Date: 20171026

Docket: IMM-5238-16

Citation: 2017 FC 950

Ottawa, Ontario, October 26, 2017

PRESENT:     The Honourable Mr. Justice Southcott

BETWEEN:

ABDOULKADER ABDI

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

JUDGMENT AND REASONS

I.                    Overview

[1]               This is an application for judicial review of a decision by a delegate of the Minister of Public Safety and Emergency Preparedness [the Minister’s Delegate or the Delegate], dated July 11, 2016, and made pursuant to section 44(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], to refer an inadmissibility report to the Immigration Division [ID] of the Immigration and Refugee Board of Canada for an admissibility hearing.

[2]               As explained in greater detail below, this application is allowed because, in considering whether to refer the Applicant to an admissibility hearing, the Minister’s Delegate relied impermissibly on information as to charges against the Applicant that had been dismissed or withdrawn, and in particular relied impermissibly on youth charges that had been dismissed or withdrawn. This is contrary to the provisions of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA].

II.                 Background

[3]               The Applicant, Mr. Abdoulkader Abdi, was born on September 17, 1993, in Saudi Arabia. He spent his early childhood in Somalia, but he fled that country for Canada at the age of six after a number of his family members were killed. Mr. Abdi, his sister, and their two aunts were accepted as refugees, and he became a permanent resident on August 3, 2000. When he was 7 years old, Mr. Abdi and his sister were apprehended by the Nova Scotia Department of Community Services [Community Services]. He was never adopted, but rather grew up in foster homes and group homes as a ward of the state.

[4]               Mr. Abdi lived for 3 to 4 years with a foster family which he alleges was abusive. His sister was removed from this home after making what he describes as a credible allegation of sexual abuse, and Mr. Abdi tried to run away on a number of occasions. He was subsequently removed from the foster family and placed in group homes, following which he started getting into trouble with the law and was ultimately convicted of numerous youth offences. The highest level of education Mr. Abdi has completed is grade six. He has one Canadian-born child, a three year old daughter. He notes that, during the period in which he was a ward of the state, Community Services did not apply for Canadian citizenship on his behalf.

[5]               In July 2014, at the age of 20, Mr. Abdi pleaded guilty to aggravated assault and assaulting a police officer with a weapon, as a result of which he received a custodial sentence of four years and six months for the first offence and a one year concurrent sentence for the second offence. These are the offences that give rise to the admissibility proceedings at issue in this case. The record before the Minister’s Delegate identifies that, in the same timeframe, Mr. Abdi was also convicted of theft of a motor vehicle and operation of a motor vehicle in a manner dangerous to the public. In September 2014, he was sentenced to a further four month consecutive sentence for assaulting a peace officer. In December 2015, he was sentenced to a three month consecutive sentence for assaulting another inmate. He has also received a number of citations for violating prison rules. In early 2016, Mr. Abdi was transferred from a maximum security institution to a medium security institution. Since that time he has not been involved in any violent incidents, although he has had further citations for violating prison rules.

[6]               In early 2016, a Canada Border Services Agency [CBSA] Inland Enforcement Officer [the Officer] initiated inadmissibility proceedings against Mr. Abdi on the basis of his criminal convictions. Mr. Abdi made written submissions, and the Officer prepared a report under s 44(1) of IRPA which found that there were reasonable grounds to believe Mr. Abdi was inadmissible to Canada for serious criminality pursuant to s 36(1)(a) of IRPA [the Section 44(1) Report]. The Minister’s Delegate reviewed the Section 44(1) Report and made a decision under s 44(2) of IRPA to refer the matter to the ID for an admissibility hearing to determine if Mr. Abdi is a person described in s 36(1)(a). The admissibility hearing has not yet taken place. The decision by the Minister’s Delegate, summarized below, is the subject of this application for judicial review.

III.               Impugned Decision

[7]               The decision by the Minister’s Delegate lists the information he reviewed as including: the Section 44(1) Report, proof of Mr. Abdi’s permanent resident status, confirmation that Mr. Abdi does not have Canadian citizenship, certificate of conviction for the offences for which Mr. Abdi was found guilty, Mr. Abdi’s written submissions, his Criminal Profile Report, and an Assessment for Decision. The Assessment for Decision is a document dated January 1, 2016, prepared by Correctional Service Canada [CSC], which reviewed Mr. Abdi’s criminal and correctional history and recommended he be moved from a maximum security institution to a medium security environment.

