Date: 19990923
Docket: IMM-1345-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
KEVIN RICHARD ALYEA
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is a review of a decision dated 15 March 1999 by Adjudicator Daphne Shaw Dyck of the Immigration and Refugee Board Adjudication Division under s. 103(3) of the Immigration Act in which she released the Respondent from continued immigration detention.
Background
[2] Kevin Richard Alyea was landed on 27 May 1983 and has the status of a permanent resident in Canada.
[3] As a result of incidents which occurred between 1990 and 1995, on 9 January 1997, Mr. Alyea was convicted by a judge and jury of two counts of sexual assault and three charges of sexual touching contrary to ss. 271 and 151 of the Criminal Code of Canada respectively.
[4] On 3 April 1997, Mr. Alyea was sentenced to 30 months imprisonment on each of the charges of sexual assault and 18 months imprisonment for each of the charges of sexual touching, with the sentences to be served concurrently.
[5] On 10 November 1997, the British Columbia Court of Appeal set aside two of the convictions for sexual touching leaving convictions for two counts of sexual assault and one charge of sexual touching.
[6] On 2 July 1998, a report under s. 27(1)(d) of the Immigration Act was issued by an immigration officer indicating that the Mr. Alyea holds the status of a permanent resident in Canada. On 20 November 1998, a delegate of the Minister of Citizenship and Immigration formed the opinion that Mr. Alyea is a danger to the public under ss. 70(5) and 46.01(1)(e)(iv) of the Immigration Act.
[7] On 5 March 1999, Mr. Alyea was released from detention by the National Parole Board with the conditions that he:
| 1. Must avoid all contact with the victims of this offence. Must have no contact and must not be in the company of any individual or group of individuals under the age of eighteen years old [sic] without the prior written permission of a parole supervisor. |
| 2. Must reside at a CCC/CRF. No overnight leave without the completion of a positive Community Assessment and the support of the parole supervisor. Will be reviewed 90 days prior to WED to ensure the least restricitve [sic] option is still in place. |
| 3. Must avoid traveling [sic] in areas that are likely to be frequented by children under the age of ieghteen [sic] such as playgrounds, school yards and video arcades. Discretion will be given to the supervising parole officer. |
| 4. To participate in weekly Sex Offender Group Counselling. Active participation will be required. Will be requires [sic] to participate in one-to-one counselling with a psychologist as well. |
The Decision Under Review
[8] On 18 March 1999, Mr. Alyea"s immigration detention was reviewed by the Adjudicator who ordered his release, subject to the conditions imposed by the National Parole Board and additional requirements as follows:
| a.) That Mr. Alyea provide the Ministry of Citizenship and Immigration with his address prior to release and that he not move without first advising the Ministry. |
| b.) That Mr. Alyea report to the Immigration Office in Prince George, British Columbia on Tuesdays and Thursdays beginning the 23rd of March, 1999. |
| c.) That Mr. Alyea report as directed by the Immigration Officer for any lawful purpose under the Immigration Act, including if necessary, removal from Canada, as well as reporting for the resumption of his immigration inquiry. |
Analysis
[1] The Applicant argues that the Adjudicator in her decision chose to simply adopt the decision of the National Parole Board, and, therefore, failed to come to an independent finding on the issue of Mr. Alyea"s release from detention.
[2] However, it is clear from the record that the Adjudicator turned her mind to the arguments raised by the Case Presenting Officer regarding the potential danger that Mr. Alyea might pose if released. At page 19 of the transcript of the proceedings, the Adjudicator engages in a lengthy discussion of the crimes committed by Mr. Alyea, including at lines 4-6 a passage which reads:
| A case of this kind is quite contentious as you are well aware. You have been convicted in the courts of extremely repugnant crimes against children. And I think that that is something that I must pay close attention to in making my decision. |
Further, at p. 21 of the transcript, she indicates:
| Of course, it has to concern me the nature of the crimes that you have been convicted of. And I believe that the terms and conditions that the Parole Board has placed on you, together with the terms and conditions that I would impose, would have the desired effect of minimizing any potential danger to the public. |
[3] Therefore, I find that the evidence from the transcript and release order demonstrates that the Adjudicator took into consideration the arguments of the Case Presenting Officer and chose to address them through the incorporation of the conditions set by the National Parole Board, with the addition of further conditions of her own. These additional conditions were aimed at dealing with the added concern of ensuring that Mr. Alyea appear as required for the purposes of any future immigration proceedings.
[4] Thus, I find that this is not a case where the Adjudicator simply adopted the decision of the National Parole Board without exercising her independent jurisdiction.
[5] Accordingly, this appeal is dismissed.
(sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
September 23, 1999
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1345-99
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
KEVIN RICHARD ALYEA
PLACE OF HEARING: VANCOUVER, BC.
DATE OF HEARING: SEPTEMBER 15, 1999
REASONS FOR ORDER AND ORDER OF CAMPBELL J.
DATED: SEPTEMBER 23, 1999
APPEARANCES:
| MR. KIM SHANE FOR THE APPLICANT |
| MR. ZOOL SULEMAN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
MORRIS ROESENBERG
DEPUTY ATTORNEY
| GENERAL OF CANADA FOR THE APPLICANT |
SULEMAN & COMPANY
| VANCOUVER, BC. FOR THE RESPONDENT |