Docket: IMM-356-02
Neutral citation: 2002 FCT 1214
Ottawa, Ontario, this 22nd day of November 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
JOSEPH VARONE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated November 5, 2001, wherein the applicant's appeal of a removal order dated March 20, 2000 was dismissed.
[2] The applicant, Joseph Varone, is a 35-year-old citizen of France, and a permanent resident of Canada. He arrived with his parents at the age of 3 in 1969 and has not left Canada since. The applicant and his parents never bothered to obtain their Canadian citizenship, as they did not think it was necessary or important.
[3] A removal order was made against the applicant on March 20, 2000 due to his criminal record. In 1993, the applicant was convicted of impaired driving and possession of a narcotic. In subsequent years, he incurred further driving offences consisting of speeding tickets. On May 29, 1999, he was convicted of criminal negligence causing death for which he was sentenced to four years of imprisonment. He was also convicted of impaired driving causing bodily harm for which he received a sentence of six months in jail. The applicant was also prohibited from driving for ten years.
DECISION UNDER REVIEW
[4] The applicant conceded the validity of his removal order, but he sought to have his appeal allowed based on section 70(1)(b) of the Act, which states that a permanent resident, against whom a removal order is made, may appeal to the Appeal Division on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
[5] The Appeal Division admitted that there were many compelling factors existing in the applicant's favour: the length of residence in this country, the strong support by his parents and siblings, the fact that he provided financial and physical help to his parents, his consistent employment record, the fact that he did not incur any institutional offences in jail or any difficulties while on probation or while resident at the halfway house, and finally the fact that he also made efforts at rehabilitation and has arranged to start a program.
[6] However, the Appeal Board concluded that the likelihood that the applicant would re-offend outweighed the factors in his favour. It determined that following the 1993 incident the applicant should have recognised the need to address his alcohol problem but that he did nothing about it.
[7] The Appeal Board made a finding that the applicant chose not to continue attending Alcoholics Anonymous while incarcerated and that he did not explore all possible avenues to rehabilitation.
[8] The Board stated that the documents filed showed that the applicant had a hard time accepting the severity of his alcohol problem and constantly minimized it. To support this statement, it referred to a report from the incarceration institution dated July of 2000, and to his brother's reaction, recorded in the same document. The Appeal Board also cited a passage from the reasons of the trial judge.
[9] It is acknowledged by the Appeal Board that there is evidence that supports the fact that the applicant is unlikely to re-offend: reports from the parole officer, from the institutions, from the halfway house, from the employer's letter, and the testimony of his family members. Nevertheless, the Board discarded this evidence or put less weight on it for the reason that despite having had strong family support and a consistent employment record in 1993, the applicant re-offended anyway in 1999.
[10] With regard to the applicant's establishment, the Board accepted that the applicant has passed almost all his life in Canada, and that there will be hardship to the applicant and his family if he is removed from this country. However, this was tempered by the fact that he does not have a spouse or children in Canada.
[11] Therefore, the Appeal Division found on a balance of probabilities that the applicant had not proven that he should not be removed from Canada and that the removal order is valid in law.
ISSUES
[12] 1. Did the Appeal Division base its decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it?
SUBMISSIONS AND ANALYSIS
[13] The standard of review to be applied to factual findings in relation to section 70(1) of the Act is patent unreasonableness [Jessani v. Canada (M.C.I.)(2001), 270 N.R. 293 (F.C.A.) at paragraph 16]. Also, if the discretion of the Appeal Division has been exercised in good faith, and not arbitrarily or illegally, and was uninfluenced by irrelevant considerations, no court is entitled to interfere even if, had the discretion been theirs, the court might have exercised it otherwise [Boulis v. Canada (Minister of Manpower & Immigration), [1974] S.C.R. 875, and Lao v. Canada (M.C.I.), [2001] F.C.J. No. 1908 (F.C.T.D.) at paragraph 19].
