Date: 20080403
Docket: IMM-3517-07
Citation: 2008
FC 431
Toronto, Ontario,
April 3, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Applicant
and
SHAZAM ALI
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision rendered by the Immigration Appeal
Division (IAD) pursuant to the transitional provision of s.197 of the Immigration
and Refugee Protection Act S.C. 2001, c.27 (IRPA) which reads as
follows:
|
197.
Despite section 192, if an appellant who has been granted a stay under the
former Act breaches a condition of the stay, the appellant shall be subject
to the provisions of section 64 and subsection 68(4) of this Act.
|
197.
Malgré l’article 192, l’intéressé qui fait l’objet d’un sursis au titre de
l’ancienne loi et qui n’a pas respecté les conditions du sursis, est
assujetti à la restriction du droit d’appel prévue par l’article 64 de la
présente loi, le paragraphe 68(4) lui étant par ailleurs applicable.
|
On the facts presented to the IAD, the question was whether
contraventions of the Ontario
Highway
Traffic Act (HTA)
constitute a breach of a condition of the stay granted to the Applicant “to
keep the peace and be of good behaviour”.
[2]
It is agreed
that the facts presented to the IAD are accurately stated in the Decision under
review as follows:
1
Shazam ALI (the
appellant) is 39 years old. He was born in Guyana
on January 23, 1968. He became a permanent resident of Canada when he was landed along with his mother, brother and four
sisters on March 10, 1995. He was sponsored by a sister.
2
The appellant was
ordered deported from Canada on March 15, 2000, by Immigration
Adjudicator A. Martens, pursuant to paragraph 27(1)(d) of the former Immigration
Act (the former Act). The basis of his deportation order was
criminality, specifically convictions in January 1999 for kidnapping, contrary
to paragraph 279(1)(a) of the Criminal Code of Canada, and robbery,
contrary to section 344 of the Criminal Code of Canada, for which he was
sentenced to 20 months imprisonment in addition to 10 months pre-trial custody.
This makes him inadmissible under the Immigration and Refugee Protection Act
(IRPA) for serious criminality [1: See Immigration and Refugee Protection
Regulations, paragraph 320(5)(a)]. Under the scheme of IRPA, he would
have no right of appeal to the Immigration Appeal Division because of sections
197 and 64.
3
The appellant filed
a Notice of Appeal on March 15, 2000. His appeal came before the Immigration
Appeal Division (IAD) Member E. Whist. In a decision dated January 26, 2001, he
granted the appellant a stay of the execution of his removal order for five (5)
years subject to terms and conditions. The appellant's criminal record consists
of the two criminal convictions which were the basis of his deportation order.
4
On November 29,
2005, a Notice of Review was sent out by the IAD saying the appellant's case
would be reviewed in chambers unless the Minister requested an oral review. By
letter dated January 18, 2006, the Minister (Public Safety and Emergency
Preparedness) sent a Notice of Cancellation of Stay to the IAD, the appellant
and his counsel, stating the Minister's position was that the appellant's stay
was cancelled by operation of law and his appeal is therefore dismissed [2:
Exhibit R-1].
5
In an interlocutory
decision on January 15, 2007, IAD Member Whist determined that the matter
should proceed to an oral hearing to decide whether the appellant has breached
the conditions of his stay, consequently, whether his stay has been cancelled
by operation of law and his appeal terminated.
The
IAD’s decision-making with respect to these facts is as follows:
12
There was no dispute
at the hearing about the HTA offences. The appellant has five
convictions under the HTA since his stay was imposed. The appellant did
not deny that he had committed and been convicted of these offences. Although
the Integrated Court Offences Network (ICON) revealed two outstanding fines,
the appellant stated that all his fines had been paid and had evidence that one
of the two fines had been paid [6: Exhibit A-3].
1.
On August 5, 2003, he
was convicted in absentia for driving a motor vehicle with no plates or
improperly displaying plates. His explanation was that he had the plates with
him in the car and was going to a friend's house to put them on his car. He
testified that he paid the fine and threw out the receipt.
2.
On January 7, 2004,
he was convicted in absentia for operating an unsafe vehicle and failure to
have or surrender insurance. The appellant did not recall these convictions,
but stated he has paid all his fines and failed to keep receipts for most of
them.
3.
On January 12, 2006,
he was convicted of an unsafe lane change and speeding (70 in 50 zone). The
appellant thought the unsafe lane change was an occasion when he went through a
yellow light which turned red. He maintained he had paid that fine. He did provide
a receipt for payment of the speeding fine.
13
The panel has
considered the analysis of its colleague Member Whist in the Cao [7: Cao,
Yuke v. Minister of Public Safety and Emergency Preparedness (IAD TA1-06387),
Whist, September 26, 2006]. decision. This panel agrees that a failure to be of
"good behaviour" may result from a failure to abide by a federal,
provincial or municipal statute or regulatory provision, but that a failure to
abide by a federal, provincial or municipal statute or regulatory provision
does not necessarily mean there has been a failure to be of "good behaviour".
It is hard to imagine that a relatively minor or trivial conviction under a
federal, provincial or municipal statute or regulatory provision means that a
breach of the condition "to keep the peace and be of good behaviour"
has necessarily occurred and that the appellant should be given no opportunity
to argue this.
14
Relying on R.
v. R (D) [8: R. v. R (D) Nfld. C.A. 96/195, Mahoney, Cameron and Green
J.J.A., August 1999], Borland
[9: Regina v. Borland [M.W.T.]] and Avalos [10: Avalos, Manuel Chuquin
v. M.C.I. (F.C., no. IMM-6655-04), Blanchard, June 10, 2005; 2005 FC 830],
Member Whist stated:
The panel is firmly
of the opinion that it is not appropriate to conclude, as the Minister would
want, that a breach of this condition (to keep the peace and be of good
behaviour) has occurred whenever an appellant has been convicted under any
federal, provincial or municipal statute. In the panel's opinion, following Borland
and Avalos, the appellant has the right to present evidence and provide
an explanation in support of a contention that such a conviction does not
necessarily mean that a breach has occurred and that a determination as to
whether a breach has taken place must be made in the context of evidence and
arguments on this specific issue.
15
The panel has
carefully considered all the evidence, testimony and submissions in this case.
While not condoning the appellant's HTA offences, the incidents for
which he has been convicted under the HTA are of a relatively minor
nature. The evidence did not reveal all the circumstances, but as best the
panel could ascertain, at various times in 2003 and 2004, on one occasion each,
the appellant had license plates, which he was intending to put on his car, in
his vehicle rather than on his vehicle; did not have his insurance with him;
drove a vehicle considered unsafe; made an unsafe lane change and was speeding
by going 20 kms./hr. over the speed limit. While these are offences under a
provincial statute, the panel does not find they are sufficiently serious to be
considered failures to "keep the peace and be of good behaviour" as
that term is commonly understood by members of the IAD when routinely made one
of the conditions of a stay of a removal order. Of course, there are many
offences or patterns of offences under the HTA which the panel would consider
serious enough to be a breach of the condition to "keep the peace and be
of good behaviour", but the instant case is not one of them.
As
a result, the IAD reached the following conclusion:
17
Pursuant to
paragraph 74(3)(b) and subparagraph 74(3)(b)(ii) of
the
former Act, the panel orders that the direction staying the execution of
the removal order, made by the IAD on January 26, 2001, be cancelled and the
appeal be allowed.
[3]
Counsel
for the Applicant argues that the Decision under review is made in reviewable
error because it is contrary to the decision in Cooper v. Canada (Minister of Citizenship and
Immigration), 2005
FC 1253 (Cooper), which is settled law. That is, to be of “good
behaviour” one must abide by federal, provincial and municipal statutes and
regulatory provisions and, on this basis, any failure to abide, no matter how
trivial, is a breach of the condition “to be of good behaviour” and, therefore,
is a breach of a condition of a stay pursuant to s.197. With respect, I
disagree that Cooper can properly be accepted as settled law.
