Romans v. Canada (Minister of Citizenship and Immigration), 2001 FCT 466

Date: 20010511

Docket: IMM-6130-99

Neutral citation: 2001 FCT 466

BETWEEN:

                                     STEVEN ROMANS

                                                                                              Applicant

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                          Respondent

                    REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    In this application, Steven Romans challenges the decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated November 30, 1999 whereby the Appeal Division dismissed Mr. Romans' appeal from a removal order.

THE FACTS

[2]    Mr. Romans is a 35 year old citizen of Jamaica who came to Canada in 1967 at the age of two. He was admitted as a permanent resident and has retained that status since.

[3]    Mr. Romans' mother described him as a child to be beautiful, and her most obedient child. However, tragically, when Mr. Romans was in his teens, a mental illness began to manifest itself. He became estranged from his family and involved in drug use. He lived on the streets or in shelters.

[4]    By 1995 Mr. Romans had been diagnosed to suffer from chronic paranoid schizophrenia, and to have a substance abuse disorder and a personality disorder. Mr. Romans has at all times received love and support from his family, although the nature of his illness is sadly such that he has had paranoid delusions about family members.

[5]    On March 12, 1999, a report was issued under section 27 of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") reporting that Mr. Romans was a permanent resident described in paragraph 27(1)(d) of the Act. That paragraph provides:

[6]                The report was based upon a conviction in June of 1991 on one count of break and enter with intent, a conviction in July of 1992 on one count of trafficking in a narcotic, a conviction in December of 1992 on one count of trafficking in a narcotic and one count of possession for the purpose of trafficking, and a conviction in December of 1996 on one count of assault. In consequence of the issuance of the report, an inquiry was directed under subsection 27(3) of the Act. The result of that inquiry was the issuance of a deportation order, pursuant to subsection 32(2) of the Act, on June 7, 1999.

[7]                An appeal was brought to the Appeal Division from that deportation order pursuant to section 70 of the Act. Mr. Romans did not participate in the hearing due to his illness, but was represented by a designated representative. The validity of the removal order was not challenged before the Appeal Division. It was instead argued that in all of the circumstances Mr. Romans should not be removed.

[8]                In dismissing the appeal, the Appeal Division noted that Mr. Romans suffers from chronic paranoid schizophrenia and has a substance abuse disorder and a personality disorder which manifest themselves as anti-social traits. The Appeal Division noted that Mr. Romans had been convicted of 36 offences over a period of 11 years from 1988, when he was 22 years of age, until March of 1999. The Appeal Division recited that Mr. Romans had three convictions for sexual assault, four convictions for assault, one conviction for assault causing bodily harm, three narcotics related convictions, and eight instances of failing to comply with the terms of orders or to attend court.

[9]                The Appeal Division went on to find that there was a very high probability that Mr. Romans would re-offend and that the offences would be violent in nature. It was the view of the Appeal Division that no medication had been demonstrated to control Mr. Romans' mental illness so as to permit him to function in society.

[10]            The Appeal Division noted that to the extent Mr. Romans was established anywhere in the world he is established in Canada. He was noted to be unemployed, to exist on social assistance, to have no friends, spouse or children, but to have very strong ties with his family. The panel went out of its way to note that Mr. Romans' mother had made what it described as Herculean efforts to assist her son in overcoming the impact of his illness.

[11]            Notwithstanding, the Appeal Division concluded that the effect of Mr. Romans' illness had turned him into a street person. In the words of the Appeal Division "[i]f deported, he is unlikely to notice much change in his circumstances".

[12]            The Appeal Division concluded that it was obliged to weigh the probability that Mr. Romans would commit future acts of violence against the anguish which his family would feel if he is deported and all of the other circumstances in his favour.

[13]            After weighing those factors, the Appeal Division concluded that Mr. Romans had failed to show that he should not be removed from Canada.

THE ISSUES

[14]            Mr. Romans raised two issues in this application for judicial review:

1.          If section 7 of the Canadian Charter of Rights and Freedoms ("Charter") is engaged in the deportation process, did the Appeal Division err because Mr. Romans' deportation would be a violation of the substantive guarantees of the principles of fundamental justice?; and

2.          Did the Appeal Division make patently unreasonable findings of fact?

ANALYSIS

(i) The Charter issue

[15]            On Mr. Romans' behalf it was argued that because deportation carries with it the possibility of detention and compels a permanent resident to separate from his residence and to in all respects give up life in Canada, deportation engages section 7 interests of liberty and security of the person. In response, it was argued on the Minister's behalf that there is no jurisprudence binding on this Court which supports the proposition that section 7 rights are engaged by the issuance of a deportation order pursuant to subsection 27(1) of the Act, and that section 7 rights of life, liberty and security of the person are not engaged by the particular circumstances of this case.