[14] The respondent submits that the Appeal Division's reasons clearly reveal a careful assessment of the totality of the evidence, with explicit attention to the range of factors favouring the applicant.
[15] There was extensive evidence filed in support of the appeal. Most of the documents relate to different assessments of the applicant throughout his incarceration, and, in my opinion, most of them are favourable to the applicant.
[16] The following paragraphs will show in what way I think that the Appeal Division misconstrued or ignored important evidence.
[17] Regarding the applicant's participation in rehabilitation programs, the Appeal Division's finding was this:
"... he also made efforts at rehabilitation and has arranged to start a program."
[18] However, further in the decision, the Appeal Division stated:
"The appellant chose not to continue attending Alcoholics Anonymous (AA) while incarcerated. He said he viewed the meetings as an opportunity for participants "to brag" about their drinking exploits. The appellant did not follow all possible avenues to pursue rehabilitation."
[19] However, if I look at pages 56 and 57 of the hearing transcript, I can see that the applicant explained to the Appeal Division that after he was released, he preferred the CHOICES program to the AA program, but that, nonetheless, he attended AA meetings the entire time he was incarcerated [see paragraph 13 of the applicant's affidavit, p. 14 of the applicant's record]. This was not accounted for in the decision.
[20] The Appeal Division did not mention, nor did it considered the Certificate of Completion of the Substance Abuse Treatment Program in which the applicant participated. This piece of evidence certifies that the applicant "has completed a cognitive/behavioural substance abuse treatment program" and that the program "consisted of approximately 85 hours of instruction in alcohol and drug education, goal setting, risk identification, problem solving, behavioral [sic] and cognitive coping, social skills training, relapse prevention training, and life-area planning."
[21] Additionally, there is evidence in a letter from the St. Leonard's House, where the applicant resided in open custody purporting that the applicant demonstrated change with the assistance of the St. Leonard Treatment Plan. This plan is comprised of "OSAP, a Substance Abuse Program at Beavercreek Institution"; "CHOICES - Decisions we make have consequences at SRWH"; the "PARK Program - Substance Abuse", an independently run program offering individual addiction counselling; and a "Urinanalysis Program" where the applicant was tested twice a month for detection of substances.
[22] Considering this evidence, the Appeal Division was clearly wrong to determine that the applicant did not follow all possible avenues to pursue rehabilitation.
[23] Moreover, after being requested by the applicant's counsel to believe that the applicant is unlikely to re-offend, the Appeal Division admitted that there is some support for this position in the reports from the parole officer, from the institutions, from the halfway house, from his employer and family. However, it discarded this evidence by saying that in spite of the strong family support and the consistent employment record the applicant enjoyed in 1993, he re-offended six years later anyway.
[24] In essence, the Appeal Division compared the two incidents to determine that the applicant would likely re-offend. However, it is unclear how it came to this conclusion while the reports from the institutions, prepared by experts in the area of criminal recidivism and rehabilitation have all concluded that there is a low risk that the applicant will commit another offence. The appeal division did not give any specific reasons as to why it was not accepting this evidence [Archibald v. Canada (M.C.I.) [1995] F.C.J. No. 747 paragraph 14].
[25] In my opinion, it was unreasonable for the Appeal Division to conclude that the applicant is likely to re-offend because he has re-offended once since 1993. There is no evidence that the applicant received rehabilitation and help to overcome his problem after the first incident. The applicant might have had strong family support and a good employment record at the time, but perhaps he and his family were not properly equipped to address the applicant's alcohol problem.
[26] The present circumstances can be differentiated from the 1993 incident in that there is considerable evidence showing that during and after the applicant's incarceration, he and his family participated in programs to help them recognize and overcome the applicant's problem. One cannot ignore all the expert evidence giving almost entirely positive remarks on his treatments and rehabilitation and indicating that he now has a low risk of recidivism. Admittedly, the issue of weight of evidence is one belonging to the Appeal Division, however, the probative value of this evidence is high and should have been given more consideration. I believe that the Appeal Division erred in resting its decision that the applicant is likely to re-offend again on the fact that he re-offended once, rather than basing it on the ample evidence before it, suggesting the opposite.
