Date: 19980903
Docket: IMM-396-98
OTTAWA, ONTARIO, THIS 3RD DAY OF SEPTEMBER 1998.
PRESENT: McKEOWN, J.
BETWEEN:
RICHARD McCORMACK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Appeal Division dated January 14, 1998 is set aside and the matter is returned to a differently constituted panel of the Appeal Division for reconsideration and redetermination.
William P. McKeown
_____________________
JUDGE
Date: 19980903
Docket: IMM-396-98
BETWEEN:
RICHARD McCORMACK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MCKEOWN J.
The applicant seeks judicial review of a decision of the Appeal Division of the Immigration and Refugee Board dated January 14, 1998, wherein the Appeal Division granted the Minister's application seeking to cancel a previous stay of the applicant's deportation and further ordered that the deportation order against the applicant on August 24, 1990, be executed as soon as reasonably practicable.
The issue is whether the Appeal Division erred in law by making a perverse finding of fact, ignoring or misapprehending the evidence. Charter arguments were addressed by the Appeal Division. However, as was agreed by the parties, the Charter issues will be considered only if a decision cannot be reached on the non-Charter issues.
[1] The applicant was born in Scotland in December 1949 and has lived as a permanent resident in Canada since 1951. He was diagnosed as having a brain tumour and on October 7, 1972, underwent brain surgery to have the tumour removed. His brain surgery left him with an impaired right arm and leg, a speech impediment and permanent brain damage for which he received post-operative and rehabilitative therapy. Between 1973 and 1989, the applicant was convicted of some 35 offences on 23 different occasions. They included mischief, malicious damage, possession of marijuana, possession of stolen goods, theft, assault and aggravated assault. The most serious offence was the aggravated assault conviction relating to an incident where he slashed a person's throat with an exacto knife. The Minister formed the opinion that the applicant, as a permanent resident, had committed crimes under the Criminal Code which rendered him liable for removal from Canada.
[2] On August 24, 1990, after an inquiry under s. 32(2) of the Immigration Act was held, the applicant was ordered deported from Canada. In the course of this procedure, the Minister did not form an opinion that he was a "danger to the public"; therefore, the applicant retained the right of appeal to the Immigration Appeal Division. He appealed the decision and on January 22, 1992, a panel of the Appeal Division stayed the execution of the deportation order until January 22, 1995, holding that, having found the public to be at risk, it had to balance the applicant's rights against those of society. It considered the fact that the applicant had been in Canada for most of his life, had suffered from a brain tumour, and that his parents had tried without success to control him. Ultimately, the panel granted a stay of the deportation order, specifically noting that his mother had but a short time to live as she was suffering from an inoperable aneurysm, and basing its decision on the fact that the applicant had been accepted for treatment in the Acquired Brain Injury Program and had expressed a desire to obtain the treatment. The applicant never did attend this program. In fact, within 22 days of his stay, he was convicted of a new offence. He was subsequently convicted of some 21 offences on 11 occasions. They included mischief, theft, possession of stolen property, failure to comply with his probation, uttering threats and carrying a concealed weapon (an exacto knife).
[3] On February 14, 1995, the Minister applied to have the stay order cancelled. A hearing before the Appeal Division was held on January 30-31, 1995. On January 22, 1996, the panel rendered its decision, by a two-to-one majority, staying on strict terms the execution of the deportation order until January 22, 2001. It held that the applicant's offences had been diminishing in severity and that other than the uttered threats, they had not been violent. It noted that the court recognized the offences as low risk by imposing lenient sentences. It considered Mr. McCormack's psychiatric history and diminished capacity, recognizing that his behaviour was largely the result of an operation and that he seemed to desire treatment. The panel agreed with the opinion of one doctor that the applicant's non-compliance with treatment was a symptom of his illness and that deportation would exacerbate his difficulties. It found that the applicant's family continued to be supportive despite its exasperation with his behaviour and that his support network (including doctors) was entirely in Canada. The panel held that there were strong humanitarian and compassionate grounds to support a stay of his deportation and that he represented a very special case.
[4] The third member of the panel dissented vigorously, disagreeing that the post-stay convictions were minor: five were related to concealed weapons charges, and one was for uttering a threat. The dissenting member noted that any positive assessments by the panel were dependent on relieving the applicant of his exacto knife, and that no one as of yet had been able to do so. She also noted that the applicant had been offered substantial treatment which he had consistently refused, and that his family support was minimal (and limited to them appearing just before the hearing). Therefore, the member held that the Board should not exercise its discretion in the applicant's favour, as danger to the public was too great.
