Romans v. Canada (Citizenship and Immigration)

Romans v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2003-12-29
Neutral citation
2003 FC 1524
File numbers
IMM-358-03
Notes
Reported Decision
Decision Content
Date: 20031229
Docket: IMM-358-03
Citation: 2003 FC 1524
Ottawa, Ontario, this 29th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
STEVEN ANTHONY ROMANS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of James Waters, Member of the Appeal Division of the Immigration and Refugee Board (“Appeal Division”), dated January 3, 2003 and communicated to the Applicant on or about January 7, 2003 (“Decision”) wherein the Appeal Division dismissed the Applicant’s re-opened appeal against a deportation order dated June 7th, 1999 (“Deportation Order”) and declined to grant a stay of the Deportation Order. The Applicant seeks an order quashing the Decision and an order remitting the matter back for redetermination by a differently constituted panel.
BACKGROUND
[2] The Applicant is a permanent resident of Canada. He came to Canada from Jamaica as a young child in 1967 when he was approximately 18 months of age. He was admitted as a permanent resident and has retained that status ever since. In his teenage years, he began to display symptoms of schizophrenia. He got into trouble with the police. He was eventually arrested and convicted of thirty-six criminal offences. Three of these offences were sexual assault convictions, while others included trafficking in small amounts of crack. There were also assault and assault causing bodily harm convictions. On March 12, 1999, a report was issued under section 27 of the former Immigration Act before an Adjudicator of the Immigration and Refugee Board. The result of the section 27 inquiry was the issuance of the Deportation Order on June 7, 1999.
[3] The Applicant appealed to the Appeal Division. The Appeal Division dismissed the appeal. At the time of the appeal, the Applicant was deemed incompetent to represent himself and a designated representative was appointed. At the initial hearing, the Applicant’s mother and the designated representative, a social worker, testified. At the time the appeal was dismissed, the Appeal Division was precluded from considering country conditions in Jamaica as a result of the decision of the Federal Court of Appeal in Chieu v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1776.
[4] The Appeal Division concluded that the evidence was such that there was a high likelihood that the Applicant would re-offend and that he posed a danger to the public. The Appeal Division also concluded that it would make no significant difference to the Applicant if he was deported because he was unlikely to notice much change in his circumstances.
[5] A judicial review of the Appeal Division’s decision was dismissed by Dawson J. in Romans v. Canada (M.C.I.), [2001] F.C.J. 740 (“Romans I”). In her reasons, Dawson J. concluded that, although section 7 of the Charter was engaged in the process, there had been no breach of fundamental justice and she felt she was bound by the decision of the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] S.C.J. No. 27 where the Supreme Court held that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Dawson J. concluded that the Supreme Court of Canada decision in Chiarelli, supra, was not “predicted upon the age or capacity of Mr. Chiarelli” (para. 28).
[6] Dawson J. certified the following question:
In light of the decision of the Supreme Court of Canada in United states of America v. Burns, [2001] S.C.J. No. 8, 2001 SCC 7 and in light of the evolved nature of Charter interpretation, is it a violation of fundamental justice to deport a permanent resident pursuant to paragraph 27(1)(d) of the Act in circumstances where the permanent resident has resided in Canada since very early childhood so as to have no establishment outside of Canada, and where the permanent resident suffers from a serious mental illness to an extent which makes him unable to function in society?
(Romans v. Canada (Minister of Citizenship and Immigration) 2001 F.C.T. 466)
[7] The Federal Court of Appeal answered the certified question in the negative and rejected the Applicant’s appeal:
2. The fact that the appellant has resided in Canada since early childhood, has no establishment outside of Canada and suffers from chronic paranoid schizophrenia does not give him an absolute right to remain in Canada, that right being recognized by section 6(1) of the Charter to Canadian citizens only.
...
4. We are satisfied that, in doing so, the Appeal Division did a balancing of competing interests as mandated, albeit in different circumstances, by the Supreme Court of Canada in United States v. Burns, [2001] 1 S.C.R. 283 and could, on the evidence before it, reach the conclusion that the deportation of the appellant, in the circumstances of this case, was in accordance with the principles of fundamental justice. Madam Justice Dawson declined to intervene ( [2001] F.C.J. No. 740, 2001 FCT 466), and rightly so.
