Date: 20070731
Docket: IMM-1852-06
Citation: 2007 FC 804
Ottawa, Ontario, July 31,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
TRACY-ANN SPENCER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an
application for judicial review of the decision of a panel of the Immigration
Division of the Immigration and Refugee Board (the Board), dated March 22,
2006, wherein it was determined that Ms. Tracy-Ann Spencer (the Applicant) is
inadmissible, pursuant to s. 36(1)(a) of the Immigration and Refugee
Protection Act (Act), on the grounds of serious criminality.
[2] For the
reasons that follow, I am satisfied that the issues raised by this application
have been finally disposed of in an earlier decision by Justice Blais in Spencer v. Canada (Minister of
Citizenship and Immigration), 2006 FC 990. Accordingly, this
application will be dismissed.
[3] The Applicant is a
citizen of Jamaica who has been a
permanent resident of Canada since 1993. On
September 13, 2002, the Applicant was convicted of importing cocaine, contrary
to s. 6(1) of the Controlled Drugs and Substances Act and, ultimately,
was sentenced to 20 months imprisonment. The Applicant does not dispute that
her conviction meets the definition of serious criminality set out in s.
36(1)(a) of the Act. That is, she acknowledges that she was convicted of
an offence punishable by a maximum term of imprisonment of at least 10 years,
for which a term of imprisonment of more than six months was imposed.
[4] As a result of this
conviction, the Respondents began a process of determining whether the
Applicant should be declared inadmissible to Canada and deported.
[5] Immigration Officer Ron
Legault interviewed the Applicant on July 27, 2005, at the Vanier Centre for
Women in Milton, Ontario. The purpose
of the interview was to determine if the applicant was inadmissible and whether
or not the officer should write a report pursuant to s. 44(1) of the Act.
Officer Legault, in a decision dated August 31, 2005, wrote a s. 44(1) report
(the s. 44 report) indicating that the Applicant was inadmissible for reasons
of serious criminality pursuant to s. 36(1)(a) of the Act. The s. 44(1)
report was then considered, and a s. 44(2) referral for an admissibility
hearing was made.
[6] As required by the Act,
the next step was the holding of an Admissibility Hearing before the Board.
That hearing took place over a number of days from November 8, 2005 to March
22, 2006. Two overarching issues were before the Board. Specifically, the Board
was called on to decide: (a) whether the Applicant had been afforded procedural
fairness in the preparation of the s. 44 report; and, (b) whether the Applicant
was inadmissible pursuant to s. 36(1)(a) of the Act. The Board responded
affirmatively to each of these questions in a decision delivered orally on
March 22, 2006. This is the decision that is the subject of this judicial
review.
[7] The Applicant commenced
two applications for leave and judicial review. The first was in respect of the
decision of Officer Legault where he refused a request by the Applicant to
reconsider his s. 44(1) report. The Applicant sought, in that application, to
have the s. 44 report quashed. Leave was granted and the matter heard by
Justice Blais of this Court on August 9, 2006. Justice Blais dismissed the
application for judicial review (Spencer v. Canada (Minister of
Citizenship and Immigration), 2006 FC 990). The key issue raised by
the Applicant was whether the Applicant had been afforded procedural fairness
in the preparation of the s. 44 report. Of particular importance to this
application, Justice Blais made the following findings in response to the
issues raised:
- Officer Legault did not err in his exercise
of discretion in that he did take humanitarian and compassionate
considerations into account.
- Officer Legault met the duty of fairness to
the Applicant. Specifically, Justice Blais found that the officer did
explain the purpose of the interview to the Applicant and its possible
outcome and that the Applicant was given an opportunity to make
submissions opposing her removal from Canada.
- Officer Legault did not ignore evidence.
[8] The second application for
judicial review – the one that is now before me – is directed to the decision
of the Board. Thus, on its face, it appears to be a different application and
would warrant a separate review. However, a careful reading of the application
and the issues raised by the Applicant in this second application indicates
that it is, in fact, a request that the Court consider the same issues as were
decided by Justice Blais.
[9] In this application, the
Applicant sets out three issues:
1.
Did
the Board err in its finding that the Officer afforded procedural fairness to
the Applicant?
2.
Did
the Board err by ignoring or misinterpreting evidence?
3.
Was
there a breach of natural justice because the transcript of the Applicant’s
testimony was lost and not available?
[10] Each of these issues relates solely to the
determination by the Board that the Applicant had been afforded procedural
fairness by Officer Legault in the preparation of the s. 44 report. This is
exactly the issue that was before Justice Blais and was decided by him. No
separate issue has been raised.
[11] The Respondents submit that, as a matter of
judicial comity, I should follow the decision of Justice Blais. The Applicant
asserts that the record before me is different and that, therefore, comity is
not warranted. On the facts of this application, I do not agree with the
Applicant.
[12] In the hearing before Justice Blais, all of
the evidence now before me was or could have been placed before that Court. In
particular, the Board’s decision was presented as evidence. Had the Applicant
wished to challenge the reliability of that evidence, she could have done so.
In my view, the Applicant is simply re-arguing the same issues as were before
Justice Blais. In an attempt to obtain a different result, she has provided
further evidence to bolster her arguments. However, having examined this
evidence, I conclude that there is absolutely no evidence that was not in the
hands of the Applicant at the time of the hearing by Justice Blais. For
example, the transcripts were provided to the Applicant in May 2006, some four
months prior to the hearing. The fact that no transcript was available for one
day of the admissibility hearings was also known to the Applicant and her
counsel.
[13] In sum, the parties are the same, the
issues as to Officer Legault’s s. 44 report are exactly the same, the counsel
are the same for both parties, and there is no evidence now before me that
could not have been presented to Justice Blais. In these circumstances, I am
not prepared to reach a different conclusion.
[14] This is not just an issue of comity; it is
a question of the finality of decisions. Justice Blais determined that there
was no breach of procedural fairness in the decision of Officer Legault. That
was a final decision on the matter and should not be changed simply because the
Applicant brings forward further (but not new) evidence or arguments in a
parallel proceeding.
[15] For these reasons the application for
judicial review will be dismissed. Although the Applicant proposed the
certification of a question relating to the merits of her application, that
question is not determinative and will not be certified.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
__________________________
Judge
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