Zhang v. Canada (Citizenship and Immigration)

Zhang v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-09-24
Neutral citation
2020 FC 927
File numbers
IMM-6722-19
Notes
A correction was made on February 4, 2022.
Reported Decision
Decision Content
Date: 20220204
Docket: IMM-6722-19
Citation: 2020 FC 927
Ottawa, Ontario, February 4, 2022
PRESENT: Mr. Justice Annis
BETWEEN:
TIAN REN ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED FINAL JUDGMENT AND REASONS
I. Introduction
[1] This is an application pursuant to s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act or IRPA] for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (IAD or Board), dated October 24, 2019 (the Decision). The Board dismissed the Applicant’s appeal and request for a stay of a removal order on the basis that there were not sufficient humanitarian and compassionate (H&C) considerations to warrant special relief in light of all the circumstances of the case.
[2] Despite almost twenty years after coming into force, this is the first decision to interpret sections 67(1)(c) and 68(1) of the IRPA in accordance with Driedger’s “modern principal” described in Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87. The Supreme Court of Canada adopted the modern principle of interpretation in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21 [Rizzo Shoes].
[3] The results of a holistic interpretation of the provisions are dramatic. It turns out that they describe a very different scheme in Parliament’s intention of providing special relief for inadmissible appellants. The scheme largely displaces strict adherence to the factors and the methodology of their application laid out in 1985 in Ribic v Canada (Minister of Employment and Immigration), [1985] IABD No 4, [1985] IADD No 4 [Ribic], which is discussed at length below.
[4] The following remarks, however, are specific to the granting of special relief to inadmissible appellants on grounds of serious criminality. The Board described the factors in Ribic (the Ribic factors) with a view to providing equitable relief relating to serious criminality. The comments below, to the extent that they may apply in other areas of special relief granted to inadmissible appellants, must be interpreted with respect to the specific factual circumstances they describe, e.g., misstatements.
II. Facts
[5] The Applicant, born on February 23, 1999, is a citizen of China. On July 28, 2011, he landed as a permanent resident of Canada, becoming a permanent resident when he was 12 years old. He returned to China in 2011 before returning to Canada in 2014, completing his high school education in Canada.
[6] On 9 March 2017 after turning 18, the Applicant and three of his schoolmates committed an offence (the Offence) against another schoolmate (the victim). The Applicant was convicted on August 22, 2018 of forcible confinement pursuant to s. 266 of the Criminal Code of Canada. He received a Conditional Sentence Order (CSO) – a form of incarceration – of 23 months. The conditions included that he remain for 12 months under house arrest 24 hours a day, 7 days a week, except when: attending school, accompanied by his parents, sister or brother-in-law, or with special written permission from his CSO Supervisor.
[7] On May 14, 2019, the Immigration Division (ID) held an admissibility hearing, issuing a deportation order on the same date. The Applicant appealed to the IAD. He did not appeal the legality of the deportation order, but sought special relief pursuant to sections 67(1)(c) and 68(1) of the IRPA on H&C grounds. In closing submissions, Applicant's counsel, after requesting that the appeal be allowed, requested a stay of the removal so that the Applicant had more time to demonstrate that he was rehabilitated and established.
[8] The Minister's counsel indicated that she did not oppose the stay of removal in order to allow the Applicant “to show us that he is on that road firmly, in terms of rehabilitation.”
III. The IAD decision
[9] The IAD stated that the test to be applied in the exercise of its jurisdiction is that it must be satisfied that at the time of the appeal, 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.
[10] The Board described the considerations in granting special relief stated in Ribic and endorsed by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 [Chieu], noting that they vary with each individual, but can include:
a) the seriousness of the offence or offences leading to the removal order;
b) the possibility of rehabilitation;
c) the length of time and degree of the Appellant's establishment in Canada;
d) the impact of removal on the Appellant's family members in Canada;
e) the support available for the Appellant in the family and community;
f) the degree of hardship that would be caused to the Appellant by the removal from Canada, including the conditions in the likely country of removal; and
g) the best interests of a child directly affected by the decision, although not applicable in this matter.
[11] The Board also stated that “[t]he exercise of discretion must be consistent with the objectives of the IRPA. These include the need to protect the health and safety of Canadians and maintain the security of Canadian society.” This refers specifically to section 3(1)(h) of the IRPA.
