Date: 20070130
Docket: A-500-05
Citation: 2007 FCA 24
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
MALONE
J.A.
BETWEEN:
SUKHVIR SINGH KHOSA
Appellant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
I have read in draft the reasons for judgment of
my colleague Madam Justice Desjardins. I am unable, with respect, to come to
the same conclusions. To avoid repetition, I make mine, her recital of the
facts in the early part of her reasons.
The
Applicable Standard of Review
[2]
I respectfully disagree with my colleague that
the standard of review should be patent unreasonableness. An examination of
recent Supreme Court of Canada rulings on humanitarian and compassionate (H
& C) decisions leads me to conclude that the standard should be
reasonableness.
[3]
In Baker v. Canada, [1999] 2. S.C.R. 817, the Supreme Court of Canada held that applications
involving discretionary decisions made on humanitarian and compassionate
grounds, for exemptions to the requirement that applications for immigration
should be made abroad, are to be reviewed on the standard of reasonableness.
[4]
While I appreciate that Baker dealt with
a different provision of the Immigration Act as it then stood, (s.
114(2) of R.S.C., 1985, c.I-2), the Court was nevertheless addressing directly
the issue of standard of review of H & C decisions. And even though the
Court in Baker recognized that most of the Pushpanathan factors
pointed to a greater degree of deference, it concluded that the appropriate
standard of review was reasonableness. This was done, as I see it, on the basis
that the decision related “…directly to the rights and interests of an
individual in relation to the government, rather than balancing the interests
of various constituencies or mediating between them” (at paragraph 60).
Earlier, at paragraph 15, L’Heureux-Dubé J. had expressed the view that in
practice an H & C decision determines whether a person who has been in Canada will be required to leave a place
where he or she has become established. Such a decision, she goes on to say, is
“… an important decision that affects in a fundamental manner the future of
individuals’ lives”.
[5]
In Dr. Q. v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of
Canada, at paragraph 32, stated that “… a piece of legislation or a statutory
provision that essentially seeks to resolve disputes or determine rights
between two parties will demand less deference”. Dr. Q. places
importance on the “judicial paradigm involving a pure lis inter partes
determined largely by the facts before the tribunal” that may exist when a
tribunal exercises its powers. The paradigm exists in this case with the Board
hearing testimony, weighing evidence, and applying legal tests to determine
whether it will exercise its relief granting power under the Act.
[6]
In Chieu v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 84, at paragraph 26, the Supreme Court
found that in appeals under s. 70(1)(b) of the former Immigration Act
which granted some persons the right to appeal removal orders made against them
“on the ground that, having regard to all the circumstances of the case, the
person should not be removed from Canada”, the Board “is not involved in a
managing or supervisory function, but in adjudicating the rights of individuals
vis-à-vis the state”, a factor which weighs in favour of a less deferential
standard of review. Later in the reasons, at paragraph 90, the Court cites Grewal
v. Canada (Minister of Employment and Immigration), [1989] I.A.D.D. No. 22
(QL), where the Board held that such a discretionary decision involves “the
exercising of a special or extraordinary power which must be applied
objectively, dispassionately and in a bona fide manner after carefully
considering relevant factors” (p. 2). The standard of patent unreasonableness which
requires that “the result must almost border on the absurd” (Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
[2004] 1 S.C.R. 609, at paragraph 18), is hardly reconcilable with the exercise
of that special or extraordinary power.
[7]
The situation, here, is different from that in Suresh
v. Canada
(Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3. The Minister’s decision to issue “ a danger to the security of
Canada” opinion was at stake and it was found to be reviewable under the patent
unreasonableness standard notwithstanding the fact that it relates to human
rights and engages fundamental human interests (at paragraph 32). The special
expertise of the Minister in matters of national security was a turning point
in the Court’s decision (see paragraph 31).
[8]
Furthermore, in the case at bar, the central
issue, as noted by the applications judge, is the application by the Board of
the “possibility of rehabilitation” factor, the second of the seven factors
listed by the Board in Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.D.D. No. 4 and endorsed by the Supreme Court of
Canada in Chieu at paragraphs 40, 41 and 90.
[9]
Rehabilitation is a criminal law concept with
respect to which the Board cannot be said to have particular expertise. While
the Board may come to a different conclusion from that reached by criminal
courts on the basis of intervening events or new evidence such as the testimony
of the offender before the Board, the Board should as a minimum pay deference
to the findings of the criminal courts, i.e. it should explain why it is that
rehabilitation has ceased to be a possibility.