[8]               The Minister’s Delegate then provides a general overview of Mr. Abdi’s circumstances, noting that he came to Canada as a refugee and was granted permanent residence status, his criminal history, his submissions with respect to his difficult childhood, and his expressions of remorse for his criminal past.

[9]               In arriving at his decision, the Minister’s Delegate notes factors to Mr. Abdi’s credit, being his expressions of remorse and his progress to a medium society environment. However, the Minister’s Delegate also notes factors operating against Mr. Abdi, being the fact that he has been convicted of multiple very serious crimes, his lifelong pattern of criminal activity, his criminal behaviour while incarcerated, and being cited by CSC several times for violation of prison rules. The Delegate also states that Mr. Abdi has no obvious social ties in Canada, other than his daughter who has no apparent relationship with him, and that there are no letters of support for Mr. Abdi in his submissions. Based on these facts, the Delegate recommends that Mr. Abdi be referred to an admissibility hearing under s 44(2) of IRPA.

IV.              Issues and Standard of Review

[10]           The Applicant frames the issues in this application as follows:

A.     Was the scope of the Minister’s Delegate’s discretion broader given the Applicant’s long-term permanent resident status, sociological ties to Canada, and history as a ward of the state?

B.     Was the Applicant denied a fair hearing because he did not understand the case he had to meet and was denied an opportunity to retain counsel or because the Respondent’s evidentiary record included withdrawn or dismissed charges as well as youth offences?

C.     Do the Minister’s Delegate’s reliance on non-criminal conduct and youth offences, as well as his failure to consider the Applicant’s compelling personal circumstances, render the decision unreasonable?

[11]           The parties agree on the applicable standards of review, and I concur with their position. The second issue articulated above, being one of procedural fairness, is reviewable on a standard of correctness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. The decision itself is reviewable on a reasonableness standard: Canada (Public Safety and Emergency Preparedness) v Tran, 2015 FCA 237 [Tran], at paras 22, 31. That standard therefore applies to the first and third issues identified above.

V.                 Analysis

A.     Was the scope of the Minister’s Delegate’s discretion broader given the Applicant’s long-term permanent resident status, sociological ties to Canada, and history as a ward of the state?

[12]           Mr. Abdi argues that s 44(2) of IRPA confers upon the Minister’s Delegate the discretion not to refer an inadmissibility report to the ID for an admissibility hearing. He further submits that the scope of this discretion is unsettled in the applicable case law where, as in the circumstances of this case, the person concerned is a permanent resident of Canada. His position is that the case law, the legislative history of IRPA, applicable ministry guidelines and international law support a broad discretion in circumstances such as his own, where a person has strong sociological ties to Canada and has been raised as a ward of the state, and where the state did not obtain for the person the benefit of Canadian citizenship.

[13]           The parties are in agreement that the law in this area is unsettled. The division in the case law was recently described by the Federal Court of Appeal in Sharma v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 319 [Sharma] at para 44:

[44]      The scope of the discretion that can be exercised pursuant to section 44 has divided the Federal Court, and the Judge below found as much. One line of cases, exemplified by such decisions as Correia v. Canada (Minister of Citizenship and Immigration), 2004 FC 782, 253 F.T.R. 153; Leong v. Canada (Solicitor General), 2004 FC 1126, 256 F.T.R. 298; and Richter v. Canada (Minister of Citizenship and Immigration), 2008 FC 806, 73 Imm. L.R. (3d) 131, aff’d by 2009 FCA 73, [2009] F.C.J. No. 309, adopted a narrow interpretation of section 44 and determined that officers have no discretion to consider factors beyond an individual’s alleged inadmissibility. Conversely, another series of decisions adopted a broader approach and held that officers have a wide enough discretion to consider the personal circumstances of an individual, in addition to the facts underlying the alleged inadmissibility (see, for example, Hernandez, 2005; Spencer; and Faci v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, [2011] F.C.J. No. 893).

[14]           Shortly before the release of the decision in Sharma, in Melendez v Canada (Public Safety and Emergency Preparedness), 2016 FC 1363, Justice Boswell canvassed the conflicting case law and expressed the following conclusions at paragraph 34:

[34]      In view of the foregoing, I arrive at the following conclusions:

1.   There is conflicting case law as to whether an immigration officer has any discretion under subsection 44(1) of the IRPA beyond that of simply ascertaining and reporting the basic facts which underlie an opinion that a permanent resident in Canada is inadmissible.

