Date: 19990805
Docket: IMM-5272-98
BETWEEN:
LYNDA LEWIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This is an unusual case. Lynda Lewis (the "Applicant") has been a permanent resident of Canada for 34 years. She arrived in this country when she was four years old.
[2] She grew up in an emotionally abusive and violent domestic environment. As early as age 11, she began to use drugs which were supplied by her older brother.
[3] She completed grade 12 and later acquired some training in hair dressing but moved out of the family home at age 17. Thereafter, she lived with two men in succession. Both were abusive and both fathered daughters; the first in 1980 and the second in 1982.
[4] In 1983, the Applicant began to abuse drugs and alcohol and this conduct led to a series of criminal convictions in the years from 1982 to 1991. In that period she served a 12 month jail sentence for robbery, was convicted of assault, possession of a narcotic, impaired driving (twice) and was sentenced to two years less a day for manslaughter.
[5] In this period she also turned to a lesbian lifestyle. In 1986, she began a relationship with one Karen Sharpe. It was extremely abusive and characterized by heavy drinking, drug taking and by violence against the Applicant on the part of Karen Sharpe. The Applicant killed Karen in 1987 in a drunken situation and this resulted in the manslaughter conviction.
[6] By the end of 1991, the Applicant had lost custody of her daughters. Her only contact with them was by phone. She had also lost meaningful contact with her parents. The Applicant"s entire family rejected her lesbian lifestyle.
[7] Although the Applicant admitted her crimes to 1991, the Board correctly noted that she expressed no remorse for her conduct and tended to blame others for the circumstances that led to her offences. However, she did admit that her conduct was "stupid" and she appreciated that drugs and alcohol were often involved in her criminal behaviour.
[8] Fortunately, after 1991, the Applicant"s history improved. Although she was convicted of possession of a small number of marijuana plants in 1994, she told the Board that she was innocent and took the blame to protect a friend. The Board appears to have believed her as it nowhere questioned her credibility. As a result, in spite of two deportable offences in the 1980s the Applicant has, from the Board"s perspective, not committed any crimes since her second conviction for impaired driving in October 1991. Accordingly, she last offended seven years before the Board heard her appeal.
[9] In late 1994, the Applicant began a relationship with Patricia Merlin and they have lived together since 1996. Both women were substance abusers but they decided to change their behaviour. The Board accepted their evidence that, without formal professional help, they had become drug and alcohol free. At the time of the appeal, the Applicant worked in Patricia Merlin"s business and the Board concluded that they had a peaceful and caring relationship.
THE BOARD"S DECISION
[10] The Board made no factual errors in its assessment of the case. It concluded that, because of the Applicant"s serious criminal record, history of unhappy, unsuccessful relationships and history of drug and alcohol abuse, she could not be relied on to stay out of trouble and would likely re-offend. The Board was particularly concerned by the Applicant"s failure to express remorse and by her failure to obtain the professional counselling which could have helped her overcome the effects her abusive childhood and could have given her the tools she needed to remain drug and alcohol free.
THE ISSUE
[11] The transcript discloses that counsel for the Applicant asked the Board to consider a stay of deportation in lieu of dismissing the appeal. Section 73(1) of the Immigration Act, R.S.C. 1985, c.1-2 (the "Act") provides the Board the option of granting a stay when, as in this case, appeals are brought under section 70(1)(b) of the Act. Sections 74(2) and (3) of the Act allow the Board to impose conditions on a stay. At any time, the Board may also amend conditions or cancel a stay and order a deportation.
[12] The Board"s decision does not mention the possibility of a stay and the Applicant alleges that, in the circumstances of this case, when a stay was requested, the Board erred in making no reference to the appropriateness of a stay which could have been made conditional on psychiatric counselling and attendance at a formal drug/alcohol rehabilitation programme.
DISCUSSION
[13] The Respondent takes the position that, when only three outcomes are possible at the conclusion of an appeal, ie: the appeal may be allowed, or dismissed or the deportation order may be stayed, I should assume that the Board always considers a stay and that, if it dismisses an appeal, it implicitly decides not to grant a stay. For this reason, counsel for the Respondent suggests that no reasons are needed to explain a failure to grant a stay.
[14] I am unable to agree with this approach. In my view, if a stay is requested and if the facts suggest that there is reason to consider a conditional stay, then, if reasons are given pursuant to section 69.4(5) of the Act, the Applicant is entitled to know why a stay was denied.
[15] In this regard, I am mindful of the comment made by Madame Justice L"Heureux- Dubé in Baker v. Canada (M.C.I.) File No. 25823, July 9, 1999, (S.C.C.) at paragraph 43 where she noted, in the context of an humanitarian and compassionate decision, that reasons should be provided because "It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached".
[16] The decision to deny the Applicant a conditional stay in this case was critical to her future. Without the stay she will be deported to a country she has never known and forced to leave a positive relationship. If this is to be her fate and, if reasons are given, the Applicant is entitled to know why the Board declined to exercise its discretion to grant a conditional stay.
"Sandra J. Simpson"
JUDGE
TORONTO, ONTARIO
August 5, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: LYNDA LEWIS |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, JULY 27, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: SIMPSON J. |
DATED: THURSDAY, AUGUST 5, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Geraldine MacDonald
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990805
Docket: IMM-5272-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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