[12] The IAD described the “very serious” nature of the Offence and lack of credibility concerning the Applicant’s conduct as best detailed by paragraphs 10 to 12 of the decision:
[10] The Appellant was convicted of forcible confinement against a school colleague he suspected was pursuing his then girlfriend. The Appellant spoke to the victim on two occasions and asked him to stop. Afterwards, as the Appellant suspected that the victim was continuing to pursue his girlfriend, the Appellant arranged to meet him at a tea shop and, unknown to the victim, brought three friends. The victim tried to enter his car and flee when he saw the Appellant did not arrive alone, though was stopped from doing so by the Appellant. The Appellant forced the victim into the tea shop where at points the Appellant or his friends confined him, restrained the neck of the victim to prevent him from rising or leaving his chair, yelled at him and hit him. They also took turns going through the victim’s cell phone.
[11] The Appellant and his friends then took the victim into a nearby alley where the victim was struck some more. The Appellant and his friends then forced the victim into the vehicle he was using and drove him to a nearby vacant area. They continued their assault during the drive and at their destination. The Appellant and his friends demanded money from the victim and as he had none, one of the Appellant’s friends began to impersonate the victim on the victim’s chat applications. They were able to convince one of the victim’s friends to give them money and then drove the victim to his friend’s home to collect it. They took the money from the victim when he re-entered the vehicle. The victim was released after a second friend suspected that something was amiss after he received the demand for money through the victim’s chat applications. The second friend agreed to give the victim money as a front to meet the victim and his assailants and convince them to release the victim.
[12] There is little doubt that this is a serious offence. I note that the maximum sentence for imprisonment for the offence of forcible confinement is 10 years and that it is considered “serious criminality” according to the IRPA under section 36(l). This was a premeditated act which involved violence. There were a number of alternate ways to confront the victim and resolve the situation without resulting to unlawful acts. The Appellant testified at his criminal trial that he was too influenced by his friends who came with him to meet the victim. He also testified to the fact that his friends told him that he is not a fighter and could not stand up for himself; and therefore they asked to be present when he met the victim. The Appellant provided no credible explanation as to what he intended his friends to do during the meeting with the victim, or why he had not considered the possibility that there could be violence considering their statements. Further, during testimony the Appellant indicated that the whole incident lasted approximately two hours and that during this time he became aware that what was occurring was wrong. While he testified before the IAD that he did try to stop his friends, the Appellant could provide little evidence of how or precisely when he tried to stop his friends. I accept that the Appellant was influenced, to an extent, by his friends. However, I also find that the Appellant failed to consider possible violence when he permitted his friends to meet the victim, and I note the Appellant’s lack of concrete efforts to stop the incident when he became aware that what was occurring was wrong. Due to this I give little weight to the Appellant’s testimony that the events which transpired were a result of him being too influenced by his friends who came with him to meet [t]he victim. Considering all of the circumstances, I find that this is a very serious offence. [Footnotes omitted.]
[13] The IAD noted the positive elements of the Applicant’s potential for rehabilitation and level of remorse. He had no further convictions since the Offence, and was meeting all the conditions of his sentence. A psychological report provided in the Applicant’s sentencing hearing concluded that his behaviour was situational rather than characteristic and that he is not someone who represents a risk of violence in the community. Although expelled from high school, he found alternate avenues to successfully complete his secondary schooling, demonstrating high academic success. He eventually accepted to study at Western University in Ontario, which included a scholarship. At the time of the hearing he was preparing to enter his second year of the program.
[14] However, the IAD called into question the Applicant’s expression of remorse due to conflicting and equivocal evidence concerning his responsibility for the incident. He testified that his friends were somewhat responsible, though not blaming them, but then further stated that he was too influenced by his friends who encouraged him. The Board concluded as a finding of fact “that the level of remorse detracts from the weight that I can attribute to the Appellant’s efforts at rehabilitation.”
[15] The IAD expressed concerns about the Applicant’s efforts to lower his risk of reoffending. Concerning his rehabilitation, he had not adequately addressed a number of potential areas, particularly in reference to the psychological assessment opinion that stated he would benefit from counselling in specific areas. The Board noted that the Applicant had not sought therapy and had no immediate plans to do so. The evidence and testimony showed that the Applicant had done little beyond satisfying the conditions of his sentence or fulfilling his academic ambitions that would ensure that he would react differently in a similar situation. The Board further concurred with the statement by Applicant’s counsel during submissions that he had yet to put in place meaningful strategies for rehabilitation.