[5] Within two months of the January 1995 hearing before the Appeal Division, the applicant was again convicted. Since that time, he has been convicted of some eleven offences on nine occasions, including failure to comply with probation, failure to attend court, theft, mischief, assault, and assault with intent to resist arrest. By January 1997, both his parents had died, and although he had previously been in contact with his sister, that was no longer the case. His only family support appeared to be from his brother who had moved away from Toronto to Lion's Head, Ontario, a three-hour drive, in an attempt to overcome his own problems.
[6] On February 14, 1997, the Minister applied to cancel the second stay order and have the applicant removed from Canada pursuant to the 1990 order. The Appeal Division reviewed the facts in some detail, particularly those in the period since the last extension of the stay in 1996. Where the applicant was contradicted, even where the other witness relied on hearsay, the Appeal Division preferred the evidence of the witness (who was the probation officer) because the applicant's mental condition caused him to have "little insight into his own persistently disruptive and sometimes dangerous behaviour". It quickly concluded that he represented a threat to the public and held that the primary question was whether that threat could be brought to acceptable levels.
[7] The Appeal Division reviewed the extent and nature of the family support which the applicant might expect. Although the Appeal Division found his family (particularly his brother) to be well-intentioned, it found that meaningful and effective family support was lacking, and stated that the applicant leads a solitary existence in Canada. It also noted that he had never taken charge of his own rehabilitation by entering treatment programs when the opportunities arose. It reviewed some of the medical evidence relating to his mental condition and found the diagnoses to be tentative and qualified. Finding that the applicant had failed to comply with all previous orders and conditions, and that his actions were dangerous and could not be passed off as nuisance activities, the Appeal Division expressed concern at the prospect of his being on the street again. It held that the hardship visited on the applicant by his removal was outweighed by the needs of the public. It concluded that the stay should be cancelled and that he should be removed.
[8] Before reviewing the specific arguments with respect to errors by the Appeal Division, I should point out that there are two unusual aspects to this case. Firstly, as the medical experts found that non-compliance with treatment is "the defining symptom of Mr. McCormack's illness" (see p. 5 of Reasons dated January 22, 1996), I must therefore consider the applicant's difficulties in obtaining ongoing treatment in this light. Secondly, when the applicant was convicted in October 1997, he was sentenced to one day, but the judge took into account that he had been in custody for six months and two weeks. Normally, this would be indicative of a judge's concern with the serious nature of the offence involved; however, in this case, the reason for the six months and two weeks pre-trial custody was that the applicant was being assessed at METFORS (Metropolitan Toronto Forensic Services) as to whether he was mentally fit to stand trial.
[9] The Appeal Division found, at page 6 of its Reasons, that
| [t]he assault conviction in March of 1996 attracted a relatively light sentence, but the one in October of this year did not, as time served in custody was incorporated as part of the sentence. Even assuming that the sentencing principle that every day of pre-trial custody is to be equated with twice the amount of post-conviction custody does not apply here, I still find the sentence reflects a serious concern with violence. |
|
Since the applicant's pre-trial custody was for the purpose of his assessment by METFORS, in my view, the Appeal Division erred in finding this period in custody to be indicative of a concern with violence.
[10] As has been noted, the Appeal Division preferred the hearsay evidence of the applicant's probation officer to the direct testimony of the applicant, noting that the applicant "... had little insight into his own persistently disruptive and sometimes dangerous behaviour." It is further noted that the parole officer's hearsay evidence was a "more trustworthy account in light of the [applicant's] condition ..." The Appeal Division took the view that the applicant had low insight into his own behaviour, but then held him accountable for his reported lack of cooperation with treatment. As stated earlier, non-compliance with treatment is "the defining symptom of Mr. McCormack's illness".
