Date: 20160915

Docket: IMM-5765-15

Citation: 2016 FC 1044

[ENGLISH TRANSLATION]

Ottawa, Ontario, September 15, 2016

PRESENT: the Honourable Mr. Justice Gascon

JUDGMENT AND REASONS

I.                   Overview

[1]               The applicant, Oshalah Kamara Kidd, is a citizen of Jamaica. He is disputing a decision by a delegate of the Minister of Public Safety and Emergency Preparedness [the Minister’s delegate] dated November 4, 2015, to refer Mr. Kidd to an admissibility hearing before the Immigration Division [ID] of the Immigration and Refugee Board. The purpose of this hearing is to determine whether Mr. Kidd should be declared inadmissible on grounds of serious criminality under paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA].

[2]               Under this application for judicial review, Mr. Kidd is asking the Court to rescind the Minister’s delegate’s decision and order another representative of the Minister to re-examine his file. Mr. Kidd claims that the Minister’s delegate made three errors in deciding to refer his file for an admissibility hearing before the ID. First, he supposedly failed to adequately consider all the relevant factors, including the children’s best interests; second, he reportedly incorrectly based his conclusions on a police report of his most recent offences; and third, he apparently incorrectly equated a conditional sentence to be served in the community with a sentence of imprisonment within the meaning of paragraph 36(1)(a).

[3]               Therefore, Mr. Kidd’s application raises three questions: was the Minister’s delegate’s interpretation of the word "imprisonment" reasonable; was the decision to refer Mr. Kidd’s file for an admissibility hearing before the ID unreasonable due to failure to consider the relevant factors; and did the Minister’s delegate violate the principles of natural justice by basing his decision on the 2015 police report?

[4]               For the following reasons, Mr. Kidd’s application for judicial review must be dismissed. Having examined the evidence available to the Minister’s delegate and the applicable legislation, I see nothing that allows me to set aside the delegate’s decision. I cannot identify any error in the Minister’s delegate’s decision that would justify the Court’s intervention. In his decision, the Minister’s delegate considered the evidence, and his conclusions are justifiable based on the facts and law and clearly fall within the range of possible, acceptable outcomes under the circumstances. Furthermore, the application for judicial review does not raise any procedural fairness issues.

II.                Background

A.                The facts

[5]               Mr. Kidd arrived in Canada at the age of four and is now 31 years old. Since his arrival, he has never been back to Jamaica and has no contact with his family back in Jamaica. He has been married since 2013 and is the father of two children born in Canada.

[6]               Mr. Kidd has an extensive criminal record in Canada. In January 2003, he was sentenced to 18 months of probation for uttering counterfeit money and using counterfeit documents. He received a warning letter from the Canada Border Services Agency [CBSA] about these convictions. He was pardoned for them in 2009.

[7]               In November 2012, Mr. Kidd was convicted of dangerous driving, seven counts of fraud, obstructing a police officer and assault. In February 2013, Mr. Kidd was given a conditional sentence of 18 months in prison, which could be served in the community and included several conditions (including a fine, community service and a probation order).

[8]               In June 2013, Mr. Kidd was notified that, due to these convictions, an inadmissibility report under subsection 44(1) of the IRPA was issued for him under paragraph 36(1)(a) of the IRPA. CBSA invited Mr. Kidd to make submissions explaining why his file should not be referred for an admissibility hearing before the ID. In his written submissions, Mr. Kidd said he felt remorse and had taken steps to avoid reoffending. He said he was aware of the seriousness of the situation and understood that, were he to break the law again, he would probably be deported from Canada.

[9]               In February 2015, however, Mr. Kidd was once again charged with dangerous driving, driving a vehicle while prohibited and obstructing a police officer. He pleaded guilty to the charges and was sentenced to 87 days in prison to be served on weekends, a fine, 240 hours of community service, and 2 years’ probation without supervision. In May 2015, Mr. Kidd informed CBSA of these new charges and convictions.

