Date: 20090911
Docket: IMM-4138-08
Citation: 2009 FC 899
Ottawa, Ontario, September 11, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CESAR
BENJAMIN GUZMAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision
of the Immigration Appeal Division (the IAD) of the Immigration and Refugee
Board dated August 13, 2008, which dismissed the appeal of the applicant’s
deportation order.
[2]
The
applicant requests an order for redetermination of the applicant’s appeal.
Background
[3]
The
applicant was sponsored, along with his wife, by his daughter and her husband
in 1997. He has five children and ten grandchildren, with three of the
children and seven of the grandchildren being Canadian citizens. All of his
children and grandchildren appear to live in Canada.
[4]
When
the applicant arrived in Canada, his only revenue was his Peruvian
pension, which was not sufficient, so he started to work. He had been a doctor
in Peru but could
not practice in Canada. He held various jobs and eventually worked at
the Wentworth Manor as a resident assistant. He was convicted of sexually
assaulting one of the residents at Wentworth Manor in 2005. She suffered from
dementia and was 86 years old. In 2006, he pled guilty and was sentenced to 18
months plus 2 years probation. He served 11 months and was then paroled.
[5]
The
applicant was ordered deported because of the conviction on May 4, 2007. His
appeal to the IAD was dismissed.
IAD’s Reasons
[6]
The
IAD member began by comparing the sentencing judge’s finding that the applicant
was remorseful based on doctors’ reports with the Crown’s argument that he was
not.
[7]
The
member concluded that a stay was not justified. The applicant received a
lengthy sentence, considering that the Crown accepted to proceed by summary
proceeding, as he received the maximum under that option. The member was not
impressed by the expressions of remorse, finding them hollow and that the applicant
minimized his actions. The same attitude was reflected by his family members.
[8]
The
close relationship of care over three years, the fact that the act was done at
night when no visitors might happen upon them and the justifications he gave, (ongoing
erectile issues and fear his wife was cheating) all brought into question the applicant’s
claim that this was an isolated event.
[9]
While
Dr. Sirota, Ph.D. in psychology, recommended he take part in counselling
sessions, there was no evidence of such treatment, which one would expect if
the applicant was ready to deal with this fully. There was also no evidence
that he has addressed his issues in a substantial way.
[10]
The
member noted that the psychological and psychiatric assessments take it as a
given that the assault was an isolated event and the opinions mainly rely on the
information provided by the applicant. They do not address the connection
between the sexual assault and the applicant’s claims of sexual inadequacy,
which would be important since the sense of sexual inadequacy has been going on
for some time.
[11]
The
applicant chose to work in a place where he would find people with diminished
mental capacity when he had no financial need to do so as he and his wife have
pensions and their children support them. This left the member to question his
motivation and whether he can be considered to have addressed his problems such
that he can be considered rehabilitated.
[12]
In
terms of the hardship, the member noted that returning to Peru may actually
be an element of rehabilitation, as the applicant could receive specialized
medical treatment in his own language. The hypothesis that such assistance may
not be available in Peru was not accepted as the applicant was a highly
specialized medical practitioner in Peru himself.
[13]
Parliament
chose to deny those who were sentenced to two years the opportunity to appeal
to the IAD. The member felt the applicant may have chosen to plead guilty on
the summary offence to avoid the risk of a sentence over two years and to
retain his appeal rights. As such, pleading guilty was not a reliable indicator
of remorse, particularly since he was caught in the act.
[14]
Contrary
to the sentencing judge, the member was not convinced of the applicant’s
remorse, and in the end felt that the nature of the crime, the circumstances of
the victim and other factors relevant to deterrence are such that the
humanitarian and compassionate (H&C) grounds that did exist were insufficient
to warrant relief.
Standard of
Review
[15]
The
applicant finds that reasonableness is the applicable standard and the respondent
agrees, noting that post-Dunsmuir, reasonableness requires greater
deference than did the previous standard of reasonableness simpliciter (see
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
Issue
[16]
The
issue is as follows:
1. Did
the IAD err in its treatment of the evidence by speculating or misapprehending
or
ignoring evidence?
Applicant’s
Submissions
[17]
The
applicant submitted that the AID member engaged in speculation on several
critical matters:
- That
this was not the first offence (an isolated event) despite the sentencing judge’s
remarks, psychological assessments and the testimony of the applicant and
witnesses;
- That
the applicant had pleaded guilty in exchange for proceeding by summary
proceedings and to maintain his appeal rights without any evidence on the
record;
- That
the applicant is not remorseful despite the judge’s and the psychologists’
findings’;
- That
the psychological assessments are “kitchen sink psychology” and not
comparing apples with apples.
[18]
It
is alleged that the member ignored the applicant’s relevant and contradictory
evidence in engaging in such speculation. The applicant did partake in weekly
counselling for six months, as noted in counsel’s disclosure. The sessions did
not end when he went on probation, as the member concluded, and he also saw Dr.
Baxter bi-monthly after that. Dr. Baxter and Ms. Farmer confirm this evidence.
[19]
The
applicant also alleges that the member put too much weight on the conviction
rather than the circumstances giving rise to the offence and the applicant’s
explanations. The member went beyond a subjective analysis of the facts and
imputed behaviours that do not exist.
