Date: 20090320
Docket: IMM-3594-08
Citation: 2009 FC 295
Ottawa, Ontario, March 20,
2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
RAVEENDRAN KANAGARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Kanagaratnam
is a permanent resident of Canada. On June 5, 2006, he was found to be
inadmissible on grounds of serious criminality after he was convicted of the
offences of assault with a weapon, forcible confinement and assault causing
bodily harm. At the conclusion of the admissibility hearing, a deportation
order was issued.
[2] Mr.
Kanagaratnam appealed to the Immigration Appeal Division of the Immigration and
Refugee Board (IAD). While he did not challenge the validity of the
deportation order, he asked that his appeal be allowed, or that the deportation
order be stayed, on humanitarian and compassionate grounds. The IAD dismissed
Mr. Kanagaratnam’s appeal. This is an application for judicial review of that
decision.
[3] During
oral argument, counsel for Mr. Kanagaratnam agreed that this application turns
on one issue: did the IAD commit an error of law in the exercise of its
discretion by failing to consider all of the relevant factors when refusing to
allow the appeal or to stay the deportation order? It is agreed that this is
an issue reviewable on the standard of correctness. See: Ivanov v. Canada
(Minister of Citizenship and Immigration), [2007] 2 F.C.R. 384 at paragraph
19 (F.C.); aff’d [2008] 2 F.C.R. 502 (F.C.A.).
[4] In
the exercise of its discretion whether to allow an appeal, or to stay a
deportation order, the IAD must have regard to “all [of] the circumstances of
the case.” See: paragraph 67(1)(c) and subsection 68(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. In Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, the Supreme
Court of Canada confirmed that the circumstances to be considered are those
referred to as the "Ribic factors." For the purpose of this
application, the relevant factor is the "possibility of
rehabilitation." Mr. Kanagaratnam argues that the IAD erred in law by
requiring him to prove not the “possibility of rehabilitation” but, rather, the
fact of rehabilitation. If this is what the IAD did, it would be an error of
law. See, for example, Martinez-Soto v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 1101 (F.C.).
The decision of the IAD
[5] Before
turning to the asserted error, it is important to note that a central feature
of the decision of the IAD was its finding that Mr. Kanagaratnam was not a
credible witness. No attack is made upon that finding.
[6] The
IAD listed a number of instances where concerns arose with respect to Mr. Kanagaratnam's
testimony. Of particular relevance to the issue of rehabilitation is the
finding that Mr. Kanagaratnam was evasive about when he decided to accept
responsibility for his criminal actions. Initially, Mr. Kanagaratnam testified
that he decided to accept such responsibility after he was denied early parole
in February of 2008. In this regard, the report of the Ontario Parole and
Earned Release Board that denied Mr. Kanagaratnam’s early parole noted that
"your continued denial stops you from seeking out treatment for your
violent action which seem[s] out of control. [...] This board finds that
until you come to understand your actions and triggers you can not be safely
managed in the community." Later, Mr. Kanagaratnam testified that he in
fact had recognized that he had an anger management problem when he was out on
bail pending the appeal of his conviction. The reason he gave for not seeking
counselling or a program to deal with his anger management at that time was
that he was told he could later take these courses for free while in jail.
[7] Turning
now to the impugned portion of the IAD's decision, its comments about
rehabilitation, or the possibility of rehabilitation, are found at paragraphs
20 and 21 of its reasons. There it wrote:
The indicia of rehabilitation
include “credible expressions of remorse, articulation of genuine understanding
as to the nature and consequences of criminal behaviour and demonstrable
efforts to address the factors that give rise to such behaviour.”
As noted, the
appellant’s expression of remorse is recent and he has yet to undergo any
counseling to help him deal with whatever underlying problems he may have. He
testified that he intends to seek counseling and will work with his probation
officer to identify appropriate resources. Given my concerns with respect to
his credibility and the obvious self-serving nature of his statement that he
now accepts responsibility for his actions, the appellant was not able [to]
establish that he is rehabilitated. At this point in time there has been no
demonstrable effort to determine what factors gave rise to his behaviour, let
alone any concrete action to address his behaviour.
Did the IAD error as alleged?
[8] I
agree that the reasons of the IAD are not a model of clarity on this point, and
that the IAD unfortunately stated that "the appellant was not able [to]
establish that he is rehabilitated."
[9] Notwithstanding,
the IAD's reasons are not to be read microscopically. For the following
reasons, I find that the IAD did not err as alleged.
[10] First,
at an earlier point in its reasons, the IAD set out the correct legal test,
namely "the possibility of rehabilitation."
[11] Second,
the impugned paragraphs appear under the heading "The Possibility of
Rehabilitation."
[12] Third,
at the commencement of the hearing the IAD refused Mr. Kanagaratnam’s request
that the hearing be adjourned. One of the grounds advanced was so that Mr. Kanagaratnam
would have time to enroll in potential counselling or anger management
courses. In refusing the adjournment for this purpose, the IAD stated:
And as for his enrolment in
potential counselling or anger management courses in the near future, I note
that the conviction that resulted in s. 36(1)(a) inadmissibility finding was
dated March 30th, 2005. The Appellant has had ample
opportunity to enrol in counselling or anger management programs since that
date, and the fact that he may be doing so in the near future can certainly
be a factor that can be dealt with at the hearing as we proceed today. [emphasis
added]
[13] By
stating that evidence could be led about future involvement in counselling or
programs, the IAD recognized that evidence as to the potential for
rehabilitation was relevant. This evidence would not be relevant to the issue
of whether Mr. Kanagaratnam was rehabilitated at the time of the hearing.
[14] Finally,
in one of the concluding paragraphs of its reasons where the IAD summarized its
conclusions, it referred to "the appellant's failure to demonstrate any
concrete efforts to rehabilitate himself". [emphasis added] Again,
I believe this shows that the IAD was considering the potential for
rehabilitation.
[15] I
repeat that the decision of the IAD could have been clearer on this point. I
am satisfied, however, that the IAD took into account its concerns about Mr. Kanagaratnam’s
credibility, together with the lack of any credible evidence of concrete action
to address the matters that led to Mr. Kanagaratnam's criminal behavior. On
that basis, it concluded that Mr. Kanagaratnam had failed to establish the
possibility of his rehabilitation.
Conclusion
[16] For
these reasons, the application for judicial review will be dismissed. Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
Email this Content