[10]           In May 2015, due to the series of updates from Mr. Kidd since the June 2013 notification, a CBSA enforcement officer signed a report under subsection 44(1) of the IRPA recommending that Mr. Kidd be referred for an admissibility hearing for serious criminality under paragraph 36(1)(a). In November 2015, the Minister’s delegate confirmed his agreement with the officer’s recommendation.

B.                 The decisions under dispute

[11]           In the notes dated October 2015 taken by the Minister’s delegate as part of the decision, he says he agrees with the CBSA enforcement officer’s recommendation to [translation] "refer the subject, who is a long-term permanent resident" for an admissibility hearing for serious criminality in Canada. In his notes, the Minister’s delegate repeats Mr. Kidd’s personal information and mentions his record, including his new convictions in February 2015. He describes in detail the events that led to these latest charges.

[12]           On the report from the CBSA enforcement officer supporting the Minister’s delegate’s decision, the officer checked the box indicating that the Canadian authorities had already sent Mr. Kidd a warning letter in February 2003. Under Long-term permanent resident, the officer checked the boxes stating that Mr. Kidd became a permanent resident before the age of 18 and was a permanent resident for 10 years before being convicted of a reportable offence. The fact that Mr. Kidd is a long-term permanent resident is also mentioned in the officer’s comments and notes. The officer also checked the boxes indicating that Mr. Kidd has been found guilty of other criminal offences but is not involved in criminal activities or organized crime.

[13]           The officer added that Mr. Kidd said he has an [translation] "irrational fear of police authority, contributing to his exaggerated criminal behaviour, and wanted to work on managing his feelings and undergo therapy for this purpose." After taking into account [translation] "all new information on the changes in the subject’s personal situation and convictions," the officer maintained the recommendation to refer Mr. Kidd’s report because he reoffended and had known he had an inadmissibility report before he reoffended. According to the officer, Mr. Kidd needed to demonstrate that he had become a law-abiding citizen, but he still acquired recurrent convictions despite his precarious immigration situation and his full knowledge of the potential consequences. The officer also noted that the new convictions were of the same type as those indicated in the previous report, which was an aggravating factor in Mr. Kidd’s case.

C.                Standard of review

[14]           There is no doubt that the IRPA is one of the enabling statutes that the Minister’s delegate and CBSA are mandated to enforce and apply. However, since Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers], the Supreme Court of Canada has many times recalled that "when an administrative tribunal interprets or applies its home statute, there is a presumption that the standard of review applicable to its decision is reasonableness" (Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 at paragraph 32; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 at paragraph 25; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 at paragraph 17; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 at paragraph 28; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 at paragraph 35).

[15]           Of course, this presumption is not unchallengeable. It can be overruled and the standard of correctness can be applied, in the presence of one of the factors first set out by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir] at paragraphs 43–64 and recently reiterated in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 at paragraphs 46–48. Such is the case when a contextual analysis reveals a clear intent of Parliament not to protect the tribunal’s authority with respect to certain issues; when several courts have concurrent and non-exclusive jurisdiction on a point of law; when an issue raised is a general question of law that is of central importance to the legal system as a whole and outside the area of expertise of the specialized administrative tribunal; or when a constitutional question is at play.

[16]           It is clear that none of these scenarios exist here and that the presumption established by Alberta Teachers is therefore not rebutted in this case. The question of the interpretation of the word "imprisonment" raised by Mr. Kidd’s application is not among the limited range of questions for which Dunsmuir and its descendants indicate that the standard of correctness should be applied. The applicable standard of review is therefore that of reasonableness.

[17]           The same applies to weighing the different factors leading to the Minister’s delegate’s decision to refer the case for an admissibility hearing before the ID, since it is an issue of both facts and law central to the administrative tribunal’s expertise (Faci v. Canada (Public Safety and Emergency Preparedness), 2011 FC 693 [Faci] at paragraph 17). Once again, the standard of reasonableness applies.

