Docket: A-100-16
Citation:
2017 FCA 68
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CORAM:
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WEBB J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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MARCO ANTONIO
CHUNG
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Appellant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
In this appeal, Mr. Chung seeks to set aside the
November 30, 2015 judgment of the Federal Court in Chung v. Canada (Minister
of Citizenship and Immigration), 2015 FC 1329, 261 A.C.W.S. (3d) 687 [Chung
FC], dismissing Mr. Chung’s application for judicial review of the January 28,
2015 decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada (the IAD) in Chung v. Canada (Public Safety and Emergency
Preparedness), IAD File No. VB3-02012 (available on CanLII) [Chung IAD].
In that decision, the IAD dismissed Mr. Chung’s application for humanitarian
and compassionate (H&C) relief under sections 67 and 68 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), finding there were
insufficient grounds to allow the appeal or stay the deportation order made
against Mr. Chung. In coming to its decision, the IAD considered the factors
laid out in Ribic v. Canada (Minister of Employment & Immigration), [1985]
I.A.B.D. No. 4 at para. 14, 1986 CarswellNat 1357 [Ribic], which include
the possibility of rehabilitation. In finding there to have been a low possibility
of Mr. Chung’s rehabilitation, the IAD relied in part on its factual
determination that Mr. Chung exhibited no remorse for his most recent crimes
because he maintained he was innocent of them.
[2]
Mr. Chung alleges that in so finding the IAD
committed a reviewable error as he asserts that it is improper for the IAD to treat
as a negative or aggravating factor the fact that an individual maintains that
he or she is innocent of the crimes that form the basis for the deportation
order under the IRPA. In support of this argument, Mr. Chung draws an analogy
to the well-developed principle in the sentencing context that prohibits a
criminal court from considering as an aggravating factor in setting a sentence the
fact that an accused pled not guilty and maintains his or her innocence.
[3]
The Federal Court dismissed this argument,
holding that the IAD did not err in its treatment of the remorse issue and that
its decision on other aspects of Mr. Chung’s appeal was reasonable. The Federal
Court certified the following question under section 74 of the IRPA:
Does the Immigration
Appeal Division of the Immigration and Refugee Board, in the exercise of its
humanitarian jurisdiction, err in law in considering adverse to an appellant
lack of remorse for an offence for which the appellant has pled not guilty but
was convicted?
[4]
For the reasons that follow I would answer this
question in the negative and would dismiss this appeal.
I.
Background
[5]
The relevant facts are summarized at length in
the reasons of the IAD and the Federal Court, and, for purposes of this
decision, it is only necessary for me to highlight the most salient of them.
[6]
Mr. Chung is a Chilean national with a criminal
record that includes convictions for drug trafficking, attempted theft and
fraud. A deportation order was issued against him in 1997 following two separate
convictions for possession of cocaine for the purposes of trafficking. In 1999,
the IAD granted Mr. Chung a stay of this deportation order. Mr. Chung committed
no further crimes between 1997 and 2006, and in 2006 the IAD quashed the deportation
order.
[7]
In 2008, Mr. Chung pled guilty to a charge of fraud
and in 2011, following a trial, was convicted a third time of possession of
cocaine for the purposes of trafficking. He was sentenced to 15 months
imprisonment. A new deportation order was issued against him on August 26, 2013,
and Mr. Chung appealed this second order to the IAD. In support of his
application for H&C relief, Mr. Chung relied on his lengthy establishment
and work history in Canada as well as his relationship with his common-law
partner and his two adult children in Canada and their families, including a
newborn grandson.
[8]
At his hearing before the IAD, Mr. Chung alleged
he had committed neither fraud nor the third instance of cocaine trafficking. He
claimed that the police had lied during his trafficking trial and that he pled
guilty to the fraud charge as a matter of convenience.
II.
Decisions of the IAD and of the Federal Court
[9]
The IAD commenced its decision by enumerating
the factors it ought to consider in assessing the appeal, which it held were outlined
in Ribic and later endorsed by the Supreme Court of Canada in Chieu
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para.
40, [2002] 1 S.C.R. 84 and Al Sagban v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 4 at para. 11, [2002] 1 S.C.R. 133. The IAD
noted that these factors included: the seriousness of the offence or offences
leading to the removal order; the possibility of rehabilitation; the length of
time the appellant has been in Canada and the degree to which the appellant is
established; the impact the appellant’s removal from Canada would have on
members of the appellant’s family; family in Canada and the dislocation to that
family that removal of the appellant would cause; the support available for the
appellant not only within the family but also within the community and the
degree of hardship that would be caused to the appellant by his return; and the
hardship the appellant would face in the country to which he would likely be
removed. While it appears that there may be some overlap or duplication in
these factors as listed, the existence of such overlap or duplication is not
the issue in this appeal.