2.   Nevertheless, the jurisprudence and the Manual do suggest that a Minister’s delegate has a limited discretion, when deciding whether to refer a report of inadmissibility to the Immigration Division pursuant to subsection 44(2) or to issue a warning letter, to consider H&C factors, including the best interests of a child, at least in cases where a permanent resident, as opposed to a foreign national, is concerned.

3.   Although the Minister’s delegate has discretion to consider such factors, there is no obligation or duty to do so.

4.   However, where H&C factors are presented to a delegate of the Minister, the delegate’s consideration of the H&C factors should be reasonable in the circumstances of the case, and in cases where a delegate rejects such factors, the reasons for rejection should be stated, even if only briefly.

5.   The consideration of H&C factors by the Minister’s delegate in respect of a permanent resident need not be, in my view, as extensive as or comparable to an analysis of such factors under subsection 25(1) of the IRPA in order to be reasonable; it need not be so because that would usurp the role and purpose of that subsection.

[15]           Consistent with Justice Boswell’s conclusions, the Respondent acknowledged at the hearing of this application for judicial review that the case law is leaning toward such a discretion residing in a delegate of the Minister when making a decision under s 44(2) related to a permanent resident. Indeed, as noted at paragraph 46 of Sharma, the Immigration Manual which provides guidance on such decisions lists a number of factors to be taken into account in deciding whether to refer a report to the ID. These are the person’s age at time of landing; length of residence; location of family support and responsibilities; conditions in home country; degree of establishment; prior convictions and involvement in criminal or organized crime activities; history of noncompliance and current attitude; seriousness of the offence; and sentence imposed and maximum sentence that could have been imposed. The Federal Court of Appeal observed that, while such policy manuals are not binding, they suggest that officers making a report and the Minister’s delegate in deciding whether to refer the report to the ID, are not constrained by merely verifying a conviction and/or term of imprisonment.

[16]           However, as was the case in Sharma, and as this Court has concluded in other matters (see Brar v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1214 [Brar] at para 14), it is unnecessary for me to reach a conclusion on whether the Minister’s Delegate has such discretion, or the extent of the discretion in the case at hand, as it would have no bearing on the outcome of this application for judicial review. As argued by the Respondent, the Minister’s Delegate clearly considered factors other than convictions and imprisonment terms in arriving at the decision to refer the Section 44(1) Report to the ID. The parties agree that the Officer’s analysis underlying the Section 44(1) Report is considered to be part of the Delegate’s reasoning (see Brar at para 27), and both that analysis and the Delegate’s decision itself take into account a variety of factors of the sort described in Sharma. The Minister’s Delegate therefore clearly considered that he had discretion to exercise in deciding whether or not to refer the matter to the ID. Mr. Abdi therefore received the benefit of the interpretation of s 44(2) of IRPA most favourable to his interests.

[17]           I appreciate that Mr. Abdi is encouraging the Court to find that the Delegate had an especially broad discretion, because of Mr. Abdi’s particular background and circumstances, having been raised as a ward of the state where the state did not obtain Canadian citizenship for him. However, I agree with the position expressed by the Respondent at the hearing that these arguments relate not to the scope of the Delegate’s discretion but rather whether that discretion was exercised in a reasonable manner. Mr. Abdi asserts these same arguments in challenging the reasonableness of the decision under the third issue he has raised, and I address them in my consideration of that issue later in these Reasons.

B.     Was the Applicant denied a fair hearing because he did not understand the case he had to meet and was denied an opportunity to retain counsel or because the Respondent’s evidentiary record included withdrawn or dismissed charges as well as youth offences?

[18]           The second issue Mr. Abdi identifies for the Court’s consideration raises various arguments related to the procedural fairness of the process leading to the decision under s 44(2) of IRPA. In the above articulation of that issue, Mr. Abdi characterizes the Delegate’s reliance on withdrawn or dismissed charges, as well as youth offences, as one of the procedural fairness issues. He argues that similar concerns also affect the reasonableness of the decision. I agree with the Respondent’s position that the arguments raised by Mr. Abdi in relation to the Delegate’s reliance on his youth record relate to the reasonableness of the decision, not to the fairness of the process he was afforded. Those arguments are therefore addressed in my analysis on reasonableness below.