[18]           Reasonableness is concerned mostly with the existence of "justification, transparency and intelligibility within the decision-making process." But it is also concerned with whether the decision falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir at paragraph 47). The reasons for a decision are considered to be reasonable "if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paragraph 16). In this context, the Court must show restraint toward the tribunal’s decision and cannot substitute its own reasons. Its mission is not to weigh the case’s evidence once again or to interfere with the tribunal’s conclusions of fact; instead, it should limit itself to determining whether a conclusion is irrational or arbitrary. However, it may, if necessary, look to the record for the purpose of assessing the reasonableness of the decision (Newfoundland Nurses at paragraph 15). That said, judicial review is not a "line-by-line treasure hunt for error" (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at paragraph 54).

[19]           The procedural fairness issue raised by Mr. Kidd’s application for review is to be determined on the basis of a correctness standard of review (Mission Institution v. Khela , 2014 SCC 24 at para. 79; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 43). That said, the question therefore is not so much whether the decision was “correct,” but rather whether the process followed by the decision-maker was fair (Majdalani v. Canada (Citizenship and Immigration), 2015 FC 294 at paragraph 15; Krishnamoorthy v. Canada (Citizenship and Immigration), 2011 FC 1342 at paragraph 13).

III.             Analysis

A.                The interpretation of the term "imprisonment" is reasonable

[20]           Mr. Kidd is criticizing the Minister’s delegate for incorrectly equating his conditional sentence with a sentence of imprisonment. He says that, since the convictions leading to the report on Mr. Kidd are punishable by a maximum prison sentence of less than 10 years, paragraph 36(1)(a) of the IRPA cannot apply to Mr. Kidd unless he is considered guilty of an offence under federal law for which "imprisonment" of more than six months is imposed. However, he says, the Supreme Court indicated that a "sentence of imprisonment" does not always refer to a "conditional sentence" and that it is important to consider the context (R v. Middleton, 2009 SCC 21 [Middleton] at paragraphs 14–16). Based on Middleton, Mr. Kidd claims that the Criminal Code contains several examples where the term "sentence of imprisonment" cannot include "conditional sentence."

[21]           Therefore, Mr. Kidd says that by equating his conditional sentence with a sentence of imprisonment within the meaning of paragraph 36(1)(a) of the IRPA, which lists the reasons why someone can be inadmissible for "serious criminality," the Minister’s delegate adopted an unreasonable interpretation. Mr. Kidd also says that equating a conditional sentence with a sentence of imprisonment within the meaning of paragraph 36(1)(a) of the IRPA would be absurd. People who are given conditional sentences are not considered "serious criminals" (R. v. Proulx, [2000] 1 SCR 61 [Proulx] at paragraph 21). People are given conditional sentences when there are mitigating circumstances and they are not considered a danger to the community. According to Mr. Kidd, interpreting the word "imprisonment" as including conditional sentences would mean that permanent residents meeting the conditions for conditional sentences would in fact be required to ask the courts for a sentence of imprisonment rather than a conditional sentence to be served in the community to avoid deportation.

[22]           I disagree with Mr. Kidd’s arguments.

[23]           The question raised by Mr. Kidd was recently resolved by the Federal Court of Appeal, which explicitly concluded in Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 [Tran] that a conditional sentence is still a sentence of imprisonment for the purposes of paragraph 36(1)(a) of the IRPA (Tran at paragraph 86). All of Mr. Kidd’s arguments concerning the contradictory, absurd consequences that the Minister’s delegate’s decision could lead to, as well as those concerning the teachings of Supreme Court decisions on imprisonment, were all considered and rejected by the Federal Court of Appeal in Tran. Although that decision was appealed before the Supreme Court, it represents the law that binds this Court. Therefore, I am required to conclude, as did the Federal Court of Appeal in Tran, that the Minister’s delegate’s interpretation that, for the purposes of paragraph 36(1)(a) of the IRPA, the term “imprisonment” includes sentences served in the community is entirely justifiable and reasonable.

