Date: 20100222
Docket: IMM-258-09
Citation: 2010 FC 193
Ottawa, Ontario, February 22, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ALDO MALFEO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
The
main question raised by this judicial review application is whether a member of
the Immigration Appeal Division (the tribunal or the IAD) breached the
principles of natural justice and/or the requirements of the law when she
dismissed on December 28, 2008 the applicant’s request to stay his
deportation to Italy. This application was made, pursuant to
paragraph 67(1)(c) of the Immigration and Refugee Protection Act (IRPA),
which enables the tribunal to grant relief if sufficient humanitarian and
compassionate considerations are demonstrated in the light of all of the
circumstances.
[2]
The
special context which gives rise to this case is the joint submission made by
counsel for the applicant and the respondent that the stay be granted for a six
year period with strict conditions attached. The tribunal did not accept the
joint recommendation and dismissed the appeal.
[3]
The
deportation order, whose legality the applicant did not contest before the IAD,
was based on paragraph 36(1)(a) of IRPA which provides a permanent resident or
a foreign national is inadmissible on grounds of serious criminality if
convicted in Canada of an offence punishable by a maximum term of
imprisonment of at least ten years for which a term of imprisonment of more than
six months has been imposed. On February 18, 2004, he was convicted of
possession of a prohibited firearm with ammunition for which he was sentenced to
more than six months in prison and placed on probation for two years.
Background facts
[4]
Mr.
Malfeo is 53 years old and a citizen of Italy; he landed
in Canada in 1980
with his wife and daughter and obtained permanent resident status in 1982.
His daughter died of leukemia in 1997. He has a Canadian-born son now
thirteen years of age. He separated from his wife in 2003; she has the
custody of their son. Mr. Malfeo is restrained from seeing his wife and son.
That restraining order was issued in September of 2005 and is in effect for
five years.
[5]
Around
1985,
he began using illicit drugs and developed a drug addiction to cocaine and
later to heroin. He contracted Hepatitis C as a result of sharing needles. In
efforts to rehabilitate himself, he attended a sixteen month drug
rehabilitation program in Italy in 1992. After a
relapse, he returned to Italy for another 4 months. He was clean until
1998. More recently, he is enrolled in counselling sessions and Alcoholics
Anonymous to address his addiction as part of his responsibilities with the
Toronto Bail Program which he entered on August 29, 2007. After his bail
release until he was deported to Italy, he lived in
a group home for persons with mental illness. He asserted he was suffering from
depression and had been seeing a psychologist over the last four to five years.
[6]
The
tribunal held its hearing on October 22, 2008 via teleconference. After the
evidence had been taken in, the scheduled time had run out with the result no
oral submissions were made to the tribunal. The tribunal called for written
closing submissions. Instead of receiving separate opposing submissions from
counsel, the tribunal received a joint submission from counsel, dated
November 4, 2008 “to stay the removal order, on stipulated conditions, for
a period of six years.”
The tribunal’s decision
[7]
The
tribunal stated at the beginning of its reasons, it “received [on November
4, 2008] the joint submission for a stay without any written representations to
justify it”. The member of the IAD pursued her analysis discussing the
merits of the case by considering and weighing the Ribic factors approved
by the Supreme Court of Canada in Chieu
v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. In
particular, the tribunal found:
· In terms of
the possibility of rehabilitation:
In assessing if there is a possibility of rehabilitation in
the circumstances of this case, the tribunal came to the conclusion that the
appellant has recently taken the means available to him to try to change his
life, but his change of mind is very recent and considering the number of years
where he was involved with drugs and criminal activities, the tribunal cannot
assume, based on the evidence submitted in the circumstances of this case, that
he is really on a serious path towards rehabilitation. [My emphasis.]
· As to the
length of time spent in Canada and the degree of establishment (28 years in
Canada) it concluded: “that the appellant does not respect Canadian legislation
and in doing so, contrary to all Canadians and permanent residents, the
appellant does not care to contribute to the Canadian society and has behaved
in this fashion for many years”.
[8]
It
also concluded he had no establishment in Canada because “his
only possessions are his clothes”.
[9]
On
the issue of the joint recommendation, the tribunal wrote:
[45] A joint recommendation was
made to stay the deportation order against the appellant.
[46] The tribunal does not find
this recommendation to be appropriate in the circumstances of this case for the
following reasons:
Considering the objectives of the Act
which reads as follows:
“3(1)h) to protect the health and safety of
Canadians to maintain the security of Canadian society.”
Considering that the appellant still
represents a danger for his wife and son, and considering that although the
appellant has completed a third drug treatment on July 25, 2008, three months
prior to this hearing, which is in his favour, the tribunal concludes that this
period of three months of measures taken by the appellant to try to
rehabilitate himself is insufficient to surpass the totality of evidence of a
lengthy criminal record and a serious potential of violence. [My emphasis.]
The Standard of Review
[10]
The law is clear that a breach of natural
justice or procedural fairness is reviewable on the correctness standard (see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
paragraph 43). No deference is owed to the decision maker.
