Docket: IMM-6376-13
Citation:
2014 FC 1219
Ottawa, Ontario, December 15, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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CARLO FABBIANO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr Carlo Fabbiano was born in Italy in 1957, but has lived in Canada since 1963. He applied for Canadian citizenship in 2005, but
it was never granted.
[2]
During the 1990s, Mr Fabbiano “became” involved
with the Hells Angels. He was convicted of drug trafficking in 1999 and served
a one-year sentence in the community. In 2006, a representative of the Canadian
Border Services Agency (CBSA) wrote to Mr Fabbiano informing him that, as a
member of a criminal organization, he might be inadmissible to Canada (according to s 37(1)(a) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] – see Annex for provisions cited).
[3]
In 2008, sixteen months after Mr Fabbiano had
made submissions to the CBSA on the subject of his admissibility, an
enforcement officer recommended that Mr Fabbiano be referred for an
admissibility hearing (relying on s 44(1) of IRPA). A senior CBSA analyst
concurred with that recommendation. In 2009, a delegate of the Minister of
Public Safety and Emergency Preparedness referred Mr Fabbiano for an
admissibility hearing (under s 44(2) of IRPA). Mr Fabbiano did not learn of any
of these decisions until 2013. By way of this application for judicial review,
Mr Fabbiano challenges the Minister’s delegate’s decision.
[4]
Mr Fabbiano argues that the delay in notifying
him of the delegate’s decision constitutes an abuse of process. Further, he
alleges that the proceedings are abusive because they were commenced as a form
of reprisal for his refusal to act as an RCMP informant. He also claims that he
was treated unfairly, and that the delegate’s decision was unreasonable. He
asks me to stay the admissibility proceedings, or to quash the decision and
order another delegate to reconsider the question of his admissibility to Canada.
[5]
In my view, the delay in communicating the
delegate’s decision to Mr Fabbiano constitutes an abuse of process. The delay
prejudiced Mr Fabbiano and compromised the integrity of the administration of
justice. Accordingly, I must allow this application for judicial review and
stay the admissibility proceedings against Mr Fabbiano. It is unnecessary to
address the other issues Mr Fabbiano raised.
II.
The Delegate’s Decision
[6]
The Minister’s delegate relied entirely on the
reasoning presented in the reports of the CBSA officer and the senior analyst.
[7]
In her August 2008 report, the officer reviewed
Mr Fabbiano’s personal history, his family circumstances, his letters of
reference, and the criminal activities of the Hells Angels. Most importantly, the
officer relied on the evidence of four law enforcement agents who stated that
Mr Fabbiano was a member of the Hells Angels. Based on that evidence, she
recommended that Mr Fabbiano be referred for an admissibility hearing because he
was a member of a criminal organization. On January 19, 2009, the senior
analyst agreed, citing much of the same information, and requested that the
matter be forwarded to a delegate of the Minister for a final decision. The
next day, the delegate decided to refer Mr Fabbiano’s file for an admissibility
hearing. As mentioned, Mr Fabbiano received the decision in 2013.
III.
Has there been an abuse of process?
A.
What is an abuse of process?
[8]
Abuse of process is a common law principle permitting
courts to stop proceedings that have become unfair or oppressive. This includes
situations where there has been an unacceptable delay resulting in significant
prejudice (Blencoe v British Columbia (Human Rights Commission),
[2000] 2 S.C.R. 307, at para 101). A key question is whether the delay “impairs a party’s ability to answer the complaint” (at
para 102). Alternatively, a court can provide a remedy where the proceedings
have become oppressive for other reasons including, for example, where the
person carried on with his life reasonably believing that no further action
would be taken against him (Ratzclaff v British Columbia (Medical Services
Commission) (1996), BCJ No 36 (BCCA) (QL), at para 23).
[9]
A stay of proceedings for an abuse of process is
an extraordinary remedy reserved for the clearest cases of prejudice. To grant that
remedy, “the court must be satisfied that, ‘the damage to
the public interest in the fairness of the administrative process should the
proceeding go ahead would exceed the harm to the public interest in the
enforcement of the legislation if the proceedings were halted’” (Blencoe
at para 120, citing Brown and Evans, Judicial Review of Administrative
Action in Canada (Toronto: Canvasback, 1998) at 9-68).
[10]
Whether delay justifies a stay of proceedings
depends on all of the circumstances, including the purpose and nature of the
case, its complexity, the facts and issues involved, and whether the affected
person contributed to or waived the delay (Blencoe, at para 122). The
test is whether the delay caused “actual prejudice of
such magnitude that the public’s sense of decency and fairness is affected”
(at para 133). There are three steps in considering whether a stay should be
imposed:
1.
There must be prejudice to the person’s right to
a fair trial or the integrity of the justice system.
2.
There must be no adequate alternative remedy.
3.