[10]
Deference to the criminal courts is rooted in
the complexity of the task required in assessing the danger to the public that
a particular offender represents. In the same way that provincial courts of
appeal will show deference to the sentencing decisions made by trial judges,
the IAD should be wary of questioning findings made by criminal courts on
matters that fall squarely within their realm of expertise. In this regard,
comments made by the Ontario Court of Appeal in R. v. Archer, [2005]
O.J. No. 4348 (QL) at paragraph 171 are apt:
“ …Deference is rooted in no small measure
in the trial judge's primary role in the administration of criminal justice and
in his or her close connection to the community where the offences occurred. As
was said in R. v . M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at para. 91:
A sentencing judge also possesses the unique qualifications
of experience and judgment from having served on the front lines of our
criminal justice system. Perhaps most importantly, the sentencing judge will
normally preside near or within the community which has suffered the
consequences of the offender's crime. As such, the sentencing judge will
have a strong sense of the particular blend of sentencing goals that will be
"just and appropriate" for the protection of that community. The
determination of a just and appropriate sentence is a delicate art which attempts
to balance carefully the societal goals of sentencing against the moral
blameworthiness of the offender and the circumstances of the offence, while at
the same time taking into account the needs and current conditions of and in
the community.
[Emphasis added]
[11]
In cases where, as suggested earlier in
paragraph 9, a Board may question a finding of rehabilitation made by a
provincial criminal court, the Board should, at a minimum, take into
consideration the factors generally associated with the criminal law concept of
rehabilitation. In the case at bar this would include the absence of a criminal
record (other than the one at issue), the absence of previous convictions for
dangerous driving, the response to community supervision and the recent history
of the offender, including the upgrading of his education and his work record.
On rehabilitation factors in criminal law, see R. v. J.S.M. [2006] B.C.R.
No. 1947 (C.A.) R. v. Laverty, [1991] B.C.R. No. 3862 (C.A.); or more generally see Clayton C.
Ruby, Sentencing, 6th ed. (Markham: LexisNexis Canada, 2004)
at pages 214 (youth as a mitigating circumstance), 286 (conduct of
the defence), 315 (absence of criminal record and first offenders), 336
(assessing the record), 651 (youth offences), 879-886 (criminal negligence
causing death).
[12]
I have therefore reached the view that the
standard of review is reasonableness, essentially because the decision is not
protected by a full privative clause, is not a polycentric one, relates to
human interests and does not, in so far as the possibility of rehabilitation
factor is concerned, engage the Board’s expertise.
[13]
In coming to this conclusion, I am comforted by
the following statement by Major J., for the majority, in Voice
Construction Ltd., at paragraph 18:
18. Dr. Q, supra, confirmed that when determining the
standard of review for the decision of an administrative tribunal, the
intention of the legislature governs (subject to the constitutional role of the
courts remaining paramount — i.e., upholding the rule of law). Where
little or no deference is directed by the legislature, the tribunal’s decision
must be correct. Where considerable deference is directed, the test of
patent unreasonableness applies. No single factor is determinative of
that test. A decision of a specialized tribunal empowered by a
policy-laden statute, where the nature of the question falls squarely within
its relative expertise and where that decision is protected by a full privative
clause, demonstrates circumstances calling for the patent unreasonableness
standard. By its nature, the application of patent unreasonableness
will be rare. A definition of patently unreasonable is difficult,
but it may be said that the result must almost border on the absurd. Between
correctness and patent unreasonableness, where the legislature intends some
deference to be given to the tribunal’s decision, the appropriate standard will
be reasonableness. In every case, the ultimate determination of
the applicable standard of review requires a weighing of all pertinent factors:
see Pushpanathan, supra, at para. 27.
[Emphasis added]
[14]
Since the applications judge applied the wrong
standard of review, it is my duty, on appeal, to review the Board’s decision on
the correct standard of review, that is, on the standard of reasonableness (see
Dr. Q., at paragraph 43).
