Date: 20000915
Docket: IMM-4086-99
BETWEEN:
NATHAN MURRAY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is one of those disquieting cases where a person who has been in Canada since he was a young child (three years old) has been ordered deported because he has criminal convictions. Canadian law does not distinguish this type of situation from one in which an immigrant comes to this country as an adult or near adult and engages in criminal activity. Canadian law does not recognize that to the extent that any society has played a role in the formation of the applicant's behaviour it is Canada's, not that of the country in which he was born. Nor does it recognize that to the extent that there is any possibility of changed behaviour, it is more likely to occur in the country where he has family support, as opposed to in a country with which he has had no real previous connection.
[2] The decision under review is that of the Immigration Appeal Division ("IAD"). It refused to exercise its equitable jurisdiction pursuant to section 70(1)(b) of the Immigration Act to stay the removal of the applicant. That section gives the IAD jurisdiction to stay a removal when it is satisfied that "having regard to all the circumstances of the case, a person should not be removed from Canada".
[3] The applicant argues that the IAD's decision was made without regard to the material before it. It is argued that the IAD erred when it found that: (1) the applicant's offences were escalating; (2) the applicant lacked insight into what caused him to commit the crimes; (3) the applicant had a serious alcohol abuse problem.
[4] The applicant argues that his offences cannot be characterized as escalating because his most recent 1997 offences, possession of stolen property over $5,000 (a Jeep Cherokee) and carrying a concealed weapon (a pellet gun) led to sentences of nine months on each charge, to be served concurrently, while offences he committed in 1993, break, enter and theft, possession of property by crime, and possession of break and enter tools, led to sentences of two years less a day, to be served concurrently with sentences of eight months and two months.
[5] I cannot conclude that the IAD ignored the respective lengths of the sentences or was in error in characterizing the 1997 offences as the most serious. The IAD found the 1997 offences to be serious because they involved the stealing of a vehicle, a high speed chase after the vehicle was driven through a radar trap, and the carrying by the applicant of what appeared to be a semi-automatic hand gun (a replica semi-automatic pellet pistol). The applicant either pulled out or dropped the gun when he was chased by the police.
[6] It is clear that in characterizing the 1997 offences as the most serious, the IAD was looking at the potential danger for others, bystanders, that had been created by the applicant's behaviour. The IAD did not ignore the length of the sentences the applicant had received on other occasions. It specifically referred to these:
| The panel also observes that the appellant committed his most recent and most serious offences (regarding the November 13, 1997 convictions), despite having already served several periods in custody, the most serious of these custodial sentences being the aggregate of the December 18, 1990 and June 19, 1992 convictions, served consecutively, and, the aggregate period for the September 3, 1993 and December 17, 1993 convictions, also served consecutively. |
[7] The length of a sentence that is imposed is not the only criterion relevant to assessing the seriousness of a crime. I cannot conclude that there was an error in characterizing the 1997 offences as the most serious, or in referring to the pattern of offences as escalating.
[8] With respect to the IAD's comment concerning the applicant's lack of insight, counsel for the applicant states that the applicant gave extensive evidence as to what caused him to commit the crimes: in his youth, it had been the trauma of his parents' separation, and hanging around with the wrong people; later, it had been that he simply did not care where his life was going, and he was hanging around with the wrong people, as well as his use of marijuana and hashish. And he gave evidence that the 1997 offences had been committed when he was in the company of someone that he had been in trouble with before and he was depressed because he had recently broken up with his girlfriend.
[9] The IAD's statement respecting the applicant's lack of insight must be considered in context. That statement reads:
| ... despite having taken responsibility for his crimes, by having pleaded guilty, the appellant lacks insight as to what motivated him to commit the crimes, in order that he not repeat them. [Emphasis added.] |
[10] The IAD explained this statement:
| In this respect, the appellant testified, that, as a youth, he had been addicted to sniffing glue. However, given his testimony that he had stopped sniffing glue at about the age of 18, this addiction does not factor into the criminal offences he committed as an adult though it provides a basis for understanding other addictions that emerged, discussed below. |
| The appellant also testified to having tried LSD on one occasion and to his not having pursued any further use of this narcotic. The appellant testified to being a user of hash, hash oil and marijuana since the age of 14, but that, at the age of 19, he realized that his use of narcotics was becoming a problem, and therefore stopped using them, at about the age of 21 or 22, according to his testimony, therefore, in or about 1993 or 1994. It therefore took him about seven or eight years to realize that his use of narcotics was problematic, and another two or three years to stop using narcotics altogether, while committing further crimes in the interim. |
| The appellant's realization concerning the consequences of drug abuse did not cause him to realize that he also cannot abuse alcohol. The appellant has been abusing alcohol since 1989. |
[11] The IAD did not ignore the evidence before it. Nor did it mischaracterize that evidence. Its statement was not that the applicant lacked all insight, but that he lacked the kind of insight that would lead to a change in his behaviour. I do not conclude that there was any error by the IAD on this point.