[8] The application for leave to appeal the Federal Court of Appeal decision in Romans I to the Supreme Court of Canada was dismissed.
[9] The Applicant then applied to re-open before the Appeal Division. The application contained an affidavit from the Applicant’s stalwart and faithful mother. She indicated that she had been in contact with psychiatrists and had discovered that, as a result of new medication, there was a good possibility that her son could be treated. She also indicated that she was advised that, if treated properly, the Applicant had an excellent chance of responding positively and that it was desirable to transfer her son from the West Detention Centre, where he had been in detention, to Penetang. The Applicant submitted extensive documentary evidence, and relied on the personal knowledge of his mother to indicate that, in Jamaica, persons who are detained in that country undergo humiliation, are often subjected to physical and sexual assaults, and that his life would be in danger.
DECISION UNDER REVIEW
[10] At the Appeal Division hearing that is the subject of this judicial review, the Applicant’s mother was appointed designated representative and she testified that the family came to Canada in 1965 and, at that time, the Applicant was 18 months of age. She also testified that she and her husband became citizens about five years later and that, out of ignorance on her part, she did not apply for citizenship for the Applicant. She said that until his late teens, the Applicant was very obedient but then began to show signs that he was mentally ill. He was in his early 20s when he was diagnosed with chronic paranoid schizophrenia. She testified that there had been no systematic attempts to help her son. She also said that the Applicant has no family in Jamaica, and that he would not be able to receive adequate treatment if he was sent there.
[11] Dr. Sameh Hassan was accepted as an expert witness to provide a psychiatric assessment of the Applicant. He testified that there was still a healthy part of the Applicant and that he could be rehabilitated. He also testified that there was a good opportunity to help the Applicant to become semi-independent. Dr. Hassan also indicated that, with proper treatment, the Applicant could be in a half-way house in a year and could live in society with low risk. Dr. Hassan pointed out that he had seen cases where patients with long-term residential treatment have been rehabilitated.
[12] Counsel for the Applicant argued at the re-opened hearing that, when the Appeal Division exercised its discretion, it had to do so in accordance with the Charter, and that, pursuant to the jurisprudence of this Court, including the judicial review of Romans 1 before Dawson J., the Applicant’s rights under section 7 of the Charter were engaged. Counsel argued that the case was now distinguishable from Romans 1 in that there was new evidence as to country conditions in Jamaica which had not been before the previous tribunal because the jurisprudence at that time had precluded consideration of country conditions. Counsel also noted at the re-opened hearing that the Appeal Division had new evidence of expert psychiatric testimony that indicated that the Applicant had a good chance for recovery with proper treatment. Counsel argued that, when exercising its discretion pursuant to the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Appeal Division had to have regard for principles fundamental justice. Counsel took the position that the only possible way the Appeal Division could exercise its discretion in this case, given the evidence on country conditions, was to allow the appeal. Counsel argued, in the alternative, that the Appeal Division should issue a stay of the Deportation Order on the condition that the Applicant be held in detention until such a time as he was found by a psychiatrist to be able to live on his own.
[13] The Minister argued for dismissal, based on his view that the Applicant still posed a danger to the public. The hearing was then adjourned on the understanding that, if the appeal was dismissed on equitable grounds, the Appeal Division would reconvene to receive evidence and consider the Charter issues that had been raised in a Notice of Constitutional Question put forward by the Applicant. However, after the Appeal Division dismissed the appeal in equity, it requested submissions on jurisdiction to consider the Charter on a re-opened appeal. After receiving submissions, it ruled that it only had jurisdiction to re-open an appeal from a removal order on discretionary grounds and dismissed the appeal.
[14] The Applicant filed extensive documentary evidence on country conditions in Jamaica, including evidence of police brutality towards mentally ill detainees. The Appeal Division concluded that the conditions for mentally ill persons in prisons, hospitals and on the streets of Jamaica were worse than those that existed in Canada.
[15] The Appeal Division noted that the Applicant had been ordered deported on June 7, 1999. His first appeal had been dismissed and the judicial review of that appeal had been dismissed. He had been granted an opportunity to reopen, but the Appeal Division made the following points:
Many of the findings of the original Appeal Division were not challenged at the new hearing by either party. Appellant’s counsel did not challenge the prior finding that offences for which the appellant had been convicted were serious. Minister’s counsel did not seek to upset the prior finding that “the appellant, to the extent that he is established anywhere in the world, is established in Canada,” nor did he contest the prior Appeal Division’s conclusion there would be great emotional hardship to the appellant’s family, and particularly to his mother, if he were deported. Given the appellant’s mental condition and inability to give testimony, the issue of remorse was not canvassed extensively at either hearing.