Application
of the Reasonableness Standard
[15]
The Board examined the possibility of
rehabilitation factor in express terms at paragraph 15 of its reasons and
indirectly at paragraph 23. These paragraphs read:
15. In looking to the second of the
Ribic factors, I have considered the appellant's expressions of remorse for his
involvement in the offence, the possibility of the appellant's rehabilitation
and the likelihood of re-offence. It is troublesome to the panel that the
appellant continues to deny that his participation in a "street-race"
led to the disastrous consequences. In my view, his continued denial at hearing
of the extent of his culpability reflects a lack of insight into his conduct.
At the same time, I am mindful of the appellant's show of relative remorse at
this hearing for his excessive speed in a public roadway and note the trial
judge's finding of this remorse as reflected in the court documents. This show
of remorse is a positive factor going to the exercise of special relief.
However, I do not see it as a compelling feature of the case in light of the
limited nature of the appellant's admissions at this hearing. His continued
denial that he was involved in a race with another vehicle and that it was this
conduct, rather than speed coupled with a tire breakdown, that led to Ms.
Thorpe's death, is not to his credit. While the appellant takes responsibility
for his excessive speed, he does not acknowledge or take responsibility for his
specific reckless conduct, involving, as it does, street-racing on a public
roadway.
23. Counsel
for the appellant made lengthy submissions contending that it is not the
function of the Division to mete out further punishment to this appellant for
his offence. Counsel is entirely correct that it would be inappropriate for the
panel to take that role upon itself. The criminal justice system has spoken
with respect to the appellant's guilt and handed down a sentence consistent
with principles of sentencing in Canada. The role of
the Division is distinct and separate from the criminal courts. This is an
application for discretionary relief. Domestic immigration legislation provides
that a removal order may be made as against permanent residents who are
inadmissible on the grounds of serious criminality. When an appeal is taken
from a removal order, the Division must look at all the circumstances in any
given case, weigh the various factors both supportive and non-supportive of
special relief and reach a determination. Counsel for the appellant urges the
panel to conclude the appellant is not a danger to the Canadian public and, on
that basis, find in the appellant's favour. While noting the trial judge's
conclusions with respect to likelihood of re-offence and the absence of a prior
criminal record, the fact is that, given the failure of the appellant to
acknowledge his conduct and accept responsibility for his reckless behaviour,
particularly street-racing with another vehicle on a public roadway, there is
insufficient evidence upon which I can make a determination that the appellant
does not represent a present risk to the public. Even were I to do so, in
balancing all the relevant factors, I determine the scale does not tip in the
appellant's favour and decline to exercise favourable discretion in all the
circumstances of this case.
[16]
It strikes me that the Board, in paragraph 15,
sets out from the start what it proposes to do, that is consider “the
appellant’s expressions of remorse for his involvement in the offence, the
possibility of the appellant’s rehabilitation and the likelihood of
re-offence”. However, it devotes the totality of its following analysis to the
remorse issue, does not say a word about rehabilitation and re-offence and, in
the following paragraph, “moves on to review other relevant circumstances in
this case”. In other words the Board fails to do in full the exercise that it
is mandated to do and which it itself stated it would be doing.
[17]
It also strikes me that when the Board, in
paragraph 23, comes back indirectly to the rehabilitation factor, it merely
acknowledges the findings of the British Columbia courts in that regard, which are favourable to the appellant, and
does not explain why it comes to the contrary conclusion that the
rehabilitation factor militates against the appellant. The whole of the
evidence with respect to the conduct of the appellant after his sentencing
undisputedly strengthens the findings of the criminal courts. Yet, the Board
ignores that evidence and those findings.
[18]
It clearly appears from the transcripts of the
hearing that the presiding member – who wrote the majority decision – and
counsel for the Crown, had some kind of fixation with the fact that the offence
was related to street-racing, to such a point that the hearing time and time
again was transformed into a quasi-criminal trial, if not into a new criminal
trial. The appellant was confronted by, and confused with, questions pertaining
to legal definitions, such as that of criminal intent and criminal negligence,
with respect to which he did not have of course, nor could he have been
expected to have, any knowledge. Questions were also put to him which were
obvious attempts to revisit and correct findings made by the British Columbia courts. It was as if the
Board, or at least its presiding member, disagreed with the criminal sentence
imposed on the appellant and saw in the H & C decision an opportunity to
redress the situation.
[19]
Needless to say, it is not the role of the Board
to second-guess decisions of the criminal courts. The words I used in a
slightly different context in Canada (Minister of Public Safety and Emergency Preparedness v. Cha 2006 FCA 126 are quite applicable to this case:
40. “… It is simply not open to the
Minister’s delegate to indirectly or collaterally go beyond the actual
conviction.”
