Date: 20090717
Docket: IMM-4790-08
Citation: 2009 FC 733
Vancouver, British Columbia, July
17, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SAMUEL
NATHANIEL BAILEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER
[1]
Should
a person be exiled from Canada because of a traffic ticket? Immediately
following the hearing, I granted judicial review of the decision of an
immigration officer not to permit Mr. Bailey to apply for a permanent
resident visa from within Canada on humanitarian and compassionate grounds.
These are the reasons why.
[2]
Mr.
Bailey did a very bad thing. He was charged, pleaded guilty, and in October
2000 was convicted of conspiracy to unlawfully traffic in cocaine and for being
in possession of proceeds of crime. He was sentenced to a term of imprisonment
of five years and three months for the first offence, and one year consecutive
for the second. He was paroled in December 2001 and has been convicted of no
crime since. His parole supervision ended in February 2007.
[3]
Mr.
Bailey is not a Canadian citizen. He is from Jamaica. As a result
of his conviction, he was ordered deported in June 2001, but the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board stayed
the execution thereof on certain terms and conditions. One was that he was to
report any criminal charge or conviction. Another, which was a check mark in a
printed form, was that he was to “keep the peace and be of good behaviour.” That
stay was extended but later revoked because he had failed to “keep the peace
and be of good behaviour.” He offended British Columbia’s Motor Vehicle
Act by twice driving an automobile with an expired driving licence.
According to an immigration officer:
On 12 June
2007, I contacted the NWT Motor Vehicle office and requested they perform a
driver's license verification for Samuel Nathaniel BAILEY. I spoke with Kelley
Merilees-Keppel, Manager of Motor Vehicle Registrations. Ms. Merilees-Keppel
advised that Mr. BAILEY had a driver's licence, in British
Columbia, from June 12, 1990, to June 19, 1991. She also advised
that Mr. BAILEY received two motor vehicle tickets, one in Westminster, B.C., in
2003 and one in Burnaby, B.C. in 2002. Both tickets were for driving
without a licence under the [Motor Vehicle Act]. She also performed a
Canada-wide driver's licence check and stated Mr. BAILEY had never obtained a
driver's licence elsewhere but B.C.
[4]
That
information was not quite correct because Mr. Bailey had also had a Saskatchewan driver’s
licence which had expired two months before he received the first ticket.
[5]
Mr.
Bailey’s case straddles the old Immigration Act and the current Immigration
and Refugee Protection Act (IRPA), and brings into play transitional
provisions. These are clearly set out in the decision of Mr. Justice Martineau
on the judicial review of the IAD’s revocation (2008 FC 938, 333 F.T.R. 282).
[6]
As
Mr. Justice Martineau noted, the recent jurisprudence in this Court has
consistently followed the decision of the Newfoundland Court of Appeal in R.
v. R.(D.) (1999) 138 C.C.C. (3d) 405, 178 Nfld. & P.E.I.R. 200. As
stated in Huynh v. Canada (Minister of
Citizenship and Immigration) 2003 FC 1426, [2003] F.C.J. No. 1844 (QL)
at para. 7, by Mr. Justice O’Reilly, “…To be of “good behaviour,” one must
abide by federal, provincial or municipal statutes and regulations.” This
means, literally, that one is not of ‘good behaviour’ if one fails to return a
book to a municipal library on time, or puts one’s garbage out for collection
one hour too soon.
[7]
Mr.
Bailey has been in a long-term, stable common-law relationship. His spouse
attempted to sponsor him, but because of his conviction for serious
criminality, that application had to be converted into a regular application to
apply for permanent residence from within Canada on
humanitarian and compassionate grounds. The normal rule is that one must apply
from outside Canada.
[8]
Section
25 of IRPA provides that the Minister may:
|
…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.
|
[…]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.
|
[9]
The
Officer totes up the Applicant’s establishment in Canada and his
connections with his homeland. The question is whether there would be
unusual, undeserved or disproportionate hardship if Mr. Bailey had to apply
from outside Canada. The
standard of review is reasonableness as set out by the Supreme Court of Canada
in Baker v. Canada (Minister of Citizenship
and Immigration, [1999] 2 S.C.R. 817.
[10]
The
Officer determined that Mr. Bailey is well-established in Canada and has no
connections to speak of in his homeland. His mother and siblings are here, as
are his two sons, currently aged 15 and 13. Although he is separated from their
mother, who has custody, and has been in another common-law relationship since
2003, he is very much involved in his sons’ lives. They visit regularly,
vacation together, and with their mother he attends parent-teacher meetings.
There are reports on file that his younger son is in particular need of him.
The boys are of mixed race and it is important for them not only to continue to
relate to their white mother, but also to their black father.
[11]
The
Officer noted that Mr. Bailey successfully completed a Culinary Arts program in
Vancouver, has done volunteer work and has worked in restaurants ever since. He
is currently a sous-chef in a fine restaurant in North Vancouver. The Officer
found that Mr. Bailey and his common-law partner share a loving and committed
relationship, that he has a strong bond and loving relationship with his
children, that he is a caring and loving father and plays an important role in
their lives. She recognized that it was in the best interests of any child to
have access to both parents and that separation “however temporary” may be
emotionally difficult. She even took note of the school psychologist’s letter
but was satisfied that the younger son could rely on his mother for emotional
support, and on the school psychologist to provide support and counselling when
required.
[12]
She
was of the view that the children could maintain contact through telephone
calls, correspondence and visits to Jamaica, while their father’s
application for permanent residence was being processed in the prescribed
manner.
[13]
Given
Mr. Bailey’s qualifications, she was of the view that he would be able to
secure employment in Jamaica and provide financial
assistance for his children.
[14]
While
at the time of the decision Mr. Bailey had been in Canada for 23
years, “I note that he has not kept a good civil record during this entire
period.” She referred to the criminal conviction, to which she said she gave
significant weight, as well as the fact that it was due to his breach of the
terms and conditions that the stay of his removal by the IAD had been lifted.
[15]
All
in all, while the positive factors were persuasive, they did not outweigh the
negative.
[16]
Was
this a reasonable decision? As noted in Baker above at paragraph 15,
these are important decisions that affect in a fundamental manner the future of
individuals’ lives and may have an important impact on the lives of any
Canadian children of the Applicant “since they may be separated from one
of their parents…” [Emphasis added]. At paragraph 63 and following, Madam
Justice L’Heureux-Dubé considered reasonableness in the context of an H&C
application. She held that it was “Parliament’s intention that those exercising
the discretion conferred by the statute act in a humanitarian and compassionate
manner.” Moreover, at paragraph 66 she found that:
…Parliament also placed a high value on
keeping citizens and permanent residents together with their close relatives
who are already in Canada. The obligation to take
seriously and place important weight on keeping children in contact with both
parents, if possible, and maintaining connections between close family
members is suggested by [the former Act, which does not differ in this regard
from the current Act].
[Emphasis added]
[17]
Although
not part of Canadian law, she noted at paragraph 71 that various international
conventions “place special importance on protections for children and childhood,
and on particular consideration of their interests, needs, and rights.”
[Emphasis added]
[18]
In
my opinion, the decision was unreasonable in a number of respects.
[19]
The
Officer assumed the separation would be temporary. Although she noted that
Mr. Bailey’s parole supervision had been completed in February 2007, she
failed to take into account that he cannot apply from outside Canada for
permanent resident status unless and until he has been pardoned, and that
pursuant to the Criminal Records Act his application cannot even be
considered until five years have elapsed from the expiration of his probation,
in other words, until 2012. Leaving aside such delays as there may be in
processing such an application, which may or many not be granted, in the
meantime the boys’ childhood years will have slipped away. As noted by Mr.
Justice Barnes in Arulraj v. Canada (Minister of Citizenship and
Immigration), 2006 FC 529, [2006] F.C.J. No. 672 (QL) at para.17, if the
granting of a visa to a person removed is little more than a formality “one
wonders why the officer simply did not allow him to stay in Canada.”
[20]
There
is nothing in the record to justify the Officer’s assumption that Mr. Bailey
will gain lawful employment in Jamaica to the extent that he
will still be able to financially support his children.
[21]
While
Mr. Bailey was convicted of a serious criminal offence, he has served his time
and paid his debt to Canadian society. Notwithstanding that conviction, the IAD
permitted him to stay on conditions. While the Officer was not bound by the
previous decisions of the IAD, there must be some rationale for departing from
them. An analogy can be drawn from the jurisprudence developed with respect to
detention reviews. Reasons should be articulated or the reader must be able to
infer them (Canada (Minister of Citizenship and Immigration)
v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572). The only negative
changed circumstance is that Mr. Bailey drove an automobile while his driver’s
licence had expired. That cannot be such a negative factor so as to outweigh
the positive. How many of us can say they have never as much as run afoul of a
municipal by-law? “He that is without sin among you, let him first cast a stone
at her” (John, 8:7).
[22]
I
repeat what I said at the beginning of Espino v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1255, 301 F.T.R. 155:
“Can you heare a good man grone And not relent, or not compassion
him?" so it was said in Shakespeare's Titus Andronicus,
Act IV, Scene I. Compassion has been defined as including suffering together
with another, participation in suffering; fellow-feeling, sympathy, the feeling
or emotion when a person is moved by the suffering or distress of another and
by the desire to relieve it.
[23]
Compassion
was lacking in this case.
“Sean
Harrington”
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