[19]           As explained below in that analysis, my decision is to allow this application for judicial review is based on a finding that the decision by the Minister’s Delegate is unreasonable, because he impermissibly relied on information as to charges that had been dismissed or withdrawn and, in particular, dismissed or withdrawn youth charges contrary to the provisions of the YCJA. This will result in the Delegate’s decision being set aside and the matter being referred back to another delegate of the Minister for redetermination. I would expect Mr. Abdi to be afforded an opportunity to provide updated submissions before the matter is reconsidered. It is therefore unnecessary for the Court to reach a conclusion on the procedural fairness arguments that Mr. Abdi has raised in connection with the process leading to the decision that is being set aside.

C.     Do the Minister’s Delegate’s reliance on non-criminal conduct and youth offences, as well as his failure to consider the Applicant’s compelling personal circumstances, render the decision unreasonable?

[20]           Mr. Abdi has raised a number of arguments in support of his position that the decision by the Minister’s Delegate is unreasonable. This includes the argument that the Officer and the Delegate failed to consider Mr. Abdi’s particular background and circumstances, having been raised as a ward of the state where the state did not take the steps necessary to obtain Canadian citizenship for him. He submits that it is unreasonable that neither the Officer nor the Delegate asked the question how it is that a child who has spent almost his entire childhood in the care of the state can lack a basic education, a system of social support, and the protections afforded by citizenship.

[21]           The challenge for Mr. Abdi in raising this argument is that his submissions to the Officer do not pose this particular question. In those submissions, Mr. Abdi does explain his background, that he arrived in Canada as a child refugee, was taken from his family by social services, and became a ward of the state. He also referred to being moved from one home to another, experiencing emotional and physical abuse, and getting in trouble as a young teenager in that environment. He explained that he was under the impression that he was a permanent resident all those years, that in 2008 the Children’s Aid Society told him they were trying to get him a passport so that he could travel, and that Citizenship Canada advised it would take only 11 to 12 months to process.

[22]           Mr. Abdi then submits that Canadian life is all he knows, that he has no family, friends or means of support in Somalia, and that he will be targeted for his religious beliefs and face certain death if he is deported. He notes the importance of being a role model for his Canadian born daughter and submits that he has learned from his mistakes, referring to the fact that he has transitioned to a medium security institution, has improved his education and learned social skills while incarcerated, and is asking for a chance to become a productive member of society and the father that his daughter deserves.

[23]           Both the Officer’s Narrative Report and the Delegate’s decision refer to Mr. Abdi having been accepted as a refugee and becoming a permanent resident as a child, and the Delegate notes his submission in which he described his difficult childhood and being subjected to abuse and frequent movement within the foster system. The Delegate refers to Mr. Abdi’s expressions of remorse for his actions and his assertion that he has matured and has realized that his criminal behaviour cannot continue, if for no other reason than for his young daughter. In conducting his analysis, the Delegate refers to Mr. Abdi’s expressions of remorse and his progression to a medium security environment, but also the multiple very serious crimes of which he has been convicted, his lifelong pattern of criminal activity, and his lack of social ties in Canada other than his daughter. The Delegate then arrives at his decision to refer Mr. Abdi to an admissibility hearing.

[24]           Based on the content of the Narrative Report and the Delegate’s decision, it cannot be concluded that the decision makers ignored Mr. Abdi’s background as a long-term permanent resident of Canada, who arrived as a child refugee and was raised as a ward of the state. While Mr. Abdi’s submissions explain this background, including a reference to the Children’s Aid Society trying to get him a passport, the position he was advancing in his submissions was not that the state had failed him. Rather, he was arguing that he will face significant hardship and risk if returned to Somalia and that he has learned from his mistakes and has embarked on a more constructive path in the interests of being a better example for his daughter. The Delegate’s analysis focused on this position, and I cannot conclude that failure to consider the question that Mr. Abdi now raises in this judicial review, i.e. how a ward of the state lacks a basic education and citizenship, constitutes a reviewable error.

[25]           However, notwithstanding that I have not found that particular argument compelling, I am persuaded by Mr. Abdi’s arguments surrounding the Minister’s Delegate’s reliance on certain aspects of his criminal history and in particular his youth record.

[26]           Turning first to offences of which Mr. Abdi was found guilty as a youth, I should note that I have no difficult concluding that the Delegate relied on these offences in arriving at the decision to refer the Section 44(1) Report to the ID. The Officer’s Narrative Report, which identifies the information considered by the Officer and provides the recommendation and rationale underlying the Section 44(1) Report, refers to Mr. Abdi’s extensive youth record since age 14. The Minister’s Delegate in turn refers to Mr. Abdi having a lifelong pattern of criminal activity. As Mr. Abdi was 22 years old when the Delegate made his decision, this can only be interpreted as a reference to criminality that extended into Mr. Abdi’s youth. I do not understand the Respondent to be contesting this.

[27]           This raises for the Court’s consideration the question whether this reliance on Mr. Abdi’s youth criminality represents a reviewable error on the part of the Minister’s Delegate. The analysis of this question requires recourse to Part 6 of the YCJA, entitled “Publication, Records and Information,” which governs the use that can be made of information related to the fact that a young person has been dealt with under that statute. Provisions of this Part that are referenced in these Reasons are set out in Annex A to this decision. The provision that is perhaps most relevant to the issues in this case is s 119, which identifies in s 119(1) the categories of persons who are entitled to access records governed by other provisions of Part 6. Assuming that the Officer or the Delegate falls within any of these categories (a point which was not particularly explored by the parties), the effect of s 119(1) is that such persons’ access to these records applies only until the end of an access period. Section 119(2) prescribes the applicable access period, which depends on the nature and outcome of the offence involved.

[28]           Sections 119(2)(g) to (j) prescribe the access periods that apply in various circumstances where a young person is found guilty of an offence and a youth sentence is imposed. However, these sections are all expressed to be subject to s 119(9), which provides for various consequences if, during the access period applicable to a record under any of sections 119(2)(g) to (j), the young person is convicted of an offence committed when he or she is an adult. Those consequences include Part 6 no longer applying to the record such that the record shall be dealt with as a record of an adult.

[29]           It appears to be common ground between the parties that Mr. Abdi was convicted of offences, committed after he became an adult, within the access period applicable to his youth offences. His counsel confirmed at the hearing that records of these offences were therefore accessible and became adult records by operation of s 119(9). However, he nevertheless argued that these offences should play no role in reporting or referral decisions under s 44 of IRPA or, in the alternative, that there is an obligation to distinguish between youth offences and adult offences in accordance with the principle of diminished moral blameworthiness for the former.

[30]           In support of these positions, Mr. Abdi notes that s 36(3)(e)(iii) of IRPA provides that inadmissibility under s 36(1) of IRPA (which applies to serious criminality) may not be based on an offence for which the permanent resident received a youth sentence under the YCJA. He argues that, as a youth offence cannot be the basis for a finding of criminal inadmissibility, it would be inconsistent with the scheme of IRPA for the Minister’s Delegate to be entitled to rely on a youth offence in exercising the discretion applicable under s 44(2). Mr. Abdi also relies on the decision of the Supreme Court of Canada in R v DB, 2008 SCC 25 [DB], which held that it is a principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability.

[31]           In relation to the youth offences themselves (as distinct from withdrawn or dismissed charges which I address later in these Reasons), I find no error on the part of the Delegate in taking this information into account in arriving at his decision. This issue has previously been addressed by the Court in Brace v Canada (Public Safety and Emergency Preparedness), 2010 FC 582 [Brace], in which Justice Harrington considered a similar argument in reviewing a decision of the Immigration Appeal Division [IAD]. The IAD had dismissed an appeal from a deportation order issued based on inadmissibility due to serious criminality and, in considering humanitarian and compassionate [H&C] factors, took into account the applicant’s previous convictions including a youth conviction. Justice Harrington held at paragraphs 6-8 that, while s 36(3)(e) of IRPA provides that inadmissibility may not be based on an offence for which a permanent resident was found guilty under the YCJA, it was not only proper but essential for the IAD, when considering H&C factors, to consider all of the applicant’s criminal activity while in Canada. Justice Harrington also noted that, during the applicable access period under s 119(2) of the YCJA, the applicant had been convicted of an offence committed while an adult, such that his youth records were deemed to be adult records and Part 6 of the YCJA no longer applied.

[32]           Mr. Abdi argues that Brace was incorrectly decided, because Justice Harrington did not consider the effect of the Supreme Court’s decision in DB. I find little merit to that submission. DB addressed the question whether provisions of the YCJA, which presumed an adult sentence to apply to certain so-called “presumptive offences”, were contrary to s 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court relied on the principle that young persons are entitled to a presumption of diminished moral culpability in concluding that it was inconsistent with the Charter to impose on young persons the burden to demonstrate that an adult sentence is not justified. DB accordingly has no direct application to the issue in Brace or in the case at hand. I do not consider the presumption of diminished moral culpability for youth offences to undermine Justice Harrington’s conclusion that the entirety of a person’s criminal activity should be taken into account in conducting an H&C analysis, particularly where the relevant youth offences were accessible under the provisions of the YCJA as a result of adult convictions. Nor does DB support a conclusion that the Delegate erred by failing to expressly distinguish between adult and youth offences in considering Mr. Abdi’s overall criminal history. It is clear from the record before the Delegate that a significant component of Mr. Abdi criminal history occurred while he was a youth, and I find no basis to conclude from the decision that this fact was somehow misunderstood or overlooked.

[33]            Mr. Abdi also argues that Brace was wrongly decided, because Justice Harrington did not take into account the effect of s 82 of the YCJA, which provides that if a young person is found guilty of an offence and the youth sentence has ceased to have effect, the young person is deemed not to have been found guilty or convicted of the offence. Again, I find little merit to this submission. Where s 119(9) is engaged, because during the applicable access period for a record the young person is convicted of an offence committed when he or she is an adult, that section expressly provides that s 82 does not apply to the young person in respect of the offence for which the record is kept.

[34]           As such, my conclusion is that the Minister’s Delegate committed no error in his consideration of the crimes of which Mr. Abdi was found guilty as a youth. However, I have reached a different conclusion in connection with the charges that were brought against him and subsequently withdrawn or dismissed, in particular such charges that form part of his youth record.

[35]           In reliance on a document entitled Justice Enterprise Information Network [JEIN] Offender Summary prepared by provincial authorities in Nova Scotia, which provides information on Mr. Abdi’s criminal history including dismissed and withdrawn charges, his counsel identifies that there are 97 such charges, 37 of which were adult charges and 60 of which were youth charges. This document does not form part of the Certified Tribunal Record, and the Respondent submits that it was not considered by the Officer or the Minister’s Delegate, although the Respondent does acknowledge that it was in the CBSA’s larger file on Mr. Abdi. I do not understand Mr. Abdi to be arguing that the JEIN Offender Summary was considered by the Officer or the Delegate. Rather, he relies on it to demonstrate that the majority of the withdrawn or dismissed charges, constituting the approximately 100 charges identified in the Officer’s Narrative Report, were youth charges.

[36]           I should note that Mr. Abdi argues that the Delegate erred in relying on any of the withdrawn or dismissed charges, regardless of whether they were laid against Mr. Abdi as a child or as an adult. Whether the Delegate’s decision can be impugned based on consideration of the adult charges depends on the purpose for which the Delegate relied on those charges. As the Respondent points out, the Federal Court of Appeal held in Sittampalam v Canada (Citizenship and Immigration), 2006 FCA 326 [Sittampalam] at para 50, that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing, provided they are not used in and of themselves as evidence of an individual’s criminality. In that case, the charges were not relied upon as evidence of the appellant’s wrongdoing, but rather to establish there were reasonable grounds to believe that a gang of which the appellant was a member engaged in activity proscribed by IRPA.

[37]           Similarly, in Kharrat v Canada (Citizenship and Immigration), 2007 FC 842 at paras 20-21, this Court relied on Sittampalam to conclude that the Immigration Appeal Division had not erred in relying on charges as part of an H&C analysis, in considering the Applicant’s behaviour relating to spousal abuse, rather than as evidence of the applicant’s criminality. More recently, in Tran at paras 89-93, the Federal Court of Appeal held that it was acceptable for a Minister’s delegate to rely on arrests and charges to assess the respondent’s assertion that his behaviour had been without incident for a long period. For instance, the Court noted that the police record contained credible information as to the respondent’s consumption of alcohol and its impact upon his behaviour. The Court’s conclusion was that the delegate was well aware of the distinction between arrests, stayed charges and criminal convictions, and that the delegate had not relied on the arrests and charges as evidence of criminal conduct.

