Montréal, Quebec, January 17, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a citizen of Trinidad and Tobago. He arrived in Canada as a permanent resident in 1990 at the age of ten. He is the father of a daughter born in Canada. She is now four years of age.
[2] In 1999 and 2000, the applicant was found guilty of various criminal offences: assault with a weapon and assault on March 19, 1999; uttering threats on July 5, 2000. A first report was written under section 27 of the Immigration Act, R.S.C., 1985, c. I-2 (the former Act). No deportation order was issued against the applicant. He alleged having been the victim of mistreatment by his uncle and aunt when he was a youngster in Trinidad and then by his mother in Canada. In spite of a jail sentence of 12 months, the use of violence, and the serious nature of the crimes committed by the applicant, in November 2001, the investigator decided that the applicant [translation] “should have a chance of showing that this was a mistake. He seems sincere in his desire to make amends”.
[3] Following that, the applicant was convicted for other criminal offences, in March and May 2002 respectively: on March 18, 2002, for breaking and entering, failure to comply with a probation order, and failure to comply with a recognizance; on May 1, 2002, for personation with intent, fraud not exceeding $5000, and uttering a forged document. Meanwhile, a second report under section 27 of the former Act was drafted. On April 22, 2002, under subsection 32(2) of the former Act, a deportation order was issued against the applicant. He then appealed to the Immigration Appeal Division of the Immigration and Refugee Board (the panel). The appeal was heard following the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act). Because the applicant’s jail sentence is less than the limit of 24 months imposed under section 64 of the new Act, the panel considered that it still had jurisdiction to hear this appeal.
[4] Section 67 of the new Act defines the Court’s jurisdiction in the case of an appeal validly brought under section 63 of the new Act. This section provides as follows:
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67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
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67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé :
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(a) the decision appealed is wrong in law or fact or mixed law and fact;
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a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
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(b) a principle of natural justice has not been observed; or
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b) il y a eu manquement à un principe de justice naturelle;
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(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
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c) sauf dans le cas de l'appel du ministre, il y a — compte tenu de l'intérêt supérieur de l'enfant directement touché — des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
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(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration. |
(2) La décision attaquée est cassée; y est substituée celle, accompagnée, le cas échéant, d'une mesure de renvoi, qui aurait dû être rendue, ou l'affaire est renvoyée devant l'instance compétente. |
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[5] On the merits, the panel decided to dismiss the applicant’s appeal. According to the Court, the humanitarian reasons invoked by the appellant did not warrant the stay of the deportation order. With regard to the best interests of the child directly affected by the deportation order against the applicant, the panel concluded that this argument was flimsy, even non-existent. In fact, the applicant’s daughter lives with her mother, and the applicant admitted he had no contact with her and does not provide her with any emotional or financial support. On this point, the panel noted that the applicant’s life of wandering and crime shows there is little hope of his providing this child with significant support in the years to come.
[6] As far as the applicant’s chances of rehabilitation are concerned, the panel emphasized that the evidence on this point was far from conclusive. Although the applicant had not been convicted of other offences since May 2002, he admitted having sold crack during the summer of 2002, and he continued to take crack, at least until May 2004. Moreover, the Court noted the following at paragraphs 22, 23 and 25 of the decision:
[22] The panel was not favourably impressed by the argument that a stay should be granted because of the time he has spent in Canada. It is true that the appellant arrived at an early age but, beginning in November 2001, when he persuaded the investigator to [Translation] “give him a chance”, he sold one of the most harmful drugs that exists and personally abused various substances that brought him to our hospitals on many occasions. He has continued to be a burden on our social assistance and healthcare systems and has made no serious effort to get out of this way of life. He makes use of public resources and rehabilitation centres, but has not solved his problems.
[23] The panel agrees that it will be hard for him to reintegrate into his country of origin, but it will not be more difficult than his situation in Canada, where he depends entirely on public resources and has no family support system.