[24]           In fact, Mr. Kidd himself recognized this when he said that Tran opens the possibility of another interpretation of this question being deemed reasonable. The fact that another interpretation of the provision may also be reasonable does not mean that the interpretation preferred by the Minister’s delegate was in any way unreasonable. The question is not whether another interpretation of the law could be reasonable, but whether the one used by the Minister’s delegate was reasonable.

[25]           I will add that the Minister’s delegate’s interpretation is entirely consistent with the objectives of the IRPA, which include prioritizing security and quickly removing permanent residents who have engaged in serious criminality (Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 [Medovarski] at paragraphs 9–11; Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 [Cha] at paragraph 24). I would also like to emphasize that the only interpretations that can be deemed absurd are those that defeat the purpose of the law or render an aspect of it pointless or futile (Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26 at paragraph 178; Medovarski at paragraphs 8 and 31). That is not the case here.

[26]           The Supreme Court has recognized that conditional sentences may be given even when there are aggravating circumstances, that they still retain some of the characteristics of sentences of imprisonment, that they are punitive, and that they are not more lenient punishments (Proulx at paragraphs 20–22 and 40–41).

[27]           As the Minister said in his submissions, and as the Federal Court of Appeal noted in Tran, the legislative history shows that Parliament considered excluding conditional sentences from the IRPA provision on individuals inadmissible for serious criminality, but that these options were ultimately rejected.

[28]           The question this Court must decide on is whether the Minister’s delegate’s decision was reasonable. This means that the role of this Court is not to re-examine the evidence available to the Minister’s delegate nor to replace his conclusions with its own. We must defer to the administrative tribunal’s interpretation, since this decision is part of its field of expertise. This Court therefore has a limited role, and in this case, this Court can rule on the interpretation of the term "imprisonment" only if the Minister’s delegate’s conclusion on this matter lacks justification, transparency or intelligibility or does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir paragraph 47). However, the case law and the contextual and purposive analyses all compel the conclusion that the Minister’s delegate’s interpretation is obviously among the range of reasonable outcomes. In these circumstances, the Court must not intervene.

B.                 The Minister’s delegate reasonably weighed the relevant factors

[29]           Mr. Kidd also claims that the Minister’s delegate failed to weigh the relevant factors when reviewing the report received under subsection 44(1) of the IRPA. Based primarily on Cha, Mr. Kidd claims that the Minister’s agents and delegates have discretionary power that varies depending on the circumstances of alleged inadmissibility. Since permanent residents have more rights, decision-makers have greater discretionary power as concerns them than as concerns foreign nationals (Cha at paragraph 22). It is therefore reasonable to believe that long-term permanent residents should enjoy a broader scope of discretionary power.

[30]           According to Mr. Kidd, the Citizenship and Immigration Canada guide ENF 6 – Review of reports under A44(1) [the Guide] has a specific section on handling the files of long-term residents like Mr. Kidd. Therefore, special attention should be paid to the files of long-term residents before their file is referred for an admissibility hearing before the ID to determine whether they should be declared inadmissible for serious criminality.

[31]           Mr. Kidd claims that the Minister’s delegate failed to weigh Mr. Kidd’s personal interests against the public interest. As recognized in case law (Faci at paragraph 18; Monge Monge v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 809 at paragraphs 15–16), the Minister’s delegate is required to sufficiently examine the relevant factors to decide whether or not to refer the case for an admissibility hearing, and therefore to weigh Mr. Kidd’s situation compared to the harm he inflicts upon Canadian society. Mr. Kidd says that in this case, the Minister’s delegate did not weigh the different factors. He claims that neither the reasoning nor the decision can be reasonable, since the Minister’s delegate did not truly weigh or evaluate the significant evidence to the contrary, simply listing it. For instance, Mr. Kidd says that the evaluation of the children’s best interests must be "alert, alive and sensitive to" this interest (Baker v. Canada (Minister of Citizenship and Immigration), [1992] 2 SCR 817 at paragraph 75). Mr. Kidd says that, while the Minister’s delegate took note of the children’s best interests, he did not evaluate or weigh them (Kolosovs v. Canada (Citizenship and Immigration), 2008 FC 165 at paragraph 11).

