[1] These reasons arise out of an application for judicial review of a decision of an adjudicator, being an officer within the Adjudication Division of Immigration and Refugee Board appointed or employed as provided in subsection 63.3(2) of the Immigration Act[1], wherein the adjudicator ordered the continued detention of the applicant in custody on the ground that she was not satisfied that the applicant would be likely to appear for removal from Canada if released from custody. The decision under review is dated the 10th of January, 2001. Since that date, a series of further detention reviews has taken place in which the applicant has chosen not to participate. Each review has resulted in continued detention.
BACKGROUND
[2] The applicant is a citizen of Jamaica. She was landed in Canada on the 8th of July, 1976, at the age of fourteen (14), under the sponsorship of her mother.
[3] Since coming to Canada, the applicant has acquired a substantial criminal record. Her most recent convictions are for importing a significant quantity of marijuana into Canada and for impersonation. As a result of these convictions, on the 4th of May, 1999, she was sentenced to eight (8) years in prison. She was ordered deported on the 28th of July, 1999. She appealed her deportation order to the Appeal Division of the Immigration and Refugee Board. That appeal was dismissed by decision dated the 26th of September, 2000.
[4] On or about the 30th of November, 2000, the applicant was considered by the National Parole Board for pre-release day parole and accelerated parole release. The Board focussed on the issue of risk of violence since, under the Corrections and Conditional Release Act,[2] that is the sole criterion governing release on accelerated parole for a qualified inmate such as the applicant. With regard to accelerated parole review, the Board determined:
The Board is satisfied that there are no reasonable grounds to believe that, if released, you are likely to commit an offence involving violence before the expiration of your sentence, and directs your release at your Eligibility date.
The Board then turned to the consideration of pre-release day parole, in light of its decision to grant full parole at first Eligibility date, and determined to direct pre-release day parole to a community-based facility. In support of this decision, the Board wrote:
...the Board notes that you have recently completed Cognitive Skills and Anger and Emotions Management to help you make better decisions and manage your volatility better. You described yourself as an "angry disturbed" person when you incurred these charges and convictions but that you changed your associations and began working about five years ago, in order to "change your life". The success of these efforts is reflected in a five year period from 1995 to 1999 that is, free of charges and convictions, as well as good institutional conduct, that is also free of charges and convictions. You are relying upon legal means to achieve your goals such as appeals against your sentence and your deportation order, rather than lashing out as you did in the past. You have successfully completed escorted temporary absences to the community and have the support of your Case Management Team for day parole release on an accelerated basis. At your hearing, you appeared calm (and not volatile) and honest about your past violence and did not justify it. Thus, the Board is satisfied that you meet the legislated criteria for day parole on an accelerated basis which is hereby directed.
[5] Thus, the stage was set for the applicant's release into the community, albeit supervised and in a controlled environment, in the absence of continued detention under the authority of the Immigration Act. The decision here under review followed resulting in the continued detention of the applicant under the authority of the Immigration Act.
THE DECISION UNDER REVIEW
[6] The adjudicator had the benefit of extensive submissions by counsel on behalf of the applicant. In her submissions, counsel noted:
... She [the applicant] has gone through anger management, cognitive skills, drug awareness, women's (inaudible), community relations and has also been taking upgrading skills in computers, word perfect and excel. So the reports that have been given on her show that she has responded well particularly to the psychological programs that have attempted to assist her in understanding her behaviour. That is why I think the Parole Board recommended that she continue with psychological treatment to help her come to terms with the difficulties that she has experienced as a child and to learn to know herself better and how to control her own anger.
I think that a number of the offences of which she [the applicant] has been convicted have been related in some ways to her psychological problems. The drug addiction, the failure to take responsibility to show up, report when she is supposed to, the assault charges. She wasn't able in the past to control her anger and she has been learning skills in this institution to do that, to be able to know how to appropriately respond.
One of the other things about the report was her acknowledgement of responsibility for her crimes, which I think certainly in terms of the Board and others acknowledgement of responsibility is a very important thing.[3]
[7] Counsel went on to emphasize the applicant's positive performance on a past day-pass, the incentives to good conduct in terms of her wish to stay in Canada, her positive family support in Canada and additional community support.
[8] The case presenting officer who appeared before the adjudicator responded to counsel's submissions in part as follows:
I must add that release on day parole is quite different then [sic] showing up for reporting. As stated her family is all here the issue is would she voluntarily report for removal to leave the family structure into an uncertain future that awaits her back in her main country?[4]
[9] A witness from the community who expressed a willingness to employ the applicant, appeared on her behalf. There were indications before the adjudicator that both the witness and family members were prepared to provide a surety or bond to ensure that the applicant would appear for removal. The following exchange took place between the adjudicator and the witness:
Adjudicator: And notwithstanding these failures to comply in the past you believe that she will comply now?
Witness: I truly believe that she has changed. I believe that she has matured rather - - some people mature later in life and I believe that she deserves a chance.[5]
[10] The applicant was questioned extensively by the adjudicator.
