Date: 20030523
Docket: IMM-2657-02
Citation: 2003 FCT 624
Between:
Russell Edward COWELL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision by panel member Lorenne Clark of the Appeal Division of the Immigration and Refugee Board (the "IAD") dated May 21, 2002, wherein she vacated the IAD's order made on September 21, 1998, staying the execution of the removal order made against the applicant on April 29, 1998 by the Adjudication Division, and ordered the execution of the removal order as soon as practicable.
The applicant was born in England on April 26, 1964 and arrived in Canada as a dependant of his mother on October 15, 1981, with the status of landed immigrant.
The applicant became the subject of a section 27 report under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") following a conviction for breaking and entering a dwelling house contrary to subsection 348(1) of theCriminal Code, R.S.C. 1985, c. C-46, for which he was sentenced to a two-year conditional sentence. The section 27 report was based on the allegation that he was a person described in paragraph 27(1)(d) of the Act, having been convicted of an offence for which a term of imprisonment of more than six months has been imposed.
An inquiry before an immigration adjudicator determined that the applicant was a person as described in paragraph 27(1)(d) of the Act and a deportation order was issued against him on April 29, 1998. The applicant appealed the deportation order to the IAD pursuant to subsection 70(1) of the Act.
Prior to the IAD hearing, the applicant and the respondent negotiated a joint recommendation to stay the execution of the removal order subject to certain terms and conditions, including the requirement for the applicant to report all criminal charges and convictions to Customs and Immigration Canada ("CIC"). The applicant signed the joint recommendation on August 5, 1998.
On August 22, 1998, the applicant was charged with eight criminal offences stemming from events which had occurred between December 5, 1996 and August 18, 1998. These charges were all related to a custody battle with his former common-law wife respecting their daughter, Presley.
The parties' joint recommendation to stay the execution of the removal order was accepted by the IAD and the agreed terms and conditions were set out, with some modifications, in the stay order dated September 21, 1998.
On October 20, 1998, a revised Information containing ten criminal charges was prepared and filed in the Supreme Court of British Columbia. Two charges relating to criminal harassment and breach of probation were dropped from the original Information of August 18, and four charges relating to the uttering of forged documents were added.
On March 22, 2000, the applicant was convicted of the ten charges in the revised Information, and on June 2, 2000, he was sentenced to a term of imprisonment of two years less one day, and two years of probation.
By Notice of Motion dated May 17, 2001, the Minister made an application to the IAD to vacate the stay of the applicant's deportation order, on the grounds that he had breached the terms and conditions of the stay order. The IAD's decision to allow the motion is the subject of the present application for judicial review.
The IAD's decision is stated on the second page of its reasons:
The legal validity of the removal order was conceded on the hearing of the appeal. I find Russell Edward Cowell, respondent on the motion, and appellant on the appeal (and appellant herein), breached the terms and conditions of his stay and has not met the onus of establishing he should not be removed from Canada in all the circumstances of the case. Accordingly, the Minister's motion is allowed, the Order dated September 21, 1998, staying execution of the removal order issued April 29, 1998, is vacated, and I further order that the removal order be executed as soon as is reasonably practicable.
The IAD gave the following reasons in support of its decision:
- the applicant bound himself to the terms and conditions of the stay on August 5, 1998, at the time he assented to the terms and conditions proposed by counsel for inclusion in the joint recommendation to stay. The stay itself came into effect on September 21, 1998;
- the applicant did not report to CIC that he was charged by indictment on August 22, 1998 with ten offences which had occurred between December 5, 1996 and August 18, 1998. He also did not report his subsequent convictions on these charges on March 22, 2000;
- the applicant's explanation that he thought his mother had reported his convictions to CIC is unsatisfactory. His mother was present at the hearing but did not testify, and her affidavit evidence was lacking in detail as to precisely when and where she reported the convictions. In addition, if the applicant was able to call his mother after he was incarcerated, he was equally able to telephone CIC in accordance with the terms of the stay. He cannot blame his mother for the fact that his convictions did not get reported, since he bore the responsibility for ensuring the terms of the stay were properly carried out;
- the applicant did not report his August 11, 1999 convictions [there were, in fact, no convictions on August 11, 1999. The IAD has confused the date of the convictions, which was March 22, 2000, with the date of the indictment on the ten charges] in a CIC Stay of Removal Order Report dated and signed by him on August 16, 1999; and
- applying the factors outlined in Ribic v. Minister of Employment and Immigration (I.A.B. 84-9623), August 20, 1985, the IAD found that there were more negative factors weighing against the applicant than positive factors weighing in his favour.
The applicant submits that the IAD erred in finding that he had breached the terms and conditions of the stay order issued September 21, 1998 by not reporting his criminal charges and convictions to CIC. The pertinent term of the stay order reads as follows:
3. Report in person, or, if in custody, in writing or by telephone, any further criminal charges or convictions FORTHWITH to the CIC indicated above.
The wording of this term is different from that in the joint recommendation, which reads as follows:
4. Report all criminal charges and convictions forthwith to the Canada Immigration Centre.
The IAD found that the applicant bound himself to the terms and conditions set out in the stay order at the time he signed the joint recommendation on August 5, prior to the criminal charges being laid against him, and that he should, therefore, have reported the charges immediately to CIC. I cannot agree with the IAD's reasoning on this point. First, the IAD was bound to determine whether the applicant had breached the terms of the stay order, not the joint recommendation. Second, the terms of the joint recommendation, although similar to the terms of the order, are not exactly the same. Third, the terms and conditions decided upon by the IAD were only of legal force once the order came into effect on September 21, 1998. Fourth, the IAD was not bound by the joint recommendation when it was deciding which terms to include in the stay order. It was illogical for the IAD to then find that the applicant was bound by the joint recommendation when its terms might never have been accepted and might never have received the force of law. Therefore, I believe that the IAD erred in finding that the applicant was bound by the terms of the stay at the time he signed the joint recommendation. The applicant was only bound once the stay came into effect on September 21, 1998.
The applicant was required to report "any further criminal charges or convictions" to CIC immediately. On a plain reading of the stay order, this seems to be a requirement which begins on September 21, 1998, and "any further charges" would be any charges arising after that date. Therefore, the applicant was required to report the charges arising in the revised Information laid on October 20, 1998 (which he did not do), but not those contained in the original Information laid on August 22, 1998.
The IAD also erred when it found that the applicant had been convicted of the ten criminal charges on August 11, 1999 and that he breached the terms of his stay by not reporting the convictions in a CIC Stay of Removal Order Report dated August 16, 1999. August 11 was the date on which the formal indictment was filed in the Supreme Court of British Columbia. The convictions did not take place until March 22, 2000, therefore, there is no way the applicant could have reported them on August 16, 1999. The IAD was obviously confused, as it had already conducted an analysis of the purported reporting of the March 22 convictions in the immediately preceding paragraphs.
The applicant argues that the IAD's finding that he failed to take steps to report convictions after his incarceration is patently unreasonable in light of the evidence. The applicant also argues that the IAD erred in drawing an adverse inference from the fact that his mother did not testify at the hearing, and in finding that her affidavit lacked detail. It is clear from the IAD's reasons that it took into consideration all of the evidence before it at the time of the hearing, including the affidavit evidence of the applicant's mother. It does not appear that the IAD drew an adverse inference from the latter's failure to testify, although it seems to have come close to doing so, as this excerpt from the reasons demonstrates:
. . . His mother, Doreen O'Neil, attended the whole of the appellant's hearing but did not testify. Clearly, she had direct knowledge of whether or not she reported his post-Stay convictions to CIC and was available to testify but did not. However, she did provide an affidavit in support of the appellant. [...] I find this evidence lacking in specific detail as to precisely when and where she reported these convictions.
It was up to the IAD, as the trier of fact, to weigh the evidence before it. The IAD accepted the evidence submitted by the respondent to the effect that the applicant had not reported his convictions to CIC. It also had before it the applicant's submissions, wherein he admitted that "technically [he] should have reported the revised Information" and that "some technical violation of the terms and conditions regarding reporting of the charges and convictions" had occurred. There is no indication that the IAD ignored relevant evidence or took into account irrelevant evidence, therefore, this Court cannot interfere in its finding or re-weigh the evidence which was before it (see, for example, Hoang v. Canada (M.E.I.) (1990), 13 Imm.L.R. (2d) 35 (F.C.A.), Cherrington v. Canada (M.C.I.) (1995), 94 F.T.R. 198 and Tse v. Canada (Secretary of State) (1994), 72 F.T.R. 36).
In any event, the IAD went on to find that the onus was on the applicant to report his criminal convictions to the CIC, not to delegate the reporting to his mother, and that he was responsible for ensuring that the terms of his stay were carried out. It was not unreasonable for the IAD to find that the applicant had breached the terms of his stay by not ensuring that CIC was informed of his criminal convictions. The terms of the order clearly set out the reporting procedure to be followed in case of incarceration. The applicant was either to telephone or write to CIC regarding his conviction. The applicant testified that he had attempted to place a collect telephone call to CIC, but that CIC would not accept the charges. Being unable to telephone, he should have taken the next course of action open to him and informed CIC in writing. There is no evidence indicating that the applicant attempted to do so.
The IAD made obvious errors with respect to the joint recommendation and the August 22, 1998 charges, and it was confused over the date of the applicant's convictions. However, its ultimate decision with respect to the applicant's failure to report his March 22, 2000 convictions is not in itself unreasonable. The IAD would likely have reached the same conclusion even had it committed no previous errors. The application for judicial review is rejected.
JUDGE
OTTAWA, ONTARIO
May 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2657-02
STYLE OF CAUSE: Russell Edward COWELL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 23, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 23, 2003
APPEARANCES:
Mr. Glen Sherman FOR THE APPLICANT
Ms. Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Glen Sherman Law Corporation FOR THE APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Date: 20030523
Docket: IMM-2657-02
Ottawa, Ontario, this 23rd day of May, 2003
Present: The Honourable Mr. Justice Pinard
Between:
Russell Edward COWELL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by panel member Lorenne Clark of the Appeal Division of the Immigration and Refugee Board (the "IAD") dated May 21, 2002, wherein she vacated the IAD's order made on September 21, 1998, staying the execution of the removal order made against the applicant on April 29, 1998 by the Adjudication Division, and ordered the execution of the removal order as soon as practicable, is dismissed.
JUDGE
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