Analysis and Conclusions
(1) Procedural Fairness
[11]
Recently,
the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraphs 79 and 80, wrote per Justices Bastarache and LeBel
that: (1)
“Procedural
fairness is a cornerstone of modern Canadian administrative law”; (2) “Public
decision makers are required to act fairly in coming to decisions that affect
the rights, privileges or interests of an individual”; and, (3) "The
concept of procedural fairness is eminently variable and its content is to be
decided in the specific context of each case".
(2) The principles on joint
submissions
[12]
The
use of joint submissions is a concept well-known in criminal law where the
Crown and the defence make joint submissions, for example, in sentencing. It is
not unknown in administrative law cases and has been applied by this Court in
the context of immigration law (see Nguyen
v. Canada (Minister of Citizenship and
Immigration), 196 F.T.R.
236), a case which bears similarity with the case at hand since it involved an
application by Mr. Nguyen to the then Appeal Division for the exercise of its
humanitarian and compassionate jurisdiction under a provision of the now
repealed Immigration Act similar to paragraph 67(1)(c) of IRPA. That
case involved the failure of the tribunal to explain why the joint submission
of counsel proposing a five year stay was not endorsed. The purpose of staying
the deportation is, in that case as it is in this case, to give the applicant
an opportunity to demonstrate, on the ground so to speak, becoming a
decent law abiding resident of this country.
[13]
Borrowing upon
criminal law jurisprudence, but appreciating the clear distinction between a
deportation which is non criminal and the criminal context, this Court wrote at
paragraph 11 as follows:
[11] Nevertheless, I am attracted to
the underlying rationale behind joint submissions in a section 70(1)(b) case
where the tribunal's jurisdiction is quite wide, the reasons for the
deportation in this case are based on criminal offences and the factors
outlined in Chieu, supra, (seriousness of the offence, possibility of
rehabilitation, impact of the crime on the victim, remorsefulness of the
applicant) are analogous to the matters which are taken into account in
sentencing upon conviction.
[14]
I
cited certain extracts from the Quebec Court of Appeal’s judgment in R. v. Dubuc, 1998 CanLII 12524 (QC C.A.), (1998), 131
C.C.C. (3d) 250, written by Justice Fish, then of that Court, which set aside
the sentence and substituted the sentence jointly suggested. Fish J.A. wrote:
[…]
I repeat, the trial judge was not bound by the shared recommendation of
counsel. For appropriate reasons, explained even summarily, he was entitled to
depart from the sentence jointly proposed. The judge could properly accept or
reject the submission. But not disregard or ignore it. Still less, simply
overlook it.
[15]
Justice
Fish in Dubuc also stated “serious consideration” should be given
to by the court to the recommendations of Crown counsel and “it should not
lightly be disregarded”.
[16]
In
Nguyen, reference was also made to the Manitoba
Court of Appeal’s judgment in R. v. Chartrand, (1998), 131 C.C.C.
(3d) 122 where Kroft J.A. stated the following:
[8] A sentencing judge is not bound
to accept the recommendation, but it should not be rejected unless there is
good cause for so doing. This case does not fall into that category.
Conclusion
[17]
For
the following reasons, in the circumstances of this case, the Court’s
intervention is necessary in order to render justice.
[18]
Having
received the joint submission albeit unexpectedly, the tribunal breached
procedural fairness by rejecting it outright without asking for further input.
The applicant in these circumstances was not given a fair hearing. The
consequences on the applicant were significant. Clearly, a review of the terms
and conditions of the proposed stay which included a requirement he not commit
any criminal offences, make reasonable efforts to seek and maintain full time
employment, engage in and continue psychotherapy, submit to random urine drug testing
and respect court orders (which would include respecting the restraining order)
address the tribunal’s concerns. The tribunal provided no analysis and did not
even refer to the proposed terms and conditions.
[19]
Second,
it is also clear the tribunal did not give serious consideration to the joint
submission. Again, it provided no analysis of its terms and dismissed the joint
submission in a perfunctory manner.
[20]
The
reasons it put forward for rejecting the joint submission also lack analysis
and do not withstand reasonable scrutiny.
[21]
During
the hearing, I was informed the applicant did not appear for his removal on
October 14, 2009 in the aftermath of losing his stay application. I referred
the parties to the Federal Court of Appeal’s recent judgment in Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA
81 and called for written submissions. Counsel for the respondent did not urge
upon me I should not decide the case on the merits. Rather his position was
that I should not order the Minister to return to Canada should he be successful in this judicial review application
pending the re-determination by the IAD. I agree with counsel for the
respondent’s submissions particularly on the lack of prejudice. However, I
would urge the IAD to proceed as quickly as is reasonable in the circumstances
with the rehearing.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES this judicial review
application is granted, the tribunal’s decision is set aside and the matter is
remitted to the IAD for re-determination by a differently constituted tribunal.
“François
Lemieux”
____________________________
Judge
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