative Report before
all of the impugned decisions had been made. Following my review of the alleged
errors, and the comments the applicant asserts that he would have made on the
Narrative Report if he had been given the opportunity, I am not convinced that
any of the impugned decisions would have had a different result if the various
errors in the Narrative Report alleged by the applicant had been addressed
prior to those decisions being rendered.
[52]
It is clear that the applicant was not entitled
to see and comment on the Narrative Report prior to the Decision to Report or
the Referral Decision. Based on the passage from Sharma quoted in
paragraph [31] above, the
applicant may have been entitled to be given a copy of the Narrative Report
before the admissibility hearing, but I see no argument that the applicant
might have made that could have changed the result, especially in view of the
lack of discretion that was available on the Removal Decision.
[53]
For the reasons discussed above, I find no
errors in the impugned decisions.
VI.
Conclusions
[54]
For the reasons provided, I have concluded that
the present applications should be dismissed.
[55]
The applicant has put forward three questions
which he asks me to certify as serious questions of general importance. I have
reworded them somewhat and reproduce them here:
For long term permanent residents faced with
an inadmissibility proceeding under section 44 of the IRPA, is there any
breach of the duty of fairness where:
1. A single officer functions both as the
regional manager or director (as contemplated in Immigration Manual ENF 6) and
the Minister’s delegate?
2. The permanent resident is not given
notice that the decision-maker may obtain information from reports prepared by
other enforcement agencies?
3. The Narrative Report, by virtue of its
contents, forms an instrument of advocacy and it is not disclosed to the
permanent resident before the Referral Decision or the admissibility hearing?
[56]
With regard to the first of the proposed
questions, the applicant’s position that the role of the regional manager
cannot be performed by the same person as the Minister’s delegate is
unsupported by any reading of the IRPA or any regulations or policies
thereunder to which I have been directed. The inadmissibility process under
section 44 of the IRPA contemplates two steps: a decision to report and
then a referral to an admissibility hearing. I have seen no indication that it
was ever intended that, in the case of long term permanent residents, an
additional step would apply. In the absence of any reasonable basis for
believing that the applicant’s position may have merit, it is my view that the
first of his proposed questions is not serious.
[57]
In my view, the second of the applicant’s
proposed questions is answered in Chand (see paragraph [35] above). Given the “relatively low degree of participatory rights” in the
inadmissibility process (Sharma at para 34), I see no reason to question
the conclusion in Chand. I conclude that the second proposed question is
likewise not serious.
[58]
Because of my conclusion that the Narrative
Report was not an instrument of advocacy, it follows that the third question
proposed by the applicant would not be determinative.
[59]
For these reasons, I decline to certify any
question in the present matter.
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