[27] Another point that is argued by the applicant, with which I agree, is the fact that the Appeal Division does not appear to have fully considered the potential hardship the applicant would suffer upon a return to his country of origin.
[28] Although accepting the hardship that the applicant will have if he were to be removed from Canada, the Appeal Division minimized the hardship by stating that he has no spouse or children and that his parents can be taken care of by his siblings. The applicant claims that he hasn't left Canada since the age of 3, he was educated here, he does not have relatives or friends in France, and he does not speak, read, or understand the French language.
[29] Just recently in Chieu v.Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 3, at paragraph 30, the Supreme Court of Canada analysed the meaning of "all the circumstances" of s. 70(1)b) of the Act. It determined that the Appeal Division is obliged to consider every relevant circumstance, including potential hardship as a result of removal to a foreign state:
The second factor favouring a broad reading of s. 70(1)(b) is the grammatical sense of the phrase "all the circumstances of the case". The word "all" is defined by the Concise Oxford Dictionary (8th ed. 1990), at p. 29, as "entire number of" or "greatest possible". In this context, it would therefore mean considering the greatest possible number of factors relevant to the removal of a permanent resident from Canada. It is evident that one such factor is the conditions an individual would face upon removal. This is a natural consideration, because it is difficult to decide if it would be equitable to remove an individual from Canada without engaging in a comparative analysis of the conditions the individual would face if allowed to remain in the country and the conditions he or she would face if removed to a foreign state. For instance, an individual with two relatives in Canada but no relatives in the likely country of removal is in a different position from an individual with two relatives in Canada but an extensive family network in the likely country of removal.
[30] In the same case, at paragraph 39, the Court referred to the words of Sopinka J., for the Supreme Court of Canada, in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 177, where he stated "that s. 70(1)(b) "allows for clemency from deportation on compassionate grounds". The Court continued:
In the I.R.B. publication, Removal Order Appeals (1999), at p. 9-2, it is stated that s. 70(1)(b) "contemplates the realization of a valid social objective, namely, relief from the hardship that may be caused by the pure operation of the law relating to removal." I agree.
Employing such a broad approach to s. 70(1)(b), the I.A.D. itself has long considered foreign hardship to be an appropriate factor to take into account when dealing with appeals brought under this section. In Ribic, supra [Ribic v_. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL)], at p. 6, the I.A.B. summarized the relevant factors to be considered under its discretionary jurisdiction pursuant to what is now s. 70(1)(b) of the Act:
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.
This list is illustrative, and not exhaustive. The weight to be accorded to any particular factor will vary according to the particular circumstances of a case. While the majority of these factors look to domestic considerations, the final factor includes consideration of potential foreign hardship.
[31] Accordingly, I believe that the Appeal Division did not properly address the issue of hardship, but instead it put more emphasis on the seriousness of the offence and its conclusion that the applicant is likely to re-offend. In a situation such as the one before us, to avoid assessing the hardship involved amounts to a patently unreasonable error.
[32] For all the above reasons, I consider that the Appeal Division's decision was made in a perverse and capricious manner, without full consideration of the material before it. Thus, the appeal shall be sent back for reconsideration.
[33] Counsel were ask if they had any suggested question to be certified. They did not propose any.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the Appeal Division is allowed and the appeal is to be sent back to the Appeal Division for a new hearing before a different panel. No question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-356-02
STYLE OF CAUSE : JOSEPH VARONE and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : November 19, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
APPEARANCES :
Shoshana Green FOR THE APPLICANT
Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD :
Green & Spiegel FOR THE APPLICANT
Toronto, Ontario
Department of Justice FOR THE RESPONDENT
Ontario Regional Office
Toronto, Ontario