[11] The Appeal Division, at page 11, questioned the validity of Dr. Rosenberg's diagnosis, stating, "I am not surprised at the fact that the diagnosis of Dr. Rosenberg is tentative " she really only saw him twice in a period of two weeks. It has not been shown on a balance of probabilities that doctors really know what conditions cause the respondent to act in the way that he does". In fact, Dr. Rosenberg's report indicates that she had been having ongoing, if sporadic, contact with the applicant over the course of three years. The two weeks referred to by the Appeal Division was the period in which the applicant had begun taking lithium under Dr. Rosenberg's supervision. She had observed him twice during this period. Thus, these two visits over the course of two weeks were merely the instances in which Dr. Rosenberg monitored the applicant's progress on lithium. At page 2 of her report, Dr. Rosenberg indicated that she had seen the applicant on several occasions in 1996 and 1997, even though "... his attendance at [her] office was erratic, unplanned and for only very brief durations". She went on to say, at page 2, "I believe he'd begun to consider me to be a supportive person in his life and valued his connection with me, even if it was not by setting up appointments in the traditional way". In my view, the Appeal Division erred in disregarding the full time span of Dr. Rosenberg's contact with the applicant, and in characterizing her diagnosis as "tentative".
[12] In my view, it was open to the Appeal Division to find that the structure of family support was too tenuous to ensure that adequate anti-psychotic medication would be administered to the applicant in the event of a relapse. Although there was evidence to the contrary, there was also evidence to support that conclusion, and it is the finding of the Appeal Division, not my own view of the facts, that I must consider.
[13] The Appeal Division ignored the fact that the Minister of Citizenship and Immigration, on February 19, 1997, would not issue an opinion that the applicant was a danger to the public. Furthermore, the Appeal Division ignored the evidence of Dr. Rosenberg, who stated at page 5 of her report, "[w]ith regards to aggressive and criminal behaviours, these usually decline over time, with increasing age, in those people having an anti-social personality disorder ..." This evidence was also supported by Dr. Wright, who stated in his report of September 23, 1997, "[g]iven Mr. McCormack's age, based on research on frequency of violence, it would be expected that his frequency of aggressive behaviour should, overall, be gradually declining".
[14] The Appeal Division also erred at page 10, when it stated, "[h]owever, the respondent has never entered into a program of treatment despite the fact that opportunities arose in the past". There are places in the record which show that the applicant did receive treatment. For example, the Appeal Division panel which stayed the applicant's deportation order on January 22, 1992, observed, at page 2 of its Reasons, that "[a]fter the operation, the applicant received intense therapy at the hospital. He continued rehabilitation therapy after his release, and tried very hard." This panel further noted that shortly after the applicant's surgery, it became clear that the appellant required treatment for the brain injury he had suffered. He received treatment for a short period and improved, but the hospital closed and no further treatment was available. More recently, Dr. Rosenberg's report of December 1, 1997, at page 1, stated that the applicant "... was well known to the out-patient department, and that he had been previously diagnosed as having 3chronic paranoid schizophrenia3 as well as an organic brain syndrome." Dr. Rosenberg further noted, at page 3, that the applicant, in a recent appointment with her, "... was cooperative and answered questions appropriately ..." She outlined the applicant's current treatment plan, stating at page 4, "[p]harmacologically, I have already started to treat Mr. McCormack with lithium, a mood stabilizer, which he is readily taking. I believe that he is compliant with taking this new medication at the present time, because he is not suffering from psychosis currently, and has good reality testing, with fair to good judgment and insight".
[15] The Appeal Division also erred in finding that the applicant "still makes some use of the exacto knives ..." The only evidence to support this holding dates back to the earlier Appeal Division decision of January 1996, in which the majority noted that the applicant "claimed that he continues to carry the exacto knife in order to protect himself..." The Appeal Division erred in adopting this earlier finding in the absence of any evidence.
[16] In my view, these errors of the Appeal Division are material and require that the matter be returned to the Appeal Division to be decided by a differently constituted panel. I appreciate that there are going to be considerable difficulties in determining the seriousness of the two offences, but by ignoring the six months and two weeks pre-trial custody, by taking into account the fact that non-compliance with treatment is a symptom of the illness, and by considering the evidence in a manner not inconsistent with these Reasons, the new panel can determine whether the previous stay of the applicant's deportation should be cancelled.
[17] The application for judicial review is allowed. The decision of the Appeal Division dated January 14, 1998 is set aside and the matter is returned to a differently constituted panel of the Appeal Division for reconsideration and redetermination.
William P. McKeown
J U D G E
O T T A W A, Ontario
September 3, 1998
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