Applicant
and
AND IMMIGRATION
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Immigration Appeal Division (the IAD), dated October 4, 2005, dismissing the appeal filed by the applicant under subsection 63(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against the removal order issued against him. This removal order had been issued because the applicant is inadmissible on grounds of serious criminality under paragraph 36(1)(a) of the Act and for criminality under paragraph 36(2)(a).
[2] Coca Camara (the applicant ) is a citizen of Guinea.
[3] On October 14, 1991, the applicant arrived in Canada as a stowaway.
[4] On June 18, 1992, he was recognized as a “Convention refugee”.
[5] In September 1992, the applicant committed his first criminal offence in Canada, i.e. the theft of a vehicle with a value exceeding $5,000.
[6] On July 28, 2000, he was found guilty of obstructing a peace officer in the execution of his duty and was ordered to pay a fine of $150.
[7] On July 9, 2001, he was found guilty of possessing property obtained by crime with a value exceeding $5,000 (Honda motor vehicle) and was sentenced to 30 days in prison.
[8] On August 27, 2001, he was found guilty of theft of a value not exceeding $5,000, of mischief in relation to property valued in excess of $5,000, and of possession of break-in instruments. He was sentenced to one day for each count, concurrent to the first count, and to two years of unsupervised probation.
[9] On August 29, 2001, he was found guilty of credit card theft, assault and assaulting a peace officer with the intent to resist or prevent his lawful arrest. He was sentenced to 14 days of imprisonment for each count, concurrent to the first count, and to two years of unsupervised probation.
[10] On February 28, 2002, he was convicted of several offences, namely:
- Theft of a value not exceeding $5,000 (motor vehicle), for which he was sentenced to eight months of imprisonment and to one year of supervised probation, followed by two years of probation with the usual conditions;
- Obstruction of a peace officer, for which he was sentenced to eight months of imprisonment and to one year of supervised probation, followed by two years of probation with the usual conditions;
- Two other thefts of a value not exceeding $5,000, for which he was sentenced to eight months of imprisonment for each offence, concurrent to the first count and one year of supervised probation, followed by two years of probation with the usual conditions.
[11] On November 18, 2002, he was convicted of attempted theft (of a motor vehicle) and was sentenced to eight months of imprisonment and to two years of supervised probation, with the usual conditions. He was also found guilty of possession of break-in instruments and was sentenced to eight months of imprisonment, concurrent, and to two years of supervised probation, with the usual conditions.
[12] On November 22, 2002, because of the multiple crimes he had committed, a removal order was issued against the applicant. The applicant appealed this order to the IAD.
[13] On November 28, 2003, the applicant was also convicted of assaults and was sentenced to four months of imprisonment and to two years of unsupervised probation. He was also found guilty of failure to comply with a condition, undertaking or recognizance and was sentenced to two months of imprisonment.
[14] On February 23, 2004, he was also convicted of an attempt to break and enter with intent and was sentenced to one year of imprisonment and to two years of unsupervised probation.
[15] On September 30, 2004, Sonia Rodrigue, then the applicant ’s counsel, informed the IAD that she could no longer represent the applicant because she was unable to contact him.
[16] On October 25, 2004, the IAD dismissed the appeal filed by the applicant against the removal order issued against him.
[17] On November 24, 2004, the applicant received a notice from the Canada Border Services Agency (the Agency) stating that the Agency intended to seek an opinion under paragraph 115(2)(a) of the Act, as to whether he constituted a danger to the public.
[18] On February 24, 2005, on a motion filed by the applicant ’s new counsel, Chantal Ianniciello, the IAD reopened the applicant ’s appeal.
[19] On June 14, 2005, Ms. Ianniciello advised the IAD that she was no longer mandated to represent the applicant and asked that a designated representative be appointed for him.
[20] On July 6, 2005, the IAD appointed Marian Shermarke as the applicant ’s designated representative.
[21] On September 13, 2005, the Minister’s delegate made his decision to the effect that the applicant is a danger to the public pursuant to paragraph 115(2)(a) of the Act. This decision was the subject of an application for judicial review in docket IMM-5903-05 (this application was dismissed on this very day).