[4]
The
decision in Cooper is based on a criminal law decision of the
Newfoundland Court of Appeal. Paragraph 14 of Cooper reads as follows:
While there is some question as to
whether the requirement that an individual be "of good behaviour" can
be breached without the individual offending any law or regulation (see R. v.
Gosai, [2002] O.J. No. 359 at para. 27), the criminal jurisprudence is clear
that to be of "good behaviour", one must abide by federal, provincial
and municipal statutes and regulatory provisions: R. v. R. (D.) (1999),
138 C.C.C. (3d) 405 (Nfld. C.A.).
[Emphasis added]
In
fact, paragraph 13 of R.
v. R. (D.) and Footnote 2 to that paragraph, qualifies
the meaning of the text in Cooper upon which Counsel for the Applicant
is relying:
13
I have concluded,
with all due respect to the contrary position stated in Stone, that the concept
of failure to "be of good behaviour" in the statutory conditions of a
probation order is limited to non-compliance with legal obligations in federal,
provincial or municipal statutes and regulatory provisions, as well as
obligations in court orders specifically applicable to the accused, and does
not extend to otherwise lawful conduct even though that conduct can be said to
fall below some community standard expected of all peaceful citizens [Footnote
2]. I have come to this conclusion after a consideration of the historical
development of the concepts of the obligations "to keep the peace"
and "to be of good behaviour" and of the appropriate role which those
concepts can be expected to play within the context of Canadian constitutional
and criminal law.
Footnote
2: This is not to say, however, that any breach of law, however trivial, will
necessarily result in a finding of failure to be of good behavior. It is
sufficient for the purposes of this case to say that a failure to be
law-abiding is a necessary prerequisite to a finding of breach of the
obligation to be of good behavior. For a discussion of the issue as to whether
there may be circumstances when a trivial breach of , say, a regulatory statute
may not be regarded as failing to be of good behavior, see Chasse, "Breach
of Probation as an Offence", 5 C.R.N.S. 255. See also, R. v. Abbott
(1940), 74 C.C.C. 318 (Alta. S.C., App. D.), per Harvey, C.J.A. at pp. 323-324.
[Emphasis added]
[5]
Therefore,
the decision in R. v. R. (D.) does not stand for a strict liability result.
In my opinion, R. v. R. (D.) is properly interpreted to say that, in
order to engage in an analysis of whether a person has breached “good
behaviour”, it is first necessary to establish that the person has contravened
a federal, provincial or municipal statute or regulatory measure and, upon so
finding, the opportunity is triggered to evaluate whether that contravention
results in a further finding that a breach of “good behaviour” has occurred.
Therefore, in this analysis, a person’s general conduct is an important factor
which must be taken into consideration.
[6]
I find
that the recent decision in Canada (Minister of Citizenship and
Immigration) v. Stephenson, 2008 FC 82 (Stephenson), which
supports the Applicant’s argument on the law, is distinguishable from the
Decision under review since it was not decided under the transition provisions
of IRPA.
[7]
As a
result, given that the IAD correctly applied the decision in R. v. R. (D.), I
find no reviewable error in the Decision under review.
[8]
Counsel
agree that a question proposed for certification in Stephenson, but
which was not certified, should be certified in the situation of the present
case for consideration by the Federal Court of Appeal. I agree it is of general
importance and is determinative of the present Application.
ORDER
Accordingly, the present Application is dismissed, but the
following question is certified:
Is the condition “keep the
peace and be of good behaviour” as imposed in stay of deportation orders by the
Immigration Appeal Division of the I.R.B. breached each and every time the
person concerned is convicted of an offence under and/or found to have violated
any federal, provincial and/or municipal statute and regulation throughout
Canada?
“Douglas
R. Campbell”
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