[20]
In the end, this decision is an unreasonable one,
a decision, to use the words of Iacobucci J. in Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph
56,
“… that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination.”
[21]
In the circumstances, I need not address the
other issues raised by the appellant.
Disposition
[22]
For these reasons I have
formed the opinion that the decision of the Board should be set aside.
[23]
I would allow the appeal,
set aside the decision of the applications judge, allow the application for
judicial review, set aside the decision of the Board and send the matter back
to the Board for reconsideration by a differently constituted panel.
[24]
With respect to the
two questions certified,
(i)
Is the appropriate
standard of review for a decision of the Immigration Appeal Division, denying
special relief on humanitarian and compassionate considerations pursuant to
paragraph 67(1) of the IRPA, one of patent unreasonableness?
(ii)
In the event that
the answer to question number (i) is the affirmative, was it patently
unreasonable for the Immigration Appeal Division to have denied special relief,
where the person to be removed for serious criminality had not been
incarcerated for the crimes in issue?
[25]
I would answer the
first one in the negative and state that the appropriate standard of review is
that of reasonableness. Even though I do not need to answer the second question
because of the way it is framed, I will say that whatever the standard
applicable, the certification of questions of that nature should not be
encouraged because at the end of the day they invite this Court to transform
into legal principles what is nothing more than the consideration of a given
factor in given circumstances.
“Robert
Décary”
“I
agree.
B. Malone J.A.”
DESJARDINS
J.A. (Dissenting
Reasons)
[26]
This is an
appeal of a decision rendered by Lutfy C.J. dismissing the application for
judicial review of the appellant with regard to a decision of the Immigration
Appeal Division of the Immigration Refugee Board (IAD). The IAD declined to
exercise the discretionary jurisdiction provided by paragraph 67(1)(c)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act) to grant special relief on humanitarian and compassionate considerations
from a removal order issued pursuant to paragraph 36(1)(a) of the Act,
which reads:
|
Serious criminality
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;
[…]
|
Grande criminalité
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;
[…]
|
[27]
The power of the IAD to grant special relief pursuant to paragraph
67(1)(c) of the Act reads:
|
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.
[Emphasis
added.]
|
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.
[Je
souligne.]
|
[28]
The
appellant, Mr. Khosa, a permanent resident of Canada, was born in India in 1982. He immigrated to Canada with his parents in 1996 at
the age of fourteen. Both he and another accused, Bahadur Singh Bhalru, were
convicted of criminal negligence causing death contrary to section 220(b)
of the Criminal Code, R.S.C. 1985, c. C-46, as a result of their
participation in an automobile race during the evening of November 13, 2000.
The incident occurred along Marine
Drive in Vancouver. It ended with the death of
an innocent pedestrian who was struck by the appellant’s vehicle. The appellant
and Mr. Bhalru received a conditional sentence of two years less a day with
various conditions attached. The appellant appealed his conviction and
sentence. Both appeals were dismissed.
[29]
Mr. Khosa
was declared inadmissible for serious criminality pursuant to paragraph 36(1)(a)
of the Act and was ordered to be removed from Canada by the Immigration Division (A.B. vol.
1, p. 000394). He appealed his removal order. He did not challenge the
validity of his removal order but rather sought special relief on the basis of
humanitarian and compassionate considerations. The majority of the IAD
dismissed his appeal.
[30]
The
applications judge dismissed the application for judicial review and certified
the following two questions:
(i)
Is the appropriate standard of review for a decision of the Immigration
Appeal Division, denying special relief on humanitarian and compassionate considerations
pursuant to paragraph 67(1) of the IRPA, one of patent unreasonableness?
(ii)
In the event that the answer to question number (i) is the affirmative,
was it patently unreasonable for the Immigration Appeal Division to have denied
special relief, where the person to be removed for serious criminality had not
been incarcerated for the crimes in issue?
ISSUES
[31]
This
appeal raises three issues, namely:
1) Whether the
appropriate standard of review of a decision of the IAD, denying special relief
on humanitarian and compassionate considerations pursuant to paragraph 67(1)(c)
of the Act, is one of patent unreasonableness;
2) whether
the standard of review was properly applied by the applications judge in
reviewing the decision of the IAD;
3) in the
event that the answer to question (1) is in the affirmative, whether it was
patently unreasonable for the Immigration Appeal Division to have denied
special relief where the person to be removed for serious criminality had not
been incarcerated for the crimes in issue.