[22] On October 4, 2005, the IAD dismissed the appeal filed by the applicant against the removal order issued against him in 2002. That decision is the subject of this application for judicial review.
[23] On December 15, 2005, the applicant sought to stay the execution of the order for removal from Canada and his motion was postponed sine die by Chief Justice Lutfy.
[24] It would be appropriate to refer to the wording of the relevant paragraphs of the Immigration and Refugee Protection Act:
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36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for |
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants: |
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(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; |
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; |
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. . . |
[…] |
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(2) A foreign national is inadmissible on grounds of criminality for |
(2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants: |
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(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; |
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits; |
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. . . |
[…] |
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67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, |
67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé: |
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(a) the decision appealed is wrong in law or fact or mixed law and fact; |
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; |
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(b) a principle of natural justice has not been observed; or |
b) il y a eu manquement à un principe de justice naturelle; |
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(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. |
c) sauf dans le cas de l’appel du ministre, 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. |
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: |
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. . . |
[…] |
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(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if |
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: |
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. . . |
[…] |
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(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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[25] On October 4, 2005, after considering all of the evidence and applying the factors set out in the case law on the subject, the IAD determined that there were insufficient humanitarian and compassionate grounds to justify special relief.
Legal background
[26] Before the IAD, the applicant was not disputing the lawfulness of the removal order, but based his appeal exclusively on paragraph 67(1)(c) of the Act, alleging that there were humanitarian and compassionate grounds justifying special relief.
[27] In exercising this discretionary power conferred by the provision, the IAD considered the non-exhaustive factors set out in Ribic v. Canada (M.E.I.), [1985] I.A.B.D. No.4 (QL), factors which were affirmed by the Supreme Court in Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84, at page 108:
. . . 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. . . .
[28] The Federal Court of Appeal stated moreover that the circumstances of the matter to consider, when exercising the discretion provided under paragraph 67(1)(c), include not only the circumstances of the person concerned but the circumstances as a whole, including those relating to the good of society (Canepa v. Canada (M.E.I.), [1992] 3 F.C. 270 (C.A.)).
[29] With regard to the burden of proof, as this Court recently pointed out in Bhalru v. Minister of Citizenship and Immigration, 2005 FC 777, the person relying on paragraph 67(1)(c) is seeking a discretionary privilege and has the burden of establishing that there are exceptional grounds justifying that he be allowed to remain in Canada:
[16] In Prata v. Canada (Minister of Manpower and Immigration) [[1976] 1 S.C.R. 376 at page 380], the Supreme Court of Canada stated that a removal order “establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege.”
[17] As a person seeking “special relief” or a discretionary privilege, the onus was on Mr. Bhalru to establish exceptional reasons why he should be allowed to remain in Canada (Chieu v. Canada (M.C.I.) [[2002] 1 S.C.R. 84].
Standard of review
[30] With regard to the judicial standard of review, this Court has reiterated the applicable principles in a matter involving paragraph 70(1)(b) of the Immigration Act, the equivalent of paragraph 67(1)(c) of the current Act, and has determined that the standard of judicial deference to be assigned to the IAD’s findings of fact is that of patent unreasonableness (Badhan v. Minister of Citizenship and Immigration, 2004 FC 1050, Bhalru, supra and Jessani v. Canada (M.C.I.), [2001] F.C.J. No. 662 (C.A.) (QL)).
Denial of mental illness
[31] The applicant argues, first, that the evidence in the record indicates unequivocally that he suffers from a psychiatric pathology of the psychotic registry in the form of schizoaffective disorder.
[32] Second, he submits that the expert opinion of Dr. Jacques Talbot and the documents entitled “Co-occurring Substance Abuse and Schizophrenia: Treatment Approaches and Practices” and “A Training Session on the Integrated Model of Dual Disorders Intervention” clearly illustrate that patients suffering from psychiatric illness often deny their disease and that this denial is in itself a symptom of the disease.
[33] Accordingly, the applicant contends that the IAD could not find there was a lack of compassionate grounds on the pretext that the applicant, in the past, denied and/or currently has difficulty acknowledging his mental illness problems. This finding is capricious in light of the evidence filed regarding denial of mental illness by the mentally ill. Accordingly, the determination refusing special relief is tainted with an error of mixed fact and law.
[34] However, the evidence was clear with regard to the fact that the applicant denied or had difficulty acknowledging his mental health problems. In my opinion, the fact that the denial of psychiatric problems may be a consequence of the applicant ’s illness does not preclude the IAD’s consideration of that denial in the context of the circumstances as a whole.
[35] In fact, during the many years that he was living in Canada, the applicant was able to benefit from care and assistance, but it did not have any positive result.
[36] Further, nothing in the evidence suggests that this situation could change significantly even with all of the assistance offered to the applicant. Indeed, at the last page of his expert’s report, after listing the treatment suggestions formulated by Dr. Levy in her expert’s report, Dr. Talbot stated that [TRANSLATION] “these recommendations must be considered illusory”.
[37] In the circumstances, therefore, the fact that the applicant’s attitude of denial regarding his psychiatric problems could be a symptom of his illness could not be a determinative consideration.
The refusal to acknowledge his criminality problems
[38] The applicant submits that Dr. Levy’s psychiatric examination reveals that the applicant’s diagnosis is a schizoaffective disorder of the bipolar type; he also refers to an earlier diagnosis of schizoaffective disorder by Dr. Lévesque in October 2000. Dr. Lévy also states that the ability to introspect is very weak and the judgment is altered; she also mentions in her report that the applicant has delusions of persecution as well as delusions of reference.
[39] The applicant also refers to the following opinion of Dr. Talbot, at page 9 of his expert’s report:
[TRANSLATION]
Before, it appears that his depression and the negative symptoms that he presented could have prevented him from expressing himself, or to express himself in a negative manner, which is currently not the case.
[40] The applicant contends that it is reasonable to believe that the applicant’s altered judgment led him to deny or minimize his criminal past, as stated by Dr. Talbot.
[41] The applicant therefore argues that this decision refusing to grant him special relief because of his lack of remorse and his refusal to acknowledge his problems with crime was capricious, in view of the evidence filed before the IAD.
[42] However, Dr. Talbot, who met the applicant less than one week prior to his hearing before the IAD, stated that, even though the negative symptoms could have prevented the applicant from expressing himself in the past, this was no longer the case.
[43] Furthermore, a simple review of the transcript of hearing before the IAD suggests that the applicant was expressing himself coherently and that he was able to give details and particulars. Yet at no time during his testimony did the applicant express remorse and, moreover, he practically denied the multiple criminal offences of which he had been convicted.
[44] Furthermore, since reaching the age of majority the applicant has been convicted of 16 criminal offences. If the applicant ’s judgment had been altered to the point that he did not understand the implications and seriousness of his criminal acts, he would not have been convicted.
[45] Accordingly, it was entirely relevant for the IAD to consider the fact that the applicant had no remorse and that he denied his criminal conduct. These factors were very important because, added to the fact that the applicant had continued to commit offences even after the removal order was issued, they establish a very slim chance of rehabilitation.
Possibility of treating the applicant
[46] The applicant submits that Dr. Emmanuelle Lévy, Psychiatrist, Clinical Pharmacology and Assistant Professor at the Department of Psychiatry of McGill University, recommends that he be treated by forcing him to take his medication.
[47] The applicant points out, with regard to Dr. Talbot’s assessment, that he expressed the opinion that an order for forced treatment as suggested by Dr. Lévy would be difficult to obtain, considering the absence of psychiatric dangerousness as defined by the Mental Patients Protection Act, R.S.Q., c. P-41. However, Dr. Talbot adds at page 8 of his expert report that the alternative would be possible if the applicant were in treatment in an environment like the Portage Program. Accordingly, the applicant submits that the IAD’s finding with regard to the impossibility of treatment in his case was made in an absurd manner and is not supported by the evidence in the record.
[48] In my opinion, the applicant has misunderstood the nature of the IAD’s determination. This is what the IAD determined with regard to the issue of treatment:
[15] At the hearing, the appellant barely acknowledged his mental health problems, and the panel is not convinced that the appellant would take advantage of the various mental health resources available.
Therefore, the IAD did not determine that the applicant’s treatment would be impossible but rather that the evidence did not suggest that the applicant would submit to the available treatments.
[49] In my opinion, this finding is most reasonable considering the evidence filed before the IAD.
[50] In fact, in his expert report, Dr. Talbot explains that the treatments recommended referred to by Dr. Levy in her expert report are illusory. At the end of his report, Dr. Talbot names the Portage Program as a last resort. Indeed, it appears clearly that Dr. Talbot had little hope that the program would be successful for the applicant:
[TRANSLATION]
The existence of a mixed pathology, psychiatric and narcotic again reinforces the negative prognostic factors.
One alternative is still possible: that Mr. Camara be in treatment in an environment like the Portage Program where “overlapping problems”, psychiatric illness and drug dependency, can be treated.
This resource can either be used within the framework of forced probation by the Court, or within a voluntary agreement, which involves critical elements and a high level of motivation. Such treatments must be spread out over several months, maybe over more than a year . . . It therefore seems to me that Mr. Camara’s multiple levels of pathology – in terms of social exclusion, socio-professional alienation, positive experiences of autonomy, dependency and passivity, toxic behaviours, a collateral psychiatric illness, the cumulative effects of very significant social exclusion amplified even more by the negative symptoms that had been often observed in him – are negative prognostic factors for him.
Even if the problems presented are very serious, the use of a resource like the Portage Program could ultimately be attempted . . .
[51] In my opinion, the negative prognosis set out by Dr. Talbot and the use of elliptical points at the end of his remarks establishes that, even if there were a possibility of treatment, he highly doubted that it would be successful in the applicant’s case.
[52] Moreover, as Dr. Talbot stated and as revealed by the documentation filed by the applicant on that point, the Portage Program is applied on a voluntary basis. The person concerned must agree to submit to the treatment. The evidence filed before the IAD establishes clearly that, generally speaking, the applicant did not want to submit to the care and to the medication offered to him.
[53] In my opinion, considering all of the evidence, it was not patently unreasonable that the IAD was not satisfied that the applicant would not use the various mental health resources available to him.
Family in Guinea
[54] According to the applicant, the IAD made an absurd finding of fact without taking into account the evidence before it in deciding, in terms of humanitarian and compassionate reasons, that the applicant would have family in Guinea able to help him rebuild his life.
[55] The IAD stated the following:
. . . Although he left his native land and has been away for a long time, he nevertheless has family in Guinea who could perhaps help him start his life over.
[56] The applicant submits that there is no evidence indicating that the applicant had maintained meaningful contact with his family over the last 14 years or that the family would support him in any way if he were to return to Guinea.
[57] However, the evidence also indicates that the applicant did not have any family members in Canada, as they all live in Guinea.
[58] In my opinion, however, the fact that the applicant has family in Guinea was a relevant factor that the IAD could consider, particularly since the applicant had testified that he was in contact with some of his family members (Tribunal record, pages 392 and 393).
[59] It was therefore not patently unreasonable for the IAD to consider the fact that the applicant had family in Guinea and that the family could perhaps help him.
Risk of returning to Guinea
[60] The applicant argues that the IAD did not analyze or properly weigh the evidence filed at the hearing with regard to the situation in Guinea, with regard to respecting human rights, safety, the availability of psychiatric care, the applicant’s tenuous relationship with his family, the country’s deplorable socio-economic situation, and all without taking into account the applicant’s psychological state.
[61] The applicant points out that it is stated in the Minister’s opinion filed as exhibit R-16 in the IAD’s record:
The presidential Guard, or Red Berets, are accountable to virtually no one except the President. There was no effective civilian control of the security forces. Some members committed serious human right abuses. . . . Civilian and military security forces beat and otherwise abused civilians, often with impunity. Prison conditions were inhuman and life threatening. Arbitrary arrest and prolonged pre-trial detention were problems. The Government infringed on citizens’ privacy rights.
The report Mission internationale d’enquête, Guinée [“International Fact-Finding Mission – Guinea”] by the International Federation of Human Rights states:
[TRANSLATION]
. . . With 40% of its population living below the poverty line and with deplorable sanitary and social conditions, Guinea is one of the lowest on the scale in human development worldwide. . . .
The applicant submits that, in this context, the IAD’s determination that “the danger to Canadian society is greater than the risk of the appellant’s return to Guinea” is entirely capricious, not taking into account the evidence, or the legitimately foreseeable and far greater expectation of danger for the applicant, considering his degree of dangerousness for Canada.
[62] According to the applicant, without minimizing the criminal convictions in Canada, his dangerousness should be questioned. He submits that we must bear in mind that [TRANSLATION] “his deviance was manifested mostly against property and not against people”. Further, the Tribunal administratif du Québec determined on March 2, 2001:
[TRANSLATION]
[17] The tribunal does not believe that the accused poses a significant threat to society.
[63] The applicant contends that the assessment of his degree of dangerousness in this matter must obviously refer to criminal offences of the same nature as the examples given in the guidelines, all referring to violent offences, which is not the case here, except a conviction for an attempt to break and enter on February 23, 2004.
[64] With respect to the circumstances of his attempt to break and enter, the applicant testified before the IAD that he was walking, drinking and looking for a place to take shelter and spend the night, to sit down.
[65] The applicant further submits that the offences of which he was convicted were not crimes involving an unacceptable degree of violence. He adds that it was on this premise that the Minister’s opinion under paragraph 115(2)(a) of the Act, referred to by the IAD in paragraph 18 of its decision, was also the subject of an application for judicial review before this Court in docket IMM-5903-05 (after this application for judicial review was given leave and was heard, it was dismissed on this very date).
[66] Yet, at the hearing the applicant stated the following with regard to the problem experienced in his country:
[TRANSLATION]
Q. Did you . . . did you have. . . were you involved with the . . . the authorities of your country when you were there?
A. Yes.
Q. What happened?
A. Well, I was arrested once, all that, that is why I left.
Q. You were arrested, and that is why you left.
Why were you arrested?
A. Well, because I . . .
- Try to speak louder.
A. Because I was living just right next to the port, so I went to the
port . . . and the . . . big port of Conakry of (inaudible).
That is why I . . . something happened like that and then there were some of my friends who were arrested and then me, too, but I had the chance to slip away and leave.
It appears then that the applicant had been the victim of an arbitrary detention shortly before leaving his country. However, there was no evidence establishing that, 14 years later, he was still at risk.
[67] With regard to the health care situation in Guinea, this element could not be considered to create a risk for the applicant since the evidence established that, generally, the applicant did not wish to avail himself of the health care available to him. Further, subparagraph 97(1)(b)(iv) of the Act states that the State’s inability to provide adequate health or medical care cannot be considered a risk to life or a risk of cruel and unusual treatment or punishment.
[68] Therefore, first, the applicant did not establish that he could be personally subjected to danger in his country and, second, the evidence established that:
- Since his arrival in Canada, the applicant had committed multiple criminal offences, including several against the person;
- Despite a 14-year stay in Canada, the applicant had practically no degree of establishment (almost no friends, worked very little, etc.)
- The applicant refused to acknowledge his criminality and mental health problems;
- There is no factor mitigating in favour of a possible rehabilitation.
[69] Moreover, at the end of the psychiatric assessment he made in 2005, Dr. Talbot stated:
[TRANSLATION]
There will be a continued social or legal danger with the combination of pathological elements in Mr. Camara’s case.
[70] I believe that considering all of these elements, it was not patently unreasonable for the IAD to determine that the danger for Canadian society was greater than the danger to which the applicant could be subjected in his country.
[71] For these reasons, it was not patently unreasonable, i.e. clearly irrational (Law Society of New Brunswick v. Ryan, 2003 SCC 20), for the IAD to determine that there were no exceptional reasons justifying the applicant being allowed to remain in Canada. This Court’s intervention is therefore not justified and the application for judicial review is dismissed.
“Yvon Pinard”
OTTAWA, ONTARIO
February 13, 2006
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6577-05
STYLE OF CAUSE: COCA CAMARA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 2, 2006
REASONS FOR ORDER: PINARD J.
DATE OF REASONS: February 13, 2006
APPEARANCES:
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Diane Petit Jean Fauteux
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FOR THE APPLICANT |
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Marie-Claude Demers
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Diane Petit Aide juridique de Montréal Montréal, Quebec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |