Date: 19990429
Docket: IMM-127-98
BETWEEN:
ABRAHAM CORNELIUS GRANT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
[1] This is an application to review and set aside the decision of the Appeal Division of the Immigration and Refugee Board (Appeal Division) dated December 3, 1997, wherein it was decided that the applicant should be removed from Canada.
FACTS
[2] The applicant is a Jamaican citizen. He first came to Canada in 1980 as a visitor and became a permanent resident of Canada in 1987, at the age of 28. While in Canada, he was charged and convicted of the following offences: possession of narcotics in 1990, for which he was given a $200 fine and two years probation; assault and uttering threats in 1994, for which he served 30 days intermittently with a probation period of 12 months; and trafficking in a narcotic in 1996, for which he was sentenced to ten months imprisonment, of which he served four. This last offence arose when Mr. Grant sold five pounds of marijuana to an undercover police officer at the request of a friend.
[3] As a result of the last offence, the applicant was found to be a person described in paragraph 27(1)d) of the Immigration Act, R.S.C. 1985, c. I-2., i.e. a person who has been convicted of an offence for which a term of imprisonment of more than six months has been, or five years or more may be, imposed. He was ordered deported on February 19, 1997.
[4] The legality of the deportation order was not challenged before the Appeal Division. Rather, the applicant appealed to the Division to use its discretionary power under paragraph 70(1)b) of the Act to suspend the deportation order. In such an appeal, the onus is on the appellant to show, on the balance of probabilities, that, having regard to all the circumstances of the case, he should not be removed from Canada. The Appeal Division must exercise its discretion in a manner consistent with the objectives of the Act, which are notably to promote the need to maintain and protect the health, safety and good order of Canadian society. In Ribic v. Canada (M.E.I.), (August 20, 1985), Doc. I.A.B. T84-9623, the Appeal Division set out 6 factors to be considered in granting this relief. These factors are not exhaustive and the weight given to each depend on the circumstances of each case. They are:
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 here;
4. The family in Canada and the dislocation to the family that deportation would cause;
5. The support available to 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.
THE APPEAL DIVISION'S DECISION
1. The seriousness of the crime
[1] The Appeal Division found that the 1996 trafficking offence was serious. The severity of the crime was reflected by the imposition of a lengthy sentence.
2. The possibility of rehabilitation
[2] The Appeal Division did not find the applicant to be a credible and trustworthy witness. His testimony was inconsistent and contradictory, and his manner evasive. The Appeal Division was not satisfied that the applicant was straightforward in his description of the circumstances of the 1996 offence. First, the applicant stated that he had not used marijuana since the mid-1980s and was unfamiliar with trafficking. The Appeal Division found this to be unlikely. The applicant's friend would not approach a person unfamiliar with trafficking on behalf of a person seeking to purchase 40 pounds of marijuana and who was willing to pay up to $10,000.00 for the first 5 pounds. Mr. Grant admitted that he sold the drugs for the chance to make a quick profit. After being pressed by the respondent's counsel, he finally claimed that he did not know why his friend contacted him specifically to obtain the drugs.
[3] The applicant was able to find five pounds of marijuana within two weeks. Before the Division, he testified that he did so by hanging out at a night club. This contradicted an earlier statement to an immigration officer, to whom he had explained that he met a dealer while delivering fruits and vegetables. Therefore, the Division did not accept the applicant's contention that he had never been involved in trafficking before, especially considering that he had been charged in 1990 for possession of cocaine for the purposes of trafficking, which charge had been reduced to a charge of possession in exchange for a plea of guilt.
[4] The Division was not satisfied that the applicant had been truthful about the circumstances surrounding the 1990 conviction either. The applicant claimed that he was just playing cards in an apartment when the police burst in and found cocaine on the premises and over $200.00 on his person. He pleaded guilty upon been advised by his lawyer that he could avoid going to jail that way. Basically, the applicant explained that he had just been at the wrong place at the wrong time, and was the victim of poor legal advice. The Division disbelieved the applicant's claim that he ignored there were drugs in the premises. He knew the owner of the apartment and had been there on at least 8 recent occasions.
[5] On the subject of the 1994 conviction for assault and uttering threats, the applicant first testified that there was no violence involved and that he merely said to a friend that he was coming to "punch him on the nose". He did not believe that he did anything wrong. Only after repeated questioning did the applicant admit to physical contact with the victim.