[16]            The jurisprudence of this Court on whether deportation engages section 7 of the Charter is unsettled.

[17]            In Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (F.C.A.), the Federal Court of Appeal appears to have concluded that deportation of a permanent resident as a result of criminal convictions does engage section 7 of the Charter. The Court noted, at page 588, that "... it is permissible to deport a permanent resident for the commission of a serious offence without violating the Charter, as long as fundamental justice has been accorded to that person before doing so. The question, therefore, is whether there has been a violation of the principles of fundamental justice in this case. The legislation and the earlier jurisprudence of this court must yield to the dictates of section 7".

[18]            However, in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (F.C.A.) at page 277 the Court noted that while the Supreme Court of Canada in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 had left open the question of whether deportation for serious offences could be conceptualized as a deprivation of liberty under section 7, the Federal Court of Appeal had already decided that it could not. Thus, the Court of Appeal held that arguments as to the violation of section 7 were precluded before it by authority.

[19]            In Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.), the Court reviewed the existing jurisprudence as to whether deportation engages section 7 rights, noting at paragraphs 23 and 24 as follows:

23             The jurisprudence of this Court on this subject has not been entirely consistent. There is one line of authority [See Note 14 below] in which it has been clearly held that deportation is not a deprivation of liberty and therefore section 7 is not engaged. There have been some views to the contrary. When Chiarelli was before this Court [See Note 15 below] the judges all found there to be a potential deprivation of liberty in the deportation of a permanent resident, although the Supreme Court [See Note 16 below] in reversing the decision on other grounds found it unnecessary to address this issue. In Nguyen v. Canada (Minister of Employment and Immigration) [See Note 17 below] Marceau J.A. at one point stated that a declaration that a person is ineligible to make a refugee claim does not in itself affect life, liberty or security of the person. He later says that when this declaration is combined with the requirement that non-citizens who commit serious crimes be deported, the overall scheme concerns the "deprivation of liberty". It is not clear to what extent this observation depends on the person in question being a refugee claimant who would, by definition, be able to assert a potential danger to himself in returning home. [See Note 18 below] It also appears that such findings were unnecessary as the Court found there to be no breach of fundamental justice.

24             Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order? [footnotes omitted]

[20]            Subsequently in Al Yamani v. Canada (Minister of Citizenship and Immigration), (IMM-1919-98, March 14, 2000 (F.C.T.D.)) Gibson J. considered whether on the facts before him section 7 was engaged. Justice Gibson adopted the view of Justice Pratte as expressed in Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (F.C.A.) at paragraph 59 that "deportation necessarily implies an interference with the liberty of the [applicant]" so as to engage section 7 of the Charter.

[21]            Subsequently, the Supreme Court of Canada has released its decision in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, in which the majority of the Court commented that section 7 of the Charter must be interpreted broadly and that the liberty interest is not restricted to mere freedom from physical restraint. The majority stated that in a free and democratic society, an individual has the right to make fundamental personal choices, free from state interference. The majority went on to note that in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paragraph 66, LaForest J., writing for L'Heureux-Dubé J. and McLachlin J. (as she then was), reiterated his position that the section 7 right to liberty protects an individual's right to make inherently private choices, and that choosing where to establish one's home had been found to be one such inherently personal choice.

[22]            The consequence of the issuance of the deportation order against an individual is profound. The deportation order prohibits Mr. Romans from making the fundamental personal choice to remain in Canada where he receives the love and support of his family, financial support, and the support of his social worker and the health-care system. I am satisfied that in the circumstances before me the issuance of a deportation order pursuant to subsection 27(1) and subsection 32(2) of the Act engages section 7 of the Charter.

[23]            Section 7 of the Charter provides that:

[24]            The next inquiry therefore is whether the deprivation of Mr. Romans' liberty interest is in accordance with the principles of fundamental justice.

[25]            On Mr. Romans' behalf it was submitted that the removal of a mentally ill person who is a permanent resident, who has resided in Canada for over 30 years, who has all of his family here and whose longest criminal sentence was for a period of 12 months, would be a violation of the substantive guarantee of the principles of fundamental justice. Extensive reference was made to international jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee which supports the view that long-term residents have an absolute right to live in the country to which they have immigrated notwithstanding the state's interest in expelling them due to criminal activity.

[26]            With respect to the prior decision of the Supreme Court in Chiarelli, Mr. Romans submitted that the Charter is a living document so that Chiarelli must be reconsidered today in light of recent jurisprudence. In any event, Chiarelli was said to be distinguishable because Mr. Chiarelli came to Canada as an adolescent of 15 years of age and hence was not a product of Canada. This was said to be distinguishable from Mr. Romans' situation. Mr. Romans is a product of Canada and due to his mental illness he is not responsible to the same extent for his actions.

