Date: 20100224
Docket: IMM-272-09
Citation: 2010 FC 206
Ottawa, Ontario, February 24,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KITTS WHITE
By his Litigation Guardian, Juline White
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
an Immigration Officer dated January 2, 2009, denying
the applicant’s application for permanent residence on humanitarian and compassionate grounds (H&C) pursuant to section 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
The decision under review is a re-determination of the
applicant's first H&C application, dated April 25, 2007, pursuant to the Order of Madam Justice Heneghan dated July 23, 2008
and reported in White (Litigation Guardian of) v. Canada (MCI), 2008 FC 896.
FACTS
Background
[3]
The
thirty-six (36) year old applicant is a citizen of Jamaica. He entered Canada at the age
of seven on December 21, 1980 to join his father and became a permanent
resident on July 17, 1985. The applicant was ordered removed following his
conviction for aggravated sexual assault in 1998. His application for a
pre-removal risk assessment (PRRA) was denied, as was his application for leave
to apply for judicial review of that decision by this Court. The applicant is
currently designated as a danger to the public.
[4]
On
April 25, 2007 a PRRA Officer denied the applicant’s first
H&C application. On judicial review, Justice Heneghan set out the
evidentiary basis of the applicant's first H&C
application at paragraphs 2-4 of her Judgment dated July 23, 2008:
¶2 The
Applicant was born in Jamaica on November 22, 1973. He came to Canada with his
family on December 21, 1980, and has lived in Canada since that
date. At the age of [17], while a passenger in a car, the Applicant was
seriously injured in a motor vehicle accident. His injuries included significant
Traumatic Brain Injury ("TBI") and damage to his left arm. At the
time of this accident, the Applicant was 17 years-old and was scheduled to
start university studies, as a scholarship student, at York
University.
¶3 As a result
of the severe and permanent brain damage, the Applicant underwent significant
personality and behavioural changes. These changes were described in detail in
a Case Summary prepared in 1997 by Dr. R. Van Reeken, F.R.C.P.C. of the
Baycrest Centre for Geriatric Care in Toronto.
¶4 Between
1993 and 1998, the Applicant was convicted of several criminal offences, the
most serious of which was a conviction of aggravated sexual assault in 1998. He
was sentenced to an eight-year term of imprisonment for that offence in June
1998.
…
¶16 …The Applicant
was formerly a permanent resident but as a result of his conviction in 1998, a
deportation order was issued against him in February 1999. That conviction
arose from behaviour that is inextricably related to the Applicant's impaired cognitive
ability resulting from a motor vehicle accident in 1991. The Applicant has
served his sentence.
[5]
Following
the completion of his eight-year sentence, the applicant was placed in
immigration hold pending removal and has been there ever since. His only source
of income is an insurance settlement from the accident which pays out $6000 a
month. The same settlement has also set aside funds in trust for the purchase
of a house.
[6]
Justice
Heneghan held that the decision before her was unreasonable because the Officer
mischaracterized the nature of the applicant’s disability and failed to
consider the circumstances of the applicant’s family ties.
[7]
On
August 21, 2008 the applicant was informed that he could
file a second H&C application and was invited to make submissions and file new evidence.
Decision under review
[8]
On
January 2, 2009 the applicant’s second H&C application
was refused.
The H&C decision considered the matter under the following headings:
a.
Background;
b.
Establishment;
c.
Family
ties;
d.
Medical Considerations;
e.
Risk in Jamaica; and
f.
Criminality
and danger to the public.
[9]
I
will highlight under each of the headings pertinent quotes from the decision.
Background
He arrived in Canada as a child and grew up here along with
his father and sister, who are both now Canadian citizens. The applicant had
been doing well in his life – both at school and sports – until he was
tragically involved in a serious car accident in 1991 that left him in a coma
for more than one month. After regaining consciousness, the applicant remained
severely affected by the accident, both physically and behaviourally. Although
he was receiving therapy, he began to develop behaviour problems to the point
of committing criminal acts. After a series of convictions culminating in his most
serious charge of aggravated sexual assault, a removal order was issued against
the applicant, and he lost his status in Canada. … The applicant receives medication in
detention – most recently indicated in April 2007 as a total of nine
medications. There is no indication of ongoing counselling/ therapy/ treatment,
as the April 2007 letter indicates that there is no group or rehabilitative
therapy available at the facility where the applicant is detained.
Establishment
The applicant has lived in Canada for most of his life. …
Family ties
The applicant’s immediate family members
are all Canadian citizens living in Canada.