[10]
The IAD then moved to discuss Mr. Chung’s
criminal record and the fact that he was sentenced to 15 months imprisonment
for the third trafficking offence, finding this offence was a serious one. The
IAD next considered the possibility of Mr. Chung’s rehabilitation, holding that his “lack of remorse and
acceptance of responsibility despite his conviction [was] not a positive
factor”. The IAD noted that while there were several years between Mr.
Chung’s earlier and more recent convictions, “considering
the combination of his prior criminal history for the same offence along with
his lack of acceptance of responsibility and minimal remorse” there was
little possibility of Mr. Chung’s rehabilitation, which was a “negative factor” in his appeal (Chung IAD at
paras. 10-13).
[11]
The IAD next considered the positive factors in
support of the appeal, including the supports in place that Mr. Chung alleged
would help him from re-offending, the degree of Mr. Chung’s establishment
in Canada, his relationship with his partner and family and the best interests
of his infant grandson. The IAD noted that in light of the grandson’s age,
there would be minimal impact on the child’s best interests if his grandfather
were deported.
[12]
After reviewing all the factors, the IAD
concluded that while the positive factors indicated there were some H&C
grounds to support a stay of the deportation order, they were “not sufficient to overcome the seriousness of [Mr. Chung’s]
offence and [his] lack of acceptance of responsibility or remorse which [affected]
the possibility of rehabilitation” (Chung IAD at para. 29). It
therefore dismissed the appeal.
[13]
In its review of this decision, the Federal
Court applied the correctness standard to the review of the IAD’s treatment of
the remorse issue, agreeing with Mr. Chung that this issue raises a “general principle of law, which should be interpreted
consistently across jurisdictions” (Chung FC at para. 15). The
Federal Court applied the reasonableness standard to the review of the balance
of the IAD’s decision.
[14]
On the merits, the Federal Court disagreed that
the IAD had considered Mr. Chung’s lack of remorse to be an aggravating factor
and instead found that it had focussed its discussion on the possibility of
rehabilitation. The Federal Court further found that the IAD was entitled to
consider the convictions as proof that Mr. Chung had committed the offences in
question and to find a poor likelihood of rehabilitation based in part on his
lack of remorse and acceptance of responsibility for the crimes. The Federal
Court then considered the other factors examined by the IAD and its overall
conclusion and determined that both were reasonable.
III.
Analysis
[15]
In this appeal, this Court is required to step
into the shoes of the Federal Court and determine whether it selected the
appropriate standards of review and whether it applied those standards
correctly: Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559.
[16]
Here, I believe the Federal Court erred in selecting
the correctness standard as being applicable to the assessment of the IAD’s
treatment of the remorse issue. That consideration was merely one point in its
analysis of whether Mr. Chung warranted H&C consideration under sections 67
and 68 of the IRPA and cannot be viewed in isolation from the rest of its
decision. It is firmly settled that the deferential reasonableness standard
applies to review of decisions like that made in the present case, which
involve an exercise of discretion by the IAD: Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paras. 52-59, [2009]
1 S.C.R. 339 [Khosa].
[17]
Moreover, the only potentially relevant
exception to the presumptive application of the reasonableness standard in this
case is the possible exception which mandates selection of the correctness
standard in those narrow situations when the point decided is one of general
importance to the legal system as a whole that falls outside the expertise of
the administrative decision-maker: Dunsmuir v. New Brunswick, 2008 SCC 9
at paras. 58-61, [2008] 1 S.C.R. 190; Alberta (Information and Privacy
Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30,
[2011] 3 S.C.R. 654; Canada (Human Rights Commission) v. Canada (Attorney
General), 2016 FCA 200 at para. 62, 402 D.L.R. (4th) 160. In the present
case, evaluation of Mr. Chung’s lack of remorse was connected to the IAD’s
assessment of his rehabilitative potential – a factor that is squarely within the
IAD’s expertise and a matter for it to consider under Ribic and the
other applicable authorities from the Supreme Court of Canada and this Court.
Thus, even if the IAD’s treatment of the remorse issue can be viewed in
isolation from the rest of the decision in Mr. Chung’s case, it is nonetheless
subject to review under the reasonableness standard.
[18]
I accordingly believe that the Federal Court
ought to have applied the reasonableness standard to its review of the entirety
of the IAD’s decision.
[19]
Turning to the merits of Mr. Chung’s arguments,
I agree with him that when the IAD’s reasons are fairly read, it must be viewed
as having treated Mr. Chung’s lack of remorse as an aggravating factor.
However, I disagree that it was not open to the IAD to do so.
[20]
The cases from the criminal context that are
relied upon by Mr. Chung – notably R. v. Proulx, 2000 SCC 5, [2000] 1
S.C.R. 61; R. v. Forsyth, 2003 CMAC 9 (available on CanLII); R. v.
Bremner, 2000 BCCA 345, 146 C.C.C. (3d) 59; R. v. Vickers, 105 B.C.A.C.