[38]           My conclusion is that these authorities do not assist the Respondent in the circumstances of the case at hand, as the Respondent has not identified any permissible purpose, i.e. other than evidence of Mr. Abdi’s criminality, for reliance on Mr. Abdi’s withdrawn and dismissed charges. Rather, the Respondent argues that there is no evidence on the record that the Delegate’s decision was based at all on withdrawn or dismissed charges. The Respondent’s position is that the Delegate’s decision to refer the admissibility report to the ID was based on the seriousness of Mr. Abdi’s offences, which outweighed the factors in his favour. I agree that the seriousness of the crimes was a significant factor underlying the Delegate’s decision. However, the Delegate also refers to Mr. Abdi having a lifelong pattern of criminal activity, and I read the decision as also having been significantly influenced by this factor. I recognize that the Delegate’s decision does not expressly reference charges that were withdrawn or dismissed. However, the Officer’s Narrative Report does expressly refer to these charges. In the relatively brief Recommendation and Rationale section at the conclusion of the Narrative Report, the Officer states the following to be the factors operating against Mr. Abdi:

PC has an extensive youth record (since age 14 yr) and escalating to being convicted of serious criminality; currently serving 5yr, 3months in a federal institution. Police information notes he has over 100 charges, 180 incidents. PC has a history of violence, assaults, weapons, beatings and stabbings; including peace officer assaults. During his incarceration he has been cited for incidents at the institution including a metal shank found in his cell x 2. [Emphasis added.]

[39]           The information that Mr. Abdi has over 100 charges appears to have been taken from the Assessment for Decision document prepared by CSC in connection with Mr. Abdi’s request for transfer to a medium security environment. As previously explained, it is appropriate to consider the Officer’s analysis as part of the Minister’s Delegate’s reasoning. Given the express reference to charges in the Officer’s analysis, and in particular the identification of the large number of charges, it is difficult to avoid the conclusion that this information formed at least part of the basis for the Delegate’s characterization of Mr. Abdi as having a lifelong pattern of criminal activity.

[40]           It is not possible for the Court to determine whether the Delegate would have characterized Mr. Abdi’s history in the same manner, and arrived at the decision to refer him to an admissibility hearing, if he had not taken into account the 100 charges identified by the Officer. Therefore, if it was an error for the Delegate to take this information into account, it must result in a conclusion that the decision is unreasonable. As noted above, the Respondent has offered no alternative explanation for the role this information played in the decision-maker’s analysis, i.e. other than as evidence of Mr. Abdi’s criminality, and my view is that the record favours the conclusion that this information formed part of the basis for the conclusion that he demonstrated a lifelong pattern of criminal activity. As such, even though that criminality was not being considered as an index offence under s 36(1)(a) of IRPA, but rather as one of the factors in the exercise of the Delegate’s discretion, my conclusion is that the charges were relied upon for an impermissible purpose.

[41]           I further conclude that a reviewable error arises from the fact that, as demonstrated by the JEIN Offender Summary, the majority of the approximately 100 charges were youth charges. As Mr. Abdi submits, s 119(9) of the YCJA, which removes youth records from the protections of Part 6 of the statute when an adult conviction occurs during the access period, applies only to records of youth offences for which a young person is found guilty and sentenced. Section 119(9) has no application to records of charges against the young person that are dismissed or withdrawn. Such records are governed by s 119(2)(c) of the YCJA, under which the access period for such records is very brief, ending two months after the dismissal or withdrawal. Given Mr. Abdi’s age at the time of the inadmissibility proceedings, the access period applicable to any of these records must necessarily have expired.

[42]           Mr. Abdi therefore submits that s 128 of the YCJA applies, under which these records cannot be used for any purpose that would identify the person to whom the record relates as a young person dealt with under that statute, and various provisions for the disposal and purging of such records should apply. At the hearing of this application, the Respondent took no particular issue with Mr. Abdi’s submissions on the operation of the provisions of the YCJA in connection with the records of withdrawn or dismissed youth charges. Rather, the Respondent submits that, consistent with Justice Harrington’s reasoning in Brace, it is reasonable for the Delegate to have looked at the whole picture of Mr. Abdi’s past, particularly as Mr. Abdi was relying on his troubled childhood as part of his argument for a favourable exercise of the Delegate’s discretion.

[43]           My conclusion is that these arguments do not assist the Respondent on this particular issue. The fact that Mr. Abdi’s submissions in the admissibility proceedings refer to getting in trouble as a young teenager cannot represent a basis for the Officer or Delegate to rely on youth records contrary to the protections afforded by the YCJA. Nor does the decision in Brace support such reliance. That case dealt only with convictions, to which access was available by operation of s 119(9) of the YCJA, not with withdrawn or dismissed charges. I also note that Justice Harrington offered an additional reason for this conclusion in that case, which was that, of the 12 offences which led to the applicant’s deportation order, only one was a youth offence. Justice Harrington therefore expressed the view that assessing only 11 offences instead of 12 could not have significantly affected the impugned decision. Such an analysis cannot assist the Respondent in the present case, where the evidence is that the majority of the withdrawn or dismissed charges occurred during Mr. Abdi’s youth.

[44]           As noted above, it is not possible for the Court to determine whether the Delegate would have characterized Mr. Abdi’s history in the same manner, and arrived at the decision to refer him to an admissibility hearing, without taking into account the 100 charges identified by the Officer. Therefore, having found that the Delegate erred in taking this information into account, the decision is unreasonable and must be set aside, with the matter to be returned to another delegate of the Minister of Public Safety and Emergency Preparedness for redetermination.

[45]           Having reached this conclusion, it is not necessary for the Court to consider the various other arguments raised by Mr. Abdi in support of his position that the Delegate’s decision is unreasonable.

VI.              Certified Questions

[46]           Mr. Abdi proposes that the Court certify the following questions for appeal:

A.     Is there a greater duty of fairness required of immigration officers in preparing a subsection 44(1) report and the Minister in referring the report when dealing with long term permanent residents who were previously permanent wards of the state?

B.     Are immigration officers preparing a subsection  44(1) report and the Minister in referring the report permitted to reference youth police incidents, withdrawn/dismissed charges, and findings of guilt? If so, must these incidents, charges or findings of guilt be distinguished from and treated differently than adult conduct?

C.     Is the Minister in referring a subsection 44(1) report required to explicitly consider binding international human rights law, including directly related decisions of the United Nation’s Human Rights Committee, regardless of whether that law has been brought to the Minister’s attention?

D.     Are immigration officers preparing a subsection 44(1) report and the Minister in referring the report required to be alive, alert and sensitive to the fact that the person concerned was previously a permanent ward of the state, and denied, because of that status, the opportunity to apply for citizenship?

[47]           The Respondent opposes certification of any of these questions.

[48]           Questions are not appropriate for certification if they would not be determinative of an appeal. Questions A, C and D above would not be determinative of an appeal, as they are unrelated to the basis on which I have identified a reviewable error on the part of the Minister’s Delegate. Question B does bear a relationship to that error, as it relates in part to reliance on withdrawn or dismissed youth charges. However, I do not find that component of the question to be one of general importance. As noted earlier in these Reasons, the Respondent took no particular issue with the Applicant’s arguments on the operation of the provisions of the YCJA relevant to that particular issue. My decision on that issue turns on the application of those provisions to the particular facts of that case.

[49]           I therefore agree with the Respondent that none of the proposed question should be certified for appeal.

JUDGMENT IN IMM-5238-16

THIS COURT’S JUDGMENT is that this application for judicial review is allowed, and the matter is returned to a different delegate of Minister of Public Safety and Emergency Preparedness for redetermination in accordance with the above Reasons. No question is certified for appeal.

“Richard F. Southcott”

ANNEX A

Youth Criminal Justice Act, SC 2002, c 1

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5238-16
STYLE OF CAUSE:	ABDOULKADER ABDI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS >
PLACE OF HEARING:	HALIFAX, NOVA SCOTIA
DATE OF HEARING:	SEPTEMBER 13, 2017
JUDGMENT AND REASONS:	southcott, J.
DATED:	OCTOBER 26, 2017

APPEARANCES:

Benjamin Perryman	For The Applicant
Melissa A. Grant	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Benjamin Perryman Barrister & Solicitor Halifax, Nova Scotia	For The Applicant
Attorney General of Canada Halifax, Nova Scotia	FOR THE RESPONDENT