Date: 19990810
Docket: IMM-3873-99
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
CARLOS ALBERTO PERREIRA
DA SILVA,
Respondent.
REASONS FOR ORDER
MULDOON J.
[1] In this application, the applicant seeks a stay of the respondent"s release from detention pending disposition of this application for judicial review, or alternatively pending his removal from Canada. The respondent is a Brazilian citizen and a permanent resident of Canada. He was landed on December 22, 1992, through his wife"s, Ms. Prussick"s, sponsorship. They separated on May 22, 1995. The respondent had four times disobeyed Court orders to avoid all direct or indirect contact with her. Those orders contained provisions ordering him not to go to her apartment or her workplace.
[2] On June 23, 1995, about 3:30 a.m., the respondent entered Ms. Prussick"s 16th floor apartment through an unlocked balcony door. He entered the building surreptitiously, going to the roof, kicked out a window to enter, and he climbed over one floor to her balcony. (Murray Wilkinson"s affidavit, p. 00032). She was apparently not injured by him on this occasion.
[3] On June 30, 1995, the respondent confronted Ms. Prussick at work, Herbert Williamson"s law office on Hornby Street, shortly after noon. The respondent stabbed Ms. Prussick thrice in the chest. He was stopped by Herbert and Arlene Williamson. In fleeing the office, the respondent threatened the Williamsons with his knife. He also so threatened Perry Jansen a curious nearby worker. The trial judge held that "the stabbing was the act of cumulative jealous rage which had been building up within Mr. Da Silva from May 22 when Ms. Prussick ended the marriage."
[4] One of Ms. Prussick"s wounds was near her heart, which escaped direct trauma. Her right small finger was so badly injured that a plastic surgeon"s services were needed. She was permanently injured and left with visible scars.
[5] On October 18, 1996, the respondent was sentenced to 2" years" imprisonment for aggravated assault; 1 year consecutive for "break-and-enter"; 3 months concurrent on each of the "assault-with-weapon" charges and 3 months concurrent on possession of a dangerous weapon. (Affidavit of Murray Wilkinson, p. 00083).
[6] The respondent was eligible for day parole on September 29, 1997, full parole on March 29, 1998, statutory release on May 29, 1999, and his warrant expiry date is July 27, 2000. He was denied full parole on November 13, 1998, the National Parole Board stating:
| At your hearing you presented to the Board in a manner that causes concern with respect to the extent to which your criminogenic factors have been resolved. You minimized the nature of your violence and displaced blame onto your victim. You stated on more than one occasion that you did not know why you had committed the acts of violence towards your spouse. Although you claim to accept responsibility for your offences, you maintain that you acted reasonably in violating your no contact orders. You have little appreciation or respect for the boundaries of those closest to you and into the dynamics of your spousal violence. You have little insight into your intense underlying anger toward your spouse. The Board questions the extent to which you have emotionally disengaged from your former partner and the extent to which you have resolved your emotional dependency. There is no release plan presented which could effectively manage your risk of reoffending and no residency acceptance or confirmation exists in the community. As a result of the reasons outlined above, the Board has concluded that your risk to reoffend on release is undue and accordingly full parole is denied.1 |
[7] The respondent was released from incarceration pursuant to his statutory release date on May 29, 1999. He was released into the applicant"s custody and a detention review was held on June 2, 1999. He was ordered released on $5,000 bail, but was unable to raise bail, he had a subsequent detention review on June 8, 1999, and was detained. The next detention review was held on July 8, 1999, and the adjudicator held him to constitute a risk to Canadian society.
[8] Mr. Da Silva was released from detention by Adjudicator Wojtowicz on August 6, 1999, on the basis that he is no danger to the public. There was certainly evidence before the adjudicator to counter that finding. The last adjudicator erred in law in declining to look at previous adjudicators" decisions: Senga v. Minister of Citizenship and Immigration2. Further this last adjudicator erred in fact by saying: "There is no evidence anywhere of you having any kind of trouble prior to that incident, and the minor incident led to that major incident of stabbing. You are not what one may describe as an incorrigible psychopath. In all respects you are a normal man and in this one situation you reacted in this criminal fashion."
[9] There was a pattern of escalating violence evinced by the respondent, which demonstrated the adjudicator"s error in fact. The adjudicator"s finding was made in the face of increasing violence and breaches of the restraining orders. The adjudicator said he saw no pattern of misbehaviour.
[10] The escalation is apparent. Here is paragraph 10 (p. 3) of Murray Wilkinson"s affidavit herein sworn on August 6, 1999:
| I also submitted to the Adjudicator that there was a further development since the detention review of July 8, 1999, which was not reflected on the record that was before him. I advised Adjudicator Wojtowicz that Phil Cottrell, a parole officer in the office in Victoria to which the Respondent reports, had advised me that after the July 8 detention review, the Respondent had telephoned him and told him that he wanted to be transferred from the Vancouver Pretrial Centre to William Head Penitentiary. He stated that he would do anything to be transferred. The Respondent again telephoned Mr. Cottrell the next day, this time indicating that he would be prepared to commit a crime so as to violate his conditions of parole in order to be transferred. Mr. Cottrell advised me that the Respondent seemed to be behaving abnormally at this time. I then concluded my submissions. |
[11] Paragraph 14 of the same affidavit just astounds this judge in regard to the adjudicator"s appreciation of the respondent"s character and probably future criminality.
[12] These are recent events, which disincline this judge to permit the respondent"s release on any relatively easy to raise bail. The balance of convenience and public safety is in the applicant"s favour. The application is allowed. No question is certified.
(Sgd.) "F. C. Muldoon"
Judge
Vancouver, British Columbia
10 August 1999
[13] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: August 10, 1999
COURT NO.: IMM-3873-99
STYLE OF CAUSE: MCI
v.
Carlos Alberto Perreira Da Silva
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MULDOON J.
dated August 10, 1999
APPEARANCES:
| Kim Shane for the applicant |
| Dean Pietrantonio for the respondent |
SOLICITORS OF RECORD:
Morris Rosenberg for the applicant
Deputy Attorney General
of Canada
| Dean Pietrantonio for the respondent |
Barrister and Solicitor
Vancouver, BC
__________________
1 Applicant"s Further Written Representations, pp.3-4.
2 McKeown J. (IMM-1922-98, April 12, 1999).
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