[6] The applicant had been paroled four months after the sentence was imposed, and the Parole Board's findings had been presented at the hearing. The Parole Board also believed that the applicant had a tendency to minimize his offences. However, their misgivings were overcome by his acceptance of his responsibility for his actions. The Appeal Division could not come to the same conclusion as the Parole Board. The applicant was not frank about the circumstances of the 1996 conviction. The Appeal Division also found that the applicant consistently attempted to place responsibility on others. His lack of truthfulness about his offences eroded the evidence of his rehabilitation.
[7] The Appeal Division was not convinced that the applicant had come to recognize the connection between his actions and the damage done to society by narcotics. When stressing the importance of his counselling to his daughters, he failed to advise them about the danger of narcotics.
[8] The Appeal Division did not doubt that the applicant disliked his stay in prison, but, in light of his failure to accept responsibility for his actions, it was not satisfied by his expressions of remorse.
[9] The applicant's father, Mr. Alvin Constantine Grant testified at the hearing. Mr. Grant, Sr. came to Canada in 1982. He was convinced that the applicant felt genuine remorse for his actions. He also informed the Appeal Division that the applicant's 1996 arrest brought shame to his family, who are law-abiding citizens. Mr. Grant Sr. had been shocked when he learned that his son was arrested for trafficking. He was not aware of his son's previous convictions. The applicant had previously testified that his family knew of this aspect of his past. Since the applicant had never been forthright with his father in the past, the Division put little weight on Mr. Grant Sr.'s testimony of his son's remorse.
[10] Dr. Judith Pilowsky is the clinical psychologist who assessed the applicant at the request of his counsel. She talked to Mr. Grant, and was provided with a description of his criminal record. In her opinion, Mr. Grant accepted responsibility for his actions and was genuinely remorseful. He felt particularly shameful of having lost the respect of his family. His shame and his aversion to incarceration were strong deterrents against re-offending. The Appeal Division found her to be a credible witness. It however noted that she was a clinical psychologist, not a forensic psychologist. Therefore it did not consider her as an expert witness in the risk assessment of criminal recidivism and rehabilitation, but rather as a witness with experience in the broad field of clinical psychology. Dr. Pilowsky also mentioned that her findings were accurate only if the applicant had been truthful with her. Given the misleading testimony of the applicant at the hearing, the Division concluded, on the balance of probabilities, that he had not been truthful with Dr. Pilowsky. The psychological test revealed that the applicant was free from a pre-disposition to criminality. However, these tests did not take into account the factor such as an easy economic gain. The Appeal Division further noted that shame of arrest and his family's humiliation never deterred the applicant from re-offending a second and third time. Therefore, the Appeal Division afforded little weight to the psychological findings.
[11] The Appeal Division was not satisfied that the applicant was rehabilitated. This, together with the seriousness of the offences and the danger of recidivism led the Division to believe that the applicant's presence in Canada constituted an unacceptable danger to Canadian society.
The Applicant's Degree of Establishment in Canada
[12] Mr. Grant had been employed since his arrival in Canada. He first lived mostly in Winnipeg, where he was arrested along with a friend for break and enter. The charges were dropped. In 1985, he moved to Toronto and lived for a few months with his sister, Paulette. He then lived for 2 or 3 years with the mother of his daughters in Toronto, and then with a girlfriend. After, he moved to Winnipeg for a while, and came back to Toronto. He now lives with his sister, Maxine. He is now working full-time, since May 1995, as a truck driver and shipper/receiver, and his employer is satisfied with his work.
The Applicant's Family
[13] The applicant has three daughters, one lives in Jamaica. His twin daughters live in Canada, as do the applicant's parents and two sisters. The applicant's father testified that they are a close-knit, ethical family. While they support him now, they would not help him if he re-offends
[14] The applicant set up an education fund for his daughters which now totals $8000.00. He pays child support when he can, but no one in Canada depends upon him for financial support.
[15] The applicant's daughters did not testify, so the Division declined to make a finding on an undue emotional hardship upon their part. Undoubtedly, his family would miss him, but contact could be maintained through phone calls, letters and visits.
Hardship caused to the Applicant upon return to his country
[16] The applicant has a 20 year old daughter in Jamaica. He is on friendly terms with her mother, who also lives in Jamaica. He was himself raised in Jamaica and completed two years of college. He does not own property there. While starting over in Jamaica would be difficult, the Appeal Division felt he would get support from his family.