42 (available on CanLII) (BCCA); R. v. Alasti, 2011 BCSC 824, 95 W.C.B.
(2d) 218 [Alasti] – are inapplicable to Mr. Chung’s situation. There is
a significant difference between treatment of remorse in the context of a
criminal trial and treatment of remorse in an immigration proceeding, like that
conducted by the IAD under sections 67 and 68 of the IRPA. In a criminal trial,
the accused individual benefits from the presumption of innocence throughout
the proceeding: R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 10, 165
D.L.R. (4th) 193. Accordingly, a criminal court may not treat a plea of not
guilty and lack of remorse as an aggravating factor during sentencing as this
would undercut the presumption of innocence, as noted for example in Alasti
at paragraphs 25 to 30.
[21]
The presumption of innocence is inapplicable
outside the criminal context. Moreover, where, as here, the civil inquiry is
conducted after the criminal proceedings are completed, it is difficult to see
how the inquiry could have any bearing whatsoever on the presumption of
innocence.
[22]
In many situations similar to that before the
IAD, decision-makers have regard to an individual’s lack of remorse as an aggravating
factor. For example, lack of remorse and a continued failure to recognize guilt
is routinely viewed by the Parole Board as an aggravating factor, which is a practice
that has been endorsed by this Court in Ouellette v. Canada (Attorney
General), 2013 FCA 54 at paras. 30, 74-76 (available on CanLII). Similarly,
labour adjudicators consider as an aggravating factor in assessing an
appropriate penalty for employee workplace-related criminal conduct the
employee’s failure to accept responsibility for crimes for which he or she was
convicted: see, for example, Basra v. Deputy Head (Correctional Service of
Canada), 2014 PSLRB 28 at para. 71, 118 C.L.A.S. 171; Stene v. Deputy
Head (Correctional Service of Canada), 2016 PSLREB 36 at para. 151, 127
C.L.A.S. 223.
[23]
In many respects, this case is similar to Khosa.
There, the IAD held that statements made to it by Mr. Khosa, contesting the
validity of his conviction, were “not to his credit”.
However, it did not go so far as to identify Mr. Khosa’s claimed innocence as a
negative factor: Khosa v. Canada (Minister of Citizenship and Immigration),
[2004] I.A.D.D. No. 1268 at paras. 13-15, 2004 CarswellNat 6953 [Khosa
IAD]. The Supreme Court upheld the IAD’s treatment of this factor and its
assessment that Mr. Khosa did not warrant H&C consideration, finding the
decision to be reasonable.
[24]
The respondent concedes that the slightly
different treatment of the issue by the IAD in the present case renders the
question certified by the Federal Court appropriate as this case is not on all
fours with Khosa. While I agree that this is so, I believe that Khosa
is highly instructive and leads to the conclusion that it was open to the IAD
to treat Mr. Chung’s lack of remorse in the present case in the manner it did.
Thus, the principal argument advanced by Mr. Chung in this appeal fails.
[25]
In addition to the arguments related to the
certified question, Mr. Chung also contested the IAD’s treatment of the
positive factors in its decision.
[26]
Only one of the arguments advanced by Mr. Chung
in this regard has any possible merit. More specifically, I agree with him that
the IAD’s comment about his grandson was inappropriate as the young age of a
child ought not be a justification to separate a child from a family member. However,
this one comment does not warrant interfering with the IAD’s decision as there
was very little evidence before the IAD to support any real degree of
connection between Mr. Chung and the child or the likelihood that Mr. Chung
would be involved in any significant way in the child’s future. Indeed, when
questioned about this issue, the grandson’s father (Mr. Chung’s adult son) had
to be prompted by counsel to give an answer that was even moderately favorable
to Mr. Chung’s position (Appeal Book at page 103). Thus, the IAD’s conclusion
that the best interests of the grandson did not warrant granting the requested
stay was reasonable.
[27]
The other points raised by Mr. Chung have no merit
as the IAD did consider as positive his relationship with his family and
partner and did look at the factors that Mr. Chung claimed would help him to
avoid re-offending. It simply found the former insufficient to warrant the
relief Mr. Chung sought and the latter unconvincing. I see nothing unreasonable
in either assessment. Nor do I find the IAD’s rejection of the requested stay
unreasonable. The result reached was certainly open to the IAD, especially in
light of Mr. Chung’s record and lack of rehabilitative potential.
[28]
I would therefore dismiss this appeal and would answer
the certified question as follows:
Question : Does the Immigration Appeal Division of the Immigration and Refugee
Board, in the exercise of its humanitarian jurisdiction, err in law in
considering adverse to an appellant lack of remorse for an offence for which
the appellant has pled not guilty but was convicted?
Answer: No.
“Mary J.L. Gleason”
“I agree.
Wyman W. Webb J.A.”
“I agree.
A.F. Scott J.A.”
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