Date: 19980909
Docket: IMM-3692-97
BETWEEN:
"A.B.Z.",
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant (under the pseudonym provided by this Court) applies for an order (a) quashing the Immigration Appeal Division's decision [file T94-07607] dated August 5,1997, dismissing his appeal on upholding the removal order made on November 22, 1994, and (b) remitting his appeal back for determination anew by a differently constituted panel of the Immigration Appeal Division (hereinafter sometimes: IAD) of the Immigration and Refugee Board.
[2] The applicant is indeed in a vulnerable situation, for he volunteered to be an informer in a police investigation, and has been enrolled in, and cloaked by the witness protection program lest he be identified, thus jeopardizing his, and his family's safety. The Court promised, during the hearing, to provide a pseudonym for the applicant. The IAD granted the applicant's application for confidentiality.
[3] The applicant is a native of a Caribbean state, who came to Canada in 1984 at the early age of 12, and attended high school in Ontario, having completed grade ten by 1989. The applicant's supporting affidavit tells this:
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5. My family life in [an Ontario city] was difficult, as my [sole surviving parent] was very abusive to myself and my brothers and sister. Children's Aid was called occasionally and myself and my brother were often running away from home to get away from the abuse. I received very little guidance or supervision from my [sole surviving parent]. When I would run away, I would sleep in the stairwells of apartment buildings, and occasionally at a friend's house. I started stealing to feed myself. We were living in a housing project in [that city]. |
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Ultimately the applicant married and he and his wife now have three children, born in 1990, 1992 and 1995.
[4] Pertinent passages of the applicant's deposition run further as follows:
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8. From 1989 through to 1992 I was involved in various criminal activity [sic] which was primarily as a result of my addiction to crack cocaine, and my attempts to survive on the street. |
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9. I was charged with attempted robbery in 1992. My memory of this charge is clear, as I served twelve months in custody for that crime. As a condition of my sentencing I was supposed to be sent to the Ontario Correctional Institute (OCI) where I would receive drug treatment while in custody. However, I did not in fact serve my sentence at OCI and in fact have never been to OCI. I served my sentence at [another] Correctional Centre, and to the best of my knowledge and belief [it] does not have a drug treatment program and I did not receive any such treatment while I was in prison. |
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10. In 1994 I was arrested for shoplifting. I eventually served three months at [a] Correctional Centre for the shoplifting charge. Approximately two and a half weeks prior to my arrest I had seen a video replay of an armed robbery and murder that had occurred [* * *] in April 1994. The police were looking for the men in the video. I had recognized the men as people whom I had formerly associated with, and whom I had known almost the entire time I had been in Canada. I had not given the police this information because it was very serious and I was afraid what would happen to me and my family. I knew these people to be dangerous and unpredictable. |
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11. When I was arrested in June 1994, I made the decision to tell the truth about the people in the video-replay and assist the police. Because the people involved were dangerous and would threaten my life when they found out I identified them, the police agreed to place myself and my family in a witness protection program until the trial was over. I testified at the preliminary hearing when it was held in 1994, and it is my information and belief that the trial will not be held until 1998. |
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12. We were relocated first to [hither and then yon for both security and employment] |
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13. Since I was placed in the witness protection program, I have tried to turn my life around and provide for my family. However, it has been difficult to establish a connection anywhere as we were living in fear [* * *] and were reluctant to become involved in the communities where we lived, for fear someone would find out where we were living. This uncertainty also led to my inability to focus on a career or to obtain job training. We continue to live like this out of a desire to assist the [* * *] police with the case, but it has had its consequences, one of which is the inability to feel safe and secure enough to settle into a community and establish ties. |
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14. It was only when I arrived in [* * *] in 1996 that I felt safe enough to settle into the community and have a sense of what I wanted out of my life. Because I have little job experience, I had trouble finding a permanent position. Not wanting to sit at home unemployed, I started my own snow removal business and removed snow throughout the winter of 1996. Between my income and my wife's part-time job at [a restaurant], we were able to provide for our children and our home. When spring came and I could no longer remove snow to earn an income, and I obtained a job working as a chef in a restaurant. We joined a church in 1996, and it is partly my faith in God that has helped me overcome the problems that led to my previous lifestyle. |
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16. Myself and my family have settled in [our present location]. We are comfortable here, we feel safe and believe that we can at last plan for our future. I have always wanted to be a professional chef and I am working towards that goal. I have not been convicted of any criminal offence since 1994. I believe that dealing with my drug problem, my belief in God, and my change of residence and lifestyle have all contributed to the positive changes in my life since 1994. I have not made these changes to avoid deportation, but rather, I want a better life for myself and my family. During the years I was addicted to drugs, I was not able to see a future for myself, and I found it hard to think of a better life for myself. Assisting the police helped me find a way out of the life I was living. |
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17. Even though I lived in [the Caribbean country] until I was twelve years old, I have no close relatives there, as my [one parent] and grandmother are both deceased. My life, my three children, my [surviving parent] and all my siblings live in Canada. If I were to return to [that country], I would undergo considerable hardship, as I have no ties there whatsoever, and no close relatives who could assist me. In addition, my life and family would be in danger if I return to [that country] as it is my belief that friends and relatives of the accused that I identified would harass and threaten us. |
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[5] Other passages in the applicant's affidavit would make good submissions for a humanitarian and compassionate review pursuant to sections 6 and 114 of the Immigration Act, 1976-77, Chap. 52. According to the applicant's counsel he has committed no offences since 1994, and the applicant will be eligible for a free pardon in June, 1999. If the Minister's officials know anything of the meaning of the words "humanitarian" and "compassionate", it would seem to this judge that the applicant merits favourable consideration under that rubric, but such a determination is for the Minister and not for the Court. This is a judicial review to determine whether or not the IAD "went off the rails" in law when adjudicating the applicant's appeal. The validity of the removal order was not challenged.