[17] The Appeal Division concluded that they were not convinced the applicant demonstrated that, in the circumstances of the case, he should not be removed from Canada.
ISSUES
[18] The following are the issues in question :
1.Did the Board err in law by failing to qualify Dr. Pilowsky as an expert witness in the area of forensic psychology? (The Board did accept Dr. Pilowsky as an expert in clinical psychology.)
2. Did the Appeal Division err in its assessment of the weight to be given to Dr. Pilowsky's evidence?
3. Did the Tribunal err in law in not affording much weight to the report of Dr. Pilowsky on the basis that the opinion which it contained was premised on information provided to her by the applicant?
4. Did the Tribunal misconstrue and ignore evidence before it?
ANALYSIS
1. Dr. Pilowsky's Qualification
[19] The applicant takes issue with the Board description of Dr. Pilowsky's qualification as a "witness with experience in the broad field of clinical psychology." It is submitted that the Appeal Division reneged on its earlier finding that Dr. Pilowsky is an expert witness and treated her as an ordinary witness with experience in clinical psychology, without reasons and without advising the applicant and give him the opportunity to voice an objection. Considering Dr. Pilowsky as an ordinary witness has affected negatively the tribunal's ability to give proper weight to Dr. Pilowsky's findings, which indicated that the applicant seemed genuinely remorseful, accepted responsibility for his actions, and constituted a low risk of recidivism.
[20] I do not accept that the Appeal Division went back on its own finding. The reasons of the Appeal Division must be read in context. At the hearing, the Appeal Division found that Dr. Pilowsky was an expert in the field of clinical psychology, as opposed to an expert in forensic psychology. It reiterated this finding in its reasons. They read as follows:
"Dr. Pilowsky confirmed that her designation is as a clinical, not forensic, psychologist. I did not qualify her as an expert witness in risk assessment of criminal re-offence and rehabilitation. She testified as a witness with experience in the broad field of clinical psychology."
[21] The Appeal Division still considered Dr. Pilowsky as an expert witness. It was merely qualifying the nature and extent of her expertise.
2. Did the Appeal Division err in its assessment of the weight to be given to Dr. Pilowsky's evidence?
[22] The applicant submits that the Appeal Division erred in law when it found that little weight should be afforded to Dr. Pilowsky's testimony because she does not have the specific label of forensic psychologist. He feels that Dr. Pilowsky's background and expertise enabled her to testify on issues such as risk assessment and rehabilitation. Dr. Pilowsky had testified that such issues are not reserved to forensic psychologists, but also fall under the umbrella of clinical and rehabilitation psychology. In fact, about 20% of her practice consisted of treating persons with criminal records. Therefore, not being a forensic psychologist did not deprive her of the ability and expertise to testify on issues of risk assessment, and the Appeal Division erred in law in offering less weight on the basis that she did not have the specific designation and that her evidence was that of an ordinary witness.
[23] It is apparent from Dr. Pilowsky's testimony that aspects of clinical and forensic psychology can overlap. It remains nonetheless that she is not designated as a forensic psychologist. It was made clear to counsel at the hearing that weight would be assigned to her testimony. At page 99 of the transcript, we see that the Presiding member advised counsel as follows:
"...with the appellant and Dr. Powlowsky has spent at least two hours, fairly focused time one assumes, with the appellant. So for that reason it occurred to me that counsel might find her testimony of help and subject to the panel's giving weight to that in that she's not giving -- giving weight in that she's not expert witness vis-a-vis forensic psychology. That's the first.
The second is with regard to her designation as an expert in clinical psychology. I accept the respondent's submission, that clinical psychology is a very general term, has within it many designations, as indeed the witness has testified. Given her testimony about her own background and her experience as a clinical psychologist and the respondent's clear recognition of that experience tha panel finds that she is an expert witness in the broad field of clinical psychology.
In finding so, the panel wishes to reiterate that because it hasn't found her to be an expert witness in forensic psychology that it will, of course, assign weight to her evidence as it relates to risk of re-offence and rehabilitation."
[24] The presiding member then specified that "rehabilitation" included "remorse". Counsel on both sides did not object to this qualification. It is evident that counsel was presented with an opportunity to voice an objection to the Appeal Division's finding. An intervention now is both untimely and unwarranted.
[25] Dr. Pilowsky's report was given little weight for two reasons other than her label as clinical psychologist. First, she admitted that her findings could be falsified if the applicant was not forthright with her. Second, the test used on the applicant did not take into account the additional stress factor of easy gain, which had been the motivation of the 1996 crime. For these reasons, I see no compelling reason to intervene in the weight afforded to this evidence.
3. Did the tribunal err in law in its assessment of the evidence contained in Dr. Pilowsky's report because the latter was based on information provided to her by the Applicant?
[26] It is submitted that the Appeal Division erred in law by affording little weight to Dr.Pilowsky's report on the basis that it was founded on information given by the applicant. It should be recalled that the Appeal Division found that, since the applicant had been evasive at the hearing, he had probably been less than truthful with the psychologist.
[27] According to the applicant, this finding is utterly perverse, as there was no evidence before the tribunal on which it could conclude that the applicant had not disclosed all of the details of his criminal past. Dr. Pilowsky stated on several occasions that in her professional opinion the applicant was genuine and sincere, an opinion that was corroborated by the results of the MMP1 test conducted on the applicant. The MMP1 test is commonly used to determine whether or not the personality of the individual contains a life long propensity to engage in criminal activity or whether a given act was an isolated act or a series of isolated incidents. It is considered to be the current most reliable test in psychology and psychiatry.
[28] The MMP1 test contains two scales. The first scale assesses whether a person is lying. Dr. Pilowsky explained that it is a very hard test to manipulate. Unless someone is truly sophisticated, psychopathic or has very high intelligence, the test can determine if someone is lying. The second scale evaluates tendencies to psychopathic activities. These tendencies can be identified through an inability to accept responsibility, anti-social behaviour, the making up of excuses, tendency to be very charming, engaging and to want to create a good impression. In her view, the applicant did not try to embellish or deny things. He seemed genuine. Jail, the loss of his job and respect from his family, and possible deportation were strong incentives not to re-offend.
[29] Dr. Pilowsky has been administering this test in the past ten years. She has 12 years of training in psychology, more specifically in the area of personality assessment. She has completed over the years more than 3000 personality assessments, thirty of which had to do with individuals who had criminal records. In these assessments, she examined why the behaviour occurred, its context, the person's understanding of what happened, remorse issues, and views for the future. Some 20% of her practice deals with persons who have criminal records. She is therefore qualified to interpret the results of the MMP1 test.
[30] The applicant points out that the report was more than the information related by him to Dr. Pilowsky. She had been informed by his counsel of all the charges upon which he had been convicted. The applicant concludes that it is perverse to hold that he was probably not truthful about his criminal past: not only he didn't have the opportunity to be untruthful, but in the opinion of the psychologist, it is likely that he was genuine in his remorse, and that he did not pose a danger to the society of Canada.
[31] Once again, the applicant asks this Court to re-weigh and re-assess evidence that was before the Appeal Division. It is trite law that a reviewing Court does not intervene in the absence of a perverse or capricious finding by the tribunal. In Azad v. M.C.I. (January 26, 1995), IMM-1582-94 (FCTD), at page 4, Mr. Justice Cullen states:
In her submissions, the counsel for the applicant offered counter-arguments to each of the Board's explanations of why it did not find the applicant's evidence credible. After carefully reading the record and hearing oral arguments, I cannot say that I would have come to the same conclusion as the Board. However, the role of a review court is not to re-weigh and re-assess the evidence that was before the Board. Rather, if the findings have crediblity or plausibility are supportable by the evidence, this Court must not interfere.
[32] Evidence before the Appeal Division included the fact that the applicant had lied to an immigration officer and that he mislead his family about his criminal past. He was evasive at the hearing about the circumstances surrounding his convictions. There existed a possibility that the applicant was not straightforward with the psychologist, a fact that could corrupt her findings. In light of the entire circumstances, I do not find the conclusion of the Board to be unsupported by the evidence, so as to consider the Board's conclusion to be perverse.
4. Did the Appeal Division misapprehend the evidence before it?
[33] In support of his contention that the Appeal Divison failed to apprehend the evidence that was before it, the applicant listed errors allegedly made by the Appeal Division.
[34] First, the Appeal Division had found that the applicant first came to Canada in 1986 as a visitor. It also found that the applicant had saved $800 for his daughter's education. These findings are erroneous: the applicant first came to Canada in 1980 and he actually saved $8000 for his daughter. However, these errors are far from central to the Appeal Division's decision, and are, I am satisfied, without consequence.
[35] The Appeal Division also found that the applicant did not accept responsibility for his convictions. The applicant claims this is an erroneous finding, since he recalls testifying to the contrary. It is clear from its reasons that the Appeal Division did not believe him. I am presented with no compelling arguments to intervene in a finding of credibility.
[36] The applicant also claims that he talked about drugs to his daughters, contrary to the finding of the Division. This is not so. The applicant's response, when interrogated on the subject, reads as follows at page 73 of the transcript:
"I had a very long discussion about drugs, like getting arrested...part of it that made me talk about it, staying out of trouble with the police. We never actually talked about drugs per se that way but just talked about not getting in trouble with the police in general. "
(my emphasis)
[37] From this excerpt, I find that the finding of the Appeal Division is correct.
[38] The Appeal Division found that it was only after he was pressed that the applicant finally admitted he didn't know why his friend approached him specifically to get the drugs. The applicant believes this finding is perverse. He had explained repeatedly that this friend only mentioned to him that someone was looking for drugs and did not seek his help to facilitate the transaction. Again, I fail to see how the finding of the Division is erroneous. The applicant testified that his friend mentioned the deal to him and asked him on 5 or 6 occasions if he had made any contacts. It appears from pages 51 to 54 of the transcript that the Appeal Division had to question him at length before he finally claimed that he had no idea why his friend would think of coming to him to obtain marijuana.
[39] According to the applicant, the Appeal Division erred in finding that he made a contradictory statement to an immigration officer. He had testified that he never told the officer that he met a pusher while delivering fruit and vegetables, and that the officer must have misunderstood him. Clearly, the Appeal Division disbelieved him, and I see no compelling reason to disturb this finding.
[40] It is further alleged that the Appeal Division committed an error by determining that the applicant felt that he was the victim of poor legal advice. The applicant denies ever having said that. A review of the transcript (p. 70) reveals that the applicant felt that he was convicted because he was at the wrong place at the wrong time. He pleaded guilty and was convicted even though he hadn't committed the crime, because his lawyer told him to do so in order to avoid jail time. After a review of the transcript, I find that the Appeal Division correctly paraphrased the applicant's testimony.
[41] The applicant further feels that the Appeal Division drew inferences from the facts which are not supported by the evidence. First, the Appeal Division found that he had trafficked drugs before the 1996 arrest. According to the applicant, this is totally speculative, since he was never convicted of trafficking before 1996. I see no error. The specific finding of the Appeal Division reads as follows:
I am not satisfied that Mr. Grant was truthful with the immigration officer or at this appeal hearing. On a balance of probabilities, I do not find credible Mr. Grant's testimony that he had never before been involved in trafficking in narcotics.
[42] The basis for disbelieving Mr. Grant was that his friend came specifically to him to obtain an important amount of marijuana. Mr. Grant knew to go to a particular Toronto nightclub to obtain the drugs. He was able to supply the undercover officer with a sample and then with five pounds of marijuana with an approximate street value of $24,000.00 within a short time. As well, he was charged in 1990 for trafficking cocaine, a charge that was brought down to possession in exchange for a plea of guilty. The finding of the Appeal Division was open to it on the balance of probabilities.
[43] Additionally, the applicant claims that the Appeal Division found that he has a propensity for violence, despite the applicant's father and Dr. Pilowsky's testimonies that he is not an aggressive person. Again, I find that the finding was open for the Division to make. The evidence shows that the applicant was convicted of assault and uttering threats. Both the Parole Board and the Appeal Division found that he had a tendency to minimize his offences.
[44] Lastly, according to the Appeal Division, Dr. Pilowsky's report did not specifically indicate that he would not re-offend if an additional stressor such as an economic gain is added. The applicant submits that, in making such a finding, the Appeal Division sought an all too onerous guarantee that he would not re-offend. Furthermore, this finding ignores Dr. Pilowsky's evidence that the applicant realized that financial motives do not justify criminal behaviour.
[45] Once again, the Court declines to intervene. The absence of consideration of the question of economic gain was a relevant factor, considering that it was the motive of the applicant's most serious crime. As well, the assurances of rehabilitation of the applicant are insufficient to justify the intervention of this Court, considering the findings on his lack of credibility.
[46] In conclusion, I find that the Appeal Division considered the totality of the materials before it, and that its findings are reasonably supported by the evidence. The application is dismissed.
[47] No question was submitted for certification.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
April 29,1999