The fresh evidence put forward at the hearing was in relation to the possibility of the appellant’s rehabilitation and the potential foreign hardship he may experience in Jamaica, which was established as his likely country of removal.
[16] With respect to the possibility of rehabilitation, the Appeal Division referred to the previous decision in Romans 1 where the possibility of the Applicant re-offending was found to be high. The Appeal Division went on to note that the Applicant remained in detention and that Dr. Hassan had interviewed him and reviewed the records. It further noted that Dr. Hassan testified that the Applicant was suffering from chronic paranoid schizophrenia, substance abuse and was potentially a danger to himself and the public if he was not in detention. The Appeal Division further noted Dr. Hassan’s evidence that schizophrenia impairs judgement and blurs emotional cognitive functions and that the Applicant’s schizophrenia was further complicated by his addiction to crack cocaine. The Appeal Division acknowledged Dr. Hassan’s evidence that there were new medications available that had not yet been administered to the Applicant, but concluded that there were significant difficulties in the way of its ensuring the safety of the public if it were to stay the Deportation Order:
The evidence indicates that the appellant has been admitted and discharged from the Scarborough Grace Hospital, the Queen Street Mental Health Centre and the Wellesley Central Hospital. The appellant’s stays at each of these hospitals was short term despite the severity of his medical condition. The history of past hospitalizations indicate (sic) that the appellant was able to leave the hospital and return to the streets within a short period of time. There was insufficient credible or trustworthy evidence presented to find that the appellant’s past motivation to be out on the streets rather than in a hospital, has changed. After careful consideration, I have determined that I am not able to draft conditions that would ensure the safety of the public if I stayed the deportation order. The proposed treatment plan does not specifically address the issue of the appellant’s drug addiction. The plan with respect to obtaining treatment for his schizophrenia is laden with uncertainty and possible loopholes that could compromise public safety.
[17] The Appeal Division then went on to deal with foreign hardship, summarizing the Applicant’s evidence on country conditions in Jamaica and acknowledging that he has no contacts there. The Appeal Division went on to indicate that the only hospital in Jamaica that accommodates the mentally ill is Bellevue, and there were limited opportunities for rehabilitation there because it is usually filled to capacity and drugs for treatment are not available. The Appeal Division made the following significant comment:
The IAD concluded , based on the evidence at the original hearing, that the effect of appellant’s illness had turned him into a street person in Canada. “If deported, he is unlikely to notice much change in his circumstances.”
...
... Having regard to all the evidence, I am persuaded that psychiatric care is available in Jamaica. I am also persuaded that the quality of that care is less than that available in Canada.
[18] The Appeal Division then came to the following conclusion:
... Having regard to all of the evidence presented, I am persuaded, on a balance of probabilities, that conditions for the mentally ill in prisons, hospitals and on the streets of Jamaica are worse than those existing in Canada. I am not persuaded, on a balance of probabilities, that the conditions on the streets of Jamaica are such that hardship faced by the appellant would be significantly worse than that he faced in Canada.
[19] As a result, the appeal was dismissed. The Appeal Division then went on to make the following statement concerning its jurisdiction to entertain Charter arguments:
The discretionary jurisdiction of the IAD is of a continuing nature in removal cases under the Immigration Act. The IAD has jurisdiction to reopen an appeal from a removal order on discretionary grounds only. Counsel for the appellant filed a notice of constitutional question prior to the hearing challenging the validity of sections 36(1)(a), 44(1) and 48(1) of the current Immigration and Refugee Protection Act. This appeal is governed by the Immigration Act. Nevertheless, on a reopening, the appellant cannot attack the constitutional validity of the removal order. The appeal is dismissed.
ISSUES
[20] The Applicant raises the following issues:
Did the Appeal Division err in law in concluding that it could not consider the Charter on a reopened appeal?
Did the Appeal Division err in law in failing to consider whether or not it ought to have exercised its discretion in accordance with the dictates of the Charter as required by the Supreme Court of Canada in Suresh, supra?
Is section 7 of the Charter engaged in the appeal process in this case?
If section 7 of the Charter is engaged, is the Deportation Order in this case in accordance with the principles of fundamental justice?
Did the Appeal Division err in law in concluding that it did not have jurisdiction to order the Applicant detained until such time as he obtained the necessary treatment?
Did the Appeal Division err in law in the manner in which it exercised its jurisdiction in this case?
STANDARD OF REVIEW
[21] Snider J. discussed the applicable standard of review for Appeal Division Decision in Beaumont v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1718 (F.C.T.D.) by reference to Romans 1:
20. The applicable standard of review is discussed in the case of Romans v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 740 (F.C.T.D). whereby the Court affirmed that the standard of review with respect to the findings of the IAD. The Court stated:
Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, and not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's decision. It is not enough that the Court might have exercised the discretion differently.
PERTINENT LEGISLATION
[22] Section 7 of the Canadian Charter of Rights and Freedoms (the Charter) provides that:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
[23] The relevant provisions of the Immigration Act, RSC 1985, c. I-2 are as follows:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
...
d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more ay be, imposed;
74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may
(a) make any other removal order or conditional removal order that should have been made; or
(b) in the case of an appellant other than a permanent resident, direct that the appellant be examined as a person seeking admission at a port of entry.
74. (2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.
27. (1) L’agent d’immigration ou l’agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:
...
d) a été déclaré coupable d’une infraction prévue par une loi fédérale, autre qu’une infraction qualifiée de contravention en vertu de la Loi sur les contraventions:
(i) soit pour laquelle une peine d’emprisonnement de plus de six mois a été imposée,
(ii) soit qui peut être punissable d’un emprisonnement maximal égal ou supérieur à cinq ans;
74. (1) Si elle fait droit à un appel interjeté dans le cadre de l’article 70, la section d’appel annule la mesure de renvoi ou de renvoi conditionnel et peut:
a) soit lui substituer celle qui aurait dû être prise;
b) soit ordonner, sauf s’il s’agit d’un résident permanent, que interrogatoire comme s’il demandait l’admission à un point.
74. (2) En cas de sursis d’exécution de la mesure de renvoi ou de renvoi conditionnel, l’appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d’appel. Celle-ci réexamine le cas en tant que de besoin.
... ...
103(3) Where the Minister has issued a certificate under subsection (2), the Minister may amend the certificate to which the detention relates to include any matter referred to in subparagraph (2)(a)(i) or (ii), following which the person shall be brought before an adjudicator forthwith and at least once during every seven day period thereafter, at which times the adjudicator shall review the reasons for the person's continued detention.
...
103(6) Every review under subsection (2) or (3) of the detention of a person suspected of being a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) shall be conducted in camera.
103(3) Le ministre peut modifier l'attestation en y incluant toute question visée aux sous‑alinéas (2)a)(i) ou (ii). Le cas échéant, l'intéressé est amené sans délai devant un arbitre et, par la suite, comparaît devant lui au moins une fois tous les sept jours pour examen des motifs qui pourraient justifier une prolongation de sa garde.
...
103(6) L'examen prévu aux paragraphes (2) ou (3) se fait à huis clos si l'intéressé est soupçonné d'appartenir à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l).
ANALYSIS
Did the Appeal Division err in law in concluding that it could not consider the Charter on a reopened appeal?
[24] The Applicant argues that the Appeal Division in this case concluded it could not consider the Charter because its power to reopen derived solely from its ongoing equitable jurisdiction, so that it could not consider legal issues in a re-opened appeal. The Applicant submits that it is abundantly clear that every tribunal must apply the law in accordance with the Charter. The constitutionality of the Deportation Order was not raised at the first appeal. It was raised, however, on application for judicial review of that appeal in Romans 1 and, based on the record, this Court concluded that section 7 of the Charter was engaged, but there had been no breach of fundamental justice.
[25] The Applicant submits that there is no doubt that the Appeal Division has jurisdiction to consider and apply the Charter (Armadale Communications v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 242) and that, as the Charter is the Supreme Law of Canada, all other legislation must give way to it. In Suresh, supra, the Supreme Court noted as follows:
77. The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her.
...
In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.
[26] The Applicant argues that, given these dicta, the Appeal Division was clearly wrong in concluding that it did not have the jurisdiction to consider Charter arguments. While it might well be the case that the Appeal Division could not consider other legal issues that were previously decided in the first appeal, that reasoning cannot apply to Charter issues. The Appeal Division clearly erred in declining Charter jurisdiction and in denying the Applicant the opportunity to present evidence on Charter issues.
[27] In reply, the Respondent submits that the Decision was made in a manner consistent with the Charter. The Federal Court of Appeal in Romans v. M.C.I., 2001 F.C.A. at paras. 1 and 2 decided that it did not have to determine whether section 7 of the Charter was engaged. The same position was taken by the Supreme Court of Canada in Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711.
[28] In Chiarelli, supra, the Supreme Court of Canada determined that it was not necessary, in the context of deciding whether the deportation of criminals complied with the Charter, to answer the threshold question as to whether the right of life, liberty and security of the person is engaged by deportation. Rather, it found it sufficient to determine that there was no breach of the principles of fundamental justice.
[29] In Chiarelli, supra, the Court noted that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Where a permanent resident has violated an essential condition under which he or she was permitted to remain in Canada, there can be no breach of fundamental justice in giving practical effect to the termination of the permanent resident’s right to remain in Canada. In the case of a permanent resident, this Court has held that deportation is the only way in which to accomplish this.
[30] The Respondent says that Chiarelli, supra, is on all fours with the case at bar. The Supreme Court’s decision was not predicated upon the age or capacity of Chiarelli. Rather, the Supreme Court held that “it is not necessary, in order to comply with fundamental justice, to look beyond the criminal convictions to other aggravating or mitigating circumstances.”
[31] The Applicant’s contention that he has an absolute right to remain in Canada irrespective of his violent conduct and several criminal convictions is also inconsistent with s. 6 of the Charter and s. 4(2) of the Immigration Act. Only Canadians have an absolute right to remain in Canada.
[32] Applying Chiarelli, Canepa, and Williams, the Federal Court of Appeal has held that the certification of a person as a “danger to the public” (which takes away an applicant’s right to an appeal before the Appeal Division) does not violate s. 12 of the Charger, even if the person is suffering from mental illness.
Da Costa v. M.C.I., [1998] 2 F.C. 182 (C.A.)
Canepa v. Canada (Minister of Employment and Immigration) (1992), 93 D.L.R. 589 (F.C.A.)
[33] The Respondent notes that the Applicant conceded at the first hearing that the Deportation Order was valid in law. The initial board found the Deportation Order valid at law. At the second hearing, the Respondent notes that the Applicant tried to argue that the Appeal Division, on a re-opened hearing, has the jurisdiction to revisit the legal (i.e. constitutional) validity of the Deportation Order. The Respondent provided submissions to the effect that the Appeal Division, on a re-opened hearing, does not have the jurisdiction to consider the constitutional validity of the Deportation Order because the Appeal Division does not have the authority to sit in review of another board on questions of law. Judicial review in this Court is the proper forum for such arguments.
[34] The Respondent notes that this Court considered a challenge to the first Appeal Division decision on judicial review in Romans 1 and submits that this Court noted that the validity of the Deportation Order was not challenged before the Appeal Division and the judicial review was, therefore, restricted to examining the Appeal Division’s treatment of whether, in light of all the circumstances, the Applicant should not be removed from Canada (Romans v. Canada (Minister of Citizenship and Immigration) (2001), F.C.T. 466 at para. 7).
[35] The Respondent provided precedents from previous Appeal Division decisions that held that, on a re-opening, the Appeal Division’s jurisdiction is limited to equitable considerations properly before the Appeal Division. The Appeal Division, in its reasons, relied on these precedents to find that it was not open to the Applicant to argue the legality of the Deportation Order:
21. In addition to the scope of the Appeal Division's power to reopen, as articulated in Grillas, the Appeal Division, like other administrative tribunals, is bound by the principles set out in another decision of the Supreme Court of Canada, Chandler v. Alberta Association of Architects [See Note 19 below]. In Chandler the Supreme Court set out four circumstances in which an administrative tribunal would have authority to reopen its own decision. One of those circumstances is where a tribunal makes an error which has the effect of rendering its decision a nullity. In my view, an error of jurisdiction falls within that category of circumstances. For example, if the Appeal Division wrongly concludes that an appellant is not a permanent resident, when the appellant is in fact a permanent resident, and on that basis declines to hear the appellant's appeal, the decision of the Appeal Division is a nullity. That may give rise to a duty to reopen the appeal. This may be the one instance in which the Appeal Division is bound to revisit a previous determination which it made with respect to its own jurisdiction. As I understand the position taken by the applicant, the decision of the Appeal Division dismissing his appeal for lack of jurisdiction amounts to an error of jurisdiction which renders the decision of the Appeal Division a nullity in light of the reasoning in Williams.
Barone v. Canada (Minister of Citizenship and Immigration) (1986), 38 Imm. L.r. (2d) 93 (I.A.D.)
[36] I note that there is little mention of Charter issues in the Decision itself. The Appeal Division merely says at paragraph 17:
The discretionary jurisdiction of the IAD is of a continuing nature in removal cases under the Immigration Act. The IAD has jurisdiction to re-open an appeal from a removal order on discretionary grounds only. Counsel for the Appellant filed a notice of constitutional question prior to the hearing challenging the validity of section 36(1)(a), 44(1) and 48(1) of the current Immigration and Refugee Protection Act. This appeal is governed by the Immigration Act. Nevertheless, on a re-opening, the Appellant cannot attack the constitutional validity of the removal order[1]
[37] In my opinion, the Appeal Division makes it quite clear that it cannot consider the constitutional validity of the Deportation Order itself. It is also saying that is can only re-open an appeal from the Deportation Order on “discretionary grounds.” This suggests to me that the Appeal Decision decided it would not entertain the Charter issues raised by the Applicants and, indeed, believed it did not have the jurisdiction to do so.
[38] As regards the Appeal Division’s decision that the constitutional validity of the Deportation Order could not, at that point, be questioned, I believe there is authority to support such a position. See Almonte v. Canada (Minister of Citizenship and Immigration), [1995] I.A.D.D. No. 1254 (I.A.D); Canada (Minister of Citizenship and Immigration) v. Ledwich, [1998] I.A.D.D. No. 831 (I.A.D.); Barone v. Canada (Minister of Citizenship and Immigration) (1996), 38 IMM L.R. (2d) 93 (I.A.D.). However, the Appeal Board’s Decision, in so far as it indicates that in exercising its discretion on a re-opening, the Appeal Division must leave the Charter out of account entirely, is clearly wrong. Another way of putting this would be to say, as the Respondent suggests, that the Appeal Division had to decide, in exercising its discretion on a re-opening application, “whether the execution of the deportation order” would be a violation of the Applicant’s Charter rights. The Decision is not entirely clear on this matter but, in my opinion, the Appeal Division appears to be saying that it will consider “discretionary grounds only.”
[39] As regards the first issue raised by the Applicant, in my opinion, the Appeal Division committed a reviewable error by deciding it could not consider the Charter arguments that the Applicant wished to advance as regards the execution of the Deportation Order.
Did the Appeal Division err in law in failing to consider whether or not it ought to have exercised its discretion in accordance with the dictates of the Charter as required by the Supreme Court of Canada in Suresh, supra?
[40] The Applicant submits that the Appeal Division erred in failing to apply and consider relevant Charter issues in the exercise of its discretion. In the case at bar, counsel for the Applicant argues, based on the decision of the Supreme Court of Canada in Suresh, supra, that the Appeal Division had to exercise its discretion in accordance with the Charter. The Applicant says that, given the new evidence that was before the Appeal Division in this case, (evidence that had not been considered either by the previous Appeal Division or this Court in Romans 1), the removal of the Applicant would inevitably violate the principles of fundamental justice and the Appeal Division was obliged, therefore, to exercise its discretion in favour of the Applicant.
[41] The Applicant submits that there was clear evidence before the Appeal Division of the following:
1. the Applicant arrived in Canada when he was 18 months old and has lived here all his life;
2. he became ill in Canada;
3. Dr. Hassan testified that the Applicant could not be held responsible for his criminal convictions because he was mentally ill at the material time;
4. the Applicant has not been given proper treatment for his illness in the past;
5. there are proper treatments available now that have a good chance of success;
6. the Applicant has no connections to Jamaica;
7. the mentally ill in Jamaica are subject to systematic abuse;
8. the Bellevue Hospital (the only hospital that could potentially house the Applicant in Jamaica) has limited facilities and is chronically overcrowded and has very limited rehabilitation options; and
9. as a result of these factors, there is a serious risk to the Applicant’s life if he is deported to Jamaica.
[42] In these circumstances, the Applicant argues that his removal to Jamaica would necessarily violate the principles of fundamental justice, so that regardless of any other concerns, including risk to the public in Canada, the Appeal Division ought to have exercised its discretion in his favour (see Suresh, supra, and Burns and Rafay v. U.S., [2001] 1 S.C.R. 28). The Applicant takes the position that the Decision gives no indication that the Appeal Division even considered these matters.
[43] In reply, the Respondent submits that Suresh, supra, is distinguishable from the present facts. The Applicant in the case at bar has not been found to be a Convention refugee. Nor have there been any serious allegations put forward of substantial grounds to believe that the Applicant faces a risk of torture if he is returned to Jamaica. While the Suresh, supra, principles may be considered when a removal is contemplated, their applicability is limited in the case at bar because of significant differences of fact.
[44] Besides the constitutional validity of the Deportation Order, Counsel for the Applicant also raised with the Appeal Division the extent to which the Charter limited its general discretion in this case and, in particular, the implications of the Supreme Court of Canada decision in Suresh, supra, for the exercise of that discretion.
[45] The Respondent’s argument on this issue is, essentially, that the Appeal Division had no obligation to mention the Charter arguments specifically; it merely had to exercise its discretion and perform its statutory duty within the terms of the Charter and in accordance with the principles of fundamental justice, which it did.
[46] In my opinion, the Appeal Division should have addressed the extent to which the exercise of its discretion was affected by Charter principles, and the implications of Suresh, supra, for the decision it had to make, particularly in light of the new evidence presented on country conditions in Jamaica and the fate faced by the Applicant if he was returned there. The Respondent’s argument that the Appeal Division had no obligation to actually refer to the Charter and the Charter issues raised by the Applicant around Suresh, supra, does not, in my opinion, really meet the point raised by the Applicant. This is because it is not clear from the Decision whether the Appeal Division regarded Charter issues as relevant in any sense to the exercise of its discretion. Because the impact of the Charter, particularly since the decision in Suresh, supra, was such a significant aspect of the Applicant’s argument, the Appeal Division should have addressed these matters in its Decision. In my opinion, its failure to do so constitutes a reviewable error.
[47] The Respondent attempts to distinguish the facts in Suresh, supra, from the facts in this case, and indeed they are different. But distinctions of fact do not remove the underlying considerations that Suresh, supra, suggests are applicable to decisions of this kind. In Suresh, supra, the Supreme Court of Canada said that “as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common-law factors not as an end in themselves but to inform the s. 7 procedural analysis.” (Para. 114). I am not suggesting that the evidence of country conditions in Jamaica and the likely fate awaiting the Applicant are necessarily equivalent to the fate that awaited Mr. Suresh, and I do not agree with Applicant’s counsel that, in this case, fundamental justice demanded that the Applicant remain in Canada, irrespective of the risk to the public. But this was an important issue that the Appeal Division should have addressed in deciding whether or not to exercise its discretion. It is not clear from the Decision whether it did so or whether it felt that this was a legal issue associated with the constitutional validity of the Deportation Order that had to be left out of account.
[48] It is my opinion that, in this case, the Appeal Division was not alive to the kind of analysis that Suresh, supra, now demands of it. I note that Suresh, supra, has been considered and applied in favour of an appellant before the Appeal Division in at least one instance. In Velupillai v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 863, Panelist Egya Sangmuah was faced with an appellant who had been convicted of conspiracy to traffic in heroin and sentenced to a term of eight years imprisonment. A removal order was issued for Mr. Vellupillai, which he appealed, and the Appeal Division noted as follows:
26. In Chieu, the Supreme Court of Canada held that, provided an appellant can establish on a balance of probabilities the likely country of removal, the IAD can consider evidence of potential foreign hardship. The appellant submitted that the likely country of removal is Sri Lanka. He has no other country of nationality or right to permanent residence in any other country. He is not a Convention refuge, as he was excluded by the CRDD and is not protected against refoulement. Counsel for the Minister did not dispute that the likely country of removal would be Sri Lanka. The appellant contended that given the links of his co‑conspirators to