[11] The adjudicator summed up her concerns in the following terms:
... I will be very frank I am having difficulty reconciling the failures to appear, the failures to comply, the breach of trust offences. I am having difficulty with the unlawfully at large from 92 to 99. I am being very frank with you. Those convictions in and of themselves are demonstrative of a person who can and will take the law into their own hands. Demonstrative of a person who can not seem to abide by the law. Demonstrative of a person who has the ability to elude officials and that is a concern that I have.[6]
[12] The adjudicator returned to her concern regarding the applicant's convictions for failure to appear, for failure to comply and for breach of trust offences on a number of occasions throughout the hearing before her. She added the following concern:
Well at this point in time given what I have before me I do not believe that I can rely upon her or that I can rely on the fact that she would make herself available for removal. I am not satisfied at that fact. She has been able to obtain other documents. They may have been given to her by friends. She has used aliases. She has presented herself to Canadian officials and I would suggest likely on more then [sic] one occasion as someone else entirely when entering, re-entering Canada after a trip to Jamaica.[7]
[13] The adjudicator concluded in the following terms:
... I do not believe that you Miss Willis, can be relied upon to appear. I do believe that your past history speaks volumes regarding your ability to disobey the law and on the basis of the totality of the information before me today I am ordering that detention continue.[8] [emphasis added]
[14] I would only add at this point that, throughout the summing-up by the adjudicator toward the end of the hearing before her, the adjudicator was regularly interrupted by the applicant, close to the point of harassment. That conduct on the part of the applicant certainly could not have worked in her favour.
THE ISSUES
[15] The issues as presented by counsel for the applicant were the following:
- first, whether the adjudicator erred in law in the manner in which she used the applicant's past convictions in arriving at her decision; and
- second, whether the adjudicator erred in law in ignoring evidence.
ANALYSIS
[16] I am satisfied that the adjudicator made no reviewable error in taking into account the applicant's past convictions for breach of trust offences in attempting to predict the applicant's future conduct in the face of a requirement to voluntarily present herself for removal from Canada to Jamaica, assuming the deportation order that is outstanding against her remains in effect. Past conduct is a reliable indicator of future conduct, albeit that it is only one such indicator and other indicators cannot be ignored in arriving at a prediction. In Williams v. Canada (Minister of Citizenship and Immigration)[9], Mr. Justice Strayer, for the Court, wrote at paragraph 29:
...I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences ... .
I am satisfied that precisely the same can be said with respect to efforts of adjudicators to forecast the likelihood that an individual might, in the future, report for removal from Canada. I am satisfied that this sort of attempt to forecast human behaviour, and the reliance on past behaviour, as evidence by convictions, as a factor in that regard, can be readily distinguished from an interdiction against the use of past convictions in determining the likelihood of whether an individual is guilty of an offence of which he now stands charged.[10]
[17] That being said, relevant past convictions are a factor only, and in the presence of indications of a changed outlook and attitude, here an increased respect for the law and of obligations arising by reason of the law, an adjudicator is not entitled to ignore those indications of change and to rely solely on past conduct as evidence by past convictions.
[18] Here counsel urged that, despite the adjudicator's assurance that she had reached her decision "...on the basis of the totality of the information before me today...", a careful reading of the transcript of the hearing before the adjudicator demonstrates that she focussed entirely on the past convictions for breach of trust type offences and ignored the submissions and testimony before her regarding recent changes in the outlook and attitude of the applicant. I am satisfied that such is not the case.
[19] While a much clearer indication on the face of the decision of the adjudicator that she had carefully balanced the conflicting factors before her that might be said to constitute indicators of the applicant's future behaviour would have been highly desirable, I am satisfied that a reading of the transcript as a whole indicates that the adjudicator was alive and sensitive to all of the factors adduced before her. Her questioning of the applicant and of the community-based witness before her demonstrates a sensitivity to the evidence being presented. Similarly, her interaction with counsel for the applicant demonstrates that she was alive to the presentation by counsel. When the adjudicator expressed her continuing concern about the applicant's past behaviour, as evidenced by past convictions, she did not prevent dialogue with respect to her concerns. To the contrary, as earlier indicated, she was perhaps over-lenient in permitting interventions in her summation.
[20] I am satisfied that the apparently bland expression "...on the basis of the totality of the information before me today..." is not merely that, a bland expression. I am satisfied that the adjudicator did take into account the totality of the information before her and decided, on balance, not in abstract, to prefer the indications of past behaviour based on prior convictions over the evidence of the applicant's steps toward rehabilitation.
CONCLUSION
[21] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
________________________________
J.F.C.C.
Ottawa, Ontario
July 24, 2001
[2] S.C. 1992, c. 20, ss. 125 and 126.
[3] Tribunal Record, pages 128 and 129.
[4] Tribunal Record, page 136.
[5] Tribunal Record, pages 144 and 145.
[6] Tribunal Record, page 165.
[7] Tribunal Record, page 167.
[8] Tribunal Record, page 172.
[9] [1997] 2 F.C. 646 (C.A.).
[10] See R. v. D.W.B _[1999] N.S.J. No. 56, Court file: CAC 147081, paragraph 39 to 42. (N.S.C.A.).
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