[25] Counsel for the appellant stressed that his client has had no further convictions since 2002 and would like the panel to conclude that this points to his rehabilitation. Unfortunately, the medical documents that were produced as proof that the appellant suffers from a mental illness (paranoia) prove instead that the appellant has not rehabilitated himself but has been engaged in selling narcotics in order to get a “buzz”, as recently as May 2004. It goes without saying that the anger he showed the doctor could also have been grounds for criminal prosecution in view of the fact that he was on two years’ probation, but no complaint was filed.
[7] The applicant acknowledged that the deportation order issued against him was well founded in law, but he submitted that this Court should, on humanitarian grounds, set aside the panel’s decision dismissing his appeal. Essentially, the applicant submitted that the panel erred in exercising its discretion by not considering certain positive factors as being sufficiently important. On this point, the applicant once again submitted that he suffered a lot in his childhood, and he expressed his desire to overcome his problems and take control of his life. Accordingly, in 2003, he voluntarily registered for a live-in therapeutic program at the Maison Aleesen, and during the same year he took a rehabilitation and reintegration program for alcoholics, drug addicts and compulsive gamblers at the Maison l’Estime. In the circumstances, it is unfair to criticize him for being a burden on the social welfare system and the health network. In addition, the applicant explained that he had to take Zyprexa, a medication which apparently helps to treat the paranoia from which he has suffered since the time he [translation] “had to swallow seven pieces of crack, because the police were there” [to arrest him] (notes of psychiatrist L. Beaudry, whom the applicant consulted on May 11, 2004).
[8] The applicant’s criticisms of the panel’s decision concern its assessment of the facts and the importance of certain factors considered by it. These criticisms do not affect the validity of the panel’s general conclusion. In spite of the fact that the best interests of the child were invoked in the applicant’s written memorandum, this argument was not repeated by counsel for the applicant at the hearing before this Court on January 10, 2006. As far as the mental health issue is concerned, this argument was never expounded before the panel by the applicant’s former counsel.
[9] In principle, the Court’s review must deal above all with the legality of the decision, which was discretionary in nature, that was rendered by the panel, and not the merits of this decision, unless it appears from the record that it is patently unreasonable (see Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875 at page 877; Jessani v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 235, [2001] F.C.J. No. 662 at paragraph 16 (F.C.A.) (QL)). In the case at bar, nothing shows that the positive factors invoked by the applicant were not considered by the panel. Having said this, it is obvious on reading the panel’s decision and the exhibits on record that it took into consideration all the circumstances and relevant factors, including the seriousness of the offences committed by the applicant, the possibilities for rehabilitation, the applicant’s general behaviour (especially his violent temperament), his young age, the number of years he has spent in Canada, his parentage, his mental health (borderline and antisocial personality disorder), the medication he was taking (Zyprexa), his unhappy childhood, and the difficulties of reintegrating in his country of origin.
[10] It was up to the panel alone to assess and attribute relative weight to each of the abovementioned factors, considering all the circumstances in this case. This is what the panel did in this case. The findings of fact and the negative inferences made by the panel were based on the evidence on record and were not seriously challenged by the applicant. The reasons invoked by the panel for giving little weight to the positive factors underlined by the applicant are not perverse or capricious. In general, the panel’s decision is not patently unreasonable. Considering all the circumstances, the panel could conclude that a stay was not warranted in this case and that the applicant’s appeal should therefore be dismissed. Even thought the panel’s decision has significant consequences — in fact, the applicant will end up without resources in a country he left at the age of 19 — I is not my place to substitute my judgment for that of the panel.
[11] For these reasons, this application for judicial review must fail. There is no question of general interest to be certified in this case.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3019-05
STYLE OF CAUSE: Roger Lucas v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 11, 2006
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Martineau
APPEARANCES:
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Dominique Mathurin
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FOR THE APPLICANT |
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Gretchen Timmins
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Dominique Mathurin Montréal, Quebec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT |