Date: 20001103
Docket: IMM-567-99
BETWEEN:
THI NGOC HUYEN NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
| [1] In this judicial review proceeding commenced with leave of the Court, the applicant, a 38-year-old citizen of Vietnam, who, with her husband, obtained permanent residence status in Canada on October 23, 1989, challenges a decision of the Appeal Division of the Immigration and Refugee Board (the "tribunal") made on April 9, 1999, dismissing her appeal which had invoked the equitable jurisdiction in paragraph 70(1)(b) of the Immigration Act (the "Act") namely "having regard to all of the circumstances the person should not be removed from Canada". |
| [2] The applicant was ordered deported from Canada by an adjudicator on June 23, 1998, because she had been convicted of three offences: (1) the first offence was on May 10, 1990 for stealing two articles of clothing and a baby bottle holder where, on a plea of guilty, she received an absolute discharge; (2) a May 8, 1996 conviction on two counts of possession of stolen property over $5,000 for which she received a 90-day sentence to be served on weekends; and (3) a July 3, 1997 conviction for several counts of possession of stolen property over $5,000 and conspiracy to commit an indictable offence for which she received a 21-month prison sentence together with three months probation. |
| [3] The tribunal, who heard the testimony of the applicant and her husband, applied the factors outlined by the Federal Court of Appeal in Chieu v. Canada, [1999] 1 F.C. 605 and came to the conclusion the applicant should be removed from Canada. |
| [4] As to the seriousness of the offences, the tribunal noted none of them involved violence or drugs but found the applicant showed a consistent and persistent behaviour to engage in premeditated illegal activity. |
| [5] As to rehabilitation and remorsefulness, the tribunal found her pattern of behaviour mitigated against a positive finding. |
| [6] As to the presence of family in Canada (her husband and two small Canadian children), and the impact which her deportation would have on them, the tribunal noted there were negative factors arising out of the many years of separation beginning in 1990 where, for seven years, they maintained separate residences but with weekend visits with the children being in the applicant's custody and reconciliation with her husband each year for two to three months. Her husband, during this period of time, did not support the applicant and her children; the applicant received welfare. |
| [7] The tribunal noted the applicant's criminal behaviour led to her being separated from her children. It found that there would be hardship to the children but such hardship would be mitigated by their father's support. |
| [8] The applicant's counsel raised several grounds for review: |
| (1) misconstruing the evidence on serving her prison term on weekends when in fact she only lived in prison one weekend with the remainder of her time spent outside prison doing community labour; |
| (2) the misapplication of the Federal Court of Appeal's decision in Hurd v. Canada (M.E.I.), [1989] 2 F.C. 594 by approaching the matter with a view of punishing the applicant with crimes she had already been punished and served time for; |
| (3) the failure to correctly apply the Federal Court of Appeal's decision in Canepa v. Canada (M.E.I.), [1992] 3 F.C. 270, by failing to take into account every extenuating factor that was advanced in her favour, and, in particular, namely that she was the primary caregiver of her children and her criminal conduct was partly motivated by financial need as well as the fact she had no further conviction since 1996. |
| [9] I need not, for the purposes of my decision, deal with all of these points because the applicant is entitled to succeed on another ground raised by her counsel based on the failure of the tribunal to explain why the joint submissions of counsel to the Minister and the applicant's representative proposing a five-year stay was not endorsed. The purpose for staying the deportation for a period of five years was in order to give her an opportunity to demonstrate she could be a decent law abiding resident of this country. The joint submission for a five-year stay and the terms and conditions which might attach to such a stay, are contained at pages 74, 75 and 76 of the transcript. |
| [10] I endorse what the Quebec Court of Appeal had to say about joint submissions in the case of Regina v. Dubuc (1998), 131 C.C.C. (3d) 250, and in doing so, I appreciate there is a clear distinction between a deportation which is non-criminal in nature and that the law in relation to joint submissions involved in a criminal context. |
| [11] Nevertheless, I am attracted to the underlying rationale behind joint submissions in a section 70(1)(b) case where the tribunal's jurisdiction is quite wide, the reasons for the deportation in this case are based on criminal offences and the factors outlined in Chieu, supra, (seriousness of the offence, possibility of rehabilitation, impact of the crime on the victim, remorsefulness of the applicant) are analogous to the matters which are taken into account in sentencing upon conviction. |
| [12] In Dubuc, supra, the trial judge disregarded a joint agreement on sentence and, in his reasons, made no reference to the sentence recommended by counsel. |
| [13] The Quebec Court of Appeal set aside the sentence and substituted the sentence jointly suggested. Fish J.A. said this: |
| . . . I repeat, the trial judge was not bound by the shared recommendation of counsel. For appropriate reasons, explained even summarily, he was entitled to depart from the sentence jointly proposed. The judge could properly accept or reject the submission. But not disregard or ignore it. Still less, simply overlook it. |
| [14] In Regina v. Chartrand (1998), 131 C.C.C. (3d) 122, the Manitoba Court of Appeal went further. Again, it was a case where there had been a joint recommendation for sentence. Kroft J.A. said this at paragraph 8: |
| [8] A sentencing judge is not bound to accept the recommendation, but it should not be rejected unless there is good cause for so doing. This case does not fall into that category. |
| [15] The case at bar is the same as Dubuc, supra, and Chartrand, supra, but, as I have said, in an immigration context. There was a joint submission; it was ignored. The tribunal was not entitled to do so. Moreover, had the tribunal considered the joint submission, it could have rejected it but only for good reasons. |
DISPOSITION
| [16] For all of these reasons, this judicial review is allowed, the decision of the tribunal is set aside and the matter is remitted for redetermination before a differently constituted tribunal. |
J U D G E
OTTAWA, ONTARIO
NOVEMBER 3, 2000