[6] The main point of contention raised by the applicant's counsel at the hearing had to do with the applicant's criminal record. The applicant had appealed to the IAD pursuant to paragraph 70(1)(b) of the Act, which runs:
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70.(1) * * * where a removal * * * or conditional removal order is made against a permanent resident * * * that person may appeal to the Appeal Division on either or both of the following grounds, namely, |
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
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It is abundantly clear that Parliament intended the IAD, and not this Court, to decide any and every such appeal.
[7] It is a great human tragedy to be criminally "stupid and young and immature", as the applicant characterized himself in cross-examination before the IAD (tribunal's record, p. 144) and then to wake up from his idiotic misconduct almost too late to avoid the inevitable consequences which were plain to most others and hurtful, not only to oneself, but to one's innocent loved ones. Here, the Court could have concluded from the applicant's testimony before the IAD that his unaffected and spontaneous expression of shame for his demented depredations did indeed genuinely signal his remorse, (trib. record, p. 144), that which the IAD considerably doubted (trib. record, p. 10). However, the Court is not to substitute its own findings for those of the IAD, before whom the applicant testified viva voce, on a differing view of evidence capable of supporting the IAD's decision.
[8] The applicant's counsel's point made at the Court hearing about the applicant's criminal record had to do with proof of the conviction of "break and enter with intent, 1988-03-22 * * * (Youth Court). Disposition: Time spent in custody plus 1 day secure custody & probation 6 mos. (trib. record, p. 59). In definite terms and on oath, the applicant denied ever having been convicted of "break and enter". Here is what was in his testimony before the IAD:
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MISS LEWIS: [cr. exam.] What about the break and enter with intent, do you recall that? |
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APPELLANT: I have never broken anywhere in my life. |
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MISS LEWIS: Do you understand that you were convicted of break and enter with intent? |
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APPELLANT: I was never convicted of break and enter with intent. |
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MISS LEWIS: Well on your record of convictions there is an entry, the second entry, March 22, 1988 that reads break and enter with intent for which you received time spent in custody plus one day secure custody and probation for six months. |
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APPELLANT: When I was inside the courtroom, when I was convicted it was never for a break and enter. I remember clearly it was unlawfully in a dwelling house. |
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MISS LEWIS: So you understand that this stands before the Appeal Division as being your conviction in March 22, 1988, that it was in fact for break and enter with intent. |
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APPELLANT: I understand that it's on there but I never did break in anywhere in my life. |
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[9] It is this matter, not even mentioned in the tribunal's reasons for decision, upon which the applicant's counsel urges this Court to quash the tribunal's decision. The conviction of March 22, 1988, pronounced when the applicant was a young offender of not quite a full 17 years of age, was, at least on his testimony, for being unlawfully in a dwelling house, if not for breaking and entering.
[10] In 1988 those crimes were denounced by the Criminal Code in sections 306 and 307, just as they are today in sections 348 and 349. Today's formulation is stated in more inclusive language, but the two versions, ten years apart, are otherwise identical. The very provisions under which the Minister contends the applicant was convicted, and under which the applicant averred that he was convicted, run as follows:
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(a) breaks and enters a place with intent to commit an indictable offence therein, |
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is guilty of an indictable offence and is liable |
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(d) to imprisonment for life, if the offence is committed in relation to a dwelling-house, or |
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307.(1) Every one who without lawful excuse, the proof of which lies upon him, enters or is in a dwelling-house with intent to commit an indictable offence therein is guilty of an indictable offence and is liable to imprisonment for ten years. |
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In his testimony before the IAD, the applicant, in effect, insisted that he was convicted under section 307, but not under section 306. The offence described in paragraph 306(1)(d) is the more serious, and indeed, in terms of maximum penalty, it is among the Code's most serious. However, the offence described in subsection 307(1) to which the applicant admits, is not to be regarded lightly, either.
