Date: 20080527
Docket: IMM-4658-07
Citation:
2008 FC 670
Ottawa, Ontario, May 27, 2008
PRESENT:
The Honourable Mr. Justice Blanchard
BETWEEN:
DEWITT
FRÉDÉRIC JUSTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an application for judicial review of a
decision of the Immigration and Refugee Board’s Immigration Appeal Division
(the panel) dated October 22, 2007, dismissing the application to
reopen filed by the applicant under section 71 of the Immigration and
Refugee Protection Act, R.S.C. 1985, c. I-2 (the Act).
II. Factual
background
[2]
The applicant was born in Port‑au‑Prince, Haiti, on August 15, 1971, and is a Haitian citizen.
[3]
On November 2, 1991, the applicant was
granted landing in Canada.
[4]
On October 19, 2001, the applicant was
convicted of possession of a substance (cocaine), an indictable offence under
subsections 4(1) and 4(3) of the Controlled Drugs and Substances Act,
S.C. 1996, c. 19, which carries a maximum term of imprisonment of
seven (7) years. The applicant was sentenced to eight (8) months’ imprisonment
and eighteen (18) months’ probation.
[5]
On February 6, 2002, the applicant was
issued a report under section 27 of the Immigration Act 1978 (the
former Act), indicating that he was a person described in paragraph 27(1)(d)
of the former Act, now paragraph 36(1)(a) of the Act.
[6]
On December 12, 2002, a removal order was
issued against the applicant under paragraph 45(d) of the Act.
[7]
On October 23, 2003, the panel granted the
applicant a stay of five years with various conditions set out in the notice of
decision dated November 10, 2003.
[8]
On June 30, 2005, the panel reviewed the appeal
and granted a stay of removal order on the conditions set out in the notice of
decision dated July 6, 2005.
[9]
On October 13, 2006, the Minister’s
representative requested a review of the appeal on the grounds that the
applicant had failed to comply with some of the conditions of the stay.
[10]
On October 19, 2006, the applicant faxed a
letter to the panel indicating his new address and explaining why he had not
provided it when he had moved.
[11]
On November 17, 2006, the panel received two
letters dated November 10, 2006: one signed by the applicant and the
other by his spouse. The letters asked the panel to make allowances for the
applicant because of the special circumstances of the case.
[12]
The hearing took place on
December 4, 2006, before the panel, with the applicant and the
Minister’s counsel present. The applicant was not represented by counsel. At
the start of the hearing, the applicant indicated that he agreed to proceed
alone, since he had always proceeded alone in any case.
[13]
At the hearing, the Minister’s counsel filed
Exhibit R-7, which he had received on Friday, November 30, 2006, at 6:55 p.m.
It was a request to institute proceedings against the applicant for offences
under subsection 5(2) of the Controlled Drugs and Substances Act that
he had allegedly committed on September 14 and 21, 2005, and October 11, 2005,
namely, narcotics trafficking. The applicant did not object to the filing of
Exhibit R-7, and the panel accepted it on the record.
(a)
Upheld the removal order;
(b)
Noted that there were insufficient humanitarian
and compassionate considerations to warrant special relief;
(c)
Terminated the stay;
(d)
Dismissed the applicant’s appeal.
[15]
On May 22, 2007, the applicant filed
with the panel an application to reopen under section 71 of the Act.
[16]
On June 22, 2007, the Minister’s representative
forwarded to the applicant and the panel the Minister’s response regarding the
application to reopen.
[18]
On November 9, 2007, this application
for judicial review was filed.
III. Impugned decision
[19]
In its decision dated
October 22, 2007, the panel denied the application to reopen. The
decision is quoted in full below:
I certify that this is the
decision and reasons of the member in this appeal.
IV. Statutory framework
[20]
The relevant provisions of the Immigration
and Refugee Protection Act and the Controlled Drugs and Substances Act
are quoted in the Annex.
V. Issue
[21]
Did the panel err in denying the application to
reopen on grounds that there was no breach of natural justice?
VI. Standard
of review
[22]
In Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada
found that there should be only two standards of review: correctness and
reasonableness. The Court indicated that the standard of correctness must be
maintained in respect of jurisdictional and some other questions of law (see Dunsmuir
at paragraph 50). When applying the correctness standard,
a reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis to decide whether the
decision is correct.
[23]
It is well settled that the standard of review
to be applied to issues of breach of natural justice is correctness (see Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (QL) at
paragraph 46 and Olson v. Canada (Minister of Citizenship and
Immigration), 2007 FC 458, [2007] F.C.J. No. 631 (QL) at paragraph 27).
[24]
Since there is an issue of a
breach of natural justice in this case, the applicable standard of review is
correctness.
VII. Analysis
[25]
Through section 71 of the Act, Parliament
has restricted the panel’s right to reopen an appeal to matters concerning a
breach of natural justice (Ye v. Canada (Minister of Citizenship and Immigration), 2004 FC 964, [2004] F.C.J. No. 1185). To reopen an appeal, the IAD
must be satisfied that it failed to observe a principle of natural justice. In
this case, the panel’s decision clearly states that no such breach occurred. It
is that denial that is at issue here.
[26]
The applicant raises essentially two arguments.
First, he claims that the panel failed to observe a principle of natural
justice by omitting to address the arguments found at paragraphs 16
and 34 of his application to reopen. These arguments can basically be
summed up as follows:
(a) The applicant’s explanation as to why he had omitted to inform the
parties concerned of his new address, as required by the conditions of the stay
(condition No. 1);
(b) The fact that the applicant’s testimony had made it possible to
convict in Canada four of the
six assailants who were accused of rape; and
(c) The fact that he did not want to be separated from his [Translation] “three beautiful little
girls” and that the panel should have taken into account the best interests of
the children under subsections 68(1) and 68(2) of the Act.
[27]
In those paragraphs, the applicant is alleging
that the panel infringed on his right to a fair hearing by an impartial
tribunal. Because the panel omitted to address the arguments raised by the
applicant in his application to reopen, he claims that the decision was
capricious and unreasonable. The applicant is also claiming that the panel
completely ignored his explanations in support of his application to reopen.
[28]
Second, the applicant is alleging that the panel
failed to observe a principle of natural justice by accepting the filing of
Exhibit R-7 on the day of the hearing. In doing so, the panel contravened
its obligation to ensure that the applicant is fairly and equitably heard, and
that he has the opportunity and the time to put forward his arguments, and,
especially, to present evidence in support of his allegations. By accepting a
piece of evidence that had taken the applicant by surprise, the panel had taken
advantage of the fact that the applicant was not represented by counsel.
Furthermore, the applicant is stressing the determinative aspect of
Exhibit R-7 for the decision rendered.
[29]
I will deal with these two arguments below.
[30]
I cannot characterize the panel’s failure to
address the arguments in paragraphs 16 to 34 of the applicant’s
application to reopen as a breach of natural justice. The applicant is
basically challenging the panel’s findings of fact, claiming that it had
ignored certain pieces of evidence, including some documents that he had filed
and his answers, and that it was selective in assessing the evidence. The
applicant is essentially trying to present arguments on the merits in the guise
of a breach of the principles of natural justice. The applicant had the option
of filing with the Federal Court an application for leave and for judicial
review of the decision, a much broader remedy than an application to reopen,
which is restricted to breaches of natural justice. Since the application of
section 71 of the Act is limited, the panel did not err in finding as it
did and not expressly addressing every allegation mentioned above.
[31]
Similarly, I cannot see a breach of the principles
of natural justice in the filing of Exhibit R‑7, which was the
applicant’s second argument. The following excerpt from the hearing transcript
demonstrates how Exhibit R‑7 was introduced:
Mr. Sabourin: It
is a document I myself received on Friday afternoon, so I couldn’t disclose it
earlier. I apologize.
Member: So it’s
R-7.
Mr. Sabourin: .
. . inaudible . . . and….
Member: And what
is it?
Mr. Sabourin: .
. . and to the appellant. They are requests to institute proceedings by the
police, who apparently mentioned that Mr. Juste will be charged in the next few
days with drug trafficking.
Member: Okay
Mr. Sabourin:
Well, accused, not charged. The . . . inaudible . . . of innocence is in force
in Canada.
Member: So,
as you know, Mr. Juste, every person is presumed innocent until proven guilty.
Okay, so that, that means the police will accuse you of something but . . .
Appellant:
Yes.
Member: I
will accept it on the record, because the Minister’s counsel gave it, gave it
to me, but there is always the rule that you are presumed innocent until proven
guilty. So, the questions we will, we will ask you
today will have to do with what has happened up to today. Maybe
Mr. Sabourin will also ask you questions about that document, we’ll see .
. .. (Emphasis added.)
I am of the
opinion that this excerpt of the hearing transcript, as well as a careful
reading of the reasons dated March 13, 2007, indicate that there has
been no breach of natural justice. The applicant was informed of the type of
document it was and did not object to its being filed. The panel limited the
document’s probative power and repeated the presumption of innocence in the
applicant’s favour. Furthermore, nothing indicates that Exhibit R‑7 was
used to cross‑examine the applicant. It is also evident that the panel
attached little weight to the content of the exhibit, except concerning the
mention of the fact that the applicant was unemployed, a fact which he had
admitted during his testimony. In addition, the reasons for the review of the
stay of removal order dated March 13, 2007, are based on several
determining factors other than Exhibit R‑7, such as
(i) his violation of condition 1 of the stay, namely, to inform
the panel and the Minister of Citizenship and Immigration of any change of
address;
(ii)
his violation of conditions 2 and 3, according
to which he had to provide a copy of his passport or travel document and apply for an extension of the validity
period of any passport or travel document before it expired.
(iii)
his violation of condition 10, namely, to make reasonable
efforts to seek and maintain full‑time employment;
(iv)
the fact that he did not remember the ages of
his children, which showed his lack of interest in them; and
(v)
the fact that he still did not take
responsibility for the indictable offence to which he pleaded guilty in 2001.
I cannot find that
the panel’s acceptance of Exhibit R‑7 contributed to a breach of natural
justice. It is evident from reading the reasons dated March 13, 2007,
that the violations of conditions 1, 2, 3 and 10 of the stay were the
determining factors in the decision to uphold the removal order against the
applicant.