[12] The applicant argues that there is insufficient evidence to support the IAD's conclusion that he had a serious alcohol abuse problem. Counsel argues that: there is no evidence of probation conditions ever having been imposed on the applicant requiring abstention from alcohol; most of the offences the applicant committed did not involve alcohol; alcohol was not directly involved in the 1997 offences; shortly before the IAD hearing, the applicant had enrolled in a counselling program for substance abusers, a program designed for individuals with "low to moderate substance abuse problems".
[13] The applicant's evidence to the IAD was that he had been a weekend "binge" drinker since 1989. The December 17, 1993, convictions involved the applicant breaking into a neighbour's home at two or three o'clock a.m. to steal some alcohol. The applicant gave evidence that while serving his sentence for the December 17, 1993, convictions he had received "very intensive" group counselling and drug education, for his alcohol problem. He had also been convicted in August 1997 for causing a disturbance, which disturbance arose as a result of a fight that ensued after he left a bar. While there was no evidence that the applicant was inebriated when the jeep was stolen in 1997, or when the high speed chase occurred four days later, the jeep had been used by the applicant and a friend to drive to a field to shoot the pellet pistols over a weekend, which occasion was accompanied by drinking.
[14] The IAD referred to the applicant's recent enrollment in the substance abuse counselling program and his rejection, in the past, of joining Alcoholics Anonymous. I note that the characterization of the program, in which he has voluntary enrolled, as relating to low or moderate substance abuse, is the description the organizers of the program give to it; it is not a determination that the applicant fits within that category.
[15] The IAD's finding that the applicant has a serious drinking problem is largely based on the applicant's own evidence, especially on his evidence concerning the efforts he made just before the IAD hearing to cut down on his drinking:
| . . . |
| The Orientation to Addictions program which the appellant completed consisted of a four session, seven-hour treatment group. The Guided Self Change Program consisted of four sessions. The appellant had already underwent [sic] in 1994 what he described as a very intensive six week counselling program, but re-offended thereafter. Also, it is evidence that the appellant's abuse of alcohol is serious if one considers the goal which he has set for himself as a result of such counselling, namely, as he had testified, that he not drink any more than six alcoholic drinks (the appellant's preference appears to be beer) on any given day and on not more than one day of the week. The appellant testified that he does not consider six drinks to be much, as he consumes them over five to six hours. In the panel's opinion, such consumption is excessive when considered in the context of the appellant's history of alcohol abuse and crime. Furthermore, while, according to his testimony, the appellant has set his sights, about three of four weeks prior to his hearing, on abstention, he has not been able to achieve this goal, having had drinks on "one or two occasions" since. He testified that one occasion was about two weeks prior to his hearing, when he had had one or two beers while doing some yard work with his mother's common law spouse. On the occasion prior to that, about two or three weeks prior to his hearing, he had consumed six alcoholic beverages at a bar while watching a hockey game in the company of his brother-in-law. Prior to that, while school was still in session, he was going out every Friday night to drink with his friends. ... Also significant is the appellant's testimony that he is uncertain whether he should indeed aim for abstinence, or, instead, for drinking socially. [Emphasis added.] |
[16] Counsel argues that the alcohol issue is not relevant because there is no evidence that it is the root cause of his criminal convictions and, in any event, the conclusion that the applicant has a serious alcohol problem is not supported by the evidence.
[17] The conclusion that the applicant's problem was serious was open to the IAD on the evidence before it. One cannot characterize that conclusion as "perverse or capricious" or made "without regard to the material" before the IAD: the test to be met under section 18.1(4)(d) of the Federal Court Act. The IAD did not describe the applicant's drinking pattern as a root cause of his criminal convictions. It was one facet of his behaviour that was described along with others. The IAD describes numerous factors it considered in reaching its decision. It referred to the number of convictions (fifteen after the applicant became an adult), the seriousness of the last offence, the probationary times he had served, the times in custody, his reliance on social assistance and support by his mother, as well as to his history of substance abuse. The IAD also referred to circumstances that could lead to a positive decision for the applicant. The factor that appears to have played a significant role against the applicant, however, is that the applicant had received a warning letter after his 1993 convictions, telling him that further offences could lead to deportation. Despite this express warning, he engaged in the activities that led to the 1997 convictions.
[18] I cannot conclude that the decision under review should be set aside, and thus, the application for judicial review will be dismissed.
Judge
OTTAWA, ONTARIO
September 15, 2000