(1) THE STANDARD OF REVIEW OF A DECISION OF THE IAD
[32]
In Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
the Supreme Court of Canada appears to have deviated from its long standing
practice of determining, through the pragmatic and functional analysis, the
standard of review applicable to a decision of the IAD on a deportation order.
The Supreme Court proceeded rather in accordance with paragraph 18.1(4)(d)
of the Federal Courts Act, R.S.C. 1985, c. F-7. In Sketchley v.
Canada (Attorney General), 2005 FCA 404, this Court discussed the decision
of the Supreme Court of Canada in Mugesera and concluded, at paragraph
67, that it is nevertheless wise to apply the pragmatic and functional analysis
until the Supreme Court of Canada provides a clear direction not to do so.
[33]
The overall aim of the pragmatic and functional analysis is to discern
the legislative intent. Four contextual factors must be considered in order to
determine the degree of deference owed to the decision being reviewed. These
factors are: (1) the presence or absence of a privative clause or statutory
right of appeal; (2) the expertise of the tribunal relative to that of the
reviewing court on the issue in question; (3) the purpose of the legislation
and the provision in particular, and (4) the nature of the question.
[34]
I find, on the first factor, that the leave and the certification
clauses (subsection 72(1) and paragraph 74(d) respectively of the Act),
which lie somewhere between a privative clause and a statutory right of appeal
but are neither, are not in themselves helpful in ascertaining the level of
deference owed to the IAD decision.
[35]
The second factor requires the consideration of three elements: (1) the
expertise of the tribunal in question; (2) the Court’s expertise relative to
that of the tribunal; and (3) the nature of the specific issue before the
administrative decision-maker in relation to this expertise: see Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at
paragraph 33.
[36]
In Pushpanathan, the Supreme Court of Canada stated, with respect
to the Convention Refugee Determination Division’s expertise, that “[t]he
expertise of the Board is in accurately evaluating whether the criteria for
refugee status have been met and, in particular, in assessing the nature of the
risk of persecution faced by the applicant if returned to his or her country of
origin” (at paragraph 47). It can be said, in the case at bar, that the
expertise of the IAD lies in accurately evaluating whether the criteria for an
exemption on compassionate and humanitarian considerations have been met. This
is the type of determination that the IAD is regularly called upon to make. The
inquiry is highly fact-based and contextual and “involves a considerable
appreciation of the facts of that person’s case, and is not one which involves
the application or interpretation of definitive legal rules”: see Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817 at paragraph 61. On this basis, I find that the IAD’s expertise lies in
matters of fact-finding.
[37]
The
Federal Court has greater expertise than the IAD on questions of law. It does
not, however, have greater expertise than the IAD on questions of fact. The IAD
is in a better position than the Court to appreciate and weigh the evidence and
to make findings on credibility and trustworthiness. Here, the IAD was called
upon to consider, in light of the circumstances of the case, the factors
developed in Ribic v. Canada (Minister of Employment and Immigration),
[1985] I.A.D.D. No. 4 (QL), subsequently confirmed by the Supreme Court of
Canada in Chieu v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 84, in order to determine whether it should exercise its
discretion to grant an exemption on compassionate and humanitarian
considerations having regard to the appellant’s inadmissibility for serious
criminality. These are factors that the IAD itself has developed and has been
applying for over fifteen years (Chieu at paragraph 41).
[38]
The third factor, the purpose of the legislation, reflects the intent of
Parliament to grant to the IAD a broad discretion to allow permanent residents
facing removal orders to remain in Canada if it would be
equitable to do so: Chieu at paragraph 66. The fact, however, that the
matter to be decided is not polycentric, since it relates directly to the
rights and interests of an individual in relation to the government rather than
the balancing of interest of various constituencies, may diminish the expected
deference.
[39]
Finally, the question of whether an individual is entitled to an
exemption on compassionate and humanitarian considerations is a question of
mixed fact and law, which relates to the application of a legal test to the
facts of the case. Questions of fact and questions of mixed fact and law are
entitled to a high level of deference.
[40]
Considering that the second and the fourth factors (expertise and nature
of the question, respectively) weigh in favour of a high level of deference and
that the third factor (purpose of the legislation) gives a wide discretion to
the IAD, I conclude that the appropriate standard is that of patent
unreasonableness.