[16] In addressing the psychological report concerning the possibility of rehabilitation, the IAD noted the different mandates for criminal sentencing and rehabilitation under the IRPA. It also noted the points raised in the criminal proceedings that all the information was provided by the Applicant and no corroborative clinical testing was carried out despite four different interviews. The Board stated that it must reach its own conclusions regarding whether the prospects of rehabilitation are such that, alone or in combination with other factors, they warrant special relief from a valid removal order (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa SCC]).
[17] The IAD found that, when testifying, the Applicant provided little evidence to show that he had the skills and insight to respond differently should he encounter another stressful situation. His statement that in the future he would use the law to protect himself versus violence was vague. The Applicant was unable to speak to any strategies to resolve conflict without resorting to legal means. This raised concerns in the Board’s mind about his ability to deal with situations where he would need to confront others about behaviors without legal assistance. The Applicant also testified that one of the reasons he had not pursued counselling to explore his emotions was that he was ashamed to talk about the incident. The Board found that this augments the concerns over the Applicant’s lack of counselling and level of rehabilitation, as he appears to have not developed the skills to seek help and talk about stressful situations. Considering the limitations of the psychological report and these considerations, the Board concurred with the general conclusion of the psychological report that the Applicant did not represent a risk of violence in the community. Nevertheless, it was not convinced that he would not reoffend non-violently or with less violence if similar situations presented themselves. The IAD concluded that the degree of remorse and rehabilitation of the Applicant was a “minimally negative factor in the appeal.”
[18] Thereafter, the IAD considered the traditional H&C factors. The Applicant’s father, sister, sister’s family, grandparents and many extended family members live in China, that balanced with the members of family in Canada, representing a neutral factor. He visited China frequently and there was little evidence that he would not be supported by his family should he return there. The limited degree of establishment was taken into consideration, noting his young age, and determined to be a somewhat positive factor, as were some of his close and supportive relationships in Canada. His concerns about the possible loss of university credits were not substantiated. The IAD’s overall conclusion was that the Applicant would not face any undue hardship should he be returned to China.
[19] The IAD responded to the request for a stay of the removal order, stating as follows:
[23] The panel has taken into consideration the option of a stay of the removal order, which was a position suggested by the Respondent. In the particular circumstances of this case, a stay would do little to serve the objectives of the IPRA. Actions such as those by the Appellant undermine public confidence in the IRPA and they undermine public support for Canada’s generous immigration and refugee system. They cast a cloud of suspicion over the many honest and hardworking immigrants trying to make a better life for themselves in Canada. The public would be offended if the Appellant was allowed to remain in Canada, even with conditions. A stay of the deportation order is not appropriate.
IV. Parties’ submissions
[20] The Applicant argued that the IAD breached the Applicant's procedural fairness because the Board did not request any input, nor raise any concerns, with respect to the joint recommendation, but rather indicated his intention to reserve judgment. The Board thereafter rendered a negative decision, dismissing the stay request without any real consideration of the merits, as well as relying on an impermissible “general deterrence” line of reasoning. The Applicant’s second submission was that the Board’s assessment of the H&C factors was unreasonable.
[21] The Respondent’s submissions, including those in reply to a Direction of the Court, were threefold. First, the Applicant simply disagrees with the IAD’s weighing of the evidence with respect to the assessment of the H&C factors. Second, there was no breach of procedural fairness by the IAD not accepting a joint submission supporting a stay of removal, noting Federal Court jurisprudence that the IAD is not bound by joint submissions. Third, with respect to the rejection of the stay of removal, the IAD’s statements relating to “general deterrence” considerations did not go to the core of the Decision. The essence of the refusal was the crimes were too serious to merit a stay, while the Ribic factors had already been deemed unmet by the Board, such that the superfluous statements of general deterrence to reject the stay did not alter the outcome.
[22] In response to the Respondent’s third argument, the Applicant submitted that the tests applied under sections 67(1)(c) and 68(1) of the Act must reflect a sliding scale of the level of meeting the Ribic factors, in order to ensure their distinct application. To conclude otherwise would render untenable a body of cases in which relief is denied under s. 67, but granted under s.68.