If there is uncertainty after steps 1 and 2, the
court must balance the interests favouring a stay (eg, denouncing
misconduct or preserving the integrity of the justice system) against the
public interest in having a decision on the merits (R v Babos, 2014 SCC
16, at para 32).
B.
The basis for Mr Fabbiano’s claim of an abuse of
process
[11]
Here, Mr Fabbiano’s claim of an abuse of process
stems from his contention that he should have been given a chance to update his
submissions prior to the Minister’s delegate’s decision, and that the delay in
communicating the decision to him (from 2009 to 2013) caused him significant
harm. In fact, between 2006 and 2013, he heard nothing about the possibility
that he might be inadmissible to Canada.
[12]
In response, the respondents say that there was
no duty to give Mr Fabbiano another chance to make submissions. Further, they
maintain that there were good reasons for the delay and that Mr Fabbiano has
not been prejudiced. The importance of protecting Canadians from members of
criminal organizations, they say, outweighs any inconvenience to Mr Fabbiano.
Mr Fabbiano can present any evidence he wishes to rely on at the admissibility
hearing, so any past inability to make submissions can be cured there.
C.
The relevant factors
(1)
The purpose and nature of the case, and its
complexity
[13]
The purpose of the proceedings involving Mr
Fabbiano was to take steps towards his removal from Canada based on his alleged
membership in a criminal organization. For a person such as Mr Fabbiano, who
has lived in Canada for more than 50 years and has raised a family here, these
proceedings obviously involve potentially drastic consequences for him and his
relatives. Similarly, from the perspective of the public interest, membership
in a criminal organization, while not in itself a crime, is clearly a serious
matter, evidenced by the grave immigration consequences that can ensue. Both of
these purposes suggest that a high degree of care should be taken in arriving
at a decision affecting a person in Mr Fabbiano’s circumstances.
[14]
At the same time, however, in this case, the
proceedings themselves are not particularly complicated. The evidence
supporting the allegation that Mr Fabbiano was a member of the Hells Angels had
to be balanced with the factors in Mr Fabbiano’s favour, including humanitarian
and compassionate (H&C) considerations. Both the CBSA officer and the
senior analyst reviewed this evidence in the space of a few pages.
(2)
The facts and issues at stake
[15]
The role of the Minister’s delegate is to consider
the evidence relevant to admissibility, and to exercise his or her discretion
in the circumstances, which may include H&C factors (Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, at para 31).
The latter are more significant in cases involving persons, like Mr Fabbiano,
who are long-term permanent residents of Canada. According to departmental
guidelines, a delegate should consider the person’s age, the duration of his or
her residence in Canada, family circumstances, conditions in the person’s
country of origin, the degree of the person’s establishment in Canada, the
person’s criminal history, and his or her attitude (see Citizenship and
Immigration Canada, “ENF 6 - Review of reports
under A44(1)” at 19.2).
[16]
As mentioned, there was evidence before the
delegate showing that Mr Fabbiano was associated with the Hells Angels. In
particular, according to some members of the RCMP, Mr Fabbiano had been a
member of the Hells Angels since 1992 and had been seen on numerous occasions
wearing Hells Angels “colours”. In fact, Mr Fabbiano acknowledged to the RCMP
that he was a member. However, there was no evidence that Mr Fabbiano actually furthered
any criminal activities of the Hells Angels.
[17]
There was also evidence about Mr Fabbiano’s
personal circumstances. In his 2007 submissions, he presented a number of
H&C grounds in his favour:
- He has lived
almost his entire life in Canada, having visited Italy only once when he was 13 years old. He has little or no family in Italy.
- He does not
speak Italian, and would have trouble finding employment in Italy.
- He has four
Canadian-born children, two of whom live with him and his common-law
spouse.
- He has been
steadily employed as a carpenter since 1975, and also runs a small glass
business.
- He has only one
criminal conviction for which he served a one-year sentence while living
at home.
- He has
work-related hearing loss and injuries to his hands.
- His spouse and
one son are both status First Nations members, who would lose their
connection with their heritage if they moved with him to Italy.
- His daughters
both have serious medical challenges, including depression, which would be
aggravated by their father’s deportation.
- His removal from
Canada would have a seriously adverse impact on his remaining family
members, including his elderly parents who would not be able to visit him
in Italy.
[18]
Some of this evidence was cited in the reports
of the officer and senior analyst, but there is no indication there that
H&C factors were actually taken into consideration. The sole relevant issue
appeared to be whether Mr Fabbiano was a member of the Hells Angels.
(3)
Whether the affected person contributed to or
waived the delay
[19]
There is no suggestion here that Mr Fabbiano
either contributed to the delay or waived it.
[20]
The respondents give two reasons for the delay.
First, they were trying to find a witness from the RCMP to testify at Mr
Fabbiano’s hearing. This person was identified in the summer of 2009. Second,
officials were preoccupied with the arrival on Canada’s west coast of the MV
Ocean Lady and the MV Sun Sea in October 2009 and the summer of 2010
respectively. None of this delay, of course, could be attributed to Mr
Fabbiano.
[21]
The respondents also point out that Mr Fabbiano
did not make inquiries about his situation or volunteer any additional
information after 2007.
[22]
It is clear, however, that the processing of Mr
Fabbiano’s file was completed in January 2009, before the arrival of the MV
Ocean Lady and the MV Sun Sea. There is no explanation for why Mr Fabbiano was
not informed of the decision on his admissibility until 2013.
D.
Was Mr. Fabbiano prejudiced by the delay?
[23]
The prejudice caused by the delay in dealing
with the issue of Mr Fabbiano’s admissibility to Canada takes two main forms.
(1)
Loss of opportunity to make further submissions
[24]
Since Mr Fabbiano heard nothing until 2013 about
his potential inadmissibility after having made submissions in 2007, he
reasonably believed that officials were no longer pursuing the issue, and was
obviously surprised when he received the 2013 decision. There was nothing that
would have suggested to him that he ought to file supplementary submissions.
This was not an application on his part, in respect of which he might have had
an obligation to inform the decision-maker of any additional information. He
was being pursued by the respondents.
[25]
In the circumstances, Mr Fabbiano could
reasonably have concluded that his submissions had been persuasive and that he
was no longer at risk of removal. Further, at the time the decision was
communicated to him, the information underlying it was nearly 7 years old.
Undoubtedly, the circumstances of his children and other family members would
have evolved during that time period, as would his own situation, including his
employment, health and, perhaps, his relationship, if any, with the Hells
Angels. In my view, issuing a decision in 2013 relating to his admissibility to
Canada based on information gathered in 2007 clearly prejudiced Mr Fabbiano.
(2)
Loss of opportunity to present H & C
evidence
[26]
As mentioned, the role of the delegate is to
weigh the evidence and, especially with respect to long-term permanent
residents, to take H&C factors into account. Mr Fabbiano provided
considerable evidence that would have been relevant to H&C considerations.
[27]
Once the Minister’s delegate had referred Mr
Fabbiano for an inadmissibility hearing, however, no consideration could be
given to H&C factors (s 45(d) IRPA). Further, Mr Fabbiano would not
have a right to appeal from a finding of inadmissibility and, therefore, could
not present any H&C evidence at an appeal (s 64 IRPA). Nor would Mr
Fabbiano be eligible for an independent assessment of H&C factors (ss 25,
25.1 IRPA).
[28]
Therefore, the sole opportunity Mr Fabbiano had
to make representations relating to H&C considerations occurred in 2007.
Even then, as mentioned above, there is no indication that the CBSA officer,
the Senior analyst, or the Minister’s delegate gave any serious attention to Mr
Fabbiano’s personal circumstances.
[29]
Accordingly, the delay in dealing with Mr
Fabbiano’s admissibility resulted in his inability to present evidence to
counter his removal from Canada. If his case goes to an admissibility hearing,
the issuance of a removal order will be inevitable, and he will have no further
remedies available to him (see Hernandez v Canada (Minister of Citizenship
and Immigration), 2005 FCJ No 533, at para 47). Clearly, the delay has
prejudiced him.
E.
Has there been an abuse of process?
[30]
In my view, the circumstances described above
amount to an abuse of process based both on unfairness and a breach of the
integrity of our system of justice. The harm to the public interest in allowing
the proceedings to continue would be greater than the harm caused by halting
them now.
IV.
Should a stay be imposed?
[31]
In my view, Mr Fabbiano’s entitlement to a fair
hearing has been infringed by delay. He has lost the opportunity to present
relevant evidence.
[32]
In turn, the integrity of our justice system has
been compromised as a result. As things stand, a long-term permanent resident,
with a minor criminal conviction 15 years ago, will be removed from Canada, and separated from his family, without proper consideration of the pertinent
evidence. The delay shows that officials were not concerned that Mr Fabbiano’s
presence in Canada posed a risk to Canadians.
[33]
Further, there is no adequate alternative remedy
in the circumstances. The delay has not only created unfairness and infringed
on the integrity of our justice system, it has occasioned serious personal and
psychological harm to Mr Fabbiano and his family. The only possible alternative
remedy would be to remit the matter back to the delegate to carry out a proper
analysis of the evidence. However, that recourse would only add significant
further delay, psychological stress, and costs.
[34]
Therefore, in my view, the interests favouring a
stay of proceedings far outweigh the public interest in proceeding to an
admissibility hearing where the outcome is a foregone conclusion, without there
having been any serious consideration of the personal circumstances of a
long-term permanent resident of Canada and his family.
V.
Conclusion and Disposition
[35]
The delay in dealing with the question of Mr
Fabbiano’s possible inadmissibility to Canada was oppressive and occasioned an
abuse of process. I must, therefore, allow this application and order that the inadmissibility
proceedings relating to Mr Fabbiano be permanently stayed. Any submissions
relating to a question of general importance should be filed within 10 days of
this judgment.
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