[41]
The
applications judge did not err in reaching that conclusion. The parties have
not disputed it.
(2) WAS THE ABOVE STANDARD OF REVIEW PROPERLY APPLIED BY
THE APPLICATIONS JUDGE IN REVIEWING THE DECISION OF THE IAD?
The decision of the
IAD
[42]
The majority of the IAD considered all of the testimonial and
documentary evidence and applied each of the Ribic factors. It gave
significant weight to the fact that the appellant, while having expressed
remorse, continued to deny that he participated in a street race. The majority
of the IAD was of the view that this attitude on the part of the appellant revealed
that he lacked insight into his conduct. Although his show of remorse was a
positive factor going to the exercise of special relief, the majority of the
IAD determined that it was not a compelling feature in light of the limited
nature of the appellant’s admission at the hearing. The majority of the IAD
concluded at paragraphs 23 and 24 of its reasons:
[23]...
Counsel for the appellant urges the panel to conclude the appellant is not a
danger to the Canadian public and, on that basis, find in the appellant’s
favour. While noting the trial judge’s conclusion with respect to likelihood of
re-offence and the absence of a prior criminal record, the fact is that, given
the failure of the appellant to acknowledge his conduct and accept
responsibility for his reckless behaviour, particular street-racing with
another vehicle on a public roadway, there is insufficient evidence upon which
I can make a determination that the appellant does not represent a present risk
to the public. Even were I to do so, in balancing all the relevant factors, I
determine the scale does not tip in the appellant’s favour and decline to
exercise favourable discretion in all the circumstances of this case.
[24]...
I have considered the viability of a stay of execution of the removal order in
the circumstances of this case. In looking to all relevant factors, including
the appellant’s circumstances and his family circumstances, however, I conclude
special relief by way of a stay is not warranted in the facts of this case. The
appellant’s failure to acknowledge or take responsibility for his specific
reckless conduct does not suggest that any purpose would be served by staying
the present removal order.
[43]
The dissent was prepared to grant a stay of the removal order for a
period of three years.
The appellant’s
contentions
[44]
The appellant says the majority opinion is patently unreasonable. The
members of the majority disputed the findings of fact of the criminal courts
without having the benefit of a thoughtful process. They gave excessive weight
to some of what the British Columbia courts said and no
weight to other parts of their reasons for judgment. In particular, the
majority of the IAD placed great emphasis on the appellant’s apparent denial
that he was involved in a street race. They completely ignored the fact that
Mr. Khosa had extreme remorse and also that he was, as described by the
criminal courts, in a “spontaneous race” with clear limits, such as his always
stopping at a red light. Also, says the appellant, the majority members showed
total disregard for the appellant’s testimony about the family farm in India and drew
unreasonable conclusions from his testimony.
ANALYSIS
The remorse and the
street racing
[45]
The appellant testified before the IAD through the aid of an interpreter
but did not testify before the criminal courts.
[46]
On the issue of remorse, during his testimony before the IAD, the
appellant apologized to the family members of the deceased pedestrian for what
had happened. The trial judge in the criminal proceedings, madam Justice Loo,
found that “by his actions immediately after learning of Ms. Thorpe’s death and
since the accident, that he [the appellant] has expressed remorse” (A.B. vol.1,
p. 000386-000387) . This was noted by the B.C. Court of Appeal which also
commented favourably on Mr. Khosa’s prospect for rehabilitation.
[47]
On the issue of racing, the appellant acknowledged before the IAD that
he was “speeding” and that his “driving behaviour was exceptionally dangerous”.
He did not admit however that he was racing (paragraphs 10 and 11 of the
reasons for judgment of the applications judge). The B.C. Court of Appeal
stated that “at trial, Loo J. found that Mr. Khosa and Mr. Bhalru engaged their
Camaros in a street race along Marine Drive at speeds in excess of 100 kilometers
per hour” (A.B. vol. 1, p. 000266, para. 6). The B.C. Court of Appeal also
stated that “Loo J. characterized the contest between Mr. Khosa and Mr. Bhalru
as a ‘spontaneous street race’” and that “she distinguished this from the more
deliberate and organized industrial races in which ‘committed street racers’
might participate” (A.B. vol.1, p. 000266, para. 10).