[33]
For these reasons, I am of the opinion that the
panel committed no error in finding that the applicant had not demonstrated a breach
of natural justice. Consequently, this application will be dismissed.
[34]
The parties did not propose a serious question
of general importance to be certified as set out in paragraph 74(d)
of the Act. I am satisfied that no such question was raised in this case. No
question will therefore be certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that
1.
The
application for judicial review is dismissed.
2.
No serious
question of general importance is certified.
“Edmond P. Blanchard”
Certified
true translation
Susan
Deichert, Reviser
Annex
Controlled
Drugs and Substances Act, S.C. 1996, c.
19:
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4. (1) Except as authorized under the regulations, no person shall
possess a substance included in Schedule I, II or III.
…
(3) Every person who contravenes subsection
(1) where the subject-matter of the offence is a substance included in
Schedule I
(a) is
guilty of an indictable offence and liable to imprisonment for a term not
exceeding seven years; or
(b) is
guilty of an offence punishable on summary conviction and liable
(i) for a
first offence, to a fine not exceeding one thousand dollars or to
imprisonment for a term not exceeding six months, or to both, and
(ii) for a
subsequent offence, to a fine not exceeding two thousand dollars or to
imprisonment for a term not exceeding one year, or to both.
5. (1) No person shall traffic in a substance
included in Schedule I, II, III or IV or in any substance represented or held
out by that person to be such a substance.
(2) No person shall,
for the purpose of trafficking, possess a substance included in Schedule I,
II, III or IV.
|
4. (1)
Sauf dans les cas autorisés aux termes des règlements, la possession de toute
substance inscrite aux annexes I, II ou III est interdite.
…
(3) Quiconque contrevient au paragraphe (1) commet, dans
le cas de substances inscrites à l’annexe I :
a) soit un acte criminel passible d’un
emprisonnement maximal de sept ans;
b) soit une infraction punissable sur déclaration
de culpabilité par procédure sommaire et passible :
(i) s’il s’agit
d’une première infraction, d’une amende maximale de mille dollars et d’un
emprisonnement maximal de six mois, ou de l’une de ces peines,
(ii) en cas de
récidive, d’une amende maximale de deux mille dollars et d’un emprisonnement
maximal d’un an, ou de l’une de ces peines.
5. (1) Il est interdit
de faire le trafic de toute substance inscrite aux annexes I, II, III ou IV
ou de toute substance présentée ou tenue pour telle par le trafiquant.
(2) Il est interdit
d’avoir en sa possession, en vue d’en faire le trafic, toute substance
inscrite aux annexes I, II, III ou IV.
|
Immigration and
Refugee Protection Act, R.S.C. 1985, c. I-2:
|
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;
(b)
having been convicted of an offence outside Canada that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years; or
(c)
committing an act outside Canada that is an offence in the place where it was
committed and that, if committed in Canada, would constitute
an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years.
…
45. The Immigration Division, at the conclusion
of an admissibility hearing, shall make one of the following decisions:
(a)
recognize the right to enter Canada of a Canadian citizen within the meaning of
the Citizenship Act, a person registered as an Indian under the Indian
Act or a permanent resident;
(b)
grant permanent resident status or temporary resident status to a foreign
national if it is satisfied that the foreign national meets the requirements
of this Act;
(c)
authorize a permanent resident or a foreign national, with or without
conditions, to enter Canada for further examination; or
(d)
make the applicable removal order against a foreign national who has not been
authorized to enter Canada, if it is not satisfied that the foreign national
is not inadmissible, or against a foreign national who has been authorized to
enter Canada or a permanent resident, if it is satisfied
that the foreign national or the permanent resident is inadmissible.
71. The Immigration Appeal Division, on
application by a foreign national who has not left Canada under
a removal order, may reopen an appeal if it is satisfied that it failed to
observe a principle of natural justice.
|
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;
b) être déclaré coupable, à l’extérieur du Canada,
d’une infraction qui, commise au Canada, constituerait une infraction à une
loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) commettre, à l’extérieur du Canada, une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
[…]
45. Après avoir procédé à une enquête, la Section de
l’immigration rend telle des décisions suivantes :
a) reconnaître le droit d’entrer au Canada au
citoyen canadien au sens de la Loi sur la citoyenneté, à la personne
inscrite comme Indien au sens de la Loi sur les Indiens et au résident
permanent;
b) octroyer
à l’étranger le statut de résident permanent ou temporaire sur preuve qu’il
se
conforme à la
présente loi;
c) autoriser le résident permanent ou l’étranger à
entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi applicable contre
l’étranger non autorisé à entrer au Canada et dont il n’est pas prouvé qu’il
n’est pas interdit de territoire, ou contre l’étranger autorisé à y entrer ou
le résident permanent sur preuve qu’il est interdit de territoire.
71. L’étranger qui n’a pas quitté le Canada à la
suite de la mesure de renvoi peut demander la réouverture de l’appel sur
preuve de manquement à un principe de justice naturelle.
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