Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE MR. JUSTICE RUSSELL
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Board"), dated April 22, 2005 ("Decision") that stayed the Respondent's Deportation Order for four years with conditions.
BACKGROUND
[2] The Respondent, Steve Anthony Bryan, was born on January 2, 1972 in Jamaica. He became a permanent resident of Canada on May 13, 1989.
[3] The Respondent led a law-abiding life until approximately 1995, when he was diagnosed with schizophrenia. His mental state led him to commit numerous criminal offences and he has accumulated 36 criminal convictions since 1995.
[4] The Respondent has been detained at various correctional and mental health facilities since late 2000. At the date of the Board's Decision, the Respondent was detained at the St. Lawrence Valley Correction and Treatment Centre, Secure Treatment Unit.
[5] Canadian immigration officials arrested the Respondent on June 17, 2003. A deportation order was made against him on May 27, 2004 by the Immigration Division ("ID") under paragraph 36(1)(a) of the Act on grounds of serious criminality.
[6] The ID ordered the Respondent's continued detention on March 30, 2005, citing his flight risk, and the need for him to remain supervised and medicated. In its reasons, the ID cited the absence of a "plan B" in the form of a stay in a suitable halfway house as a key factor in its decision.
[7] The Respondent appealed this deportation order on humanitarian and compassionate grounds, and the Board heard his appeal on March 7, 2005.
DECISION UNDER REVIEW
[8] At the date of the hearing before the Board, the Respondent had not submitted a workable release plan. His counsel asked for a postponement of the hearing in order to prepare such a plan, but this request was denied. The Board considered that the Respondent had had sufficient time to prepare for the hearing.
[9] After the completion of the hearing, but before the Board's Decision was rendered, the Respondent applied to adduce further evidence relating to a release plan in support of his appeal. The Applicant opposed the Respondent's application. The Board allowed the application because the new evidence contained information that was relevant for determining whether appropriate plans had been made for the Respondent in the event that he should be released from detention, and this was critical to his future in Canada. The evidence showed that steps had been taken to admit the Respondent to a facility operated by Regeneration Housing and Support Services, and that he had been placed on a waiting list to be admitted as soon as a bed became available.
[10] In its reasons, the Board stated that it was guided in the exercise of its discretion by the factors outlined in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4, as reviewed and adopted by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84. The Board was also guided by this Court's decision in Archibald v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 747), where Justice Reed found that both economic and social factors should be considered in determining an applicant's establishment in Canada.
[11] The Board found that the Respondent's economic establishment in Canada was nonexistent, which it attributed to his continuous detention for the previous five years. It also found he had a lack of training in any trade or craft, and that his means of financial support when he is not incarcerated are unclear.
[12] The Board then determined that the Respondent was not established in Canada from a social perspective, since he did not have any substantial support from his family and did not have any dependents in Canada.
[13] The Board also considered the possibility of rehabilitation of the Respondent and his likelihood of re-offending. After reviewing his extensive criminal record, the Board said that, although the Respondent had demonstrated a pattern of increasing recidivism there was a direct link between his mental illness and his criminal offences.
[14] The Board came to a positive finding regarding the possibility of rehabilitation, noting that adequate arrangements were being made for his release into the community. The final paragraphs of the Board's reasons are important and read as follows:
I have heard the testimony of the appellant and found it to be credible. The appellant articulated a desire to pursue long-term rehabilitation. It is trite to say that the key in this case is the existence of an appropriate release plan for the appellant that will ensure his needs are addressed as well as ensure the safety of the Canadian public. Yet, it is disturbing indeed that it was only after I articulated my surprise at the absence of such a release plan to counsel for the appellant and the designated representative at the conclusion of the hearing that one was eventually produced via the aforementioned application.
I understand completely the concerns of the Respondent [Minister] respecting how this case has come to be presented before me. Yet, we are dealing here with an individual who has been successfully treated in Canada for his mental condition for over four and one-half years. There was no evidenced [sic] adduced that he cannot continue with his treatment. What was absent is a plan that will enable him to continue in his path toward rehabilitation. This obstacle has somewhat been overcome.
In the circumstances of this case I do not believe that the appellant should be held at fault for the absence of an appropriate release plan. In my view, accountability rests with his counsel, his designated representative, his family, and medical practitioners, social workers and other professionals on whom the appellant relies to make appropriate Decision [sic] on his behalf.
Although the plan lastly provided by Ms. Boardman [Ms. Boardman is the Respondent's social worker] is still unclear, I am satisfied that Ms. Boardman and others have decisively turned their mind to the appellant's plight. I am also satisfied that, albeit belatedly, concrete steps are being taken to ensure that the appellant is provided with an appropriate release plan.
The appellant asked that I consider a stay of his removal order to show that he can be fully rehabilitated and I have turned my mind to this. For the above reasons I do believe that the granting of a stay is warranted. A stay of removal from Canada is granted for four years with specific stringent conditions.
[15] The Board made its stay order subject to nineteen conditions regulating the Respondent's behavior. Among other things, the Respondent has to reside exclusively at a place arranged by his social worker and Regeneration and Support, and he has to comply with all conditions placed upon him by the Toronto Bail Program, or any other similar program.
[16] The Board finally scheduled an interim reconsideration of its stay order for November 7, 2005. The Respondent's written submissions indicate that the date for the Board's reconsideration hearing was postponed and set for January 17, 2006.
ISSUES
[17] The following issues are raised:
1. Since the Board will be reviewing and reconsidering its own Decision imminently, is the application moot or unnecessary?
2. What is the applicable standard of review?
3. Did the Board err in law in releasing the Respondent and in ordering a stay of his removal order without having a full release plan in evidence?
PERTINENT LEGISLATION
[18] The relevant provisions of the Act read as follows:
| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
...
63. [...] (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
...
66. After considering the appeal of a decision, the Immigration Appeal Division shall
(a) allow the appeal in accordance with section 67;
(b) stay the removal order in accordance with section 68; or
(c) dismiss the appeal in accordance with section 69.
...
68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
(2) Where the Immigration Appeal Division stays the removal order (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;
(b) all conditions imposed by the Immigration Division are cancelled;
(c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and
(d) it may cancel the stay, on application or on its own initiative.
(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated. |
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
...
63. [...] (3) Le résident permanent ou la personne protégée peut interjeter appel de la mesure de renvoi prise au contrôle ou à l'enquête.
...
66. Il est statué sur l'appel comme il suit :
a) il y fait droit conformément à l'article 67;
b) il est sursis à la mesure de renvoi conformément à l'article 68;
c) il est rejeté conformément à l'article 69.
...
68. (1) Il est sursis à la mesure de renvoi sur preuve qu'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.
(2) La section impose les conditions prévues par règlement et celles qu'elle estime indiquées, celles imposées par la Section de l'immigration étant alors annulées; les conditions non réglementaires peuvent être modifiées ou levées; le sursis est révocable d'office ou sur demande.
(3) Par la suite, l'appel peut, sur demande ou d'office, être repris et il en est disposé au titre de la présente section.
(4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l'étranger est reconnu coupable d'une autre infraction mentionnée au paragraphe 36(1), l'appel étant dès lors classé. |
ARGUMENTS
- Since the Board will be reviewing and reconsidering its own Decision imminently, is the application moot or unnecessary?
The Respondent
[19] The Respondent argues that the Board will be reconsidering its Decision on January 17, 2006, and that the Applicant was served with a notice of hearing for the proceedings. The parties will be able to introduce new evidence with no restrictions at the reconsideration hearing, and the Board may decide to cancel the stay and dismiss the Respondent's appeal.
[20] The Respondent states that, although the Applicant has not clearly specified what outcome he seeks if his application is granted, the remedy this Court would likely impose is reconsideration by the Board, which will happen in any case.
[21] The Respondent also urges that, since reconsideration proceedings are scheduled, the Applicant has already obtained the remedy he is seeking: a full reconsideration by the Board. The Respondent concludes by submitting that the application is moot or unnecessary, that it involves a waste of judicial resources, and that this Court should exercise its discretion not to consider it.
The Applicant
[22] The Applicant argues that this application is not moot, and relies on the following statement found in the Board's Decision:
Judicial review - Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this Decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for this application.
[23] The Applicant submits that this statement acknowledges his clear statutory right to seek judicial review of the Board's Decision, and that the statement makes no mention of the right to reconsideration as being a bar to such an application.
[24] Furthermore, the Applicant states that, while the Board may use its discretionary power to reconsider its Decision, an order by this Court will force it to reconsider its stay of the removal order.
[25] The Applicant says that a scheduled reconsideration hearing in January 2006 should not be a factor in this Court's judicial review of the Decision. This Court has the power not only to order the Board to reconsider its Decision, but also to order the Board to reconsider its discretion according to specific directions.
2. What is the applicable standard of review?
The Applicant
[26] The Applicant submits that the question to be determined by the Board was not one of jurisdiction, but rather a weighing of various factors, and that the applicable standard is reasonableness simpliciter. (Chieu, supra and Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748)
The Respondent
[27] The Respondent argues that the applicable standard of review for a Decision by the Board to stay an order of removal on humanitarian and compassionate grounds is patent unreasonableness. (Chieu, supra and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982)
[28] The Respondent submits that this Decision was largely factual, and that the Board is an expert tribunal that over time and through its own jurisprudence has developed and applied appropriate tests as to when to grant a stay on humanitarian and compassionate grounds.
[29] The Respondent cites Thanaratnam v. Canada(Minister of Citizenship and Immigration) 2005 FCA 122 (F.C.A.) in support of the argument that, on questions involving factual inferences by the Board, the applicable standard of review is patent unreasonableness. In Thanaratnam, the Federal Court of Appeal found that, although they raised a question of mixed fact and law, the Board's findings in that case were "so largely factual" that they should only be set aside if a patently unreasonable decision was reached.
[30] The Respondent further submits that the present case is indistinguishable from Romans v. Canada(Minister of Citizenship and Immigration) 2001 FCT 466 (F.C.) which also involved a deportation order prompted by criminal convictions. At paragraph 33 of Romans, Justice Dawson wrote as follows:
Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a Decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's Decision. It is not enough that the Court might have exercised the discretion differently. See: Boulis v. Canada(Minister of Manpower and Immigration), [1974] S.C.R. 875
[31] The Respondent also cites Beaumontv. Canada(Minister of Citizenship and Immigration) 2002 FCT 1261 (FCTD) where Justice Snider wrote the following at paragraphs 19 - 21:
The Court must first determine what standard of review to apply to this case. The Supreme Court in Pushpanathan v. Canada(Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982. determined that, ordinarily, the standard of review for questions of fact and mixed fact and law is patently unreasonable, whereas for questions of pure law the standard of review is correctness.
The applicable standard of review is discussed in the case of Romans v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 740 (F.C.T.D.) whereby the Court affirmed that the standard of review with respect to the findings of the IAD.
The question of whether the IAD considered the right factors in its Decision to cancel the stay is a question of law and therefore a correctness standard of review should apply. The assessment of the weight that the IAD placed on the evidence and how it interpreted that evidence at the hearing is a question of fact and should be reviewed on a standard of patent unreasonableness.
[32] The Respondent also cites Canada (Minister of Citizenship and Immigration) v. Owens, [2000] F.C.J. No. 1644 (F.C.T.D.) and Aryan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 334 (F.C.T.D.), where this Court applied patent unreasonableness to the judicial review of the Board's findings on humanitarian and compassionate grounds.
3. Did the Board err in law in releasing the Respondent and in ordering a stay of his removal order without having a full release plan in evidence?
The Applicant
[33] The Applicant argues that the Board's Decision was unreasonable because it failed to consider the lack of an adequate release plan for the Respondent when it stayed the deportation order. The Applicant notes that the Board even acknowledged deficiencies in the Respondent's release plan in its reasons, yet unreasonably decided to grant a stay for four years.
[34] The Applicant submits that the further evidence submitted by the Respondent did not establish that he had been accepted by Regeneration House; it only stated that he had been placed on a waiting list.
[35] The Applicant submitted a letter dated March 16, 2005 from John Russell, Program Manager at Regeneration House, in which Mr. Russell states that placement on a waiting list did not mean that the Respondent had been accepted to the program. Acceptance was conditional upon a personal interview with a case manager, which had not then taken place.
[36] Furthermore, the Applicant urges that the Board relied on incorrect evidence submitted by the Respondent's social worker when it found that the Toronto Bail Program ("TBP") would continue to supervise the Respondent. In a letter to the Board dated May 13, 2005, Mr. Dave Scott, Executive Director of the TBP, wrote that the TBP could not and would not continue to supervise the Respondent after the Board decided to stay the deportation order.
The Respondent
[37] The Respondent submits that the Board fully considered the positive and negative factors relating to his case and, though the Board found that the Respondent was neither economically nor socially established in Canada, this finding was balanced by the fact that he could be rehabilitated.
[38] The Respondent argues that the Board was satisfied by the release plan submitted by the Respondent after the hearing and that this Decision was entirely factual and largely based upon the Board's assessment of the Respondent's credibility, and that the Decision to stay the removal order fell within the Board's discretionary power.
[39] The Respondent submits that the Applicant has not pointed to any reviewable error or any perversity or patent unreasonableness in the Board's findings.
[40] The Respondent concludes by stating the Applicant is asking this Court to re-weigh the evidence presented before the Board, and that in the absence of a reviewable error, this Court should not intervene.
ANALYSIS
[41] In my view, this application involves one simple issue: Is the Decision patently unreasonable because the Board granted a stay for four years even though there was no release plan in place for the Respondent?
[42] The Board indicated in its reasons that the most important factor to consider was an appropriate release plan, but the evidence shows that a release plan had not been finalized at the time of the Decision. The Applicant says it is not enough that steps are being taken to implement a release plan. The Board has to be sure that a plan is in place. There was no evidence before the Board in this case that a release plan was in place. Hence, the Applicant says the Decision was patently unreasonable.
[43] Both sides agreed at the hearing that the appropriate standard of review to apply to the Decision in this case is patent unreasonableness. My review of Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 587, 2005 FCA 122 (F.C.A.); Romans v. Canada, [2001] F.C.J. No. 740, 2001 FCT 466 (F.C.); Canada (Minister of Citizenship and Immigration) v. Owens, IMM-5668-99, October 11, 2000; and Aryan v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 334, 2004 FC 254, suggests to me that they are correct.
[44] The Board is given a broad discretion under section 68 of the Act to stay a removal on humanitarian and compassionate grounds "in light of all the circumstances of the case." The Board is also given a broad discretionary power to impose, vary and cancel conditions, and to reconsider any stay that it grants.
[45] In deciding whether to grant a stay in situations where criminal conduct is a factor, the Board has developed its own jurisprudence and has consistently applied the Ribic test, which was noted favourably by the Supreme Court of Canada in Chieu.
[46] The Ribic factors, which are not exhaustive, and none of which is determinative, include a range of matters that the Board considered when dealing with the case at bar:
1) The seriousness of the offence leading to the deportation;
2) The possibility of rehabilitation;
3) The length of time spent in Canada and the degree to which the appellant is established here;
4) The family in Canada and the dislocation to the family that deportation would cause;
5) The support available to the appellant in the family and the community; and
6) The degree of hardship that would be caused to the appellant by returning to his country of nationality.
[47] It is clear from the Board's Decision that it considered all of the factors in Ribic in the exercise of its discretion in this case.
[48] Having considered all of the Ribic factors, the Board focussed on the release plan aspect of the case. It acknowledged that the plan was still unclear, but it was satisfied that "concrete steps" were being taken to implement a plan to ensure the public's safety.
[49] In all of the circumstances, the Board felt that a stay was warranted, subject to conditions and review.
[50] The Minister is merely disagreeing with the Decision and the way the Board exercised its discretion. The Minister feels it was not appropriate to grant a stay before the release plan was finalized. But the Minister's view would make a release plan an absolute requirement. This is not necessary. If the plan is not finalized as anticipated, and if the public is in danger, section 68 of the Act allows the stay to be cancelled, either at the initiative of the Board or the Minister.
[51] I cannot say that the Decision was patently unreasonable merely because, at the time it was made, the release plan had yet to be finalized. The Board was satisfied that real steps were being taken to protect the public interest and that a stay was warranted "in all the circumstances." That is the Board's job. The Court should not interfere.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3160-05
STYLE OF CAUSE: MCI v. STEVE ANTHONY BRYAN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 7, 2005
APPEARANCES:
| Ms. Sonia Barrette
|
|
| Ms. Sylvia Valdman
|
SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada
|
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| DOUGLAS LEHRER VanderVennen Lehrer |
|