[48]
The IAD referred to the two elements of remorse and street racing in its
analysis of the Ribic test. The
majority wrote, at paragraph 15:
[15] In looking to the second of the Ribic factors, I
have considered the appellant's expressions of remorse for his involvement in
the offence, the possibility of the appellant's rehabilitation and the
likelihood of re-offence. It is troublesome to the panel that the appellant
continues to deny that his participation in a "street-race" led to
the disastrous consequences. In my view, his continued denial at hearing of the
extent of his culpability reflects a lack of insight into his conduct. At the
same time, I am mindful of the appellant's show of relative remorse at this
hearing for his excessive speed in a public roadway and note the trial judge's
finding of this remorse as reflected in the court documents. This show of
remorse is a positive factor going to the exercise of special relief. However,
I do not see it as a compelling feature of the case in light of the limited
nature of the appellant's admissions at this hearing. His continued denial that
he was involved in a race with another vehicle and that it was this conduct,
rather than speed coupled with a tire breakdown, that led to Ms. Thorpe's
death, is not to his credit. While the appellant takes responsibility for his
excessive speed, he does not acknowledge or take responsibility for his
specific reckless conduct, involving, as it does, street-racing on a public
roadway.
[49]
The majority of the IAD gave significant weight to the street racing. It
characterized the appellant’s remorse as a “relative remorse” whereas the
dissenting member assigned less weight to his denial and focused on the fact
that the race was spontaneous, unplanned and of short-duration.
[50]
The applications judge carefully reviewed the statements of the
appellant before the IAD and the findings of the British Columbia criminal
courts on the issue of remorse and street racing. He explained, at paragraph
36, that the majority of the IAD “chose to place greater weight on his denial
that he participated in a ‘race’ than others might have”. The applications
judge explained that, unlike the criminal courts, the IAD had the opportunity
to assess Mr. Khosa’s testimony. He concluded that the IAD’s assessment was not
patently unreasonable (paragraphs 36, 37 and 39 of the applications judge’s
reasons for judgment). What he said is the following:
[36] After careful
consideration of the record, I am satisfied that the majority members took into
consideration the relevant evidence, including the findings of the criminal
courts on the issues of "the race" and remorse. In assessing Mr.
Khosa's expression of remorse, they chose to place greater weight on his denial
that he participated in a "race" than others might have. The IAD
conclusion on the issue of remorse appears to differ from that of the criminal
courts. The IAD, however, unlike the criminal courts, had the opportunity to
assess Mr. Khosa's testimony.
[37] The three-person panel
of the IAD, in this case all triers of fact, heard the same testimony and
reviewed the same record. Their assessments differ, particularly on the issue
of remorse. In the end, on all of the Ribic factors, this Court is being asked
to weigh anew the evidence before the IAD. This is not the proper role for a
court of judicial review.
[…]
[39] In summary, I have not
been able to conclude that the majority opinion is patently unreasonable or, in
the words of paragraph 18.1(4)(d) of the Federal Courts Act, one which was
based on an erroneous finding of fact "made in a perverse or capricious
manner or without regard for the material". Put simply, even if one were
more attracted to the minority opinion, the record in this case is such that it
would be legally wrong for the Court to set aside the majority decision.
[51]
The
applications judge made no reviewable error. The IAD, under
paragraph 67(1)(c) of the Act, is mandated to consider “all the
circumstances of the case”. The IAD, in the case at bar, did consider the
decisions of the criminal courts. But it had to make its own determination in
light of the statute to be applied. It conducted its own inquiry in order to
determine whether special relief should be granted. In doing so, it was called
upon to have regard to the objectives of the Act, as set out in subsection
3(1), including the objectives “to protect the health and safety of Canadians
and to maintain the security of Canadian society” (reasons and decision of the
IAD, A.B. vol. 1, p.000032). It had the opportunity to observe the appellant
during his testimony. This assessment of the IAD is distinct from the one made
by the criminal courts.
[52]
The
majority was obviously preoccupied with what they perceived as the lack of
responsibility shown by Mr. Khosa in denying what was a key finding in
the criminal courts, namely racing. They felt that in doing so, he did not
appreciate the full consequences of his conduct. The other rehabilitation
factors, namely “the likelihood of re-offence and the absence of a prior
criminal record” (paragraph 23 of the reasons of the IAD) were outweighed by
what they characterized as his “relative remorse” (paragraph 15 of the reasons
of the IAD).