He has submitted letters from his family, supporting his H&C application
and requesting that he be allowed to stay in Canada. It has been argued that the applicant
requires his family ties to keep him on track and that he requires their
support. I note that the applicant has not lived with his family in over ten
years, as he has been in detention since June 1998. Prior to his detention in
1998, since the accident in 1991, the applicant had been in treatment
facilities, in supervised community living, as well as in his family’s care….
As for family ties in Jamaica, it is submitted that the
applicant has no family there. …
While I find that the applicant does have
much stronger family ties to Canada than to Jamaica, where he has not lived since
his childhood, I note that the applicant has been detained for the past 10
years and has not lived with his family during this time. Though it is
submitted that the applicant has daily communication with his father and almost
daily communication with his sister, it is not clear how this is carried out,
for example by telephone or by visits. … I note that the applicant could well
maintain this type of contact with his family from Jamaica, as given his
sizeable monthly settlement payment, he could reasonably afford long distance
charges to maintain phone contact, or to even cover the costs of visits from
his family to Jamaica from time to time. Related to
this I note that the applicant’s father and sister are Canadian citizens who
could reasonably travel to Jamaica as they have not indicated
that such visits would be unreasonable or impractical.
I find that while the applicant’s family
indeed cares about him, and he about them, their ties/relationship is not such
that their daily lives would be impacted by his removal.
Medical Conditions
Following a serious car accident, the
applicant was in a coma for just over one month, after which he continued to
suffer ongoing health concerns related to the brain injury he acquired, for
which he participated in rehabilitation programs at various facilities. It is
submitted that the applicant would not receive adequate care in Jamaica.
…
Risk in Jamaica
It has been submitted that the applicant
faces a risk from the crime and violence in Jamaica, augmented by his mental disability.
Looking at this risk in terms of potential hardship to the applicant, it has
not been established that returning to Jamaica given the current conditions and the
personal circumstances of the applicant, would present the applicant with an
unusual and undeserved or disproportionate hardship. …
While crime and violence are problems in
Jamaican society, this general problem faces all in the country. …
Although the general conditions in
Jamaica leave much to be desired in terms of public safety and security due to
high crime rates, I do not find the general risk from the country conditions to
be such that the applicant is faced with unusual and undeserved or
disproportionate hardship in returning to such conditions.
Criminality and danger to the public
It is submitted that the applicant’s
criminality is the result of behavioural changes stemming from the brain injury
the applicant suffered at the age of 17, which I accept given the applicant’s
lack of criminal or violent behaviour prior to the injury, and the record he
accumulated after the injury. While this is another unfortunate outcome of the
accident for the applicant, it does not exonerate him for his crimes. …
I note that the applicant has been
detained for the past 10 years, serving an eight year sentence for sexual
assault with a weapon, following which he remains to this date in detention on
immigration hold, as he is considered a danger to the public. While counsel and
his family have put together a plan for his release which would allow for
around-the-clock family and community care, I note that to date this has not
been approved and the applicant remains in detention. …
LEGISLATION
[10] Section 25
(1) of IRPA allows the Minister to exempt an applicant from any of the
requirements of the Act:
|
25. (1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this
Act, and may, on the
Minister’s own initiative or on request of a foreign national outside Canada, examine
the circumstances concerning the
foreign national and
may grant the foreign national permanent resident status or an exemption
from any applicable
criteria or obligation of this Act if the Minister is of the opinion that
it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, de sa
propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables,
s’il estime que des
circonstances
d’ordre humanitaire
relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant
directement touché —
ou l’intérêt public le justifient.
|
[11] Sections 7
and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 grant the following rights to individuals:
|
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
…
12. Everyone has the right not
to be subjected to any cruel and unusual treatment or punishment.
|
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa
personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les
principes de justice fondamentale
…
12. Chacun a droit à la protection contre tous traitements ou peines
cruels et inusités.
|
ISSUES
[12]
The
applicant raises the following issues:
1.
Whether
the Officer erred in law in speculating and in ignoring relevant factors and
evidence?
2.
Whether
the Officer erred in law in applying the wrong test for risk of return to his country
of origin?
3.
Whether
the Officer’s conclusion is unreasonable?
4.
Whether
the Officer’s decision is in breach of section 7 and section 12 of the Canadian
Charter of Rights and Freedoms?
STANDARD OF REVIEW
[13] In Dunsmuir
v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of Canada held
at paragraph 62 that the first step in conducting a standard of review analysis
is to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of [deference] to be accorded with regard to a
particular category of question”: Khosa v. Canada (MCI), 2009 SCC 12,
per Justice Binnie at paragraph 53.
