Docket: IMM-4486-16
Citation:
2017 FC 512
[ENGLISH TRANSLATION]
Montréal, Quebec, May 18, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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SELCUK EZICI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Based on the Federal Court of Appeal’s unanimous
judgment written by Justice Gilles Létourneau in Jayasekara v Canada
(Citizenship and Immigration), 2008 FCA 404, is the crime in this case
serious and does it justify applying the exclusion clause?
[48] It is not disputed that
trafficking in narcotics and psychotropic substances can entail both human and
economic consequences for society. As the evidence reveals, drug trafficking is
treated as a serious crime across the international spectrum. In their book on The
Refugee in International Law, 3rd ed., Oxford University Press, 2007, at
page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view
to promoting consistent decisions “proposed that, in the absence of any
political factors, a presumption of serious crime might be considered as raised
by evidence of commission of any of the following offences: homicide, rape,
child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis
added).
[49] In accordance with the three
United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic
Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971
Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988
Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, E/Conf. 82/15, signatory nations are required to coordinate
preventive and repressive action against drug trafficking, including the
imposition of penal provisions as necessary. The choice of penal provisions
remains at the discretion of the Member State and may exceed those provided by
the Conventions if the Member States deem them desirable or necessary for the
protection of public health and welfare.
[50] As reflected by the penal
provisions enacted, most signatory states define and treat drug trafficking as
a serious crime. In contrast to mere possession, drug trafficking is usually
punishable by a period of incarceration. In this country, the sentence imposed
for a drug trafficking offence carries a maximum time of 18 months for a
summary conviction and up to a maximum of life imprisonment for an indictable
offence depending on the substance trafficked: see the Controlled Drugs and
Substances Act, S.C. 1996, c. 19, s. 5.
See also Williams
v Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646 (FCA),
by Justice Barry L. Strayer, at para 29.
II.
Nature of the case
[2]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c. 27 [IRPA] of a notice issued by a delegate of the Minister on September 22,
2016, whereby the applicant constitutes a danger to the public in Canada within
the meaning of paragraph 115(2)(a) of the IRPA.
III.
Facts
[3]
The applicant, age 41, is a Turkish citizen. He
arrived in Canada on June 13, 2000, and claimed refugee status. He was granted
refugee status on March 31, 2001, and permanent residency on February 15, 2002.
[4]
In 2008, the applicant was charged with assault
with a weapon and threats in a context of domestic violence, charges of which
he was acquitted.
[5]
On November 29, 2011, the applicant was arrested
for heroin trafficking. He was released with conditions, including the
restriction of cellphone use to work contexts only, which was amended in 2012.
[6]
On June 18, 2013, during an arrest for a
violation of the Highway Safety Code, the applicant was also arrested
and charged once again for heroin trafficking and breach of conditions.
[7]
On January 29, 2015, the applicant pleaded
guilty to the charges of heroin trafficking for the period from October to
November 2011, as well as to the charges of breach of conditions. In total, he
was sentenced to concurrent five-year prison sentences.
[8]
On September 24, 2015, a deportation order was
made against the applicant by the Immigration Division, which found that he was
inadmissible under paragraph 36(1)(a) of the IRPA.
[9]
On May 12, 2016, the applicant received a copy
of the Minister’s notice from the Canada Border Services Agency. The applicant
filed submissions in response on June 15, 2016.
IV.
Decision
[10]
On September 22, 2016, the Minister’s delegate
found that the applicant constituted a danger to the public in Canada under
paragraph 115(2)(a) of the IRPA and that he could be removed to Turkey.
[11]
First, the delegate said he was satisfied that
the applicant was inadmissible to Canada for serious criminality under
paragraph 36(1)(a) of the IRPA, a finding based on the convictions on
January 29, 2015, for possession of substances for the purpose of trafficking
and the concurrent five-year prison sentences that were imposed on the
applicant.
[12]
Next, the delegate assessed the danger that the
applicant might represent to the public in Canada. He considered the
circumstances surrounding the offences, as well as the respondent’s submissions
to determine whether there was sufficient evidence to establish that the
applicant is a potential re-offender whose presence in Canada would create an
unacceptable risk to the public (La v Canada (Minister of Citizenship and
Immigration), 2003 FCT 476; Williams v Canada (Minister of Citizenship
and Immigration), [1997] 2 FC 646, [1997] FCJ No 393 (QL)).
[13]
Upon reading his file, the delegated stressed
that the applicant had committed a heroin trafficking repeat offence while he
was released with conditions while awaiting his trial. The delegate also noted that the offences committed by the
applicant were serious and that the use of heroin wreaked havoc on society. He
then weighed the information in the Statistical Information on Recidivism
report dated March 27, 2015, the Parole Board of Canada’s [PBC] decision dated
December 3, 2015, and the Criminal Profile report dated April 13, 2015, giving
more weight to the latter report, as it was more substantiated. Finally, the
delegate was concerned by the lack of a rehabilitation plan, a concrete plan
for job searching upon his release from the correctional environment, or true
support from relatives or friends. The delegate found that the applicant
represents a danger to the public in Canada:
[translation]
Based on the evidence available to me, which
shows that Mr. Ezici’s criminal activities were both serious and dangerous to
the public, in addition to the lack of evidence showing rehabilitation, as well
as a risk of recidivism, as previously demonstrated, means that, on the balance
of probabilities, I am satisfied that Mr. Ezici represents a risk to the public
in Canada, both now and in the future.
(Reasons for Decision by the Minister’s
delegate, at page 9).
[14]
Having determined that the applicant represented
a danger to the public in Canada, in accordance with paragraph 115(2)(a)
of the IRPA, the delegate then relied on section 7 of the Canadian Charter
of Rights and Freedoms [Charter], based on the teachings of the Supreme
Court in Suresh v Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1. He then analyzed the risk to which the applicant
would be exposed if he were to be removed to Turkey. Assessing the risks that
the applicant would face as an Alevi (Shiite) in Turkey, the delegate believed
that the evidence submitted did not lead to the conclusion that the applicant
would be threatened with persecution: although the Alevis face some amount of
discrimination in Turkey, that discrimination is neither systematic nor
sanctioned by the State. Furthermore, the delegate pointed out that the
applicant’s statements in 2015 referred to his yearly visits to Turkey. On the
balance of probabilities, the delegate determined that the applicant would not
personally face a risk to his life, freedom, or safety if he was removed from
Canada.
[15]
The delegate finally reviewed the humanitarian
and compassionate considerations raised by the applicant. He believed that the
applicant did not provide any documentary evidence in support of his family
ties in Canada— highlighting that his parents and sisters lived in Turkey—of
his deep roots in society, and immeasurable difficulties that his departure
from Canada would cause him. The delegate considered that the best interests of
the child directly affected by the decision had not been demonstrated: no
evidence was submitted to prove the relationship between the applicant and his
child, the child’s Canadian citizenship, that child’s custody by the applicant,
the relationship of dependence or the financial and emotional support that the
applicant provided to that child.
[16]
The delegate therefore concluded that the need
to protect Canadian society took precedence over the potential risks to which
the applicant might be exposed were he to be removed to Turkey, under paragraph
115(2)(a) of the IRPA. The delegate felt that, on a balance of
probabilities, removing the applicant would not shock the conscience of
Canadians and that his removal would not violate his rights set out in section
7 of the Charter. Furthermore, the evidence shows that the applicant
periodically returned to Turkey after obtaining refugee status.
V.
Issues
[17]
The Court summarizes the reasons raised by the
applicant in support of his application for judicial review as follows:
1.
The delegate’s findings regarding the assessment
of the danger that the applicant represents in Canada are unreasonable;
2.
The delegate failed in his duty of procedural
fairness by not giving sufficient reasons for his decision regarding a key
piece of evidence in the case;
3.
The delegate’s findings about the risks that the
applicant would face if he was removed to Turkey are unreasonable;
4.
The delegate’s review of the humanitarian and
compassionate considerations regarding the discrimination of the Alevis in
Turkey is unreasonable.
[18]
The issue of procedural fairness is subject to
the correctness standard (Canada (Citizenship and Immigration) v Khosa,
[2009] 1 S.C.R. 339, 2009 SCC 12; Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62 [Newfoundland
Nurses]).
[19]
The decision by the Minister’s delegate to issue
a notice in accordance with paragraph 115(2)(a) of the IRPA—in
particular, his findings about the danger, his assessment of the risk to the
applicant, as well as the review of the humanitarian and compassionate
considerations—which raises questions of fact and mixed questions of fact and
law, is subject to the reasonableness standard (Nagalingam v Canada
(Citizenship and Immigration), 2008 FCA 153 at para 32; Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at para 47 [Dunsmuir]).
VI.
Relevant provisions
[20]
Paragraph 36(1)(a) of the IRPA provides
inadmissibility for serious criminality.
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36 (1)
A permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
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36 (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
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(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;
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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;
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[21]
Paragraph 115(2)(a) of the IRPA provides
the exception to the principle of non-refoulement:
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Protection
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Principe
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115 (1)
A protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
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115 (1) Ne peut être renvoyée dans un
pays où elle risque la persécution du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques, la torture ou des traitements ou peines cruels et inusités, la
personne protégée ou la personne dont il est statué que la qualité de réfugié
lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
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Exceptions
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Exclusion
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(2) Subsection (1) does not apply in the case of a person
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(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire
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(a) who is inadmissible on grounds of serious criminality and who
constitutes, in the opinion of the Minister, a danger to the public in
Canada; or
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a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
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(b) who is inadmissible on grounds of security, violating human or
international rights or organized criminality if, in the opinion of the
Minister, the person should not be allowed to remain in Canada on the basis
of the nature and severity of acts committed or of danger to the security of
Canada.
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b) pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux ou criminalité organisée si, selon le ministre, il ne devrait
pas être présent au Canada en raison soit de la nature et de la gravité de
ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
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VII.
Analysis
[22]
For the following reasons, the application for
judicial review is dismissed.
A.
The danger that the applicant represents to
society in Canada
[23]
The applicant challenges the notice issued by
the Minister’s delegate regarding his level of dangerousness. On the one hand,
the delegate’s decision is allegedly unreasonable because he was supposedly
selective in selecting the evidence. The delegate allegedly erred in
considering that the indictable offences committed in 2011 and then in 2013
were not isolated acts that indicated a risk of recidivism, even though the
applicant did not have a criminalized lifestyle before those events. Moreover,
the delegate was allegedly selective regarding the evidence, retaining only
negative aspects about the applicant. In this case, he allegedly did not cite
the passages from the PBC’s decision where the Board granted the applicant day
parole because he did not represent an unacceptable risk to society during that
period. The delegate allegedly cited the applicant’s Criminal Profile report
dated April 13, 2015, giving significant weight to the passage about his risk
of recidivism, but completely glossing over another passage that described the
applicant as someone with compliant behaviour and who is respectful of
authority figures, has a positive attitude toward caseworkers, and medium level
of motivation. No explanation was reportedly provided by the delegate to
dismiss those passages that are relevant in determining the applicant’s
recidivism potential.
[24]
On the other hand, the delegate allegedly erred
and failed in his duty of procedural fairness by giving sufficient reasons for
his decision regarding the key element of the case, which was a decision by the
PBC dated December 3, 2015. The delegate therefore allegedly ignored a passage
from the most recent decision in the applicant’s file, where the PBC found that
he had a low risk of recidivism, and another passage where the PBC referred to
the applicant’s progress and awareness. Thus, the delegate allegedly dismissed
the evidence from a reliable and objective source, without mentioning the
reasons that he dissociated from them.
[25]
The respondent argues that the delegate’s
findings about the applicant’s recidivism potential are reasonable. The
delegate was reportedly not selective in assessing the evidence, noting the
applicant’s arguments, and reviewing the available documents on file. The
delegate apparently considered and commented on the positive aspects of the
applicant’s file, but by all accounts, did not deem them to be decisive.
Furthermore, the delegate reportedly largely considered the PBC’s decision,
which deemed that full parole was not advisable due to the risks to protecting
society and which qualified the applicant’s risk of recidivism as moderate. In
order to determine the danger that the applicant represented, the delegate was
free to give significant weight to the fact that the applicant had re-offended
in 2013 (heroin trafficking), had breached his release conditions, and that
there was no rehabilitation plan. The delegate’s decision was therefore one of
the possible, acceptable outcomes that can be justified in respect of the facts
and law.
[26]
As for the insufficient reasons referred to by
the applicant, the respondent argues that the applicant instead disagrees with
the delegate’s findings and that the reasonableness standard should apply to
the delegate’s decision (Newfoundland Nurses, at paras 21–22).
[27]
First, the Court concurs with the respondent’s
arguments regarding the insufficient reasons raised by the applicant, and finds
that the reasonableness standard applies, in accordance with Newfoundland
Nurses:
[21] … As Professor Philip Bryden has
warned, “courts must be careful not to confuse a finding that a tribunal’s
reasoning process is inadequately revealed with disagreement over the
conclusions reached by the tribunal on the evidence before it” (“Standards of
Review and Sufficiency of Reasons: Some Practical Considerations” (2006), 19
C.J.A.L.P. 191, at p. 217; see also Grant Huscroft, “The Duty of Fairness: From
Nicholson to Baker and Beyond”, in Colleen M. Flood and Lorne Sossin, eds., Administrative
Law in Context (2008), 115, at p. 136).
[28]
In fact, on reading the decision, the Court
notes that the delegate reviewed the various reports that were submitted and
that his decision is based on the evidence as a whole. The mere fact that the
delegate based his findings on reasons outside the PBC’s report dated December
3, 2015, and that he arrived an outcome that contradicted the applicant’s
submissions, does not constitute an error. In this respect, the decision
satisfies the correctness standard.
[29]
Second, the Court considers that the Minister’s
delegate did not commit any reviewable errors and that the decision made is
reasonable. As pointed out by the respondent, the delegate was free to give a
certain weight to the context of the indictable offences alleged of the
applicant. Furthermore, the delegate referred to positive passages for the
applicant that were contained in the reports on file; he simply did not give
them as much weight as the applicant would have wanted. This does not
constitute an error and does not justify the Court’s intervention.
B.
Risk to the applicant in Turkey
[30]
The applicant argues that the delegate’s
findings that he will not personally face risks to his life, freedom, or safety
are unreasonable. He maintains that the delegate dismissed evidence submitted
by the applicant without valid reasons. He rejected documents reporting on acts
of violence against the Alevis in Turkey, as well as the lack of state
protection, preferring a document from the UK Home Office that described
those acts of violence against the Alevis as isolated incidents.
[31]
The respondent argues that the delegate cited
sources submitted by the applicant in his Reasons and that he recognized that
the Alevis were victims of discrimination in Turkey. Nevertheless, the delegate
reportedly considered all the evidence and drew conclusions that differed from
those of the applicant: the discrimination against the Alevis in Turkey is not
systematic, it is not sanctioned by the State, and it is not so widespread as
to be persecution. The delegate was also free to give importance to the fact
that the applicant returned to Turkey every year.
[32]
On reading the decision and the evidence
available to it in the record, the Court notes that no errors requiring its intervention
were made by the delegate. Of course, the delegate had a different
interpretation of the evidence than the applicant. Nevertheless, that is
insufficient to make the decision unreasonable. The delegate correctly found
that the objective documentary evidence did not lead to the conclusion that
there was systematic discrimination or persecution of the Alevis in Turkey, and
that he gave some weight to the fact that applicant visited Turkey every year.
Consequently, in this respect, the delegate’s decision is one of the possible
and acceptable outcomes that can be justified in respect of the facts and law.
C.
Humanitarian and compassionate considerations:
Discrimination against the Alevis in Turkey
[33]
The applicant argues that the delegate’s
analysis of the humanitarian and compassionate considerations is unreasonable,
as it is incomplete because it does not take into account the discrimination to
which the Alevis are subject in Turkey in that section. Thus, the delegate
allegedly did not take into account the difficulties that the applicant, as an
Alevi, would face if he had to return to Turkey.
[34]
The respondent argues that the delegate dealt
with the discrimination experienced by the Alevis in Turkey, but that he shaded
the gravity thereof, noting a peaceful co-existence between the Alevis and
other communities in the country. These considerations would be insufficient to
offset the danger that the applicant represents to the public in Canada.
[35]
The Court considers that the delegate considered
the humanitarian and compassionate considerations raised by the applicant. The
delegate found that the Alevis’ situation in Turkey did not constitute a
humanitarian and compassionate consideration to offset the danger that the
applicant represents to the public in Canada. Contrary to the applicant’s
claims, this finding is not vitiated by any error requiring the Court’s
intervention. The applicant has not shown, on a balance of probabilities, that
he would face difficulties in being subject to persecution as an Alevi in Turkey.
The delegate analyzed the evidence available to him and made a justified,
transparent, and intelligible decision (Dunsmuir, above, at para 47).
VIII.
Conclusion
[36]
The application for judicial review is
dismissed.
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