[53]
This
finding of the majority is well within the domain of the IAD.
The family farm
[54]
The appellant’s second contention relates to the aggressive questioning
conducted by the presiding member of the IAD about the grandfather‘s family
farm in India and the alleged misconstruction of the evidence by the majority
members. The appellant claims that the presiding member failed to retain the
fact that following the death of the grandfather, a few days after the
appellant’s involvement in the car accident, the appellant’s father planned to
sell the family farm in India and return to Canada.
[55]
At paragraph 4 of its reasons for judgment, the majority summarized the
appellant’s testimony that the grandfather had passed away some two months
prior to the hearing and that his father was planning to sell the family farm
in India and return permanently to Canada with the
funds to establish a local business. The majority of the IAD also referred to
the fact that Mr. Khosa had a sister residing in India with her husband and
children and that they planned to immigrate to Canada in the
future. At paragraph 18, the majority referred to this earlier evidence “that,
given the recent death of the appellant’s grandfather, the appellant’s father
now wishes to sell the family property and move permanently to Canada”. The
majority again referred to the sister living in India and to
the fact that she and her husband planned to immigrate to Canada in the
near future. The members of the majority then concluded that “[p]resently,
it is clear there is immediate and extended family in India along
with family property, including a family home”. [My emphasis.]
[56]
The duty of the IAD is to assess all the circumstances of the case “at
the time that the appeal is disposed of” (paragraph 67(1)(a) of the
Act). The IAD mentioned the family’s future plans but appeared to also give
weight to the situation as it was at the time of the hearing. The weight the
majority view gave to one part of the appellant’s testimony by comparison to
the other, namely future plans with all their contingencies, is not for this
Court to reassess. It is now settled law that the Court must not second guess
the decisions of the IAD with respect to the weight assigned to the various
factors it has to consider.
[57]
The
appellant’s second contention was not addressed by the applications judge who
made a determination only on what he characterized as the “principal
submission” made by Mr. Khosa, namely the race and the remorse issue (paragraph
33 of the applications judge’s reasons for judgment).
CONCLUSION
[58]
In a
recent decision, Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and
Oceans), 2006
FCA 31 at paragraph 14 (leave to the Supreme Court of Canada dismissed), this
Court stated, with respect to its role on appeal of a decision of the Federal
Court on a judicial review application:
However, in more recent
cases, the Supreme Court has adopted the view that the appellate court steps
into the shoes of the subordinate court in reviewing a tribunal's decision.
[…] The appellate court determines the correct standard of review and then
decides whether the standard of review was applied correctly. […] In practical
terms, this means that the appellate court itself reviews the tribunal
decision on the correct standard of review.
[My
emphasis.]
The applications judge applied the correct standard of
review. He made no reviewable error in concluding that the IAD’s decision was
not patently unreasonable. The intervention of this Court is not warranted.
(3) IN THE EVENT THAT THE ANSWER TO QUESTION (1) IS IN
THE AFFIRMATIVE, WAS IT PATENTLY UNREASONABLE FOR THE IMMIGRATION APPEAL
DIVISION TO HAVE DENIED SPECIAL RELIEF WHERE THE PERSON TO BE REMOVED FOR SERIOUS
CRIMINALITY HAD NOT BEEN INCARCERATED FOR THE CRIMES IN ISSUE?
[59]
In concluding, the applications judge noted that while the appellant had
not been incarcerated, the removal order was nevertheless maintained.
[60]
The fact that the person to be removed on account of serious criminality
has not been incarcerated for the crimes in issue is not determinative. A
conditional sentence constitutes imprisonment. The sentence is served in the
community rather than in prison: R. v. Proulx, [2000] 1 S.C.R. 61 at paragraphs
20-21; R. v. Wu, [2003] 3 S.C.R. 530 at paragraph 3.
CONCLUSION
[61]
I would
therefore dismiss this appeal and would answer the two certified questions as
follows:
(i)
Is the appropriate standard of review for
a decision of the Immigration Appeal Division, denying special relief on
humanitarian and compassionate considerations pursuant to paragraph 67(1) of
the IRPA, one of patent unreasonableness? Yes.
(ii)
In the event that the answer to question number (i) is the
affirmative, was it patently unreasonable for the Immigration Appeal Division
to have denied special relief, where the person to be removed for serious
criminality had not been incarcerated for the crimes in issue? No
“Alice Desjardins”
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