[32]           I do not share Mr. Kidd’s reading of the Minister’s delegate’s decision, and I am not convinced by his arguments. It is sufficient for the Minister’s delegate’s decision to be reasonable and to fall within a range of possible, acceptable outcomes to be upheld. I find that that is clearly the case here.

[33]           Although the Minister’s delegate has some discretion in whether to refer the case to the ID, this discretion is limited by the legislation. The Minister’s delegate’s decision is not required to include humanitarian considerations. Subsection 25(1) of the IRPA does not directly apply, and the fact that the children may be affected by the Minister’s delegate’s decision does not create a specific obligation or result (Cha at paragraph 38).

[34]           Moreover, while the Guide does contain a list of factors, this list is not exhaustive, and the Minister’s delegate is not required to consider any of the items specifically as part of the evidence. The Minister’s delegate therefore has discretionary power, and not an obligation, to consider the factors listed in the Guide (Faci at paragraph 63). Yet the decision itself shows that the Minister’s delegate considered all of the factors at play. In fact, nothing in the decision indicates or suggests that the Minister’s delegate failed to consider the relevant factors in his analysis.

[35]           In his October 2015 notes, the Minister’s delegate confirms that he considered all of the evidence, including the submissions sent by Mr. Kidd concerning his status as a long-term resident and the fact that he would not be allowed an appeal before the IAD. The decision-maker also noted several positive factors in Mr. Kidd’s favour, including that he is married and a father, that he has no family in Jamaica, that he takes care of his disabled mother, that he is a manager at a clothing store and a part-time student, and that he is involved in his religious community. However, as the Minister’s delegate noted, Mr. Kidd committed new offences in 2015 with full knowledge of the consequences of his actions and having received a warning letter. The offences threatened the lives of the public.

[36]           The Minister’s delegate must evaluate the applicant’s submissions in light of the known facts and their context. In Mr. Kidd’s case, the fact that the decision-maker gave weight to Mr. Kidd reoffending in 2015 and the specific events that occurred does not imply that factors were left out of his analysis or that his decision was unreasonable. Not only did Mr. Kidd have the opportunity to demonstrate why his case should not be referred, but he also had the opportunity to demonstrate that he had been rehabilitated since 2013, which he did not do, demonstrating instead an ongoing risk of reoffending.

[37]           Having reviewed the tribunal’s decision and docket, I am entirely unconvinced that the Minister’s delegate erred in weighing the relevant factors. No doubt Mr. Kidd would have wanted the outcome of the Minister’s delegate’s evaluation to be different, but this Court’s role is not to re-evaluate the evidence before the administrative tribunal or substitute another decision. It is sufficient for the decision to fall within a range of possible, acceptable outcomes.

[38]           I will add that this is not a situation where the reasoning supporting the decision cannot be evaluated. I do not share Mr. Kidd’s opinion that the Minister’s delegate simply listed the relevant factors without truly weighing them or ignored significant evidence. The CBSA officer’s notes quite clearly show that all the facts about Mr. Kidd were taken into consideration, both the positive factors favourable to Mr. Kidd and his reoffending.

[39]           The reasons for decision do not need to include all the arguments or submissions that the applicant or reviewing judge would have liked to see. The fact that a piece of evidence is not expressly dealt with in a decision does not render it unreasonable when there are sufficient grounds to assess the tribunal’s reasoning (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] FCJ No. 1425 [Cepeda-Gutierrez] at paragraph 16). An administrative tribunal is presumed to have weighed and examined all the evidence submitted to it, unless it is demonstrated not to have done so (Newfoundland Nurses at paragraph 16; Florea v. Canada (Employment and Immigration), [1993] FCJ No. 598 (FCA) at paragraph 1). It is only when a tribunal is silent on evidence clearly pointing to the opposite conclusion that the Court can intervene and infer that the tribunal overlooked the contradictory evidence when making its finding of fact (Cepeda-Gutierrez at paragraph 17). That is not the case here.

