0001
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02 IN THE FEDERAL COURT OF CANADA
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03 ____________________________________
03 Court File Number IMM-3304-97
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07 BETWEEN:
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08 ROGER MAURICE JONES
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09 Applicant
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11 -and-
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12 MCI
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13 Respondent
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17 ____________________________________
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18 JUDICIAL REVIEW - DECISION
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19 January 27, 1998
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20 Calgary, Alberta
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21 Pages 1 to 8
21 ____________________________________
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25 Taken Before:
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26 The Honourable Mr. Justice Gibson
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0002
01 APPEARANCES
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02 The Honourable Mr. Justice Gibson
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03 ____________________________________
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04 C. R. Darwent, Esq. For the Applicant
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05 W. B. Hardstaff, Esq. For the Respondent
05 ____________________________________
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06 Mr. J. Haller Court Registrar
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07 Tammy Anderson Court Reporter
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0003
01 THE COURT: Counsel, I am going to give you my
02 reasons and my decision this afternoon.
03 The following are my reasons: The
04 applicant seeks judicial review of a decision of the
05 Immigration Appeal Division wherein, in the exercise of
06 its discretion, under paragraph 70(1)(b) of the
07 Immigration Act, it determined that having regard to all
08 the circumstances of the case, the applicant had failed
09 to establish that he should not be removed from Canada.
10 The decision of the Immigration Appeal Division is dated
11 the 21st of July, 1997.
12 The background to the matter before
13 the Immigration Appeal Division can be briefly summarized
14 as follows: The applicant was born in England in January
15 of 1942. He immigrated to Canada in 1966; thus, at the
16 time of the hearing before the Immigration Appeal
17 Division, he had been here some 31 years. He married
18 here in Canada, and he and his wife have two sons. He
19 and his wife separated in 1989 and divorced in 1990.
20 The sons, who were 12 and 14 at the
21 date of the hearing before the Immigration Appeal
22 Division, live with their mother; though, she and the
23 applicant have joint custody, and the applicant sees his
24 sons on a regular basis. The applicant has been
25 successfully self-employed since 1992.
26 The applicant has been convicted of
0004
01 a number of offenses since 1989. They largely center
02 around his abuse, physical and verbal, of his former
03 wife, involving assaults, uttering threats, and the
04 making of harassing telephone calls. Other convictions,
05 as well as restraining orders, demonstrate a lack of
06 respect for institutions in Canadian society designed to
07 ensure public order.
08 In addition to the applicant's
09 testimony, the Immigration Appeal Division had before it
10 reports of a probation officer who had supervised the
11 applicant, a psychologist, and a psychiatrist. All of
12 those reports were essentially negative in their
13 assessment of the capacity of the applicant to overcome
14 the factors which had contributed to his antisocial
15 conduct that resulted in his convictions.
16 The Immigration Appeal Division
17 wrote:
18 "The factors which the Appeal Division considers
19 when exercising its discretion under paragraph
20 70(1)(b) of the Act include the seriousness of
21 the offense, the possibility of rehabilitation,
22 the likelihood of the appellant reoffending, the
23 length of time he has spent in Canada, and the
24 degree to which he is established here, the
25 family and community support available to him,
26 the dislocation to his family in Canada that
0005
01 deportation would cause, and the degree of
02 hardship that would be caused to the appellant
03 by his return to the country of his
04 nationality. These factors are not exhaustive,
05 and the weight given to each may vary according
06 to the circumstances of the case."
07 The Immigration Appeal Division
08 then went on to find that the appellant's crimes were in
09 its view serious and that they had put the safety of his
10 former wife at risk for several years. It found that the
11 applicant has shown a continued disregard for court
12 orders and conditions of probation.
13 It noted that Immigration officials
14 had given him three warnings about his criminal activity
15 before a deportation order was eventually sought in
16 1994. It noted the presentencing report and
17 psychological and psychiatric reports and concluded that
18 they were very negative. "Very negative" is in quotes.
19 Those same reports, according to
20 the IAD, concluded the appellant's risk of reoffending
21 "is significant." According to one report, individual
22 therapy will not have a great impact on the applicant.
23 The Immigration Appeal Division, by
24 reference to the applicant's testimony before it, found
25 that the applicant "showed little remorse for his
26 actions." It went on, "He displayed no insight into the
0006
01 negative impact of his behaviour on his ex-wife.
02 Instead, he blamed his ex-wife, his lawyers, and the
03 authorities for all his difficulties."
04 The Immigration Appeal Division
05 clearly overstated the evidence before it when it found
06 that there was "'no evidence' that the appellant has been
07 able to address his difficulties or been willing to
08 receive treatment." The evidence of the applicant,
09 referred to me by counsel for the applicant, clearly
10 indicated that his testimony was to the contrary.
11 The Appeal Division acknowledged
12 that the appellant here, the applicant, had taken the
13 first level of anger management course. It did not, on
14 the face of its reasons, acknowledge his willingness to
15 go on with further elements of the course; although, it
16 did not misstate evidence in that particular regard.
17 On balance and weighing the
18 evidence in respect of all of the factors that I have
19 recited from the reasons of the Immigration Appeal
20 Division, the Immigration Appeal Division concluded that
21 the appellant had failed to establish, having regard to
22 all of the circumstances of the case, that he should not
23 be removed from Canada.
24 I conclude that it is clear, on the
25 face of the reasons of the Immigration Appeal Division,
26 that its weighing of the evidence and its understanding
0007
01 of the totality of the evidence before it was less than
02 perfect, but at the same time, bearing in mind the
03 reference in Boulis, to which counsel for the respondent
04 has referred me, that I should not read the reasons of
05 the Immigration Appeal Division microscopically, I
06 conclude that its weighing of the evidence was both
07 adequate and reasonably open to it.
08 On the basis of that conclusion, I
09 determine that this application for judicial review
10 should be dismissed. No question will be certified.
11 Any questions, Counsel?
12 MR. DARWENT: No, sir. Thank you.
13 THE COURT: I might indicate, Counsel, that I
14 did not find that an easy decision to reach. Quite
15 frankly, when I left the courtroom to consider the
16 submissions of counsel that were put to me, I was in
17 doubt what my decision would be.
18 I reiterate what I said before I
19 left, that is not to say that the decision that the IAD
20 reached wasn't reasonably open to it. The question that
21 was left in my mind was whether its analysis was
22 sufficient to support the decision.
23 On balance, I concluded that it is,
24 but I could only wish that that analysis had been more
25 thorough.
26 Thank you, Counsel.
0008
01 COURT REGISTRAR: This special sitting of the Federal
02 Court at Calgary is now concluded.
03 (PROCEEDINGS CONCLUDED AT 3:25 P.M.)
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