[27]            Finally, reference was made by Mr. Romans to the decision of the Supreme Court of Canada in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 where in the context of extradition it was noted that there would be circumstances where extradition would violate section 7 of the Charter if the treatment to be received in the receiving state would shock the values of Canadians.

[28]            Despite the compelling argument of Mr. Romans' counsel, I am unable to distinguish the decision of the Supreme Court of Canada in Chiarelli which is binding upon me. I cannot conclude that the Supreme Court's decision was predicated upon the age or capacity of Mr. Chiarelli.

[29]            In Chiarelli the Supreme Court unanimously noted, at page 733, that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. The Court ruled at page 734 that:

One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.                                                                                                                [underlining added]

[30]            This, in my view, is conclusive of the issue of whether Mr. Romans' removal violates section 7 of the Charter.

[31]            As for reliance upon Kindler, I note that Kindler predates Chiarelli, andI do not see how the express ruling in Chiarelli can be said to be modified by the Court's earlier decision. As well, rulings from the extradition context must be applied with great care to the present circumstances because extradition involves those accused, not convicted, of offences.

[32]            I therefore turn to the next issue.

(ii) Were the Appeal Division's findings of fact patently unreasonable?

[33]            Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's decision. It is not enough that the Court might have exercised the discretion differently. See: [1974] S.C.R. 875">Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875.

[34]            In the present case it is argued that the determinative findings of the Appeal Division were that Mr. Romans posed a danger to the public and was violent. These conclusions were said to be made without any reference to the material before the Appeal Division. The drug convictions were said to flow from the fact that Mr. Romans sold a very small quantity of drugs to finance his own drug habit. In view of the fact that the longest sentence which Mr. Romans received was for 12 months, and that there had been no recommendation that a danger opinion be sought, the Appeal Division's finding of danger was said to have been made without regard to the evidence before it.

[35]            The information contained in the tribunal record on Mr. Romans' criminal record is somewhat sparse. For example, while Mr. Romans was charged with three counts of sexual assault under section 271 of the Criminal Code, a suspended sentence with two years' probation was imposed upon him as a result of those charges. It is not clear whether such sentence was in respect of convictions on all three charges or some lesser included offence.

[36]            However, without doubt, in addition to a conviction in July of 1992 for trafficking and convictions in December of 1992 for trafficking and possession of a narcotic for the purpose of trafficking, Mr. Romans was convicted of assault in August of 1994, assault and assault causing bodily harm in December of 1996 and assault in March of 1999.

[37]            It was for the Appeal Division to consider those convictions, and all of the other relevant factors, for the purpose of determining whether or not Mr. Romans should be removed from Canada.

[38]            Mr. Romans' counsel did not challenge the finding of the Appeal Division that there is a very high probability that Mr. Romans would re-offend. Given that, his record of prior assaults, and the fact that medication does not appear to control his mental illness, I cannot find that the conclusion of the Appeal Division that there is a very high probability that Mr. Romans would re-offend and that the offences would be violent in nature is patently unreasonable.

ORDER

[39]            For these reasons, the application for judicial review must be dismissed.

[40]            Some submissions were received from counsel at the oral hearing on the issue of certification of a question. However, I think it preferable to afford counsel the opportunity to provide submissions on certification with the benefit of these reasons. Each party will therefore have seven days from receipt of these reasons to serve and file submissions on certification of a question. Additionally, each party will have a further three days to serve and file reply submissions to the position of the opposite party on certification of a question. Following consideration of those submissions, an order will issue dismissing the application for judicial review.

[41]            In conclusion, counsel are thanked for their persuasive and concise arguments.

"Eleanor R. Dawson"

                                                                                                                 J.F.C.C.                       

Toronto, Ontario

May 11, 2001

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                    IMM-6130-99

STYLE OF CAUSE:                                        STEVEN ROMANS

Applicant

-and-

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:                          TUESDAY, NOVEMBER 14, 2000

PLACE OF HEARING:                                    TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                                           DAWSON J.

DATED:                                                            FRIDAY, MAY 11, 2001

APPEARANCES BY:                                     Mr. Lorne Waldman

For the Applicant

Mr. David Tyndale

For the Respondent

SOLICITORS OF RECORD:                       Jackman, Waldman & Associates

Barristers & Solicitors

281 Eglinton Ave. E.

Toronto, Ontario

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                                              Date: 20010511

                                                                                                          Docket: IMM-6130-99

Between:

STEVEN ROMANS

Applicant

-and-

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER