Date: 20091125
Docket: IMM-1448-09
Citation: 2009 FC 1140
Ottawa, Ontario, November 25, 2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JUDE REGINALD ANTONIN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
background
[1]
In
this judicial review application, the Minister of Citizenship and Immigration
(the Minister) seeks to quash the February 18, 2009 decision of a member
of the Immigration Appeal Division (the tribunal or IAD) who stayed, with
conditions, pursuant to paragraph 67(1)(c) and subsection 68(1) of the Immigration
and Refugee Protection Act (IRPA), the Respondent’s deportation to Haïti.
Mr. Antonin has been a permanent resident of Canada since 1997,
but was declared in 2006 inadmissible on the grounds of serious criminality under
subsection 36(1)(a) of that Act, which is the foundation for the deportation
order, dated October 23, 2006. Before the IAD, Mr. Antonin did not
contest its legality of the deportation order, confining his appeal to
obtaining a stay of his removal to Haïti on humanitarian and compassionate
(H&C) grounds.
[2]
The
Minister submits the IAD’s decision is unreasonable because the tribunal
“considered irrelevant factors, but failed to consider relevant factors,
including the Respondent’s violent criminal history when it determined the
Respondent was entitled to a stay of deportation; placed too much emphasis on
the Respondent’s attempts at rehabilitation as of July 2008, while
ignoring the evidence of his failed attempts of rehabilitation prior to 2008;
and made a finding of hardship without any evidentiary foundation.”
[3]
Subsections
36(1), 67(1) and section 68 of IRPA reads:
|
Serious
criminality
36. (1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of Parliament punishable
by a maximum term of imprisonment of at least 10 years, or of an offence
under an Act of Parliament for which a term of imprisonment of more than six
months has been imposed;
…
Appeal allowed
67. (1)
To allow an appeal, the Immigration Appeal Division must be satisfied
that, at the time that the appeal is disposed of,
(a) the decision
appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other
than in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
Removal order
stayed
68. (1) To
stay a removal order, the Immigration Appeal Division must be satisfied,
taking into account the best interests of a child directly affected by the
decision, that sufficient humanitarian and compassionate considerations
warrant special relief in light of all the circumstances of the case.
Effect
(2) Where the
Immigration Appeal Division stays the removal order
(a) it shall
impose any condition that is prescribed and may impose any condition that it
considers necessary;
(b) all
conditions imposed by the Immigration Division are cancelled;
(c) it may
vary or cancel any non-prescribed condition imposed under paragraph (a);
and
(d) it may
cancel the stay, on application or on its own initiative.
Reconsideration
(3) If the
Immigration Appeal Division has stayed a removal order, it may at any
time, on application or on its own initiative, reconsider the appeal under
this Division.
Termination and
cancellation
(4) If the Immigration Appeal Division
has stayed a removal order against a permanent resident or a foreign
national who was found inadmissible on grounds of serious criminality or
criminality, and they are convicted of another offence referred to in
subsection 36(1), the stay is cancelled by operation of law and the
appeal is terminated. [My emphasis throughout.]
|
|
Grande
criminalité
36.
(1) Emportent interdiction de territoire pour grande criminalité les faits
suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
…
Fondement
de l’appel
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est
disposé :
a)
la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b)
il y a eu manquement à un principe de justice naturelle;
c) sauf
dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
Sursis
68.
(1) Il est sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu
de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre
humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de
mesures spéciales.
Effet
(2)
La section impose les conditions prévues par règlement et celles qu’elle
estime indiquées, celles imposées par la Section de l’immigration
étant alors annulées; les conditions non réglementaires peuvent être
modifiées ou levées; le sursis est révocable d’office ou sur demande.
Suivi
(3)
Par la suite, l’appel peut, sur demande ou d’office, être repris et il en
est disposé au titre de la présente section.
Classement
et annulation
(4) Le sursis de la mesure de renvoi
pour interdiction de territoire pour grande criminalité ou criminalité est
révoqué de plein droit si le résident permanent ou l’étranger est reconnu
coupable d’une autre infraction mentionnée au paragraphe 36(1), l’appel étant
dès lors classé. [Tous sont mes soulignés.]
|
[4]
Both
parties agree the IAD has a discretionary power under subsection 68(1) of IRPA
to stay Mr. Antonin’s removal based on what is commonly referred to as the “Ribic
factors” which were approved by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship
and Immigration), [2002]
1 S.C.R. 84 (Chieu), where Justice Iacobucci wrote the following on behalf
of the Court at paragraph 40:
40
Employing such a
broad approach to s. 70(1)(b), the I.A.D. itself has long considered foreign
hardship to be an appropriate factor to take into account when dealing with
appeals brought under this section. In Ribic, supra, at pp. 4-5, the
I.A.B. summarized the relevant factors to be considered under its discretionary
jurisdiction pursuant to what is now s. 70(1)(b) of the Act:
In
each case the Board looks to the same general areas to determine if having regard
to all the circumstances of the case, the person should not be removed from
Canada. These circumstances include the
seriousness of the offence or offences leading to the deportation and the
possibility of rehabilitation or in the alternative, the circumstances
surrounding the failure to meet the conditions of admission which led to the
deportation order. The Board looks to the length of time spent in Canada and
the degree to which the appellant is established; family in Canada and the
dislocation to that family that deportation of the appellant would cause; the
support available for the appellant not only within the family but also within
the community and the degree of hardship that would be caused to the appellant
by his return to his country of nationality. While the general areas of review
are similar in each case the facts are rarely, if ever, identical.
This
list is illustrative, and not exhaustive. The weight to be accorded to any
particular factor will vary according to the particular circumstances of a
case. While the majority of these factors look to domestic considerations, the
final factor includes consideration of potential foreign hardship. [My emphasis.]
[5]
The
parties also agree the standard of review a decision of a member of the IAD is
the standard of reasonableness in accordance with the Supreme Court of Canada’s
teaching in Dunsmuir v. New Brunswick, [2008]
1 S.C.R. 190 (Dunsmuir), where Justices Bastarache and LeBel explained at
paragraph 47 what the content of a reasonable decision:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
[page221] justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. [My emphasis.]
[6]
Dunsmuir must be read
with the Supreme Court of Canada’s decision, released on March 6, 2009, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa), which has a
significant impact on this case since Khosa dealt with the exercise by
the IAD of its discretion not to stay a deportation pursuant to the very
paragraphs which concerns us here - paragraphs 67(1)(c) and 68(1) of IRPA.
Facts
[7]
Jude
Reginald Antonin (the Applicant) was born in Haïti in 1986. At the age of 11,
he landed in Canada in 1997
as a permanent resident, with his father who passed away 1 ½ years later. His
mother did not accompany them to Canada and has been, for some
time, a resident of the United States. Little is known of the
circumstances in which Mr. Antonin was brought up. He has relatives in Canada and started
high school here.
(1) The 2003 convictions
[8]
His
criminal activities began when he was 16 or 17. His first conviction was in
Youth Court in Ottawa on April 4, 2003 for an incident which arose on February
14, 2003 when he was arrested for shoplifting at a Hudson’s Bay store.
He stole a watch and earrings valued at $38.49. He resisted arrest; was charged
and pleaded guilty to charges of theft under $5,000; assault causing bodily
harm and simple assault. He was sentenced to 2 months open custody and put on
probation for a year.
[9]
That
same year, he was charged and convicted in Youth Court in Ottawa of mischief
after he was observed on the grounds of St-Laurent Plaza carrying
a 20 inch piece of metal fashioned into a machete. He was swinging that piece
of metal violently striking trees and posts. He threatened verbally a security
guard. He was charged with: (1) breach of probation; (2) possession of a weapon
for a dangerous purpose; and, (3) uttering threats. His probation was extended
to 18 months.
(2) The 2004 convictions
[10]
There
were two convictions in 2004 in Adult Court in Ottawa. The first
was on July 6, 2004 for disturbing the peace for which he received a
suspended sentence taking into account his pre-sentence incarceration. The
second was on December 6, 2004 for theft less than $5000.00 and failure
to appear for which he was sentenced for one (1) day for each offence to be
served concurrently (credit for eighteen (18) days pre-sentence incarceration)
and probation for twelve (12) months.
(3) The 2005 convictions
[11]
In
Adult Court in Ottawa, on January 11, 2005, he was convicted for
possession of crack cocaine and failure to comply with his probation for which
he received concurrent suspended sentences on account of pre-trial
incarceration with twelve (12) months probation.
[12]
The
next series of convictions were in the Montreal Courts after he moved to that
city sometime in early 2005.
1) On
May 12, 2005, he was convicted of theft of less than $5000.00 and sentenced
to one (1) week in prison and two (2) years probation.
2)
On July 12, 2005, he was also convicted of another theft of less than
$5000.00; and he received a suspended sentence but a probation for two
(2) years was imposed.
3)
On November 2005, he was convicted on two counts of obstructing two
peace officers, fined $300.00 for each count, credited for one (1) month
pre-sentence incarceration and put on probation for one year.
(4) The 2006 convictions
[13]
On
February 13, 2006, Mr. Antonin was convicted of his most violent
and serious offences for crimes which he committed in 2005 in Montreal. These
charges, convictions and sentences were:
· breaking,
entering and uttering threats – sentenced to one (1) year in prison;
· uttering
threats (two (2) counts), mischief (two (2) counts), obstruction of justice,
criminal and harassment – sentenced to six (6) months prison on each count
and probation for three (3) years;
· mischief and
armed assault – six (6) months for each count to be served concurrently;
· breach of
probation (two (2) counts) – sentenced to one (1) month incarceration to be
served concurrently; and,
· uttering
threats – sentenced to one (1) month in prison and probation for two (2)
years with credit on account of pre sentence incarceration.
[14]
Most
of these crimes, for which he was convicted in 2006, arose out of his turbulent
relationship with a woman he was living with in Montreal. The other 2006
charges and convictions relate to an unconnected incident which occurred in a
restaurant.
[15]
It
was the 2006 convictions that led to his being found criminally inadmissible
under section 36(1)(a) of IRPA and the consequent deportation order.
[16]
I
summarize the balance of the relevant facts as follows:
1) Mr. Antonin
was paroled from prison in October 2006. He was immediately arrested by
CBSA on October 16, 2006 to ensure his presence at his hearing to
determine his inadmissibility on account of serious criminality. On October
23, 2006, he was released from detention, on conditions, after his inadmissibility
hearing. He appealed the consequent deportation order to the IAD but
failed to appear at a scheduled hearing since he had moved to the Ottawa Region
without notifying immigration officials in Montreal of this
change in breach of his release from detention conditions.
2) He was
arrested by Montreal police, on August
22, 2007, on suspicion of driving while under the influence of alcohol.
Immigration officials were advised since they had issued an arrest warrant for
breach of his October 2006 release conditions. On detention review held
on August 24, 2007, he was determined to be both a flight risk and a
danger to the public by Commissioner Dubé of the Immigration Division.
Nonetheless, he was subsequently released from detention on conditions in order
to enable him to clear the issue of his October 23, 2006 deportation order he
had appealed to the IAD, which appeal had been in limbo.
3) In September
2007,
Montreal police ran a
routine check-up on Mr. Antonin. They inquired of his status at Immigration
Canada. It was discovered a valid warrant for his arrest was outstanding. CBSA
had been searching for him but could not find him because he had been living in
various shelters in Ottawa. He was finally located and arrested in October
2007 by CBSA Officials in Ottawa for breach of release conditions. A
detention review was conducted by Commissioner Tordoff who maintained his
detention. She also concluded he was a danger to the public because of his
convictions. She noted he was not taking his prescription anti psychotic medications.
She found him to be a flight risk because of his difficulty in complying with
his release conditions. She noted he was a person who needed some kind of
structure in order to ensure compliance with any release conditions. [My
emphasis.] He did not have a fixed address in Ottawa; had no
money; did not tell the IAD of his changes of address. She refused to give
credence to information before her, Mr. Antonin had some kind of association or
friendship with a criminal gang in Ottawa.
4) Mr. Antonin
underwent another detention review on November 19, 2007. He was released
on strict conditions, one of which was on account of a new development; he
would be a resident of Harvest House in Ottawa which ran a
strictly supervised program whereby he was confined to that facility for the
first 3 months. He was arrested again in late 2007, early 2008 for breach of
condition and ultimately released into the community in July 2008 under
a supervised probation order. He has not since been arrested nor charged with
an offence.
The teachings in Khosa
[17]
As
previously mentioned, the Supreme Court of Canada’s recent March 6, 2009
decision in Khosa is very relevant to the case before me and attest to the
significant level of deference owed to the IAD when reviewing the application
of the “Ribic factors” in situations where a permanent resident to
Canada seeks a stay of a valid removal order which would send that person back
to his/her country of nationality with whom the ties had been cut.
[18]
In
Shaath v. Canada (Minister of Citizenship and
Immigration), 2009 FC
731 (Shaath), I wrote the following at paragraphs 36 and 37 about the Khosa
case:
36 The
Khosa case involved an appeal by the Minister of Citizenship and
Immigration from a decision of the Federal Court of Appeal applying the
reasonable standard, which set aside a decision of the Chief Justice of the
Federal Court who had refused to intervene to quash a decision of a three
member panel of the IAD, who declined, on humanitarian and compassionate
grounds, to quash or stay a deportation order issued against him as a result of
his guilty plea of criminal negligence causing death during a road racing
incident in Vancouver.
37 Mr.
Khosa is a citizen of India who immigrated to Canada in 1996
with his parents at the age of 14. He was a permanent resident of Canada at the
time of his criminal conviction.
[19]
In
Shaath above, I assessed the impact of Khosa on an attempt to
block the execution of a valid removal order on the basis of paragraph 67(1)(c)
of IRPA. [As an aside, in Shaath at paragraph 39, I mentioned the impact
which Khosa had on the interpretation to be given to section 18.1(4)(d)
of the Federal Courts Act, which enables the setting aside of a decision
of a federal tribunal where it was “based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard to the material before it.”] Justice Binnie explained this point
at paragraph 46 in Khosa:
"More
generally, it is clear from s. 18.1(4)(d) that Parliament intended
administrative fact finding to command a high degree of deference.";
adding: "This is quite consistent with Dunsmuir. It provides legislative
precision to the reasonableness standard of review of factual issues in cases
falling under the Federal Courts Act." [My emphasis.]
[20]
I
take from Justice Binnie’s majority decision in Khosa, the following
principles:
(1) The meaning
of the reasonableness standard:
59 Reasonableness is a single
standard that takes its colour from the context. One of the objectives of
Dunsmuir was to liberate judicial review courts from what came to be seen as
undue complexity and formalism. Where the reasonableness standard applies,
it requires deference. Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome. [My emphasis.]
(2) The purpose
of the IAD:
56 As to the purpose of the IAD as
determined by its enabling legislation, the IAD determines a wide range of
appeals under the IRPA, including appeals from permanent residents or protected
persons of their deportation orders, appeals from persons seeking to sponsor
members of the family class, and appeals by permanent residents against
decisions made outside of Canada on their residency obligations, as well as
appeals by the Minister against decisions of the Immigration Division taken at
admissibility hearings (s. 63). A decision of the IAD is reviewable only if the
Federal Court grants leave to commence judicial review (s. 72).
(3) The intent of Parliament in enacting paragraph 67(1)(c):
57 In recognition that hardship
may come from removal, Parliament has provided in s. 67(1)(c) a power to grant
exceptional relief. The nature of the question posed by s. 67(1)(c)
requires the IAD to be "satisfied that, at the time that the appeal is
disposed of ... sufficient humanitarian and compassionate considerations
warrant special relief". Not only is it left to the IAD to determine
what constitute "humanitarian and compassionate considerations", but
the "sufficiency" of such considerations in a particular case as
well. Section 67(1)(c) calls for a fact-dependent and policy-driven assessment
by the IAD itself. As noted in Prata v. Minister of Manpower and
Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order [My emphasis.]
establishes
that, in the absence of some special privilege existing, [an individual subject
to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does
not, therefore, attempt to assert a right, but, rather, attempts to obtain a
discretionary privilege. [Emphasis added.]
(4) The issue
before the IAD:
58 The
respondent raised no issue of practice or procedure. He accepted that the
removal order had been validly made against him pursuant to s. 36(1) of the IRPA.
His attack was simply a frontal challenge to the IAD's refusal to grant him
a "discretionary privilege". The IAD decision to withhold relief was
based on an assessment of the facts of the file. The IAD had the advantage of
conducting the hearings and assessing the evidence presented, including the evidence
of the respondent himself. IAD members have considerable expertise in
determining appeals under the IRPA. Those factors, considered
altogether, clearly point to the application of a reasonableness standard of
review. There are no considerations that might lead to a different result.
Nor is there anything in s. 18.1(4) that would conflict with the adoption of a
"reasonableness" standard of review in s. 67(1)(c) cases. I
conclude, accordingly, that "reasonableness" is the appropriate
standard of review.
(5) Why Khosa’s
appeal was allowed:
After
describing the reasonableness standard “having in mind the considerable
deference owed to the IAD and the broad scope of the discretion conferred by
the IRPA, there is no basis for the Federal Court of Appeal to interfere with
the IAD decision to refuse special relief in this case”, Justice Binnie then
commented on Justice Fish’s opinion to allow the appeal and responded:
61
My colleague Fish J.
agrees that the standard of review is reasonableness, but he would allow the
appeal. He writes:
While
Mr. Khosa's denial of street racing may well evidence some "lack of
insight" into his own conduct, it cannot reasonably be said to contradict
- still less to outweigh, on a balance of probabilities - all of the evidence
in his favour on the issues of remorse, rehabilitation and likelihood of
reoffence. [para. 149]
I
do not believe that it is the function of the reviewing court to reweigh the
evidence.
62 It is apparent that Fish J. takes a
different view than I do of the range of outcomes reasonably open to the IAD in
the circumstances of this case. My view is predicated on what I have already
said about the role and function of the IAD as well as the fact that Khosa
does not contest the validity of the removal order made against him. He seeks
exceptional and discretionary relief that is available only if the IAD itself
is satisfied that "sufficient humanitarian and compassionate
considerations warrant special relief". The IAD majority was not so satisfied.
Whether we agree with a particular IAD decision or not is beside the point. The
decision was entrusted by Parliament to the IAD, not to the judges.
[21]
I
wrote the following paragraphs in Shaath on other points Justice Binnie
made in Khosa:
46 In the balance of his reasons, Justice
Binnie stressed the importance for the IAD to give proper reasons, reviewed the
IAD's decision, found that both the majority and minority disclosed in their
reasons "with clarity the considerations in support of both points of view
... differing largely at the factual level on different interpretations of Mr.
Khosa's expression of remorse". Justice Binnie wrote at the end of
paragraph 64 of his reasons:
...
It seems evident that this is the sort of factual dispute which should be resolved
by the IAD in the application of immigration policy, and not reweighed in the
courts. [My emphasis.]
47 He stated the
IAD considered each of the Ribic factors and "it rightly observed
that the factors are not exhaustive and that the weight to be attributed to
them will vary from case to case". He wrote the majority
"reviewed the evidence and decided that, in the circumstances of this
case, most of the factors did not militate strongly for or against
relief."
48 He commented "the weight to
be given to the respondent's evidence of remorse and his prospects for
rehabilitation depended on an assessment of his evidence in the light of all
the circumstances of the case." He concluded:
The issue before the IAD was not the potential for
rehabilitation for purposes of sentencing, but rather whether the prospects for
rehabilitation were such that, alone or in combination with other factors, they
warranted special relief from a valid removal order. The IAD was required to
reach its own conclusions based on its own appreciation of the evidence and it
did so. [My emphasis.]
49
His overall
conclusion is expressed at the end of paragraph 67 in these terms:
However,
as emphasized in Dunsmuir, "certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions" (para. 47). In light of the deference
properly owed to the IAD under s. 67(1)(c) of the IRPA, I cannot, with respect,
agree with my colleague Fish J. that the decision reached by the majority in
this case to deny special discretionary relief against a valid removal order fell
outside the range of reasonable outcomes. [My emphasis.]
[22]
As
stated the Ribic factors where endorsed by the Supreme Court of Canada’s
decision Chieu. I commented in Shaath briefly on that case:
50 The Supreme
Court of Canada's 2002 decision in Chieu also
involved the exercise of the IAD's discretionary power under section 70(1)(b)
of the now repealed Immigration Act. In previous jurisprudence, this section
had been interpreted to confer upon the tribunal discretionary or equitable
jurisdiction to quash or stay a removal order. In Chieu, the Supreme
Court applied the correctness test because the issue before it was a question
of law whether the IAD had erred in not taking into account the factor of
foreign hardship if Mr. Chieu was returned to Cambodia.
The IAD for various reasons had held it could not take into account this
factor. The Supreme Court held this was an error of law.
The
IAD’s decision
[23]
At
the start of its reasons, the tribunal signalled it was well aware of “the
series of criminal convictions” which were the foundation of his inadmissibility
to remain in Canada; “that they were a bit long to list” and focussed on the
criminal convictions in 2006 for which he was sent to prison and noted “those
crimes were violent in nature, not only crimes against property.”
[24]
It
observed the basis for the applicant’s 67(1)(c) argument was “mainly that his
psychiatric condition and his hope for rehabilitation since receiving help for
that psychiatric condition” plus the risk he would incur should he be returned
to Haiti … where Mr. Antonin no longer has any connection as the most
significant members of his extended family (uncle, aunt and grandmother) all
reside in Ottawa and his mother living in the United States.
[25]
The
tribunal examined the establishment factor, “one of the factors in the Ribic
decision”. It concluded “the panel can lay to rest” that factor giving
credence to the Minister’s argument his criminal record was very lengthy. It
noted once again the sentences he received “particularly those that he received
in February 2006, did take into account his recidivism”. [My emphasis.]
On this factor, the member of the IAD concluded by writing: “the appellant has
accumulated no significant assets, has not acted in a law abiding and
productive way during his years in Canada, has not made use of the educational
facilities and possibilities of employment that Canada offered him
during his stay here.”
[26]
It
then tackled “the question of rehabilitation and remorse” and referred
to three medical document put in evidence which according to the IAD member “indicate
that since the appellant has been receiving his medication and has been
receiving ongoing treatment for his psychiatric condition, he has began making
serious steps on the way to rehabilitation and changing his lifestyle”.
Those documents were from his probation officer, a letter from Ms. Mitchell, a
registered nurse with the Royal Ottawa Health Centre group and a December
22, 2008 letter from Dr. Brathwaite who is a psychiatrist at the Forensic
Treatment Program which Mr. Antonin had been attending under the supervision of
Ms. Mitchell.
[27]
The
tribunal quoted at length this evidence which established Mr. Antonin was compliant
with the conditions of his one year of supervised probation issued in 2008; had
received significant help from the Ottawa Branch of the Canadian Mental Health
Association (CMHA) who had taken Mr. Antonin under its wing, was living at
Anderson House in a supervised environment, was off drugs and alcohol, was
regularly attending class to obtain his high school diploma and was staying
away from past dubious acquaintances.
[28]
It
referred to and quoted extracts of counsel for the Minister’s arguments why the
developments referred to above were insufficient to allow special relief: (1) while
recognizing the appellant’s chance of relapsing, committing further offences
seemed to be reduced if he took his medication, the Minister was concerned his
past history showed he was inconsistent in taking his medicine and there was no
guarantee how long he would be residing at Anderson House; and, (2) while
submitting the tribunal could not ignore Mr. Antonin’s mental health issues in
assessing the humanitarian and compassionate grounds, counsel for the Minister
said there was nothing in the evidence which suggests that his situation could
change significantly even if all assistance was offered. The Minister was not
convinced he would take advantage of the various mental health resources
available unless imposed [i.e. were a condition of his stay].
[29]
It
did not accept the Minister’s arguments. It was of the view his mental health
affected his behaviour since arriving in Canada and this was
exacerbated by the lack of family support in his early years here. In its view,
based on the medical reports, his criminality would not have been as serious
had he been given access to proper health care at an earlier date. It was
persuaded the medical evidence “shows that he has accepted help and treatment
and guidance the CMHA, Alexander House and other social activities.” According
to it, “his acceptance at last, when faced not only with deportation but also
with the availability of resources is one of the reliable facts that this panel
must accept in evidence”.
[30]
The
other fact which the tribunal took into account had to do with his past associations,
and in particular, his association with members of a street gang in Ottawa. The
tribunal found there was no evidence before it which “would directly implicate
Mr. Antonin as a member of an organized criminal group and if there had been
such evidence, no stay would have been possible.” On the evidence, the tribunal
“was inclined to believe that at best the appellant was a subject of interest
for this criminal organization as he could be used as a tool to further
their criminal enterprise.” That finding lead the tribunal to wonder why the
requested stay should be limited to 3 years because the street gang still
existed and, after 3 years was over, Mr. Antonin could be “available to the
pressures from this criminal organization once again.”
[31]
Considering
the entire evidence before him, the fact there was no guarantee of a cure of a
medical condition and where the evidence showed some social pressures still
will continue to exist “the pressure of a stay should remain as long as is
feasible”. The tribunal concluded a five year stay to be appropriate with
conditions “which address not only the continuity of medical treatment, but
also regular reporting that he is in compliance with his doctor’s order and
conditions which would specifically address his past associations.
[32]
It
concluded writing:
[22] Minister’s representative
referred to guarantees. There are no guarantees. The panel member is not in a
position to underwrite the appellant’s future activities, nor is his
psychiatrist able to do so. The best we can do is make the conditions as
clear as possible so that all professionals involved with the appellant are
aware of the consequence of his non-compliance with the conditions. It is one
thing to face one day of jail because a person has not respected a probation
order; it is another thing all together different to be sent to a country such
as Haiti after 11 or 12 years of living in Canada, and being in need of
specific medical treatment.
[23] I have in the past dismissed
appeals where evidence did show a psychiatric condition and where the appellant
showed a profile of violent crime or continued risk to the Canadian public. I
would distinguish the decisions that I have rendered in like manner from the
present case for two reasons: the first reason has to do with the very young
age of this appellant when he came to Canada and the lack of proper supervision
or aid when it first became apparent that he was encountering serious
behavioural problems. It would seem that this appellant simply fell through the
cracks of our social and judicial network. The second factor, which
distinguishes this case from others, is that the medical evidence available
shows that there is a solid hope of rehabilitation, as the appellant continues
his treatment and continues to receive the aid which is now being offered him.
[24] In my view, the combination of
these two factors, with the usual factor of the hardship that a mental health
patient would encounter should he be returned to Haiti at this particular time are sufficient to
warrant special relief. [Emphasis mine.]
[33]
The
conditions imposed included obligations:
· not to commit
any criminal offences;
· extensive
reporting;
· access to
medical treatment; and,
· not knowingly
associate with individuals who have a criminal record.
Conclusions
[34]
It
is useful to recall what Khosa said about the IAD’s role in section
67(1)(c) IRPA cases. Parliament has entrusted the IAD to determine what
constitute “humanitarian and compassionate considerations [and] the sufficiency
of such considerations in a particular case.” Such determination is a fact-dependant
and policy-driven assessment by the IAD itself. Its decision is owed deference.
Reviewing courts cannot substitute their own appreciation of the appropriate
solution but must determine if the result reached by the IAD falls within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.” “The IAD had the advantages of conducting the hearings and assessing the
evidence presented including of the respondent himself.” Members of the IAD
have considerable expertise in determining appeals under IRPA.
[35]
I
also refer to another Supreme Court of Canada decision involving the possible
exercise of a discretionary stay on H&C grounds in Boulis v. Canada (Minister of Manpower
and Immigration), [1974] S.C.R. 875 at page 885, where
Justice Laskin, as he then was, wrote that the reasons of the then Immigration
Appeal Board were “not to be read microscopically” [and] “it is enough if they
show a grasp of the issues that are raised by [the relevant statutory
disposition] and of the evidence addressed to them, without detailed reference.
The record is available as a check on the Board's conclusions.”
[36]
In
the same vein is the Supreme Court of Canada’s decision in Woolaston v. Canada (Minister of Manpower
and Immigration), [1973]
S.C.R. 102, when again Justice Laskin, as he then was, wrote he was unable to
conclude the Board had ignored the evidence in the form of the testimony by a
witness which was in the record but was not mentioned in its reasons.
[37]
Some of the
irrelevant facts which the Minister mentioned in his written argument were: (1)
the lack of dependable authority figure in the early years of his life in
Canada; (2) when considering rehabilitation, the fact his violent past was
attributable to his mental illness and his lack of family support; and, (3)
when considering the length of the stay of five (5) years, it reasoned it needs
that length to isolate or protect him from an Ottawa street gang.
[38]
Instances of ignoring
the evidence were: (1) ignoring his failures in his rehabilitation efforts
prior to July 2008, namely, breaches of his prohibition orders after his deportation
order had been issued; (2) his arrest in November 2007 after his release from
Harvest House; and, (3) his inability to deal with his addiction problem.
[39]
The Minister argued
the IAD failed to take into account the policies and objectives of IRPA, one of
which was to protect the safety of Canadians.
[40]
The Minister also
touched upon the issue of the weighing of the factors, for example, the overweighting
of rehabilitation factor and giving insufficient weight to his violent past.
[41]
In oral argument, the
Minister’s counsel stressed: (1) the IAD did not consider all of the Ribic
factors and therefore erred in the balancing; (2) the IAD erred in its approach
to the stay; in effect the IAD subverted the purpose of a stay by attempting to
fix a social problem, namely, that of Mr. Antonin who suffered because he had
been abandoned as a child; (3) the IAD ignored the seriousness of the offences
Mr. Antonin committed; there was no discussion why his violent crimes were
mitigated; (4) it was selective in its consideration of the rehabilitation
factor; (5) it ignored the facts related to his failures to rehabilitate; (6) it
took into account irrelevant matters such as why he fell into the cracks of the
system, the issue of the Ottawa street gang and the length of his stay; and,
(7) there was no evidence of mental health hardship if returned to Haïti.
[42]
Having read the
record, the transcript of the hearings before the IAD, the written arguments
which was submitted to the member of the IAD as well as the IAD’s decision as a
whole, I cannot accede to the Minister’s argument. It did not ignore the
evidence or relevant factors. The tribunal was well aware of the “series of
crimes he was convicted” and the ones which “all ended up with prison sentences
of six (6) months; six (6) counts at six (6) months and one (1) count at twelve
(12) months were crimes that were violent in nature.” The IAD was also well
aware of his past failure at rehabilitation from the medical reports and from
the report of his probation officer. Dr. Brathwaite’s letter of
December 22, 2008 is compelling. She treated him as early as November 30, 2007.
The IAD member was well aware of the Minister’s submissions before him; he
quoted extracts from them.
[43]
A review of the
transcript shows the IAD member was so sensitive about Mr. Antonin’s past
violent crimes and his failures that he adjourned the April 23, 2008 hearing to
ensure that the witness from the Canadian Mental Health Association was fully
briefed about his past and could provide the tribunal with meaningful probative
evidence as to the future.
[44]
The central thrust of
this case, according to the tribunal, focused on the prospects of Mr. Antonin’s
rehabilitation and the fundamental change in his lifestyle now that he had in
place a support system which was so lacking in the past and which had been
identified on immigration detention reviews as contributing to his criminality
or breaches of probation. The questions the member of the IAD asked during the
hearings was to ensure this support system would reasonably continue to be in
place in the future so that the beneficial effects and the unusual length of
the stay of five (5) years with stringent conditions could enure to Mr.
Antonin’s benefit. On the evidence before him, the IAD was so satisfied.
[45]
I give credence to
the Minister’s argument the tribunal did not have direct testimony before it on
the state of mental health care for bi-polar individuals in Haïti. This was an
error on the part of the IAD but in the scheme of the balancing is not
determinative.
[46]
In my view, what the
Minister deems as irrelevant facts are not so; their aims was to test and
understand why earlier on in his young life in Canada, Mr. Antonin did what he
did – he essentially was on his own; now his is not. It was this factor –
continued medical support, continued guidance, continued assistance from the CMHA which
convinced the tribunal Mr. Antonin had turned the page. The member of the IAD
was entitled to come to this conclusion on the evidence before him and it is
not the function of this Court to reweigh the evidence to come to a different
conclusion. The outcome reached by the IAD is one which in my view if
defensible both in fact and law.
[47]
In short, this case
essentially turned on the weighing of the rehabilitation and remorse factor
against the seriousness of the crimes he committed in the past. The tribunal
heard the evidence and weighed the factors. It performed the function entrusted
to it by Parliament.
[48]
For these reasons,
the Minister’s appeal is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed. No certified question was proposed.
“François Lemieux”
___________________________
Judge
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