[11] Now the applicant's counsel asserts that because the alleged conviction under section 306 ("break and enter [a dwelling house] with intent) was not proved before the IAD in the manner provided in section 667 of the Criminal Code, it cannot be considered. The applicant's counsel also correctly noted that there was no fingerprint evidence adduced before the IAD. Section 667 is lengthy and its opening passages, only, suffice here:
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667.(1) In any proceedings, |
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(a) a certificate setting out with reasonable particularity the conviction, discharge under section 730 or the conviction and sentence in Canada of an offender signed by |
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(i) the person who made the conviction or order for the discharge, |
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(ii) the clerk of the court in which the conviction or order for the discharge was made, or |
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(iii) a fingerprint examiner, |
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is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced without proof of the signature or the official character of the person appearing to have signed the certificate; |
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This is an "evidence" provision of the statute.
[12] The applicant's counsel, in effect, argues that the Court should interpret the above text to mean, "in any proceeding under the laws of Canada * * *", because it is not restricted as is frequently the case by the words "in this Act" or "in this part". Section 667 appears in Part XX of the Code, dealing with and titled "Procedure in Jury Trials and General Provisions". So the argument literally is prima facie not implausible, especially if no other "evidence" provision in the statutes of Canada purports to override section 667.
[13] There is such a provision and it is enacted precisely for proceedings before the IAD. It is subsection 69.4(3) which runs as follows:
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69.4(3) The Appeal Division has, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record and, without limiting the generality of the foregoing, may |
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(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person's knowledge relative to a subject-matter before the Division and to bring and produce any document, book or paper that the person has or controls relative to the subject-matter; |
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(b) administer oaths and examine any person on oath; and |
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(c) during a hearing, receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it. |
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It appears, then, that there can be no legitimate objection to the IAD's not requiring compliance with section 667 of the Code in receiving evidence of the applicant's previous crime convictions.
[14] In any event, the applicant's counsel acknowledged that no formalities of proof are needed if the party admits the convictions, or at least, does not deny them. The only alleged conviction which the applicant denied was "breaking and entering with intent", and that he denied vehemently. However, he did admit under oath that, instead of "breaking and entering with intent", the conviction truly was for being "unlawfully in a dwelling house": Crim. Code sec. 307. That is another serious indictable offence carrying a maximum term of imprisonment for 10 years.
[15] The applicant's counsel asserts that a serious important question ought to be certified, for, depending on its answer the outcome of IAD's decision would surely be other than it was. Counsel avers that the IAD found the applicant not to be credible because he seemingly dissembled evasively by purporting not to remember various items in his juvenile and criminal record, or stated that he pleaded guilty to offences charged in order to serve concurrent terms so as to be released from prison earlier than might otherwise be the case.
[16] The IAD however never breathed, or wrote, a word about the dwelling intrusion offences. The applicant vehemently denied breaking and entering, but admitted that he was convicted of being unlawfully in a dwelling. That denial and that admission were clearly not the basis of the IAD's finding of lack of credibility. Therefore, the answer to a certified question about the lawful mode for proving a conviction denied by the applicant could not work a change of the IAD's decision in the applicant's favour.
[17] The question which the applicant's counsel requested the Court to certify is:
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"Absent" [sic] an admission or direct proof by viva voce evidence, must the criminal record be proven [sic] in accordance with the provisions of the Criminal Code? |
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The respondent's counsel argued that, in the circumstances no question needs to be certified. However, in the event that the Court be minded to certify such a question, she composed a more precise version tailored to this case.
[18] Upon reflexion, the Court declines to certify a question herein for the reasons stated.
[19] The Court declines to certify the applicant's counsel's question on both pertinent grounds: it is not an important question of law in light of paragraph 69.4(3)(c) of the Immigration Act; and its answer could make no difference to the decision rendered by the IAD on August 5, 1997.
[20] The application to quash the IAD's said decision must accordingly be dismissed, but without costs, despite the Minister's counsel's effective and professional conduct.
[21] It would not shock this judge's sensibilities if the Minister were, (even once again perhaps), to accord the applicant an earnestly humanitarian and compassionate review, despite the above conclusion which is strictissimi juris, and which is within the Court's jurisdiction, but not humanitarian and compassionate as are exclusively within the Minister's jurisdiction.
Judge
Ottawa, Ontario
September 9, 1998