C.                There was no breach of the rules of natural justice

[40]           Lastly, Mr. Kidd is criticizing the Minister’s delegate for basing his conclusions on the police report on the February 2015 offences and taking for granted that the facts reported therein are reliable and accurate. Mr. Kidd said that the case law shows that police reports are not proof of criminal conduct, but simply documents recording the allegations of police (Tran v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1040 at paragraph 24; Younis v. Canada (Citizenship and Immigration), 2008 FC 944 at paragraph 55; Rajagopal v. Canada (Public Safety and Emergency Preparedness), 2007 FC 523 at paragraph 43). Furthermore, by basing his decision on the police report without giving Mr. Kidd the opportunity to respond, the Minister’s delegate apparently breached the rules of procedural fairness.

[41]           I do not share Mr. Kidd’s opinion; in fact, I find that there was no breach of the principles of procedural fairness in this case.

[42]           It is well established that procedural fairness does not always require all documents and reports the decision was based on to be provided. It is enough for the applicant to have sufficient knowledge of the reasons for the decision to present their version of the facts, correct errors as needed and participate fully in the decision-making process (Maghraoui v. Canada (Citizenship and Immigration), 2013 FC 883 at paragraph 22). In this case, Mr. Kidd clearly had knowledge of the police report on his last re-offence, and he was the one to inform CBSA of his most recent offences. Mr. Kidd cannot reasonably claim, as regards this police report, that he was unable to fully participate in the Canadian authorities’ decision-making process.

[43]           Additionally, the 2015 police report is in no way extrinsic evidence. It is evidence that Mr. Kidd certainly knew of from the disclosure of evidence in his criminal case. Furthermore, although Mr. Kidd claims the police report is neither reliable nor accurate, he does not say how this evidence is erroneous or how the facts differ from reality. I am of the opinion that the Minister’s delegate could validly consider the police report on the 2015 events, since it could be used to evaluate the seriousness of the actions that led to Mr. Kidd’s guilty verdict. These are not unproven allegations, but actions Mr. Kidd pleaded guilty to, leading to several charges, a conviction and a sentence of imprisonment.

[44]           The duty to act fairly does not apply to the merit or the content of an outcome; rather, it applies to the process followed. The nature and scope of the duty of procedural fairness can vary depending on the attributes of the administrative tribunal and its enabling statute, but in every case, its requirements refer to the procedure and not to the substantive rights determined by the tribunal. The principle of procedural fairness can never create substantive rights. It simply protects individuals, and allows the Court to intervene if needed, when a decision does not respect a person’s right to a fair and equitable procedure. However, the Minister’s delegate’s decision to take into account the 2015 police report did not breach any of the components of procedural fairness. In this case, there is no evidence that Mr. Kidd was not heard or was treated unfairly.

IV.             Conclusion

[45]           For all of these reasons, the Minister’s delegate’s decision is a reasonable outcome based on the law and the evidence. Based on the standard of reasonableness, the decision under judicial review must only be intelligible and transparent and fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. This is the case here. In addition, I do not find any breach of the principles of natural justice, and I am satisfied that Mr. Kidd’s basic rights were respected throughout the process followed by CBSA and the Minister’s delegate. Consequently, I must dismiss this application for judicial review.

[46]           None of the parties suggested a question of general importance to be certified. I agree that there is none.

JUDGMENT

THE COURT’S JUDGMENT is that:

1.      The application for judicial review is dismissed without costs.

2.      No questions of general importance were certified.

"Denis Gascon"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: