Date: 20110203
Docket: IMM-1966-10
Citation: 2011
FC 124
Ottawa, Ontario,
February 3, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Applicant
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and
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DESMOND ANTHONY ALLEN
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Minister of Public Safety and Emergency Preparedness (the “Applicant”) seeks
judicial review of a decision made by the Immigration Appeal Division (the “IAD”)
of the Immigration and Refugee Board (the “Board”) on March 19, 2010. In its
decision the IAD stayed a removal order against Mr. Desmond Anthony Allen (the
“Respondent”), pursuant to paragraph 67(1)(c) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) for a three year period, upon
certain conditions.
[2]
The
Respondent is a citizen of Jamaica. He came to Canada in 1990 and obtained
permanent resident status in 1992. He married and fathered three children prior
to the termination of the marriage by divorce. He acted in the role of
step-father to three children of his former wife. He fathered another child in
an extra-marital relationship. He had a number of girlfriends.
[3]
The
Respondent was convicted of sexual assault and sexual interference on January
4, 2007. The victim of these crimes was a teen-aged daughter of his then
girlfriend. The Respondent was sentenced to time served, three months
imprisonment, together with three years probation for the offence of sexual
assault. He was sentenced to time served plus one day, and three years
probation for the offence of sexual interference, to be served concurrently.
The maximum punishment for sexual assault, pursuant to section 271 of the Criminal
Code, R.S.C. 1985, c. C-46, is a term of imprisonment not exceeding ten
years.
[4]
The
Respondent was convicted on eight occasions between 1994 and 2007, of a number
of criminal offences, including the two sexual offences mentioned above.
[5]
On March
19, 2007, a report was issued against the Respondent pursuant to subsection
44(1) of the Act, alleging that the Respondent was inadmissibile on grounds of
serious criminality. The Immigration Division of the Board found the Respondent
to be inadmissible in Canada by virtue of paragraph
36(1)(a) of the Act, that is on the grounds of serious criminality, on August
24, 2007. A removal order was issued by the Immigration Division on October 30,
2007.
[6]
The
Respondent appealed the removal order to the IAD pursuant to subsection 63(3)
of the Act. Conceding the legal validity of the removal order he sought
discretionary relief pursuant to paragraph 67(1)(c) of the Act which provides
as follows:
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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,
…
(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.
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Fondement
de l’appel
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé
:
…
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.
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[7]
The IAD heard
evidence from the Respondent. As well, it was provided with a record of his criminal
convictions, a copy of the transcript of the hearing before the Immigration
Division on August 24, 2007 and a copy of a report prepared by Dr. Rita C.
Bradley a clinical psychologist. Dr. Bradley’s associate, Dr. Harry Bradley,
had counseled the Respondent, who was referred for such counseling by his
Probation Officer. This report was tendered as an expert report.
[8]
The IAD specifically
addressed the factors set out in the decision of Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (Q.L.). The “Ribic”
factors, set out at pages 4 and 5 of the IAD’s decision in Ribic, are as
follows:
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.
[9]
In Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, the Supreme
Court of Canada positively affirmed these factors as being relevant and
appropriate to the discretion accorded to the IAD to stay a removal order.
[10]
The IAD found that
only one of the six factors weighed in favour of the Respondent, saying the
following, at paragraphs 36 and 49 of its decision:
Possibility
of Rehabilitation
It
is this last point which, to my mind, saves the day for the appellant. As noted
earlier, the appellant has had no discernable contact with the criminal justice
system since he was released from custody a little more than three years ago.
…
I
am accordingly of the view that the appellant ahs demonstrated a willingness to
turn his life around and he does deserve a chance to do so, but not at the risk
to the community bearing in mind the specific provisions [sic] section 3(1) of IRPA.
[11]
The IAD granted a
three year stay of the removal order pursuant to section 68 of the Act.
Conditions were imposed, including the following:
Make
arrangements for ongoing psychological rehabilitation through the office of Dr.
Rita Bradley, or some other suitably qualified mental health professional and
provide written confirmation of such arrangements on or before October 1, 2010 (specify details such as type of
program, frequency and duration of participation, etc.) (Note If you do
not meet the foregoing condition, the Minister may bring an application to
cancel the stay and dismiss the appeal) [emphasis in original].
[12]
The Applicant argues
that the IAD committed several errors: by failing to weigh the Ribic
factors, by using the wrong test in granting the stay and by ignoring evidence,
specifically in concluding that the Respondent was a good candidate for a stay
and in concluding that the Respondent could access psychological treatment.
[13]
The Applicant cited
much jurisprudence, beginning with a decision of the Supreme Court of Canada in
Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539. He relied upon
this case for the proposition that under the current immigration statutory
regime, security is the predominant consideration.
[14]
The Applicant then
moved to the majority decision of the Federal Court of Appeal in Khosa v.
Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 332, rev’d
[2009] 1 S.C.R. 339, for the proposition that the concept of rehabilitation,
involving as it does principles of criminal law, does not lie within the
expertise of the IAD.
[15]
He argues, by
inference, that less deference is owed to the IAD in that regard.
[16]
The Applicant relies
on the decisions in Veerasingam v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1661 and Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and
Immigration) (1998) 157
F.T.R. 35 (T.D.).
[17]
The Respondent takes
the position that, having regard to the discretionary power of the IAD pursuant
to subsection 67(1)(c) as discussed by the Supreme Court of Canada in Chieu and
Canada (Minister of Citizenship and Immigration) v. Khosa, [2009] 1
S.C.R. 339, the IAD made a decision based on the evidence and that it was
legally entitled to make.
Discussion
and Disposition
[18]
The first issue to be
addressed is the applicable standard of review. In Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 90, the Supreme Court of Canada said that there are only two
standards of review by which decisions of statutory decision-makers can be
reviewed, that is correctness for questions of law and procedural fairness and
reasonableness for findings of fact and questions of mixed fact and law.
[19]
The Applicant argues
that the IAD, by failing to weigh the Ribic factors, used the
wrong legal test for the exercise of discretion pursuant to paragraph 67(1)(c).
If such an error was made, it is reviewable on the standard of correctness.
However, having regard to the written reasons of the IAD, I am not persuaded
that there was any such error.
[20]
The IAD identified
the Ribic factors. He addressed each one and found that five of them did
not weigh in favour of the Applicant. The IAD found one factor in favour of
positive exercise of discretion and although the IAD did not use the words
“weigh” or “balance”, it is clear from what is written that all the factors
were weighed.
[21]
Through his arguments,
the Applicant has essentially invited this Court to reweigh the evidence before
the IAD.
[22]
I refer again to the
decision of the Supreme Court of Canada in Khosa. As noted above, Khosa
arose from a decision of the IAD where, in a split decision, the majority
found that the evidence did not justify the positive exercise of discretion
under paragraph 67(1)(c) of IRPA.
[23]
Upon judicial review
by the Federal Court, the applications judge determined that a high degree of
deference was to be given to the decision of the IAD, applying the standard of
patent unreasonableness. That standard of review was available prior to the
release of the decision in Dunsmuir.
[24]
The Federal Court of
Appeal, also in a split decision, disposed with the judgment of the application
and applied a standard of reasonableness.
[25]
Upon further appeal
to the Supreme Court of Canada, that Court restored the judgment of the
application judge, endorsing the view that in the post-Dunsmuir period,
the decisions of the IAD dealing with the assessment of evidence are reviewable
on the standard of reasonableness.
[26]
I will refer only to
the judgment of Justice Binnie in the decision of the Supreme Court of Canada in Khosa. He noted, at paras. 17 and 62, that
Parliament, in enacting paragraph 67(1)(c), had granted the IAD the power to
decide if “sufficient humanitarian and compassionate considerations warrant
special relief in light of all the circumstances of the case.” This power was
not granted to the Courts. The Court is to take a deferential view of the IAD’s
decision and not engage in its own weighing of the evidence in light of the Ribic
factors.
[27]
In reviewing the
IAD’s decision in Khosa, Justice Binnie said the following at para. 65:
In
terms of transparent and intelligible reasons, the majority considered each of
the Ribic factors. It rightly observed that the factors are not
exhaustive and that the weight to be attributed to them will vary from case to
case (para. 12). 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…
[28]
I note that Justice
Binnie specifically endorsed the view that the “factors are not exhaustive and
the weight to be attributed to them will vary from case to case”.
[29]
The same applies in
the present case, in my opinion. The IAD did consider the Ribic factors
and it found that one factor weighed heavily in favour of relief, that is the
possibility of rehabilitation. It considered a related but non-specific factor
in favour of the Respondent, that is the fact that the Respondent had not been
involved in any criminal activities for three years.
[30]
In its assessment of
potential for rehabilitation, the IAD focused on the relatively recent and
on-going changes the Respondent made to his life in pursuit of rehabilitation,
rather than the Respondent’s historical circumstances. This approach was
reasonable in my opinion, and any evidence not explicitly mentioned by the IAD
was consistent with this approach.
[31]
The IAD explicitly
deals with the availability of psychological treatment by making it a condition
of the stay on the removal order against the Respondent. In the conditions that
it imposed, the IAD highlights the fact that if the Respondent does not undergo
treatment with an appropriate psychologist, he may be subject to removal from Canada. In my opinion, the IAD did not ignore any evidence in this
regard.
[32]
At para. 66 of Khosa,
Justice Binnie said the following:
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 light of all
the circumstances of the case. The IAD has a mandate different from that of the
criminal courts. Khosa did not testify at his criminal trial, but he did before
the IAD. 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. It did so.
[33]
Again, in my opinion,
these observations apply in the present case. The IAD here considered the
prospects of the rehabilitation of the Respondent for the purpose of
considering if those prospects warranted special relief. It concluded that they
did and exercised its discretion accordingly. I see no error in the manner in
which it did so.
[34]
For these reasons,
this application for judicial review is dismissed. No question for
certification was proposed.
ORDER
THIS COURT ORDERS that the application
for judicial review is dismissed. No question for certification arising.
“E.
Heneghan”
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