V. Standard of review
[23] In accordance with the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraph 16 [Vavilov], the new framework to determine the standard of review is based on the presumption that an impugned decision is reasonable. This presumption has not been rebutted for any of the issues raised in this case.
[24] The focus of reasonableness review must be on the decision actually made by the decision maker concerning both the reasoning process and the outcome. The reviewing courts must determine whether the decision “is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker” (Ibid at para 85, 99ff). A reasonable decision is justified in light of the particular legal and factual constraints that bear on the decision -- “it is not enough for the outcome of a decision to be justifiable ... the decision must also be justified” (Ibid at para 86). The reviewing court must determine whether the decision “bears the hallmarks of reasonableness – justification, transparency and intelligibility” (Ibid at para 99). Finally, the onus is on the party who contests the decision to demonstrate that it is not reasonable (Ibid at para 100).
[25] With respect to factual findings, which extend to inferences of fact, parties must demonstrate that exceptional circumstances apply which would permit the reviewing court to interfere with factual findings, and that they are not requesting the court to re-weigh and reassess the evidence considered by the decision-maker (Ibid at paras 125–26).
VI. Relevant statutory materials
[26] The relevant statutory materials are as follows:
Disposition
66. After considering the appeal of a decision, the Immigration Appeal Division shall
(a) allow the appeal in accordance with section 67;
(b) stay the removal order in accordance with section 68; or
(c) dismiss the appeal in accordance with section 69.
Décision
66. Il est statué sur l’appel comme il suit :
a) il y fait droit conformément à l’article 67;
b) il est sursis à la mesure de renvoi conformément à l’article 68;
c) il est rejeté conformément à l’article 69.
Appeal allowed
67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
…
(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.
…
Fondement de l’appel
67 (1) Il est droit à l’appel sur preuve qu’au moment où il en est disposé :
[…]
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.
[…]
Removal order stayed
68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
…
Sursis
68 (1) Il est sursis à la mesure de renvoi sur preuve qu’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.
[…]
Dismissal
69 (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any. [Emphasis added.]
Rejet de l’appel
69 (1) L’appel est rejeté s’il n’y est pas fait droit ou si le sursis n’est pas prononcé. [Je souligne.]
VII. Issues
1) Was the joint submission for a stay of removal fairly regarded?
2) Can the same considerations to reject an appeal under section 67(1)(c) apply equally under section 68(1) to reject a request to stay a removal, and if so upon what reasoning can they be differentiated in application?
3) Did the IAD err in law in the exercise of its discretion under s. 67(1)(c) of the Act?
4) Did the IAD err in law in referring to “general deterrence” reasoning to reject the stay of removal request under s. 68(1) of the Act?
VIII. Analysis
A. Fair consideration of the joint submission
[27] The Applicant’s challenge to the Board’s fair treatment of the joint submission made with the Attorney General is without merit. It is acknowledged that the Board is not required to accept a joint submission (Saroya v Canada (Citizenship and Immigration), 2015 FC 428 at para 20; Doe v Canada (Public Safety and Emergency Preparedness), 2016 FC 518 at para 44).
[28] There can be no issue of fairness in terms of responding to submissions when the Board affords the parties an opportunity to make submissions, which it subsequently rejects, even if for unexpected reasons. In this case, the issue refers to the alleged unfairness in not being able to address aspects of general deterrence in the Board’s reasons based on the evidence before it. This raises issues as to the correctness of the Board’s legal reasoning that the Court addresses below. Courts may apply the correct law to the factual matrix, even if the parties do not address the legal principle relied upon by the court. The exception arises in fairness, if the reviewing court modifies the underlying evidentiary matrix, or a well-established legal standard that may require new evidence and new submissions to be considered.
[29] It is always open to the decision-maker to seek further submissions on a legal issue the parties have not addressed, but should have, based on the factual matrix, as a self-imposed means to ensure the correctness of its legal assessments. However, it is not required to do so. The legal issue is one that relates to the proper law, regardless of submissions, and may be the subject of a certified question on appeal. This issue of procedural fairness should not be confused with a form of unfairness in failing to address significant evidence or the parties’ submissions in the course of fact-finding or decision-making.
[30] Conversely, the Court is more concerned with a procedural breach by the Applicant and the Attorney General who did not ensure that the IAD was able to conduct a proper hearing. They failed to disclose their stay of removal agreement until the completion of the hearing. In the meantime, the Attorney General conducted an examination in chief of the Applicant, on occasion leading, posing normally impermissible redundant questions, or those that the Applicant could have covered, that were intended to demonstrate his rehabilitation and remorse. More importantly, the failure to indicate an intention to request a stay of removal at the opening of proceedings may have compromised the questions the Board might have posed to assist in obtaining evidence allowing it, for instance, to distinguish the circumstances that should apply under section 67(1)(c) from those under section 68.
[31] Besides the requirement that the Attorney General indicate at the opening of proceedings its intention to support a joint agreement for stay of removal, his counsel should normally limit its participation to submissions, unless there is relevant evidence in the Attorney General’s possession that is pertinent to the issues at hand. In addition, in circumstances involving a stay of removal of someone convicted of serious criminality where issues of personal safety and security are pertinent, the Attorney General should relate any concerns in this regard that might be relevant to the determination of the stay request not raised in the course of the hearing.
[32] Furthermore, because a joint submission places the Board at a disadvantage in not having the benefit of an adversarial challenge to the request for a stay, the Attorney General is required to provide the Board with a balanced analysis describing why it supports the reasoning relied on by the Applicant to grant the stay. In effect, it should indicate that it has made its best efforts to obtain all the relevant evidence supporting and opposing granting the stay, i.e., aspects of the equitable case, and particularly those relevant to the safety and security of the appellant remaining in Canada. Supporting a stay of removal should not be a pro forma exercise on the part of the Attorney General.
B. The interpretation and differentiation of sections 67(1)(c) and 68(1) of the IRPA
(1) Introduction
[33] As detailed in the reasons above, the Board undertook a thorough and well-reasoned analysis of the Ribic factors in support of its conclusion dismissing the appeal under section 67(1)(c). The Court agrees with the Respondent that in essence the Applicant is requesting it to reweigh the evidence, which it cannot do.
[34] The remaining significant issue is whether the Board erred in its reasons for refusing to accept the agreement to stay the Applicant’s removal based on wrong legal principles under section 68(1). In confronting this issue, the problem encountered is that the principles governing the application of section 68(1) cannot be confidently assumed without knowing how they are to be distinguished from those governing sections 67(1)(c). It appears that neither the Federal Court, nor the IAD, has previously attempted to provide a differential interpretive analysis of the two provisions.
[35] As the parties did not address the differential application of these provisions, the Court requested further submissions from the parties. They provided little in the form of policies, case law or interpretive extrinsic evidence to distinguish the application of the two provision. Counsel instead used the opportunity to describe some of the Board jurisprudence regarding the application of section 68(1). The previous jurisprudence is nonetheless useful and worthy of consideration.
(2) Parties’ submissions regarding the differential interpretation of sections 67(1)(c) and 68(1)
[36] The Applicant submitted that a stay of removal should be granted if the Board is convinced that appellants are on their way to rehabilitation and they do not pose unacceptable risks of reoffending. The Court would not heavily rely on the distinction between an appellant being on their way to rehabilitation and not posing an unacceptable risk of reoffending – rehabilitation being for the purpose of ensuring that reoffending not occur, as they both share the same result. While the Court generally agrees with the statement that not posing an unacceptable risk of reoffending is an essential element of obtaining a stay of removal, the standard is insufficiently strict. The appropriate standard is demonstrating that it is unlikely the appellant will reoffend. More importantly, the timing of the application of the standard is not when granting the stay, but when completing it. Without this distinction, this submission does not assist the Court in its search for a differential interpretation of sections 67(1)(c) and 68(1).
[37] The Applicant supported his submission with a number of cases in which the IAD granted the stay of removal. The Applicant referred to the case of Barrinetos v Canada (Public Safety and Emergency Preparedness), 2008 CanLII 66587 at paras 8–9 where the Board accepted a joint recommendation from the parties on a stay request, acknowledging the appellant’s credible expression of remorse at his hearing. The Board noted that the criminal acts that led to issuance of the removal order were serious, but also acknowledged “that the Appellant has changed his life around in such a way as to warrant special relief in this case.” A lengthy stay was granted with the purpose of allowing the appellant to “establish by his conduct” that he can be “a law abiding resident of Canada.” The Court agrees for the most part that where all factors are properly considered, the purpose of a stay of removal is to provide an opportunity to demonstrate that the appellant will likely, as opposed to “can”, be a law-abiding resident of Canada.
[38] In Malhi v Canada (Public Safety and Emergency Preparedness), 2008 CanLII 87002 at paras 5, 15–18, 21–23, 29 the appellant argued for a stay of removal that would allow him to “show that he can be rehabilitated.” The Board held at paragraph 29 that “[t]he onus is on the appellant to show that there is acceptable risk that he will not re-offend”, concluding “that, on a balance of probabilities, there is a good possibility of rehabilitation.” The statement “a balance of probabilities, there is a good possibility” describes two different standards of proof, being those of a probability and a possibility. The Court agrees that the risk of not reoffending is the appropriate test, but disagrees that the standard is an “acceptable risk” or “a good possibility”, both being insufficiently strict. The standard must be one that sufficiently assures the safety and security of Canadian society. The applicant must establish that continued efforts of rehabilitation during a stay period, and other risk-evaluating circumstances, will demonstrate the likelihood of his successful rehabilitation, and therefore demonstrate that he is likely not to reoffend upon completion of the stay.
[39] In Oneil v Canada (Public Safety and Emergency Preparedness), 2009 CanLII 94197, the Board had lingering concerns about whether the appellant had truly turned his life around, but was nevertheless of the opinion that he was on the right track. The Board further stated at paragraph 35 that “[i]t is up to the appellant to demonstrate that he deserves to remain both within the family unit and in Canada and, as such, the panel is of the view that [a] three-year stay is minimally required. A stay of this length will provide the appellant with the opportunity to demonstrate significant rehabilitation but also it will provide him with the opportunity to fail should he deviate from the straight and narrow.” The Court disagrees that this reasoning reflects the requirements of granting a stay of removal under section 68(1), particularly in relation to the concept of providing “an opportunity to fail”.
[40] The Respondent’s position in response to the Court’s direction was simply that the language of the two sections tracks identically and therefore, the Ribic factors apply equally to both questions. Although this rings true, the Court finds this unhelpful because they must be applied in some different manner to achieve different outcomes.
[41] The Attorney General further cited Singh v Canada (Citizenship and Immigration), 2020 FC 328 at paragraph 38 for the proposition that “[i]n order for the IAD to stay a removal order there must be sufficient humanitarian and compassionate grounds to warrant special relief.” This is consistent with Supreme Court and Federal Courts jurisprudence that describes all Ribic factors, including seriousness of the offence and possibility of reoffending, as H&C factors. It is the Court’s respectful view that these factors do not concern equitable hardship, but are countervailing factors relating to public safety and security. Describing them as equitable hardship factors is not in accordance with the modern interpretation of sections 67(1)(c) and 68(1). They fall within the wording “in light of all the circumstances” that must warrant equitable relief, or the French equivalent “vu les autres circonstances de l’affaire, la prise de mesures spéciales.”
[42] The Court also noted the decision of Sananikone v Canada (Minister of Citizenship and Immigration), [2001] IADD No 1950, the conclusionary portion of which is found at paragraphs 15 and 16, as follows:
15 In all the circumstances of this case, the panel is satisfied, on a balance of probabilities, that the risk of the appellant re-offending is sufficiently low that it does not conflict with our duty to administer the laws of Canada in such a matter as to maintain the health, safety and good order of Canadian society. The panel is prepared to grant a stay for the appellant to continue with his rehabilitation process. The stay will be for a duration of three years.
16 The appellant needs to know that any further criminal conviction or any transgressions of the terms and conditions of his stay may lead to his removal from Canada. It is up to him to behave responsibly. The appellant has been given an important opportunity to follow the more positive path his life has taken recently. It is to be hoped that the appellant will recognize that as a very serious opportunity to rehabilitate himself. The present stay will provide structure to allow him to continue efforts to rehabilitate. [Emphasis added.]
[43] The Court agrees that the risk of reoffending must be sufficiently low as a danger to the safety and good order of Canadian society in order for the granting the stay of removal. This reflects the essence of the second paragraph, namely that the result will be a rehabilitated law-abiding citizen. Nevertheless, the test is not stated applying appropriate legal terminology, without any description of the ultimate purpose of the stay. The stay is granted on the basis of demonstrating sufficient rehabilitation, such that at the termination of the stay period, the Board may conclude that it is likely the appellant will not reoffend in the future, if granted permanent resident status.
(3) Rajagopal v Canada
[44] Another case, this time at the Federal Court level, not referred to by the parties, but of some interest to these issues is that of Rajagopal v Canada (Public Safety and Emergency Preparedness), 2007 FC 523 at paragraphs 30 to 34 [Rajagopal]. The pertinent reasons are set out with the Court’s emphasis on statements that require discussion:
2. Assessment of Whether to Grant a Stay
[30] According to the applicant, if the applicant requests a stay as is the case here, the IAD must consider the request and give “good” reasons as to why it has refused it. As noted at paragraph 14 of Lewis v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. 1227 (T.D.)(QL): “if a stay is requested and if the facts suggest that there is reason to consider a conditional stay, then, if reasons are given pursuant to section 69.4(5) of the Act, the applicant is entitled to know why a stay was denied”.
[31] The applicant asserts that in the present case the IAD has failed to provide any meaningful analysis or reasons for its refusal to grant a stay, the extent of its attention being limited to a sweeping conclusion. As was noted in Archibald v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 747 (T.D.)(QL) at paragraph 11: “a significant factor in assessing whether or not to stay the deportation order is an evaluation of the risk which exists that the applicant will re-offend”. In the present case, the applicant asserts that the IAD’s sole finding in this regard was based on its further finding that the applicant was not remorseful, which was in turn was based on the misconstrued nature of the police report. Therefore the IAD failed to consider all of the evidence which indicated that the applicant would likely not re-offend.
[32] The respondent asserts that the IAD did not err in refusing to grant a stay, and that it gave clear reasons for the refusal. The respondent asserts that the case law indicates that the applicant is entitled to know why the IAD denied a stay but that it does not support the assertion that the IAD must issue additional or special reasons in this regard.
[33] In dealing with the issue of whether or not to grant a stay, the IAD stated that “[s]tays of deportation are, by their very nature, special relief. However, as I have found the overall humanitarian and compassionate balance to weigh so negative as not to merit special relief. Special relief is therefore not warranted. It is therefore not appropriate for me to grant a stay”. The IAD went on to note “[f]or all these reasons, I find that the case does not merit special relief under sections 67(1)(c) or 68(1)” of the Act.
[34] It is clear that the IAD’s analysis as a whole was meant to apply to its decisions with respect to both paragraph 67(1)(c) and subsection 68(1) of the Act. The IAD therefore did not merely state a conclusion with respect to the stay issue.
[45] Three points are of interest to the Court in this case. First, the Federal Court confirms Archibald v Canada (Minister of Citizenship and Immigration) (1995), 95 FTR 308, 29 Imm LR (2d) 259 in recognizing the significance of the risk factor of the safety and security of the public in determining whether the applicant will reoffend. Reoffending is often mentioned as a distinct factor. In fact, it is the objective of rehabilitation; to be rehabilitated is to be unlikely to reoffend. As already stated, the Court concludes that the likelihood of reoffending, distinguishes the application of section 67(1)(c) from section 68(1) based on the point of time when that conclusion is reached, either at the completion of the hearing for the appeal, or the completion of the stay period for the stay of removal.
[46] The second point relates to nomenclature. The Board in that case remarks that “the overall humanitarian and compassionate balance to weigh so negative as not to merit special relief” (Rajagopal at para 33). Despite the 2001 IRPA amendments, the Board and Courts insist on describing all of the seven Ribic factors as representing the overall humanitarian and compassionate grounds. Respectfully, this again stems from an incorrect interpretation of the amended sections 67(1)(c) and 68(1), which fails to recognize that Parliament separated humanitarian and compassion factors from the other two Ribic factors, in addition to any other relevant factors, which for matters of serious criminality, relate to the safety and security of the public.
[47] Third, with respect, it is suggested that the reasoning of the Board as upheld by the Court, would not meet the standard of review set down in Vavilov requiring that the decision be “justified”. The applicant contended that the IAD failed to “give good reasons” to refuse a stay, claiming that the Board “failed to provide any meaningful analysis or reasons for its refusal to grant a stay” (Rajagopal at para 31). The respondent argued that despite being entitled to know why the stay was required, there is no requirement that “the IAD must issue additional or special reasons in this regard” (Ibid at para 32). The Court upheld the concept that the overall H&C balance of factors did not merit special relief in either case.
[48] The problem is the same encountered in this matter. The Board is