[14]
The
Federal Court of Appeal recently held in Kisana v. Canada (MCI), 2009
FCA 189, per Justice Nadon at paragraph 18 that the standard of review of an
immigration officer’s H&C decision is reasonableness: see also my decisions
in Ramotar v. Canada (MCI), 2009 FC 362, at paragraphs 9-11; Ebonka
v. Canada (MCI), 2009 FC 80, at paragraphs 16-17; Ruiz v. Canada (MCI),
2009 FC 1175, at paragraphs 22-24.
[15]
The
issues concerning the Canadian Charter of Rights and Freedoms are
questions of law: Laranjo v. Canada (MCI), 2007 FC 1778 per C.J. Lutfy
at paragraph 12.
[16]
In
reviewing the Officer’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra at paragraph 47, Khosa, supra,
at paragraph 59.
ANALYSIS
Madam Justice Heneghan’s
Judgment
[17]
The
Reasons for Judgment and Judgment of Justice Heneghan dated July 23, 2008 set aside the applicant’s first H&C decision for the following
reasons:
1.
at paragraph 14:
I am satisfied that the decision here in
issue does not meet the standard of reasonableness. In my opinion, the Officer
ignored or misunderstood the evidence concerning the Applicant’s personal
circumstances, in particular the nature of his disability. The Applicant
suffers from a severe brain injury, not mental illness.
2. at
paragraph 16:
In my opinion, the
Officer also failed to consider the fact that the Applicant has no immediate
family in Jamaica. He has been living in Canada for a longer period than he
ever resided in Jamaica.
3. also at
paragraph 16:
The Applicant was
formerly a permanent resident but as a result of his conviction in 1998, a
deportation order was issued against him in February 1999. That conviction arose
from behaviour that is inextricably related to the Applicant’s impaired
cognitive ability resulting from a motor vehicle accident in 1991. The
Applicant has served his sentence.
4. at
paragraph 19:
The Officer in the
present case mischaracterized the Applicant’s disability and ignored the
particular circumstances of his family relationships.
For these reasons Justice Heneghan set
aside the first H&C decision and remitted it to another Officer for
redetermination. That second decision is now before this Court on judicial
review.
Judicial
Comity
[18]
The
Court has a duty to show respect for the Judgment of Madam Justice Heneghan
dated July 23, 2008 with respect to the same matter. This principle of judicial
comity will be followed unless the Court has reason for disagreeing with the
previous Judgment. Justice Heneghan found that the first H&C decision did
not meet the standard of reasonableness and that the Officer ignored the
evidence concerning the applicant’s personal circumstances, in particular, the
nature of his disability. Moreover, the Officer failed to consider that the
applicant has no immediate family in Jamaica, has been living in Canada for a
longer period than he ever resided in Jamaica, and that the only reason he lost
his permanent resident status in Canada was because of a conviction which arose
“from behaviour that is inextricably related to the applicant’s impaired
cognitive ability resulting from a motor vehicle accident in 1991. The
applicant has served his sentence”.
[19]
In
the case now before me, the second H&C Officer also recognized that the
applicant “was tragically involved in a serious car accident in 1991 that left
him in a coma for more than one month. After regaining consciousness, the
applicant remained severely affected by the accident, both physically and
behaviourally”. The H&C Officer recognized that his behavioural problems
from the tragic accident led to him committing the criminal acts.
[20]
However,
I find that the second H&C decision before me is also unreasonable, for the
same reason that Justice Heneghan found that the first H&C decision did not
meet the standard of reasonableness because it gives no weight to this tragic
accident as being a reason to extend humanitarian or compassionate weight to
the applicant. Similarly, the second H&C decision gives no weight to the
fact that the applicant has lived in Canada for most of his life,
that the applicant is in daily contact with his father and sister in Canada and
has no relatives in Jamaica. Moreover, there is no evidence the applicant
could arrange for proper supervision and health care for himself in Jamaica considering
his major disability caused by the severe brain injury. There is also a real
concern that the applicant would probably experience a specialized risk of
crime and violence in Jamaica because he is more
vulnerable than members of the general public. I see nothing in the second H&C
decision to not follow the conclusion of Justice Heneghan that the decision to
refuse the H&C application “does not meet the standard of reasonableness”.
While the H&C decision before me is different than the H&C decision
before Justice Heneghan, the facts are the same with respect to reasonableness.
In view of my finding, it is not necessary to separately consider the other
issues raised by the applicant.
CERTIFIED QUESTION
[21]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The application
for judicial review is allowed, the decision of the H&C Officer is set
aside, and this matter is referred back to another H&C Officer for
redetermination in accordance with these Reasons for Judgment.
“Michael
A. Kelen”
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