Thursday, January 20, 2011

COCAINE DEALER ALLOWED TO REMAIN ON HUMANITARIAN GROUNDS

Interesting case, soewhat unusual facts, multiple criminal convictions, successful "humanitarian and compassionate" grounds appeal at IAD.  Do you agree with this decision?  It took five years to come to a hearing at the IAD. Why?


Meredith v. Canada (Minister of Public Safety and Emergency Preparedness)

Keith Errol Meredith, appellant, and

Minister of Public Safety and Emergency Preparedness,

respondent

[2010] I.A.D.D. No. 555

[2010] D.S.A.I. no 555

No. TA8-10353
Immigration and Refugee Board of Canada

Immigration Appeal Division

Toronto, Ontario

Panel: Benjamin R. Dolin

Heard: March 10, 2010.

Decision: April 29, 2010.

(34 paras.)
________________________________________
Removal Order

Reasons for Decision

Introduction

1 These are my reasons for decision in the appeal of Keith Errol MEREDITH (the appellant) from a deportation order made against him on May 26, 2008 pursuant to section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA).

Issues

2 The appellant does not challenge the legal validity of the deportation order. This appeal only relates to the appellant's request for relief on humanitarian and compassionate grounds under section 68(1) of IRPA. The appellant requests that the deportation order be stayed, subject to conditions, for a period of two to five years. The Minister is opposed to any such special relief and asks that the appeal be dismissed.

Decision

3 Having considered the evidence and the submissions of the parties, I find the deportation order to be valid in law.

4 However, the appellant has established that special relief is merited in the circumstances of his case. The removal order is stayed for four years, subject to the attached conditions.

Background

5 The appellant is 42 years old and a citizen of Jamaica. He became a permanent resident of Canada in March of 1987, when he was 19 years old. He has resided here since. He has six siblings, one of whom lives in the United States. The rest live in Canada, as does his mother.

6 The appellant testified that when he was six or seven years old he was sexually assaulted by a neighbour. As a result, he became withdrawn and insecure. He was placed in special education classes at school, but received no counseling. This exacerbated his self-esteem problems. He testified that he told his mother of the abuse at the time, but nothing happened. She was raising six children on her own in a one bedroom apartment and the appellant speculated that his disclosure was too much for her to handle.

7 When he immigrated to Canada, he registered for high school and was again placed in a "special ed" setting. He dropped out in 1989. He testified that he began to associate with the "wrong group of people" and began doing drugs. In relatively short order, he became addicted to crack cocaine. Criminality ensued.

8 The appellant's criminal record consists of the following:1

Disposition Date

Offence

Disposition

March 29, 1990 Theft under $1000 Conditional discharge

and 12 months

probation
April 30, 1991 Possession of

narcotic $500 (in default 7

days)

December 15, 1995 Possession of

property obtained

by crime under

$5000 $100 (in default 15

days)

March 14, 2007 Traffic in

scheduled

substance (x2) 1 day on each,

concurrent in light of

701 days pre-sentence

custody)

March 15, 2007 Traffic scheduled

substance 2 years less a day


July 7, 2008

Parole violation

Recommitted



9 The appellant admits that he was a crack cocaine dealer from approximately 1998 until his arrest in 2005. He claimed that he sold drugs to support his own habit, but testified that he has now been clean since April 2005. He has also since reconciled with his family and found full-time employment.

10 Documentary evidence was tendered by the appellant's counsel and included the following:



• - A letter from the appellant's addiction counselor at the John Howard Society, Peter Markwell, confirming that he has completed a twelve session program and continues to attend the group for on-going support: "He is an active member of the group and I believe that he has benefited greatly from it. Mr. Meredith is always a positive influence in the group, is always punctual, polite and courteous. In my opinion, Mr. Meredith is doing very well..."2



• - A letter from Jermaine Jackson, president of "Youth Against Violence", a non-profit charitable organization in Toronto, which indicates that the appellant has become an active volunteer with the organization and that he is now a positive role model for the young people in the organization.3



• - A letter from Brother Patrick White, executive director of a Christian Outreach Centre, confirming that the appellant has been helping the organization. Brother White states: "However, the real story is not just the time that Keith has volunteered, but the sacrifice he has made to help others in the centre, well over and above the regular duties of a volunteer."4



• - A letter from Social Work Supervisor/Case Coordinator from the Ontario Correctional Institute (OCI), Nilson Peixoto, that refers to the appellant's most recent period of incarceration and indicates: "Mr. Meredith was an integral member of Unit 2 for 7 months...He participated fully in all programs and meetings, be it volunteer led, staff facilitated or self-development. He presented as someone who was genuinely honest about his shortcomings (lack of self-esteem, substance abuse...etc.) In addition to that, Mr. Meredith was consistently polite and respectful to all staff members; he was also friendly and demonstrated understanding of others' issues by helping fellow residents with their own treatment issues via his thoughtful and insightful questions to peers."5


• - Letters from the appellant's current employer confirming that he is a valued warehouse associate.6

• - A letter confirming that the appellant has arranged for individual therapy at Family Services Toronto to work on "issues related to his childhood trauma and its connection to present day struggles..."7


• - A certificate from Narcotics Anonymous dated October 5, 2007 that indicates that the appellant had been drug free for 30 months at that time.8

11 The appellant's sister Melva Meredith Lewis also testified. She indicated that the appellant had always been quite distant and isolated from his family and it was not until 2005 that she became aware of his drug use. It was not until 2007 that he told her that he had been sexually assaulted as a child. She stated that there has now been a drastic change in her brother. Since his incarceration at OCI, he is now much more positive and speaks to his family members about his problems. The family gets together at least once a week at their mother's home and the appellant has their full support.

12 Counsel for the Minister tendered, inter alia, police reports related to the appellant's most recent convictions. These reports depict him as a street-level drug dealer who began to move larger quantities of cocaine.9 When arrested in 2005, he was involved in a transaction involving $10,000 worth of powder cocaine.

Analysis

13 The onus is on the appellant to show why he should not be removed from Canada. In addition to the best interests of a child directly affected, the decision in Ribic,10 as confirmed in Chieu,11 outlines a number of non-exhaustive factors that should be considered when the Immigration Appeal Division (IAD) exercises its discretionary jurisdiction in removal order appeals, as follows:



• - the seriousness of the offence or offences leading to the removal order;

• - the possibility of rehabilitation, or, alternatively, the circumstances surrounding the failure to meet the conditions of admission;

• - the length of time spent, and the degree to which the appellant is established in Canada;

• - the family in Canada and the dislocation to the family that removal would cause;

• - the family and community support available to the appellant; and

• - the degree of hardship that would be caused to the appellant by the appellant's return to his or her country of nationality.

14 The weight given to each of these factors can vary depending on the circumstances of the case. In deciding this appeal, I have considered these factors and the best interests of the appellant's children. I have also considered the objectives of IRPA which include an objective "to protect the health and safety of Canadians and to maintain the security of Canadian society".12

Seriousness of the Offences

15 The appellant was a drug dealer for approximately seven years. In 2004 and 2005, he began to move larger quantities of cocaine. There are obvious public health and safety concerns associated with such behaviour and counsel for the appellant concedes that the appellant's record, while not lengthy, is serious. His sentence of two years less a day confirms the seriousness of his conduct. Indeed, given section 64 of the IRPA, his sentence is the longest he could have received while maintaining a right of appeal to the Immigration Appeal Division.13

16 This factor weighs heavily against granting special relief.

The Possibility of Rehabilitation

17 The indicia of rehabilitation include "credible expressions of remorse, articulation of genuine understanding as to the nature and consequences of criminal behaviour and demonstrable efforts to address the factors that give rise to such behaviour."14

18 The appellant was a credible witness and I accept his testimony that he has not used cocaine since his arrest in 2005. I also accept his claim that he was abused as a child and that that incident contributed to many of his problems as an adult. The documentary evidence confirms that he has pursued counseling for his drug addiction and to address his childhood trauma. His counseling is ongoing and it appears that he is genuinely committed to turning his life around. The appellant has expressed remorse and insight with respect to his past criminality and has a support system in place involving family and community groups that appears to be promising. That he has found gainful full-time employment is also a positive sign.

19 The appellant has established on a balance of probabilities that there is a good possibility of rehabilitation. His criminality appears to have largely been related to his drug addiction, which in turn may be related to his childhood abuse, and if he continues to remain drug-free and in counseling, there is reason to expect that he can avoid future involvement with the criminal justice system.

20 This factor weighs in favour of exercising my discretionary jurisdiction.

Length of Time in Canada and Establishment

21 In assessing establishment, the Federal Court has held that relevant considerations will include:15



• - length of residence in Canada;

• - the age at which one comes to Canada;

• - length of residence elsewhere; frequency of trips abroad and the quality of contacts with people there;

• - where one is educated, particularly in adolescence and later years;

• - where one's immediate family is;

• - where one's nuclear family lives and the ties that members of the nuclear family have with the local community;

• - where the individual lives;

• - where his friends are; the existence of professional or employment qualifications which tie one to a place, and the existence of employment contracts.

22 The appellant is a long-term permanent resident. His immediate family is mostly in Canada and he has attended school and had employment here. He does not appear to have maintained any substantive ties to his country of nationality. His last visit to Jamaica was a decade ago and that trip was of relatively short duration. I find that he is socially established in Canada.

23 In terms of his financial establishment, however, the appellant has not performed well. While he now has full-time employment, he was in receipt of social assistance for considerable periods of time in the past.16 It is also disconcerting that during his time on welfare, he was earning income illegally through drug dealing. He has no assets at this time, minimal savings and significant outstanding debts.

24 However, as noted by the Court in Archibald, supra, financial factors should not be given precedence over social factors in assessing establishment; both must be considered. As such, his lack of economic establishment does detract from the weight I give to his time in Canada and his ties to the country, but overall this factor weighs in favour of granting a stay.

Dislocation to the Appellant's Family in Canada

25 The appellant has recently reconciled with his family and I accept that they would be concerned for his well-being were he returned to Jamaica. However, no one is dependent on the appellant and it was not established that there would be any substantive dislocation to family members. The appellant and his sister indicated that he does help her out financially from time to time, but it was not argued that she relies on him for her support.

26 I thus treat this as a neutral factor, neither weighing for nor against removal.

Support - Community and Family

27 As noted, the appellant has the support of his family and has found community resources that will hopefully help him to remain on the straight and narrow. His volunteer work is also a positive consideration and I find that this factor weighs in the appellant's favour.

Foreign Hardship

28 The appellant would face some difficulty in re-adjusting to life in Jamaica. He has no family remaining there and his removal from Canada would interrupt the counseling and support services he has engaged here. However, there was a paucity of evidence regarding any substantive hardship or direct threat to the appellant's personal safety or well-being. The appellant did not know if he could access treatment programs in Jamaica and no documentary evidence was tendered to suggest that he could not continue with Narcotics Anonymous or a similar program there. He testified that he has not looked into job prospects in Jamaica and, based on the evidence before me, I cannot find that he would not be able to support himself in his country of nationality. Although he has not lived there for 23 years, he was an adult when he left and is obviously familiar with the language and culture.

29 This factor does not weigh in the appellant's favour.

Best Interests of the Children

30 The appellant testified that about six years ago he discovered he had an eight year old son. Apparently, a former girlfriend had given birth to his child and decided not to inform him. The appellant testified that he has only seen the child once and his former girlfriend has made it clear to him that she does not want him involved in the boy's life. The child is now a teenager and the appellant has not sought access through the courts and has never provided any financial support.

31 The appellant has nephews and nieces in Canada, but it was not suggested that they are dependent on him or that his removal would have a deleterious impact on them.

32 The evidence before me falls well short of establishing that it would be in any child's best interests to grant special relief.

Conclusion

33 Having considered the evidence and the submissions of the parties, I find the deportation order to be valid in law. However, despite the seriousness of the appellant's criminality, I find that he has good rehabilitative prospects. He appears to have genuine insight into his past behaviour and has a support system in place. While he and his family would not suffer significant hardship were he removed, he is a long-term permanent resident who should be given one more chance to prove that he can be a law-abiding and productive member of society.

34 The removal order is stayed for a period of four years, subject to the attached conditions.

CONDITIONS OF STAY OF REMOVAL ORDER

The removal order in this appeal is stayed. This stay is made on the following conditions - the appellant must:



• [1] Inform the Canada Border Services Agency (the "Agency") and the Immigration Appeal Division in writing in advance of any change in your address.



• The address of the Agency is:

Canada Border Services Agency, The Greater Toronto

Enforcement Centre,

6900 Airport Road, P.O. Box 290, Mississauga, Ontario,

L4V 1E8.



• The address of the Immigration Appeal Division is: 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7.



• [2] Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.



• [3] Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.



• [4] Not commit any criminal offences.



• [5] If charged with a criminal offence, immediately report that fact in writing to the Agency.



• [6] If convicted of a criminal offence, immediately report that fact in writing to the Agency and the Immigration Appeal Division.



• [7] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post to the Canada Border Services Agency, 6900 Airport Road, P.O. Box 290, Mississauga, Ontario, L4V 1E8. It is the responsibility of the appellant that the documents are received by the Agency within any time period required by a condition of the stay.



• [8] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post; or by fax to the Immigration Appeal Division at 416-954-1165. Include your IAD file number. It is the responsibility of the appellant that the documents are received by the Immigration Appeal Division within any time period required by a condition of the stay.



• [9] Report to the Agency in person (with a written report) at the Canada Border Services Agency, The Greater Toronto Enforcement Centre, 6900 Airport Road, Entrance 2B, Mississauga, Ontario between the hours of 7:30 a.m. to 16:00 p.m., and every six (6) month(s) on the following dates:

Wednesday, September 8, 2010

Wednesday, March 9, 2011

Wednesday, September 7, 2011

Wednesday, March 7, 2012

Wednesday, September 12, 2012

Wednesday, March 13, 2013

Wednesday, September 11, 2013



• The appellant shall report in person (with a written report).



• The reports are to contain details of the appellant's:



• - employment or efforts to obtain employment if unemployed;

• - current living arrangements;

• - marital status including common-law relationships;

• - attendance at any educational institution and any change in that attendance;

• - attendance at meetings of any other drug or alcohol rehabilitation program;

• - participation in psychotherapy or counselling.



• [10] Make reasonable efforts to seek and maintain full-time employment and IMMEDIATELY report any change in employment to the Agency.



• [11] Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.



• [12] Not own or possess offensive weapons or imitations of offensive weapons.



• [13] Respect all parole conditions and any court orders.



• [14] Refrain from the illegal use or sale of drugs.

FINAL RECONSIDERATION

Take notice that the Immigration Appeal Division will reconsider the case on or about the 10th day of March, 2014 or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the Immigration Appeal Division in writing before any change in your address.

The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.

IMPORTANT WARNING

This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.

"Benjamin R. Dolin"

29 April 2010

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