[20]
The
applicant submits that the IAD must be guided by the Ribic factors and
that the member failed to balance them in a fair manner. There is considerable
evidence that during and after his incarceration, the applicant participated in
programs to address his problem but the member refused to accept expert
findings and ignored all of the evidence which was almost entirely positive
concerning his treatment and rehabilitation.
[21]
The
applicant finally submits that the member erred in concluding that the applicant
did not take part in specialized programs as recommended and erred in his
hardship assessment, speculating that he had financial means and family ties.
Respondent’s
Submissions
Preliminary
issue with respect to new evidence
[22]
The
respondent objects to the applicant submitting a letter dated September 9, 2008
from Ms. Baxter stating that the applicant attended treatment since January
2008 but she does not say when or how often. This new evidence is inadmissible
and irrelevant. The applicant’s parole ended in August 2007 and there is no
evidence he attended sessions since beginning probation up to the time the
hearing took place. What the applicant did after the IAD hearing is
irrelevant.
Main Argument
[23]
The
respondent suggests that the applicant simply disagrees with the findings of
the IAD and its interpretation of the evidence and credibility. The findings,
however, are clear and supported by the evidence. The applicant must
demonstrate that there was an erroneous finding of fact, that it was made
capriciously and without regard for the evidence and that the decision was
based on the erroneous finding. He has not satisfied any of these requirements.
The inferences made were available to the member based on the evidence before
him and are within the range of reasonable findings. Any positive factors in
favour of the applicant were considered by the member. Given the testimony at
the hearing which did not support claims of remorse and showed his failure to take
advantage of therapy, it was not unreasonable to find that he was not
remorseful or engaged in a rehabilitation process. There was no evidence that
his personal issues had been addressed since the conviction. The remorse
focused more on himself and his family, not the victim.
[24]
The
respondent submits that the finding that this may not have been an isolated
event was also reasonable since it was used only in assessing rehabilitation.
His justifications, that he had grown close with the woman and that she
encouraged him, point to a degree of planning, not a spur of the moment crime
of opportunity. The member did not conclude that the applicant committed more
than one crime, just that he was not reliable without corroborating evidence.
Such evidence was unavailable because of the victim’s diminished capacity.
[25]
The
respondent also submits that the weight given to the psychological reports was
appropriate as they answered a different question than the one the IAD had to
answer, they covered different time periods and they assume the facts as told
to them by the applicant. The lack of rehabilitation efforts by the applicant
spoke louder than the reports.
[26]
The
respondent finally notes that the request was for a highly discretionary grant
of extraordinary relief and the IAD looked at the evidence in deciding to
refuse it. The member made no reviewable error.
Applicant’s
Reply
[27]
The
applicant challenges the respondent’s evidence about the applicant’s attendance
at therapy sessions. The February 8, 2008, disclosure package which was before
the IAD included a letter from Dr. Baxter stating that the applicant had
completed the Federal Sex Offender Program. In the same package, there was also
a Final Program Performance Report from December 1, 2007. The applicant also
provided testimony about his treatment, stating that it was ongoing. The
evidence showed that the applicant had weekly sessions from June 11, 2007 to
December 1, 2007 and then bi-monthly sessions. The September 9, 2008 letter
from Dr. Baxter only clarifies the IAD member’s mistaken belief that the
applicant did not seek treatment after being incarcerated.
Analysis and
Decision
[28]
From
a review of the decision, it would appear the IAD member did a thorough job of
addressing the majority of the evidence, however, there is other important
evidence that the member seems to have ignored.
[29]
In
relation to treatment, the member seems to have made a significant error in his
finding of fact with respect to treatment. From the evidence it seems clear
that the applicant was in weekly specialized therapy for a period of time and
then continued with bi-monthly sessions since the therapist did not seem to
think he required more.
[30]
There
also appeared to be a consensus by the mental health practitioners and the
sentencing judge that the applicant was unlikely to re-offend which would imply
that he has dealt with his issues. This implication was ignored.
[31]
As
well, the member appears to have formed speculative conclusions without
sufficient supporting evidence and sometimes with reliable evidence to the
contrary available. For example, the member appears to have concluded:
1. that
[the assault] was not an isolated event;
2. that
the applicant chose to work where he did to have access to those with lesser
mental capacity;
3. that
the applicant had no financial need to work;
4. that
Peru would have
specialized psychological services available because the applicant had been a
specialized doctor in that country (in a completely different field); and
5. that
the applicant pleaded guilty to protect his IAD appeal rights.
[32]
For
the above reasons, I am of the view that the decision of the IAD was
unreasonable and therefore, the decision must be set aside and the matter
referred to a different panel (member) of the IAD for redetermination.
[33]
The
applicant submitted the following questions for my consideration for
certification:
i. Does “deference” to
Parliament and to the IAD member negate the tribunal’s obligation by law to not
make erroneous findings of fact which were made without regard to the evidence
before him?
ii. Does “deference” to
Parliament and to the IAD member negate the tribunal’s obligation by law to not
draw mistaken conclusions of fact from the evidence in the record?
iii. Does “deference” to
Parliament and to the IAD member negate the tribunal’s obligation by law to
properly consider evidence before it, in particular, a piece of relevant
evidence?
[34]
I
am not prepared to certify these questions as they would not be determinative
of the issues in this case.
[35]
The
application for judicial review is allowed and the matter is referred to a
different member of the IAD for redetermination.
JUDGMENT
[36]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different member of the IAD for redetermination.
“John
A. O’Keefe”
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