Date: 19980911
Docket: IMM-1542-97
Between:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WED SAINTELUS
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (IAD) pursuant to paragraph 73(1)(c) of the Immigration Act1 (the Act), directing that execution of the removal order against the respondent be stayed for four years.
[2] The respondent was born in Haiti on July 7, 1977. He came to Canada with his mother and was granted landing on December 25, 1988. His various associations with gangs began in July 1992. He states that he was not officially a member of a gang, but that he used to associate with individuals from Montréal-Nord who were known as the "Beaux Gars".
[3] The evidence shows that, since that time, the respondent has committed a number of offences, for which he was incarcerated, released on parole and reincarcerated after failing to comply with his parole conditions.
[4] In June 1995, he was charged with possession of a prohibited weapon. He pleaded guilty and was sentenced to one year with three years" probation, and prohibited from possessing a firearm for life.
[5] In prison, the respondent was identified by his fellow inmates as someone who used physical violence. He had to be transferred to another prison three or four times and the correctional reports show that he was violent toward the other inmates.
[6] On April 10, 1996, a detention order pursuant to section 105 of the Act and an arrest warrant were issued. A report concerning the respondent was written pursuant to paragraph 27(1)(d) of the Act. The inquiry regarding the report was held in November 1996. A deportation order was made at that time. The IAD stayed the removal order in April 1997 after hearing the appeal.
[7] Section 70 of the Act reads as follows:
| 70. (1) . . . where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit . . . that person may appeal to the Appeal Division on either or both of the following grounds, namely, |
| ( a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
| ( b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
[8] Parliament has vested the discretion in the IAD, having regard to the circumstances of the case, not to remove an inadmissible person.
[9] Suffice it to say that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.2
[10] The factors to which the IAD shall have regard in relation to "all the circumstances of the case" were set out in Ribic :3
| 1) the seriousness of the offence leading to the deportation order; |
2) the possibility of rehabilitation;
| 3) the length of time spent in Canada and the degree to which the appellant is established in Canada; |
| 4) whether the appellant has family in Canada, and the dislocation to that family that deportation of the appellant would cause; |
| 5) the support available for the appellant not only within the family but also within the community; |
| 6) the degree of hardship that would be caused to the appellant by his return to his country of nationality. |
These factors have been referred to by the Federal Court in Al Sagban v. Canada (M.C.I.),4 Ewere v. Canada (M.C.I.)5 and Canada (M.C.I.) v. Jhatu6.
[11] However, in exercising its discretion, the IAD has to be consistent with the principles and policies underlying the Act. Paragraph 3(i) of the Act provides:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need |
| . . . |
| ( i) to maintain and protect the health, safety and good order of Canadian society; . . . |
[12] In Canepa,7 the Court of Appeal stated that the tribunal is required to exercise its discretion in a manner that is consistent with the objectives of the Act, and to consider all the facts of the case, including the person in his total context and the good of society as well as that of the individual.
[13] In the case at bar, it is clear that the IAD based its decision primarily on the strong possibility that the respondent would be rehabilitated. However, I am not persuaded, on a careful reading of the record, that there was evidence to justify that finding. On the contrary, the evidence suggests a high risk of reoffending.
[14] For the past four years, whenever he has been released, he has reoffended. In prison, he has been guilty of mischief and assaulting fellow inmates, and is considered violent by the Correctional Service.
[15] The fact that he did not contact his old friends who got him involved in crime does not constitute evidence of rehabilitation: he was in prison over this period.
[16] In her testimony, Ms. Desgroseillers of Groupe action contre la violence admitted that she had no individual action plan for the respondent, that she can only supervise an individual from 9 a.m. to 4 p.m., that she had reservations about the respondent having contact with the young people in his area because of his past and that his mother"s move to another location was not far enough away to avoid the worst.
[17] I am unable to find that this evidence was sufficient to enable the tribunal to infer that there was a very strong possibility that the respondent would be rehabilitated.
[18] In the result, the application for judicial review is allowed. The decision of the IAD is quashed and the matter is referred back for redetermination by a different panel of the IAD.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
September 11, 1998.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1542-97
STYLE OF CAUSE: MCI v. WED SAINTELUS
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 8, 1998
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED SEPTEMBER 11, 1998
APPEARANCES:
SYLVIANE ROY FOR THE APPLICANT
NATHALIE FRICOT FOR THE RESPONDENT
SOLICITORS OF RECORD:
SYLVIANE ROY
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE APPLICANT
NATHALIE FRICOT
FOR THE RESPONDENT
__________________2 Boulis v. M.M.I., [1974] S.C.R. 875 at 877.
3 (August 20, 1985), T84-9623 (Imm. App. Bd.).
4 [1998] 1 F.C. 501 at 505 (T.D.).
5 (December 12, 1997), IMM-2120-96 (F.C.T.D.).