World Population Forecast to Top 7 Billion in 2011 - NYTimes.com
July 29, 2010
Population Research Presents a Sobering Prognosis
By SAM ROBERTS
With 267 people being born every minute and 108 dying, the world’s population will top seven billion next year, a research group projects, while the ratio of working-age adults to support the elderly in developed countries declines precipitously because of lower birthrates and longer life spans.
In a sobering assessment of those two trends, William P. Butz, president of the Population Reference Bureau, said that “chronically low birthrates in developed countries are beginning to challenge the health and financial security of the elderly” at the same time that “developing countries are adding over 80 million to the population each year and the poorest of those countries are adding 20 million, exacerbating poverty and threatening the environment.”
Projections, especially over decades, are vulnerable to changes in immigration, retirement ages, birthrates, health care and other variables, but in releasing the bureau’s 2010 population data sheet, Carl Haub, its senior demographer, estimated this week that by 2050 the planet will be home to more than nine billion people.
Even with a decline in birthrates in less developed countries from 6 children per woman in 1950 to 2.5 today (and to 2 children or less in Brazil, Chile, Cuba, Iran, Thailand and Turkey), the population of Africa is projected to at least double by midcentury to 2.1 billion. Asia will add an additional 1.3 billion.
While the United States, Australia, Canada and New Zealand will continue to grow because of higher birthrates and immigration, Europe, Japan and South Korea will shrink (although the recession reduced birthrates in the United States and Spain and slowed rising birthrates in Russia and Norway).
In Japan, the population of working-age people, typically defined as those 15 to 64, compared with the population 65 and older that is dependent on this younger group, is projected to decline to a ratio of one to one, from the current three to one. Worldwide, the ratio of working age people for every person in the older age group is expected to decline to four to one, from nine to one now.
Earlier this week, Eurostat, the statistical arm of the 27-nation European Union, reported that while the union’s population topped a half billion this year, 900,000 of the 1.4 million growth from the year before resulted from immigration. Eurostat has predicted that deaths will outpace births in five years, a trend that has already occurred in Bulgaria, Latvia and Hungary.
While the bulge in younger people, if they are educated, presents a potential “demographic dividend” for countries like Bangladesh and Brazil, the shrinking proportion of working-age people elsewhere may place a strain on governments and lead them to raise retirement ages and to encourage alternative job opportunities for older workers.
Even in the United States, the proportion of the gross domestic product spent on Social Security and Medicare is projected to rise to 14.5 percent in 2050, from 8.4 percent this year.
The Population Reference Bureau said that by 2050, Russia and Japan would be bumped from the 10 most populous countries by Ethiopia and the Democratic Republic of Congo.
Friday, July 30, 2010
EXCELLENT EDITORIAL IN TODAY'S GLOBE AND MAIL
As I wrote in this Blog yesterday, this policy is stupid and discourages precisely the type of immigrants we need. Instead, we should require language tests from spouses in the family class and from approved refugee claimants before granting them residency, as they represent the weak link in the labour force and the economy. Enough political correctness already! Don't treat all applicants equally bad. Reward the best and cast away the rest. Let common sense prevail! the Globe and Mail seems to agree with me.
Arbitrary language test defies common sense - The Globe and Mail
Globe Editorial
Arbitrary language test defies common sense
If immigrants already speak English or French, and that can be easily verified, they should not have to spend hundreds of dollars proving it, as a new Canadian policy demands.
From Friday's Globe and Mail
Published on Thursday, Jul. 29, 2010 8:00PM EDT
Last updated on Thursday, Jul. 29, 2010 8:02PM EDT
Canada's immigrants should have the desire to learn one of Canada's official languages, or know English or French already, when they apply to be immigrants. If they already speak it, and that can be easily verified, they should not have to spend hundreds of dollars proving it, as a new Canadian policy demands.
The federal government will now make every new prospective immigrant in the Skilled Worker and Canadian Experience categories take a test to demonstrate their knowledge of English or French; the previous rule allowed them to demonstrate their proficiency in writing. A government spokesperson justifies the decision by saying “the use of written submissions as a tool for assessing language proficiency is unreli-
able, inefficient and more easily subject to fraud.”
The government should show, however, a little common sense, which is lacking in the cases of Sara Landreth and James Brooke-Smith. Surely graduates of American PhD programs in English literature, both of whom learned English as a first language, are proficient in English.
Knowing that, it is ludicrous to insist that they take a rudimentary language quiz, and incur the $280 cost involved. It smacks of needless bureaucracy and it degrades the immigration system. It also sends the wrong message to potential future skilled immigrants. Many speak English or French as a mother tongue, and the growing share that don't have often been educated in English or French.
Other countries have crafted policies around language and immigration that are worth considering. Australia gives automatic partial language points for skilled immigrants who hold passports from one of five other predominantly English-speaking countries. Britain recently revised its rules to require immigrants from non-European countries coming to join or marry their partners to take an English language test. New Zealand allows applicants to demonstrate their knowledge of English by providing evidence of schooling in English.
Language, citizenship and participation in larger society are inextricably linked. Canada's official languages are English and French. We should expect immigrants to demonstrate proficiency in one or both of them, and those who don't should endeavour to learn it.
But the government should not go out of its way to torment those whose grasp is manifest by submitting them to arbitrary testing.
Arbitrary language test defies common sense - The Globe and Mail
Globe Editorial
Arbitrary language test defies common sense
If immigrants already speak English or French, and that can be easily verified, they should not have to spend hundreds of dollars proving it, as a new Canadian policy demands.
From Friday's Globe and Mail
Published on Thursday, Jul. 29, 2010 8:00PM EDT
Last updated on Thursday, Jul. 29, 2010 8:02PM EDT
Canada's immigrants should have the desire to learn one of Canada's official languages, or know English or French already, when they apply to be immigrants. If they already speak it, and that can be easily verified, they should not have to spend hundreds of dollars proving it, as a new Canadian policy demands.
The federal government will now make every new prospective immigrant in the Skilled Worker and Canadian Experience categories take a test to demonstrate their knowledge of English or French; the previous rule allowed them to demonstrate their proficiency in writing. A government spokesperson justifies the decision by saying “the use of written submissions as a tool for assessing language proficiency is unreli-
able, inefficient and more easily subject to fraud.”
The government should show, however, a little common sense, which is lacking in the cases of Sara Landreth and James Brooke-Smith. Surely graduates of American PhD programs in English literature, both of whom learned English as a first language, are proficient in English.
Knowing that, it is ludicrous to insist that they take a rudimentary language quiz, and incur the $280 cost involved. It smacks of needless bureaucracy and it degrades the immigration system. It also sends the wrong message to potential future skilled immigrants. Many speak English or French as a mother tongue, and the growing share that don't have often been educated in English or French.
Other countries have crafted policies around language and immigration that are worth considering. Australia gives automatic partial language points for skilled immigrants who hold passports from one of five other predominantly English-speaking countries. Britain recently revised its rules to require immigrants from non-European countries coming to join or marry their partners to take an English language test. New Zealand allows applicants to demonstrate their knowledge of English by providing evidence of schooling in English.
Language, citizenship and participation in larger society are inextricably linked. Canada's official languages are English and French. We should expect immigrants to demonstrate proficiency in one or both of them, and those who don't should endeavour to learn it.
But the government should not go out of its way to torment those whose grasp is manifest by submitting them to arbitrary testing.
Thursday, July 29, 2010
UNIFORMITY TAKEN TO RIDICULOUS LEVELS
As of June 26,2010, every immigration applicant in the Skilled Worker or the Canada Experience Class categories must take a language proficiency test, either IELTS for English or TEF for French, no exceptions. This is ridiculous , as highlighted in the story from the Globe and Mail below, published today, where American PhDs in English teaching as professors of literature at a Canadian university are requested to take a language test.
This situation is the result of political correctness taken to its highest level of stupidity. Why? How did this ridiculous result cam about? Here is why:
Language proficiency for immigrants is a MUST. Evey single study shows that lack of language proficiency impairs immigrants' abilities to adapt to society and integrate into the labour force, as employers demand appropriate speaking, reading and writing skills. That is beyond any question and is a laudable goal. It is also a key building block of society. But why require US, UK, or French -born and educated people to do this? Isn't this ridiculous? Yes, but the bureaucrats, in their wisdom, decided not to make exceptions. presumably due to fear of being accused to favour immigrants from certain countries to the detriment of those who are not English or French speaking.
It would be very easy for the government to create a list of countries whose citizens, as long as they are born, educated and living there, should be exempt from the language tests. Obvious examples are those born in the US, UK, Australia, New Zealand, etc,. who are born and educated in English , or those born and educated in France or other officially French-speaking nations. Where the sticking point lies is in how to deal with those who are born in countries where English or French are not the official language, but then migrate to other countries to be educated or work in English or French, often their language abilities are somewhat below average, particularly if they study or work in subjects where language is not a critical component (i.e computer science, math, chemistry, etc). The other area of concern are those who come from countries where, although English or French are official languages, the education level is so poor that their language abilities are substantially below par: some countries in the developing world fit that description.
Having said all this, there has to be a better and more common sense way to deal with this problem, other than requiring US, French and UK citizens to take the test. Common sense must find a voice in the immigration process. While the government demands language tests from all skilled workers, the real problem is the lack of language ability by sponsored relatives and refugees, which imposes an unacceptably high cost on taxpayer-funded language classes and has long-term financial consequences for the migrants, who have a hard time finding jobs and integrating into the labour force. That is the real crux of the problem, but governments do not wish to deal with that due to the potential political fallout.
English profs not amused by Canada’s immigration pop quiz - The Globe and Mail
English profs not amused by Canada’s immigration pop quiz
Sara Landreth and her husband, James Brooke-Smith, teach English literature at the University of Ottawa. Both have doctorates in English literature, but Canada's immigration rules require each of them to take a $280 test proving they are fluent in the language. Brigitte Bouvier for The Globe and Mail
New rules require a $280 language test, even if you hold a PhD in literature
From Thursday's Globe and Mail
Published on Wednesday, Jul. 28, 2010 10:30PM EDT
Last updated on Thursday, Jul. 29, 2010 12:24AM EDT
She has a PhD in English literature. She has been hired to teach English literature to Canada’s budding scholars. Yet her application for immigration will not be processed unless she submits to a $280 English language test, thanks to a ministerial instruction signed by Citizenship and Immigration Minister Jason Kenney last month.
“It certainly strikes me as ridiculous and a bit ludicrous,” Dr. Landreth said. “The irony of someone who’s immigrating to Canada to teach English being asked to take an English test is probably not lost on most people.”
It might seem no more than a bureaucratic hassle, but critics say the decision runs roughshod over immigration law, which states that applicants don’t have to write the test if they can provide other evidence, in writing, of their proficiency in an official language. In response, the Department of Citizenship and Immigration said that in the past, written submissions had to be evaluated by immigration officers; an independently administered test will help prevent fraud and ensure a fair and transparent method of evaluation, a spokeswoman said.
Dr. Landreth, 30, has a tenure-track position at the University of Ottawa, where she has worked for the last year on a temporary permit. She is American by birth and moved to Canada after finishing her PhD at New York University. Her husband, James Brooke-Smith, a British citizen who also holds a PhD in English literature, has been working as a lecturer in Ottawa and will also have to take the test.
“What struck me was the complete inflexibility, that there’s just no way I can waive this,” she said. “That there was no clause for professional capabilities or mother tongue seemed very strange. The reality is it just creates unnecessary red tape.”
David Matas, an immigration lawyer in Winnipeg, said what disturbs him about the change is the way it was enacted. Section 79 of the regulations of the Immigration and Refugee Protection Act states that skilled worker applicants may choose to submit to a language test or provide written evidence of their proficiency. Last month, Mr. Kenney issued a ministerial instruction, effective immediately, that said only applicants who write a test will be considered.
“What he’s doing is taking a power over processing and using it, in effect, to amend the law,” Mr. Matas said. “Frankly [it] gives me a good deal of concern and isn’t just about language testing or immigration. It’s the sort of power that, if accepted, would wreak havoc with all our laws.”
He went so far as to call it an abuse of the system. “If it goes without comment, I think we’re just going to see more and more of it, not just in this field but in others,” Mr. Matas added.
Toronto lawyer Cathryn Sawicki has launched a legal challenge to the new rules in Federal Court.
Mr. Kenney referred questions on Wednesday to Kelli Fraser, a departmental spokeswoman, who said the change was made through ministerial instruction to speed processing before a formal regulation change is enacted.
Ms. Fraser said that, in making the decision, the government referred to research that found official language literacy had a significant impact on immigrant earnings, and that where literacy matched that of Canadian-born citizens, there was almost no gap in earnings for immigrants. Since non-native English or French speakers often used the documentation option, visa officers found it difficult to assess their abilities, Ms. Fraser said.
“We felt that going to a language test option was the most fair, transparent, objective, consistent and accurate way to evaluate different applicants’ language skills,” she said.
This situation is the result of political correctness taken to its highest level of stupidity. Why? How did this ridiculous result cam about? Here is why:
Language proficiency for immigrants is a MUST. Evey single study shows that lack of language proficiency impairs immigrants' abilities to adapt to society and integrate into the labour force, as employers demand appropriate speaking, reading and writing skills. That is beyond any question and is a laudable goal. It is also a key building block of society. But why require US, UK, or French -born and educated people to do this? Isn't this ridiculous? Yes, but the bureaucrats, in their wisdom, decided not to make exceptions. presumably due to fear of being accused to favour immigrants from certain countries to the detriment of those who are not English or French speaking.
It would be very easy for the government to create a list of countries whose citizens, as long as they are born, educated and living there, should be exempt from the language tests. Obvious examples are those born in the US, UK, Australia, New Zealand, etc,. who are born and educated in English , or those born and educated in France or other officially French-speaking nations. Where the sticking point lies is in how to deal with those who are born in countries where English or French are not the official language, but then migrate to other countries to be educated or work in English or French, often their language abilities are somewhat below average, particularly if they study or work in subjects where language is not a critical component (i.e computer science, math, chemistry, etc). The other area of concern are those who come from countries where, although English or French are official languages, the education level is so poor that their language abilities are substantially below par: some countries in the developing world fit that description.
Having said all this, there has to be a better and more common sense way to deal with this problem, other than requiring US, French and UK citizens to take the test. Common sense must find a voice in the immigration process. While the government demands language tests from all skilled workers, the real problem is the lack of language ability by sponsored relatives and refugees, which imposes an unacceptably high cost on taxpayer-funded language classes and has long-term financial consequences for the migrants, who have a hard time finding jobs and integrating into the labour force. That is the real crux of the problem, but governments do not wish to deal with that due to the potential political fallout.
English profs not amused by Canada’s immigration pop quiz - The Globe and Mail
English profs not amused by Canada’s immigration pop quiz
Sara Landreth and her husband, James Brooke-Smith, teach English literature at the University of Ottawa. Both have doctorates in English literature, but Canada's immigration rules require each of them to take a $280 test proving they are fluent in the language. Brigitte Bouvier for The Globe and Mail
New rules require a $280 language test, even if you hold a PhD in literature
From Thursday's Globe and Mail
Published on Wednesday, Jul. 28, 2010 10:30PM EDT
Last updated on Thursday, Jul. 29, 2010 12:24AM EDT
She has a PhD in English literature. She has been hired to teach English literature to Canada’s budding scholars. Yet her application for immigration will not be processed unless she submits to a $280 English language test, thanks to a ministerial instruction signed by Citizenship and Immigration Minister Jason Kenney last month.
“It certainly strikes me as ridiculous and a bit ludicrous,” Dr. Landreth said. “The irony of someone who’s immigrating to Canada to teach English being asked to take an English test is probably not lost on most people.”
It might seem no more than a bureaucratic hassle, but critics say the decision runs roughshod over immigration law, which states that applicants don’t have to write the test if they can provide other evidence, in writing, of their proficiency in an official language. In response, the Department of Citizenship and Immigration said that in the past, written submissions had to be evaluated by immigration officers; an independently administered test will help prevent fraud and ensure a fair and transparent method of evaluation, a spokeswoman said.
Dr. Landreth, 30, has a tenure-track position at the University of Ottawa, where she has worked for the last year on a temporary permit. She is American by birth and moved to Canada after finishing her PhD at New York University. Her husband, James Brooke-Smith, a British citizen who also holds a PhD in English literature, has been working as a lecturer in Ottawa and will also have to take the test.
“What struck me was the complete inflexibility, that there’s just no way I can waive this,” she said. “That there was no clause for professional capabilities or mother tongue seemed very strange. The reality is it just creates unnecessary red tape.”
David Matas, an immigration lawyer in Winnipeg, said what disturbs him about the change is the way it was enacted. Section 79 of the regulations of the Immigration and Refugee Protection Act states that skilled worker applicants may choose to submit to a language test or provide written evidence of their proficiency. Last month, Mr. Kenney issued a ministerial instruction, effective immediately, that said only applicants who write a test will be considered.
“What he’s doing is taking a power over processing and using it, in effect, to amend the law,” Mr. Matas said. “Frankly [it] gives me a good deal of concern and isn’t just about language testing or immigration. It’s the sort of power that, if accepted, would wreak havoc with all our laws.”
He went so far as to call it an abuse of the system. “If it goes without comment, I think we’re just going to see more and more of it, not just in this field but in others,” Mr. Matas added.
Toronto lawyer Cathryn Sawicki has launched a legal challenge to the new rules in Federal Court.
Mr. Kenney referred questions on Wednesday to Kelli Fraser, a departmental spokeswoman, who said the change was made through ministerial instruction to speed processing before a formal regulation change is enacted.
Ms. Fraser said that, in making the decision, the government referred to research that found official language literacy had a significant impact on immigrant earnings, and that where literacy matched that of Canadian-born citizens, there was almost no gap in earnings for immigrants. Since non-native English or French speakers often used the documentation option, visa officers found it difficult to assess their abilities, Ms. Fraser said.
“We felt that going to a language test option was the most fair, transparent, objective, consistent and accurate way to evaluate different applicants’ language skills,” she said.
Wednesday, July 28, 2010
HERE WE GO AGAIN...
This happens every time Canada hosts an international event, without fail. Obviously, some entrepreneurial individuals know how to use the opportunity to pose as legitimate visitors.
CBC News - New Brunswick - Defections possible after world track meet
CBC News - New Brunswick - Defections possible after world track meet
Saturday, July 24, 2010
STAY AWAY FROM CUBA
See this story from the Globe and Mail. This problem is more common than you think. I fail to see why, with so many better choices for a vacation, Canadians continue to flock and support the Communist regime in Cuba with their tourist dollars.
One of my former clients was jailed after a motorcycle accident where the only person hurt was himself while driving at his job delivering mail, but he had the misfortune of colliding against a car driven by a Cuban senior military officer. After waking up from his concussion at the hospital, he was automatically jailed and eventually convicted to a 10 year term, of which he served four.
I represented many Cubans who desperately fled the grip of the oppressive State Security apparatus while being abroad, including several members of dance troupes and musical groups, students, professionals, film makers, professors, etc. All of them invariably told me stories of mental and physical abuse, untold controls, spying by the infamous "Committees for the Defense of the Revolution", random questioning by the police, and in some cases jail terms for trumped up charges.
Canadians seldom understand that Cuba is a police state, where the State Security and informants are stationed in hotels and watch the interaction between tourists and staff to ensure loyalty to the regime, and where there is no rule of law as we understand it in the event of a problem. Beware... and go elsewhere!
Mother wants Ottawa's help with son’s Cuban ‘nightmare’ - The Globe and Mail
Friday, July 23, 2010 5:10 PM
Mother wants Ottawa's help with son’s Cuban ‘nightmare’
Gloria Galloway
Cody LeCompte and his mom headed to Cuba for a vacation in late April – a week in the sun that was his reward for getting accepted into a aviation technology program at college. Nearly three months later, he is still there, unable to leave the country because he was the driver of a car that was involved in a car accident.
Mr. LeCompte, who is staying at a Cuban resort, was recently told a jury will decide if his case needs to go to a full criminal trial. Now the teenager is afraid he will be spending time in a Cuban prison.
Not that he has been charged in the incident – he was driving down a main road in the Caribbean country that is the second-most popular tourist destinations for Canadians when his rental car was hit by a truck that emerged from a side road.
But he was injured along with the other three people travelling with him: his mother, his cousin and his cousin’s Cuban fiancée. All survived but the fiancée had to have part of her liver removed.
And that is a problem. Because, in Cuba, accidents resulting in death or injury are treated as crimes and the onus is on the driver to prove innocence. Regardless of the nature of the accident, it can take five months to a year for a case to go to trial. In most cases, the driver will not be allowed to leave Cuba until the trial has taken place.
“It’s been a nightmare,” his mother Danette said in a telephone interview Friday from Cuba, where she has returned to spend time with her son.
The date of the jury hearing is supposed to be announced shortly, she said. “We have heard that they are going to put a rush on it but we have been told a lot of things.”
Meanwhile, she is braced for the possibility that it could be many more months before her son can leave.
Representatives of Canada’s consular affairs team in Cuba were supposed to pay them a visit, she said, but that has never happened. “They call about every three days but just for updates on when we are going to the lawyer’s [office]. But as for assistance and getting us home, there’s nothing.”
Now the bills are piling up. “And I am not a person who has this kind of money. We had to save for this trip,” she said. “So we are into probably $20,000 or $25,000 with everything, with hiring the Cuban lawyer, with the phone bills, with paying for the resort. It’s overwhelming.”
The Foreign Affairs department in Ottawa said the Canadian embassy in Cuba and the consulate in Guardalavaca, in Holguin province, are providing consular assistance and support to Mr. LeCompte.
“The Canadian Government cannot interfere in the judicial process of a foreign country,” department spokeswoman Dana Cryderman said. “But Canadian consular officials are following the case very closely with Cuban authorities.”
She noted that Deepak Obhrai – the parliamentary secretary to the Minister of Foreign Affairs – has met with senior Cuban officials while at the African Union Summit in Uganda and raised Mr. LeCompte’s case directly.
Liberal MP Dan McTeague, however, thinks more pressure could be brought to bear.
He said he understands the accident was serious and the Cuban authorities must be allowed to proceed through their normal process for reviewing these kinds of cases. “But that doesn’t mean our consular officials should be on the sidelines waiting,” he told The Globe.
“They should be urging, pressing, helping, continuing to inquire as to the status of the case to ensure that the case moves along as soon as possible.”
The fact that none of them have paid Mr. LeCompte a visit suggests “that the level of interest at this point is somewhat peripheral and it isn’t directly engaged on our end.”
More than that, Mr. McTeague said, any Canadian travelling to Cuba should be made aware of the risks of driving and renting a car.
“I think it’s critical that the Canadian government, in concert with travel agencies in Canada, provide Canadians full disclosure of the circumstances that might lead to these kinds of unfortunate outcomes,” the Liberal MP said.
There is a warning about the problem on the Foreign Affairs website. But, like many Canadians, the LeCompte’s did not check the site before leaving on their trip.
“We weren’t warned at all,” Ms. LeCompte said. “The travel agents should be warning people. It should be out there not to drive in Cuba.”
Since her son’s plight has been made public, the tale has lit up the telephones on radio talk shows and Canadians have been firing off e-mails to the Cuban Ambassador Teresita de Jesús Vicente Sotolongo and the Cuban Tourism Minister.
But there was no response from the Cuban embassy in Ottawa to queries from The Globe because officials have gone home for the summer.
One of my former clients was jailed after a motorcycle accident where the only person hurt was himself while driving at his job delivering mail, but he had the misfortune of colliding against a car driven by a Cuban senior military officer. After waking up from his concussion at the hospital, he was automatically jailed and eventually convicted to a 10 year term, of which he served four.
I represented many Cubans who desperately fled the grip of the oppressive State Security apparatus while being abroad, including several members of dance troupes and musical groups, students, professionals, film makers, professors, etc. All of them invariably told me stories of mental and physical abuse, untold controls, spying by the infamous "Committees for the Defense of the Revolution", random questioning by the police, and in some cases jail terms for trumped up charges.
Canadians seldom understand that Cuba is a police state, where the State Security and informants are stationed in hotels and watch the interaction between tourists and staff to ensure loyalty to the regime, and where there is no rule of law as we understand it in the event of a problem. Beware... and go elsewhere!
Mother wants Ottawa's help with son’s Cuban ‘nightmare’ - The Globe and Mail
Friday, July 23, 2010 5:10 PM
Mother wants Ottawa's help with son’s Cuban ‘nightmare’
Gloria Galloway
Cody LeCompte and his mom headed to Cuba for a vacation in late April – a week in the sun that was his reward for getting accepted into a aviation technology program at college. Nearly three months later, he is still there, unable to leave the country because he was the driver of a car that was involved in a car accident.
Mr. LeCompte, who is staying at a Cuban resort, was recently told a jury will decide if his case needs to go to a full criminal trial. Now the teenager is afraid he will be spending time in a Cuban prison.
Not that he has been charged in the incident – he was driving down a main road in the Caribbean country that is the second-most popular tourist destinations for Canadians when his rental car was hit by a truck that emerged from a side road.
But he was injured along with the other three people travelling with him: his mother, his cousin and his cousin’s Cuban fiancée. All survived but the fiancée had to have part of her liver removed.
And that is a problem. Because, in Cuba, accidents resulting in death or injury are treated as crimes and the onus is on the driver to prove innocence. Regardless of the nature of the accident, it can take five months to a year for a case to go to trial. In most cases, the driver will not be allowed to leave Cuba until the trial has taken place.
“It’s been a nightmare,” his mother Danette said in a telephone interview Friday from Cuba, where she has returned to spend time with her son.
The date of the jury hearing is supposed to be announced shortly, she said. “We have heard that they are going to put a rush on it but we have been told a lot of things.”
Meanwhile, she is braced for the possibility that it could be many more months before her son can leave.
Representatives of Canada’s consular affairs team in Cuba were supposed to pay them a visit, she said, but that has never happened. “They call about every three days but just for updates on when we are going to the lawyer’s [office]. But as for assistance and getting us home, there’s nothing.”
Now the bills are piling up. “And I am not a person who has this kind of money. We had to save for this trip,” she said. “So we are into probably $20,000 or $25,000 with everything, with hiring the Cuban lawyer, with the phone bills, with paying for the resort. It’s overwhelming.”
The Foreign Affairs department in Ottawa said the Canadian embassy in Cuba and the consulate in Guardalavaca, in Holguin province, are providing consular assistance and support to Mr. LeCompte.
“The Canadian Government cannot interfere in the judicial process of a foreign country,” department spokeswoman Dana Cryderman said. “But Canadian consular officials are following the case very closely with Cuban authorities.”
She noted that Deepak Obhrai – the parliamentary secretary to the Minister of Foreign Affairs – has met with senior Cuban officials while at the African Union Summit in Uganda and raised Mr. LeCompte’s case directly.
Liberal MP Dan McTeague, however, thinks more pressure could be brought to bear.
He said he understands the accident was serious and the Cuban authorities must be allowed to proceed through their normal process for reviewing these kinds of cases. “But that doesn’t mean our consular officials should be on the sidelines waiting,” he told The Globe.
“They should be urging, pressing, helping, continuing to inquire as to the status of the case to ensure that the case moves along as soon as possible.”
The fact that none of them have paid Mr. LeCompte a visit suggests “that the level of interest at this point is somewhat peripheral and it isn’t directly engaged on our end.”
More than that, Mr. McTeague said, any Canadian travelling to Cuba should be made aware of the risks of driving and renting a car.
“I think it’s critical that the Canadian government, in concert with travel agencies in Canada, provide Canadians full disclosure of the circumstances that might lead to these kinds of unfortunate outcomes,” the Liberal MP said.
There is a warning about the problem on the Foreign Affairs website. But, like many Canadians, the LeCompte’s did not check the site before leaving on their trip.
“We weren’t warned at all,” Ms. LeCompte said. “The travel agents should be warning people. It should be out there not to drive in Cuba.”
Since her son’s plight has been made public, the tale has lit up the telephones on radio talk shows and Canadians have been firing off e-mails to the Cuban Ambassador Teresita de Jesús Vicente Sotolongo and the Cuban Tourism Minister.
But there was no response from the Cuban embassy in Ottawa to queries from The Globe because officials have gone home for the summer.
Friday, July 23, 2010
AIDS ON THE RISE AMONGST IMMIGRANTS
This is a very disturbing report published today by the Globe and Mail. However, it is rather unsurprising given the demographic groups affected. The question is: what is the solution?
A changing epidemic: Canada’s AIDS rate on the rise - The Globe and Mail
A changing epidemic: Canada’s AIDS rate on the rise - The Globe and Mail
Wednesday, July 21, 2010
U.S. CRIMINAL DEFENDANT DENIED CREDIT FOR CANADIAN IMMIGRATION DETENTION
This is an extremely interesting and unusual case, where the detention of an American criminal fugitive in Canada for immigration purposes became the subject of his grounds of appeal for his criminal sentence in the State of Washington. The Washington State Court of Appeals rejected the argument that time spent in Canadian immigration custody should be counted towards the length of his US conviction.
STATE v. HARRIS
STATE OF WASHINGTON, Respondent,
v.
FREDDIE LEVI HARRIS, Appellant.
No. 63498-4-I.
Court of Appeals of Washington, Division One.
Filed: July 19, 2010.
COX, J.
When a person is convicted of a felony, the sentencing court must impose punishment as provided by the Sentencing Reform Act, chapter 9.94A RCW (SRA).[ 1 ] However, the court must give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.[ 2 ]
Freddie Harris claims that he should be given credit for his confinement by Canadian immigration authorities in 2005 and 2006. But Harris fails in his burden to show that this confinement was "solely in regard to" his Washington convictions for first degree robbery and first degree kidnapping, both with deadly weapon enhancements; unlawful imprisonment; and bail jumping. Accordingly, we affirm.
The material facts are not genuinely disputed. In February 1997, the State charged Harris with one count of robbery in the second degree and one count of kidnapping in the second degree based on incidents that took place in February 1994. Harris was living in Canada at the time of these charges.[ 3 ] According to Harris, he did not learn of these charges until 2003 when a background check, required for application for permanent residency in Canada, revealed criminal charges.[ 4 ] Soon after this discovery, he turned himself in at the border. Harris was arraigned in March 2003, subsequently released, and allowed to return to Canada.
He failed to appear for his case scheduling hearing on May 19, 2003, and the trial court issued a bench warrant for his arrest. He was detained by Canadian immigration authorities in November 2003. They later released him on terms and conditions that included a requirement that he report to immigration authorities monthly and for an admissibility hearing. Nevertheless, he failed to appear for at least two Canadian immigration reporting dates in January 2004.[ 5 ]
In April 2004, Harris was detained at the Peace Arch border crossing with 38 pounds of marijuana.[ 6 ] He pled guilty in Washington to possession of marijuana with intent to deliver and served 90 days in jail in Whatcom County. He was then transferred to King County for trial on the February 1997 charges.
The trial on these charges began on February 28, 2005. But Harris absconded before the verdict.[ 7 ] A jury convicted him of first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment, and bail jumping. The trial court issued a bench warrant for his arrest on March 4, 2005.
It appears that Harris returned to British Columbia after absconding from trial in King County. The Canadian Border Services Agency arrested him on April 25, 2005. He escaped from custody while in a hospital for a psychiatric assessment. He was rearrested on June 28, 2005, and returned to Canadian immigration custody.
According to the record that is before us, "Harris was held continuously in Canadian Custody from June 28, 2005 to August 21, 2006 . . . in the Frasier Pre-trial Detention Center while he awaited resolution of his immigration matters."[ 8 ] The record also states that "[A]lthough [the state of Washington] was aware that Mr. Harris was being held in Canadian custody, it did not seek his extradition from Canada."[ 9 ]
Canadian authorities deported Harris to the United States on August 21, 2006.[ 10 ] Harris was then turned over to the Seattle police.[ 11 ] Counsel represented to the trial court that, at some time, Harris applied for political asylum in Canada, although the documentation in this record does not expressly state that.
In November 2006, the trial court sentenced Harris to 96 months of total confinement for his convictions arising out of the February 1994 incident.[ 12 ] At the sentencing hearing, Harris requested credit for time served in Canadian custody. The trial court apparently denied the motion, but left open the option for defense counsel to obtain supporting documentation and later move to amend the judgment and sentence.
Harris appealed his convictions. This court filed its opinion affirming the judgment and sentence on July 28, 2008.[ 13 ]
The trial court appointed new counsel for Harris for the limited purpose of seeking credit for the time he served in Canadian custody. Counsel moved, pursuant to CrR 7.8, for such credit, supporting the motion with copies of Canadian records obtained since the November 2006 sentencing. The motion requested that Harris be given credit for his time served from June 28, 2005, to August 21, 2006. Based on the written submissions of the parties and oral argument, the court denied the motion.
Harris appeals.
CREDIT FOR TIME SERVED
Harris argues that the trial court improperly denied him credit for the time he served in Canadian custody for the period from June 28, 2005 to August 21, 2006. Because he fails in his burden to show that his Canadian custody was "solely in regard to" his Washington convictions, we disagree.
Generally, a decision on a CrR 7.8 motion is reviewable for abuse of discretion.[ 14 ] A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.[ 15 ] "A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard."[ 16 ]
The moving party has the burden of perfecting the record so that this court has before it all of the evidence relevant to the issue.[ 17 ] An offender sentenced to a term of confinement has both a constitutional and statutory right to receive credit for all confinement time served before sentencing.[ 18 ] RCW 9.94A.505(6) provides:
The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.
"The court's fundamental objective is to ascertain and carry out the Legislature's intent, and if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent."[ 19 ]
Case law also offers some guidance as to the meaning of the phrase "solely in regard to." Credit is not allowed for time served on other charges.[ 20 ] This court has concluded that a defendant was not confined "solely" on a robbery charge where he was also being detained because his arrest for robbery triggered immediate suspension of his parole.[ 21 ]
It is undisputed that Harris was confined by Canadian authorities from June 28, 2005 to August 21, 2006. It is also undisputed that the relevant offenses for purposes of this statute were Harris' 2006 convictions for first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment, and bail jumping. At issue is whether the confinement "was solely in regard to [these offenses]" for which he was sentenced in November 2006.[ 22 ]
Our analysis starts with the record on appeal, particularly the documentation, arguments, and representations to the trial court on Harris' CrR 7.8 motion. It appears that the documentation was obtained from Canadian authorities by Harris' new appointed counsel.
One document is a letter dated August 31, 2005, to the Immigration and Refugee Board from an enforcement supervisor at the Detentions Unit. We assume Harris was then housed at that location. The letter says, in relevant part, "[T]he Minister is not aware of any requests for an Order for Extradition from the United States of America or other authority."
This letter is significant in that it shows that, as of its date, the state of Washington had not sought extradition of Harris. Moreover, there is nothing in any of the documentation to show that this state ever sought extradition of Harris. We conclude from this that his confinement in Canada could not have been based on any extradition request for the crimes for which he was sentenced in King County in November 2006.
There is other documentation, including what appear to be notes written by a Canadian hearing officer dated April 11, 2006. The notes appear to describe what the writer states are "historical facts," including Harris' criminal history in Washington. Among other things, the document also states that Harris "is getting closer to the end of his process in Canada, he has the right to appeal the decision regarding his refugee claim, which [will] likely take about 4 months and then he will be invited to apply for PRRA." It also documents his apparent failure to comply with terms and conditions of a previous release from Canadian immigration custody in 2003.
We take from this document that the Canadian authorities were aware of Harris' pending criminal matters in this state during his time in custody in Canada. But it also appears that he violated terms and conditions of release in connection with whatever process he was pursuing in Canada. His escape and rearrest in Canada are documented in the same notes.
During oral arguments below on the CrR 7.8 motion, counsel for Harris candidly summarized his views of the factual circumstances evidenced by the documentation:
[Harris] was apprehended in Canada. Because he is not a citizen of Canada, he was apprehended on an immigration hold. He was held in immigration custody from June of 2005 until August of 2006.
The reason he was held is because there was a pending asylum application and that application took that period of time to work through the process.
During that process, every 30 days Mr. Harris was entitled to a detention status review. At each of those hearings — or at least at each of those hearings for which I have been able to obtain records, the matter of the outstanding warrant in this case was discussed and that warrant was used as one of the bases upon which to hold him in Canadian custody.
It's not disputed that the only reason he was held in Canadian custody was because of the immigration hold. It's also not disputed that one of the bases that the review board in Canada considered for holding him was the outstanding warrant here. So there is no issue of him being held on another crime in Canada or another crime, frankly, anywhere else. It's not disputed that the U.S. did not seek extradition in this matter.[ 23 ]
After the State made its comments in response, the court denied the motion.
A fair reading of this record and the arguments by respective counsel below, make clear that the court correctly decided to deny the motion. The plain words of the statute state that credit for time served is conditioned on confinement being "solely in regard to the offense for which the offender is being sentenced."[ 24 ] As agreed below and evidenced by the record, Harris was not held in Canada "solely in regard to" his convictions in Washington.
The fact that Canadian authorities were aware of his criminal status in this state is irrelevant to the credit for time served statute. The statute clearly requires that the confinement in Canada be solely for the Washington offenses. Absent an extradition request or other evidence that the Canadian authorities confined Harris solely for his Washington crimes, he is not entitled to credit on his sentences for those crimes. The trial court properly exercised its discretion in denying the CrR 7.8 motion.
Despite this clear record, Harris argues on appeal that his confinement in Canada was "solely in regard to" the offenses at issue here. Specifically, he claims that "Canada's decision to keep [him] detained in custody during his immigration proceedings was made in regard to this Washington case."[ 25 ] He cites a series of provisions from Canada's Immigration and Refugee Protection Act for support. These arguments do nothing to undermine the trial court's decision to deny the motion.
In essence, Harris attempts to show:
• That the Canadian Immigration Division may only detain a person• pending an immigration hearing if the Division finds that the person is "a danger to the public" or is "unlikely to appear" for his or her immigration hearing;[ 26 ]
• That nothing in the record suggests that the Canadian authorities• found Harris to be "a danger to the public";[ 27 ]
• That the factors the Immigration Division must consider in• determining whether a person is "unlikely to appear" implicate Harris' Washington warrant because one of the factors is being a fugitive from justice in a foreign jurisdiction.[ 28 ]
Therefore, Harris argues, the record shows that the Canadian authorities attributed "significance" to the Washington criminal proceeding and that "it appears Harris most likely would have been released from custody . . . pending his deportation from Canada if it were not for the criminal proceedings in Washington."[ 29 ]
These speculative arguments selectively ignore unfavorable parts of this record. Whether the Canadian authorities attributed significance to these Washington criminal proceedings is insufficient to meet the terms of the statute. Custody in Canada must have been solely for the crimes for which Harris was sentenced. It was not. He had a record in Canada of escape from custody there, apparently violating the terms and conditions of his release. Moreover, his confinement there appears to have been based on Canada's immigration policies.
Harris also relies heavily on a Canadian Immigration hearing officer's notes from an April 11, 2006 hearing.[ 30 ] But a fair reading of these notes supports the conclusion that the Washington convictions were among the reasons that Canadian authorities kept Harris in custody, not the sole basis. Again, this showing is insufficient under the statute to support credit for time served in Canada.
In sum, Harris has failed to carry his burden to prove that the trial court abused its discretion by denying his CrR 7.8 motion for credit for his time served in Canadian custody. Under the terms of the controlling statute, he does not qualify for credit while in Canadian custody.
Harris cites two out-of-state cases that address credit for time served in a foreign jurisdiction: People v. Nagler[ 31 ] and Nicastro v. Cuyler.[ 32 ] But neither case involves the question of whether the defendant had been held "solely in regard to" the offense for which he was being sentenced. Accordingly, neither case is helpful here.
Relying on State v. Brown,[ 33 ] Harris next argues that the trial court used the wrong legal standard when it denied his motion. A close reading of this record does not clearly substantiate this claim.
Here, after hearing the oral argument of the parties below and considering the written submissions, the court denied the motion. In doing so, the trial court stated,
I am going to deny the motion to give him credit for the time he has spent in custody in Canada.
The basis for the ruling are [sic] his willful acts wound him up in this situation. He had a choice to make and he made the choice that he was going to seek asylum in Canada rather than deal with this charge. I would sign the order as proposed by the State.[ 34 ]
We note that the order proposed by the State that the court signed states in relevant part:
The above-entitled Court, having heard a motion by the defendant to award him credit for time he served in Canadian custody from 6/28/05 to 8/21/06 on unrelated matters.
It is hereby ordered that the defendant's motion is denied.[ 35 ]
Harris bases his argument on the first thee sentences of the court's oral remarks and ignores the fourth. Notwithstanding the portion of the court's oral remarks that Harris emphasizes, the order the court signed is the final expression of the court's ruling. It clearly states that the Canadian custody for which Harris sought credit was "on unrelated matters." As we explained earlier in this opinion, the failure of Harris to show that his Canadian custody was solely based on his Washington convictions was a correct basis for denying the motion. In short, it is not clear to us that the court used the wrong standard in making its ruling, notwithstanding its oral remarks.
Even assuming, without deciding, that the trial court did use an incorrect standard in deciding the motion, Harris has shown no prejudice. We may affirm a trial court's decision on any ground established by the law and the record.[ 36 ] Here, the record and the law establish that the court correctly decided to deny Harris' motion. Accordingly, we affirm on the basis we discussed earlier in this opinion.
Because we have determined that the trial court's decision is correct, there is no need to address Harris' reliance on Brown.
ADDITIONAL GROUNDS FOR REVIEW
Harris states additional grounds for review. None of them relate to the order appealed in this case. Instead, they assert new grounds for relief related to convictions that this court has already considered on direct appeal.[ 37 ] Harris argues that the State's filing of an amended information was barred by the statute of limitations period; that the State's amendment of the information was untimely; that the State was relieved of its burden to prove each of the elements of the crime beyond a reasonable doubt as to counts I and IV; that the trial court erred in failing to instruct the jury on the lesser included offenses of second degree robbery and second degree kidnapping; and that the kidnapping charge in count IV should have merged to the robbery charge in count I. These issues are not properly before us.
The scope of our review of the order on the CrR 7.8 motion is limited.[ 38 ] "[A]n unappealed final judgment cannot be restored to an appellate track by filing a motion under CrR 7.8 and appealing the denial of the motion."[ 39 ] New assignments of error to the judgment of conviction are not reviewable on appeal from an order denying a motion to vacate.[ 40 ]
We have decided only the issue properly before us and will not address other issues.
We affirm the trial court's order denying Harris' motion.
LAU and GROSSE, JJ., concur.
STATE v. HARRIS
STATE OF WASHINGTON, Respondent,
v.
FREDDIE LEVI HARRIS, Appellant.
No. 63498-4-I.
Court of Appeals of Washington, Division One.
Filed: July 19, 2010.
COX, J.
When a person is convicted of a felony, the sentencing court must impose punishment as provided by the Sentencing Reform Act, chapter 9.94A RCW (SRA).[ 1 ] However, the court must give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.[ 2 ]
Freddie Harris claims that he should be given credit for his confinement by Canadian immigration authorities in 2005 and 2006. But Harris fails in his burden to show that this confinement was "solely in regard to" his Washington convictions for first degree robbery and first degree kidnapping, both with deadly weapon enhancements; unlawful imprisonment; and bail jumping. Accordingly, we affirm.
The material facts are not genuinely disputed. In February 1997, the State charged Harris with one count of robbery in the second degree and one count of kidnapping in the second degree based on incidents that took place in February 1994. Harris was living in Canada at the time of these charges.[ 3 ] According to Harris, he did not learn of these charges until 2003 when a background check, required for application for permanent residency in Canada, revealed criminal charges.[ 4 ] Soon after this discovery, he turned himself in at the border. Harris was arraigned in March 2003, subsequently released, and allowed to return to Canada.
He failed to appear for his case scheduling hearing on May 19, 2003, and the trial court issued a bench warrant for his arrest. He was detained by Canadian immigration authorities in November 2003. They later released him on terms and conditions that included a requirement that he report to immigration authorities monthly and for an admissibility hearing. Nevertheless, he failed to appear for at least two Canadian immigration reporting dates in January 2004.[ 5 ]
In April 2004, Harris was detained at the Peace Arch border crossing with 38 pounds of marijuana.[ 6 ] He pled guilty in Washington to possession of marijuana with intent to deliver and served 90 days in jail in Whatcom County. He was then transferred to King County for trial on the February 1997 charges.
The trial on these charges began on February 28, 2005. But Harris absconded before the verdict.[ 7 ] A jury convicted him of first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment, and bail jumping. The trial court issued a bench warrant for his arrest on March 4, 2005.
It appears that Harris returned to British Columbia after absconding from trial in King County. The Canadian Border Services Agency arrested him on April 25, 2005. He escaped from custody while in a hospital for a psychiatric assessment. He was rearrested on June 28, 2005, and returned to Canadian immigration custody.
According to the record that is before us, "Harris was held continuously in Canadian Custody from June 28, 2005 to August 21, 2006 . . . in the Frasier Pre-trial Detention Center while he awaited resolution of his immigration matters."[ 8 ] The record also states that "[A]lthough [the state of Washington] was aware that Mr. Harris was being held in Canadian custody, it did not seek his extradition from Canada."[ 9 ]
Canadian authorities deported Harris to the United States on August 21, 2006.[ 10 ] Harris was then turned over to the Seattle police.[ 11 ] Counsel represented to the trial court that, at some time, Harris applied for political asylum in Canada, although the documentation in this record does not expressly state that.
In November 2006, the trial court sentenced Harris to 96 months of total confinement for his convictions arising out of the February 1994 incident.[ 12 ] At the sentencing hearing, Harris requested credit for time served in Canadian custody. The trial court apparently denied the motion, but left open the option for defense counsel to obtain supporting documentation and later move to amend the judgment and sentence.
Harris appealed his convictions. This court filed its opinion affirming the judgment and sentence on July 28, 2008.[ 13 ]
The trial court appointed new counsel for Harris for the limited purpose of seeking credit for the time he served in Canadian custody. Counsel moved, pursuant to CrR 7.8, for such credit, supporting the motion with copies of Canadian records obtained since the November 2006 sentencing. The motion requested that Harris be given credit for his time served from June 28, 2005, to August 21, 2006. Based on the written submissions of the parties and oral argument, the court denied the motion.
Harris appeals.
CREDIT FOR TIME SERVED
Harris argues that the trial court improperly denied him credit for the time he served in Canadian custody for the period from June 28, 2005 to August 21, 2006. Because he fails in his burden to show that his Canadian custody was "solely in regard to" his Washington convictions, we disagree.
Generally, a decision on a CrR 7.8 motion is reviewable for abuse of discretion.[ 14 ] A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.[ 15 ] "A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard."[ 16 ]
The moving party has the burden of perfecting the record so that this court has before it all of the evidence relevant to the issue.[ 17 ] An offender sentenced to a term of confinement has both a constitutional and statutory right to receive credit for all confinement time served before sentencing.[ 18 ] RCW 9.94A.505(6) provides:
The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.
"The court's fundamental objective is to ascertain and carry out the Legislature's intent, and if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent."[ 19 ]
Case law also offers some guidance as to the meaning of the phrase "solely in regard to." Credit is not allowed for time served on other charges.[ 20 ] This court has concluded that a defendant was not confined "solely" on a robbery charge where he was also being detained because his arrest for robbery triggered immediate suspension of his parole.[ 21 ]
It is undisputed that Harris was confined by Canadian authorities from June 28, 2005 to August 21, 2006. It is also undisputed that the relevant offenses for purposes of this statute were Harris' 2006 convictions for first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment, and bail jumping. At issue is whether the confinement "was solely in regard to [these offenses]" for which he was sentenced in November 2006.[ 22 ]
Our analysis starts with the record on appeal, particularly the documentation, arguments, and representations to the trial court on Harris' CrR 7.8 motion. It appears that the documentation was obtained from Canadian authorities by Harris' new appointed counsel.
One document is a letter dated August 31, 2005, to the Immigration and Refugee Board from an enforcement supervisor at the Detentions Unit. We assume Harris was then housed at that location. The letter says, in relevant part, "[T]he Minister is not aware of any requests for an Order for Extradition from the United States of America or other authority."
This letter is significant in that it shows that, as of its date, the state of Washington had not sought extradition of Harris. Moreover, there is nothing in any of the documentation to show that this state ever sought extradition of Harris. We conclude from this that his confinement in Canada could not have been based on any extradition request for the crimes for which he was sentenced in King County in November 2006.
There is other documentation, including what appear to be notes written by a Canadian hearing officer dated April 11, 2006. The notes appear to describe what the writer states are "historical facts," including Harris' criminal history in Washington. Among other things, the document also states that Harris "is getting closer to the end of his process in Canada, he has the right to appeal the decision regarding his refugee claim, which [will] likely take about 4 months and then he will be invited to apply for PRRA." It also documents his apparent failure to comply with terms and conditions of a previous release from Canadian immigration custody in 2003.
We take from this document that the Canadian authorities were aware of Harris' pending criminal matters in this state during his time in custody in Canada. But it also appears that he violated terms and conditions of release in connection with whatever process he was pursuing in Canada. His escape and rearrest in Canada are documented in the same notes.
During oral arguments below on the CrR 7.8 motion, counsel for Harris candidly summarized his views of the factual circumstances evidenced by the documentation:
[Harris] was apprehended in Canada. Because he is not a citizen of Canada, he was apprehended on an immigration hold. He was held in immigration custody from June of 2005 until August of 2006.
The reason he was held is because there was a pending asylum application and that application took that period of time to work through the process.
During that process, every 30 days Mr. Harris was entitled to a detention status review. At each of those hearings — or at least at each of those hearings for which I have been able to obtain records, the matter of the outstanding warrant in this case was discussed and that warrant was used as one of the bases upon which to hold him in Canadian custody.
It's not disputed that the only reason he was held in Canadian custody was because of the immigration hold. It's also not disputed that one of the bases that the review board in Canada considered for holding him was the outstanding warrant here. So there is no issue of him being held on another crime in Canada or another crime, frankly, anywhere else. It's not disputed that the U.S. did not seek extradition in this matter.[ 23 ]
After the State made its comments in response, the court denied the motion.
A fair reading of this record and the arguments by respective counsel below, make clear that the court correctly decided to deny the motion. The plain words of the statute state that credit for time served is conditioned on confinement being "solely in regard to the offense for which the offender is being sentenced."[ 24 ] As agreed below and evidenced by the record, Harris was not held in Canada "solely in regard to" his convictions in Washington.
The fact that Canadian authorities were aware of his criminal status in this state is irrelevant to the credit for time served statute. The statute clearly requires that the confinement in Canada be solely for the Washington offenses. Absent an extradition request or other evidence that the Canadian authorities confined Harris solely for his Washington crimes, he is not entitled to credit on his sentences for those crimes. The trial court properly exercised its discretion in denying the CrR 7.8 motion.
Despite this clear record, Harris argues on appeal that his confinement in Canada was "solely in regard to" the offenses at issue here. Specifically, he claims that "Canada's decision to keep [him] detained in custody during his immigration proceedings was made in regard to this Washington case."[ 25 ] He cites a series of provisions from Canada's Immigration and Refugee Protection Act for support. These arguments do nothing to undermine the trial court's decision to deny the motion.
In essence, Harris attempts to show:
• That the Canadian Immigration Division may only detain a person• pending an immigration hearing if the Division finds that the person is "a danger to the public" or is "unlikely to appear" for his or her immigration hearing;[ 26 ]
• That nothing in the record suggests that the Canadian authorities• found Harris to be "a danger to the public";[ 27 ]
• That the factors the Immigration Division must consider in• determining whether a person is "unlikely to appear" implicate Harris' Washington warrant because one of the factors is being a fugitive from justice in a foreign jurisdiction.[ 28 ]
Therefore, Harris argues, the record shows that the Canadian authorities attributed "significance" to the Washington criminal proceeding and that "it appears Harris most likely would have been released from custody . . . pending his deportation from Canada if it were not for the criminal proceedings in Washington."[ 29 ]
These speculative arguments selectively ignore unfavorable parts of this record. Whether the Canadian authorities attributed significance to these Washington criminal proceedings is insufficient to meet the terms of the statute. Custody in Canada must have been solely for the crimes for which Harris was sentenced. It was not. He had a record in Canada of escape from custody there, apparently violating the terms and conditions of his release. Moreover, his confinement there appears to have been based on Canada's immigration policies.
Harris also relies heavily on a Canadian Immigration hearing officer's notes from an April 11, 2006 hearing.[ 30 ] But a fair reading of these notes supports the conclusion that the Washington convictions were among the reasons that Canadian authorities kept Harris in custody, not the sole basis. Again, this showing is insufficient under the statute to support credit for time served in Canada.
In sum, Harris has failed to carry his burden to prove that the trial court abused its discretion by denying his CrR 7.8 motion for credit for his time served in Canadian custody. Under the terms of the controlling statute, he does not qualify for credit while in Canadian custody.
Harris cites two out-of-state cases that address credit for time served in a foreign jurisdiction: People v. Nagler[ 31 ] and Nicastro v. Cuyler.[ 32 ] But neither case involves the question of whether the defendant had been held "solely in regard to" the offense for which he was being sentenced. Accordingly, neither case is helpful here.
Relying on State v. Brown,[ 33 ] Harris next argues that the trial court used the wrong legal standard when it denied his motion. A close reading of this record does not clearly substantiate this claim.
Here, after hearing the oral argument of the parties below and considering the written submissions, the court denied the motion. In doing so, the trial court stated,
I am going to deny the motion to give him credit for the time he has spent in custody in Canada.
The basis for the ruling are [sic] his willful acts wound him up in this situation. He had a choice to make and he made the choice that he was going to seek asylum in Canada rather than deal with this charge. I would sign the order as proposed by the State.[ 34 ]
We note that the order proposed by the State that the court signed states in relevant part:
The above-entitled Court, having heard a motion by the defendant to award him credit for time he served in Canadian custody from 6/28/05 to 8/21/06 on unrelated matters.
It is hereby ordered that the defendant's motion is denied.[ 35 ]
Harris bases his argument on the first thee sentences of the court's oral remarks and ignores the fourth. Notwithstanding the portion of the court's oral remarks that Harris emphasizes, the order the court signed is the final expression of the court's ruling. It clearly states that the Canadian custody for which Harris sought credit was "on unrelated matters." As we explained earlier in this opinion, the failure of Harris to show that his Canadian custody was solely based on his Washington convictions was a correct basis for denying the motion. In short, it is not clear to us that the court used the wrong standard in making its ruling, notwithstanding its oral remarks.
Even assuming, without deciding, that the trial court did use an incorrect standard in deciding the motion, Harris has shown no prejudice. We may affirm a trial court's decision on any ground established by the law and the record.[ 36 ] Here, the record and the law establish that the court correctly decided to deny Harris' motion. Accordingly, we affirm on the basis we discussed earlier in this opinion.
Because we have determined that the trial court's decision is correct, there is no need to address Harris' reliance on Brown.
ADDITIONAL GROUNDS FOR REVIEW
Harris states additional grounds for review. None of them relate to the order appealed in this case. Instead, they assert new grounds for relief related to convictions that this court has already considered on direct appeal.[ 37 ] Harris argues that the State's filing of an amended information was barred by the statute of limitations period; that the State's amendment of the information was untimely; that the State was relieved of its burden to prove each of the elements of the crime beyond a reasonable doubt as to counts I and IV; that the trial court erred in failing to instruct the jury on the lesser included offenses of second degree robbery and second degree kidnapping; and that the kidnapping charge in count IV should have merged to the robbery charge in count I. These issues are not properly before us.
The scope of our review of the order on the CrR 7.8 motion is limited.[ 38 ] "[A]n unappealed final judgment cannot be restored to an appellate track by filing a motion under CrR 7.8 and appealing the denial of the motion."[ 39 ] New assignments of error to the judgment of conviction are not reviewable on appeal from an order denying a motion to vacate.[ 40 ]
We have decided only the issue properly before us and will not address other issues.
We affirm the trial court's order denying Harris' motion.
LAU and GROSSE, JJ., concur.
SERGIO R. KARAS ON "TAKE 5" CIUT RADIO
I was a guest this morning on "Take 5" on CIUT Radio, the University of Toronto station, to discuss the problem of fraudulent marriages in Canadian immigration.
Monday, July 19, 2010
SAUDI PRESENCE INCREASING IN CANADA?
This was reported by the Toronto Sun. The news is quite worrisome in light of Saudi Arabia's connection to security concerns.
Saudis get better visa deal Canada News Toronto Sun
Saudis get better visa deal
By Andrew McIntosh and Kinia Adamczyk, QMI Agency
Last Updated: July 18, 2010 2:35pm
MONTREAL – Oil-rich Saudi Arabia has quietly secured a better visa deal for the rapidly growing number of Saudis entering Quebec and Canada to study or work, the QMI Agency has learned.
From 1984 to 2002, Saudi nationals could enter and leave any part of Canada without a visa.
But after the 9/11 terrorist attacks in the United States, visa requirements were imposed on Saudis following security concerns about stolen and fraudulent Saudi passports and the number of 9/11 attackers that came from the Kingdom of Saudi Arabia.
To counter the security threat and control immigration, Canadian foreign affairs, immigration and security officials required Saudis to apply for entrance visas before coming to Canada to study or work. And they were good for only 18 months.
The new visa deal gives Saudis visas for five years with unlimited entrance and exits — privileges secured after a quiet Saudi lobbying campaign in Ottawa, federal documents show.
In mid-March, the Saudi Arabian Embassy in Ottawa hired former Canadian diplomat Charles Mann to help improve "the availability of visas to come to Canada for Saudi citizens," according to documents Mann filed with the federal Lobbying Commissioner’s office.
Mann, Canada’s ambassador to Kuwait and Qatar from 1999 to 2004, disclosed that he would lobby the Foreign Affairs, Public Security and Citizenship and Immigration departments on behalf of Saudi Ambassador Osamah Ahmed Al Sanosi Ahmad between March 15 and June 14.
Three weeks before Mann’s lobbying gig ended, Canadian ambassador to Saudi Arabia David Chatterson announced on his embassy’s web site in Riyadh that Saudi nationals can now get multiple-entry temporary resident visas to enter Canada that are good for five years.
Chatterson unveiled the changes on May 24, on the eve of a holiday long weekend in Canada, saying they would "greatly facilitate movement" of students and business people between the two countries. No public announcement about the "more flexible visa rules" was made here.
Neither Mann nor a spokeswoman at the Saudi embassy would answer further questions about who Mann lobbied, who he met with or when. Foreign Affairs says Mann did not have meetings with anyone there, though they did not rule out telephone contact.
Despite tougher visa controls imposed in 2002, the number of Saudis entering Canada on entrance visas has increased exponentially since then.
Canada granted entrance visas to 5,292 new Saudi students and 1,665 Saudi Arabian workers in 2009 alone, compared to 199 Saudi workers and 351 students admitted on visas in 2002, according to data compiled by Citizenship and Immigration Canada.
There are currently around 8,200 Saudi students at Canadian institutions, including 750 medical doctors, Chatterson said in his news release. Two thousand more students are expected to study here later this year, he added.
Saudi Arabia is now paying for about 62,000 of its own students to attend foreign universities through a major scholarship program.
In contrast to the rising number of Saudis entering Canada since 2002, the number of non-immigrant Saudis admitted to the United States fell sharply after the 2001 attacks: to 22,314 in 2002 and 16,154 in 2003 from 66,722 in 2001. That has recovered somewhat to 61,530 in 2009.
Saudis get better visa deal Canada News Toronto Sun
Saudis get better visa deal
By Andrew McIntosh and Kinia Adamczyk, QMI Agency
Last Updated: July 18, 2010 2:35pm
MONTREAL – Oil-rich Saudi Arabia has quietly secured a better visa deal for the rapidly growing number of Saudis entering Quebec and Canada to study or work, the QMI Agency has learned.
From 1984 to 2002, Saudi nationals could enter and leave any part of Canada without a visa.
But after the 9/11 terrorist attacks in the United States, visa requirements were imposed on Saudis following security concerns about stolen and fraudulent Saudi passports and the number of 9/11 attackers that came from the Kingdom of Saudi Arabia.
To counter the security threat and control immigration, Canadian foreign affairs, immigration and security officials required Saudis to apply for entrance visas before coming to Canada to study or work. And they were good for only 18 months.
The new visa deal gives Saudis visas for five years with unlimited entrance and exits — privileges secured after a quiet Saudi lobbying campaign in Ottawa, federal documents show.
In mid-March, the Saudi Arabian Embassy in Ottawa hired former Canadian diplomat Charles Mann to help improve "the availability of visas to come to Canada for Saudi citizens," according to documents Mann filed with the federal Lobbying Commissioner’s office.
Mann, Canada’s ambassador to Kuwait and Qatar from 1999 to 2004, disclosed that he would lobby the Foreign Affairs, Public Security and Citizenship and Immigration departments on behalf of Saudi Ambassador Osamah Ahmed Al Sanosi Ahmad between March 15 and June 14.
Three weeks before Mann’s lobbying gig ended, Canadian ambassador to Saudi Arabia David Chatterson announced on his embassy’s web site in Riyadh that Saudi nationals can now get multiple-entry temporary resident visas to enter Canada that are good for five years.
Chatterson unveiled the changes on May 24, on the eve of a holiday long weekend in Canada, saying they would "greatly facilitate movement" of students and business people between the two countries. No public announcement about the "more flexible visa rules" was made here.
Neither Mann nor a spokeswoman at the Saudi embassy would answer further questions about who Mann lobbied, who he met with or when. Foreign Affairs says Mann did not have meetings with anyone there, though they did not rule out telephone contact.
Despite tougher visa controls imposed in 2002, the number of Saudis entering Canada on entrance visas has increased exponentially since then.
Canada granted entrance visas to 5,292 new Saudi students and 1,665 Saudi Arabian workers in 2009 alone, compared to 199 Saudi workers and 351 students admitted on visas in 2002, according to data compiled by Citizenship and Immigration Canada.
There are currently around 8,200 Saudi students at Canadian institutions, including 750 medical doctors, Chatterson said in his news release. Two thousand more students are expected to study here later this year, he added.
Saudi Arabia is now paying for about 62,000 of its own students to attend foreign universities through a major scholarship program.
In contrast to the rising number of Saudis entering Canada since 2002, the number of non-immigrant Saudis admitted to the United States fell sharply after the 2001 attacks: to 22,314 in 2002 and 16,154 in 2003 from 66,722 in 2001. That has recovered somewhat to 61,530 in 2009.
Saturday, July 17, 2010
URGENT REFORMS NEEDED ON SPONSORSHIPS
This article appeared in the Toronto Star and it highlights the need for urgent reform of the spousal sponsorship system, particularly as it relates to high risk areas of the world. It is beyond any doubt that economics are driving many people to seek Canadian sponsors as a way out of their country, because they may not otherwise qualify for immigration as Skilled Workers. Others may not wish to wait for the immigration process and see sponsorships as a quick way to accomplish their goal. Unfortunately, their conduct results in emotional and financial devastation to many residents who carry the burden for years. Possible solutions may include restricting sponsorships to Canadian citizens only and no longer allowing permanent residents to sponsor until they naturalize, requiring mandatory interviews in some parts of the world known for high rates of fraudulent marriages and for those who come from countries with great economic disparity, and conditional visas for spouses as done in the US.
Fastest way to get to Canada — marriage - thestar.com
Fastest way to get to Canada — marriage
July 16, 2010
Raveena Aulakh
Deepinder Mann married Ranjit Kaur in India in 2009.
She lives in northern India and dreams of moving to a city called Toronto. She has some family there.
And she knows how to get there with no long wait and a minimum of paperwork: All she has to do is find a Canadian to marry her.
Once married, she is granted permanent resident status. Once in Canada, all she needs to do to begin her new life is abandon him.
The entire ugly process can be completed in a matter of months. That’s how easy it is.
And the consequences? Almost none. Those who marry fraudulently are rarely deported.
“It’s one of the biggest challenges for immigration,” said Richard Kurland, Vancouver-based veteran immigration policy analyst and immigration lawyer. “The problem knows no colour, no language.”
“The only people getting hurt are Canadians — in their hearts and their wallets,” he said.
Hundreds of fraudulent marriages take place every year. Citizenship and Immigration Canada acknowledges roughly 1,000 such cases are reported annually. In 2009, nearly 45,000 people immigrated to Canada as spouses.
“These are complicated cases,” said Doug Kellam, an immigration spokesman. “It is tough to prove bad faith by a sponsored partner.”
A bad-faith relationship must meet two criteria — that it is not genuine and that it was entered into to obtain immigration status.
CIC and Canada Border Services Agency do investigate immigration-related fraud but fraudulent marriages aren’t really a priority. Their main focus is on issues of national security.
CBSA has eight officers to investigate bad-faith marriages. There are about 350 immigration enforcement officers across Canada.
Last year, CBSA deported 14,762 people, said Patrizia Giolti, spokesperson for the agency. But there are no statistics on how many people are deported because of “misrepresentation,” she added.
“I bet none were related to fraudulent marriages,” said Sam Benet, president of Canadians Against Immigration Fraud.
The Toronto-based non-profit organization, which boasts almost 200 members across Canada, came into being after Benet’s son, Saranjeet Benet, was allegedly abandoned by his wife days after she arrived in Canada from India.
The organization launched a class-action lawsuit in 2009 against the federal government for failing to investigate and deport foreigners who trick Canadians into marriages of convenience.
At least 70 per cent of the cases are from South Asia, he said.
“It’s not a new phenomenon . . . foreigners have been defrauding us for years but what has the government done? Nothing,” said Benet, whose family is still scarred by what happened years ago. “She divided our family. . . it can never be the same again for us.”
Abandoned spouses are angry about what happened to them but they also worry they could be on the hook for thousands of dollars.
Fraudulent marriage or not, a Canadian sponsor remains obligated financially to a foreign spouse for up to three years under the terms of sponsorship. That means if the spouse ends up on government assistance, the sponsor must repay the government and risks being denied future sponsorships.
Even if they divorce, the Canadian sponsor remains financially obligated if the spouse goes on welfare.
The sponsorship period was 10 years but it was reduced to three years a couple of years ago.
In some cases, the government has asked sponsors to cough up as much as $100,000.
“Imagine being asked to pay money for a fiancée who has abandoned you?” said Jeff Vanderhorst. “That would be brutal.”
The Amherstburg, Ont.-native met Yennis Escobar Pompa in Cuba in 1999. Four years later, he sponsored her to Canada as his fiancée.
In three weeks, she disappeared, said Vanderhorst, now 48.
He complained to immigration and border services numerous times that Pompa had broken the terms of sponsorship, which specified the couple had to marry within 90 days.
Nothing was done, he said.
In the next couple of years, he discovered that she had obtained permanent residency and was living on welfare in Montreal.
No claim has yet been made on him but Vanderhorst, who is still angry about how immigration handled his case, is on the hook until 2013.
Seven years after she disappeared, he’s still very bitter. “I don’t trust women. . . . Yes, I am still hung up about it,” he said. “Until it happens to you, you'll never know how it hurts.”
Fraudulent marriages hurt Canadians the most and immigration laws need to be tightened, say some experts.
One proposal is to introduce a provisional visa valid for two years for new spouses. “Australia has it, so does the U.S.,” pointed out Julie Taub, an immigration lawyer.
Under this provision, if the marriage is still intact after the second year, the immigrating spouse can apply for a permanent visa.
It doesn’t eliminate the problem “but does make it slightly tougher for people to plan elaborate marriage frauds,” said Richard Kurland.
Not everyone agrees.
There are concerns that a temporary visa would force women to stay in abusive relationships.
“It creates a class of vulnerable people living in Canada,” said Rudolf Kischer, a well-known immigration lawyer in Vancouver.
He believes people need to be educated about the pitfalls of marrying outside Canada.
Those who get permanent status in Canada through fraud are eventually able to sponsor their own family members, said Taub.
It’s what she calls chain migration based on an original fraud.
Citizenship and Immigration Canada is planning to tighten policies to prevent people from gaining permanent residency through marriage fraud, said spokesperson Doug Kellam.
The sponsorship program is hard on some people and “minister (Jason) Kenney is looking at changes,” said Kellam. “He is consulting with different groups and looking at how the law might be structured to deal with this kind of a situation.”
Vanderhorst says he’ll be very happy if the law is overhauled.
“It won’t change anything for me personally but it’ll be a deterrent for foreigners who play with our emotions, make fools of us,” he said. “We can't let them get away with it.”
--------------------------------------------------------------------------------
Kashmir Janagal
His was a fairy tale wedding.
Markham’s Kashmir Janagal flew to Punjab, India, with his parents and a half-dozen relatives in early 2008. There were three pre-weddings parties, hundreds of guests and on Feb. 16, he married Parveen Kumari, a woman he and his family had known for years.
Janagal, now 34, returned home and filed his wife’s sponsorship papers. She flew to Toronto on Feb. 8, 2009. Janagal says his wife’s uncle, who lives in Montreal, was also at the airport. Eventually, everyone went to Janagal’s home.
“She didn’t want to talk to me but only to her uncle,” said Janagal, who was then training to be a primary school teacher.
He left for work the next day. When he returned, she was gone. Janagal says he tried calling dozens of time — there was no answer. Finally, he filed a missing person’s report. A few days later, she filed assault charges against him.
He next saw Kumari this January at the trial, where charges against him were dismissed.
It was vindication but not enough. “She has taken two years of my life. . . . The emotional pain is unbelievable,” said Janagal. “You fall totally in love and realize you’ve been used. I’ve lost faith in people.”
Janagal, who is still married to Kumari, has complained to CIC, CBSA and the Prime Minister’s office. “I’ll keep at it until I know what’s happening with her.”
Cindy Green
She was devastated when it happened; now she’s at peace.
“I know the government works slowly but I have faith . . . he will be deported eventually.”
Cindy Green, now 52, met Francisco Vargas while on holiday in Punta Cana, Dominican Republic, in 2003. They got married in October 2004, 18 months after they had first met. Vargas came to Canada in December 2005.
Green, who lives in Woodbridge, says everything was fine the first month and he even started working at a local restaurant. “In January, he started to change,” she said. He got upset at the slightest reason and “tried to provoke me into fights at every opportunity.”
On Jan. 31, 2006, seven weeks after landing in Toronto, he left without an explanation.
When Canada Border Services Agency didn’t do anything, Green hired a private detective in Punta Cana. Within weeks, he found that Vargas had a common-law wife and four children with her.
Armed with proof, she went to the border agency. Privacy issues still prevent her from knowing what exactly is going on “but I know that he has a deportation hearing soon.”
Green says she’s not bitter any more. “I just feel that we have to keep fighting to change our immigration system. Why is it that very few people are deported even though it’s proven they used marriage as a way to get to Canada?”
Evan Wilson
Evan Wilson, 36, of St. Thomas, Ont. met Yaemin Garcia Gonzalez while holidaying in Havana in September 2008.
There was an instant connection with the 23-year-old. He spent about five days with her and then returned to Canada. One thing led to another and they were married in Havana in December 2008, her young daughter by her side.
In January 2010, she arrived in Toronto. The two lived happily for some weeks. Then Wilson said he happened to see her email.
“She had written to her friend that her ex-boyfriend wanted her to claim abuse against me and go to a shelter,” he said.
He says he begged her to come clean. She said she wanted to go home. He bought her a ticket but she never boarded the flight. Wilson doesn’t know how but Gonzalez somehow wound up in Miami and then in Louisville, Kentucky.
“She’s illegal there and they will deport her . . . but to Canada and she’ll go on welfare here,” said Wilson. “She should go back to Cuba.”
Wilson has called and written to Citizenship and Immigration Canada and Canada Border Services Agency dozens of time. He says the two government agencies don’t care that she was charged with prostitution in 2005 and 2007 or that she circumvented the law here.
“There are too many such stories,” said Wilson. “Something needs to be done and quickly.”
Deepinder Mann
He had heard stories of brides and grooms abandoning their spouses once they reached Canada but Deepinder Mann never thought it would happen to him.
“I was marrying someone very close to my family in India,” said Mann, 36, a Brampton realtor.
He married Ranjit Kaur, 31, in Punjab, India, in January 2009. Mann says he spent two weeks with her but they did not consummate the marriage. He says he sensed something was wrong but she convinced him that she would be more comfortable once she lived with him in Canada.
She came to Canada in September but didn’t stay with Mann for long. She went to her aunt’s place, said Mann. When he went to talk to the aunt, he says he was told that his wife didn’t want to live with him.
“It slowly unravelled that she had a boyfriend in India . . . I was even given a letter in which she had admitted to it all,” said Mann.
Kaur returned to India within weeks and Mann wrote to Citizenship and Immigration Canada and Canada Border Services Agency, warning them against letting her into Canada again.
He also went to India and registered cheating cases against Kaur and her family.
In March, he discovered that she had come to Canada again.
“I complained to everyone and she still managed to come here,” said Mann. “The system is so soft and easy to abuse. It doesn’t happen anywhere else.”
Fastest way to get to Canada — marriage - thestar.com
Fastest way to get to Canada — marriage
July 16, 2010
Raveena Aulakh
Deepinder Mann married Ranjit Kaur in India in 2009.
She lives in northern India and dreams of moving to a city called Toronto. She has some family there.
And she knows how to get there with no long wait and a minimum of paperwork: All she has to do is find a Canadian to marry her.
Once married, she is granted permanent resident status. Once in Canada, all she needs to do to begin her new life is abandon him.
The entire ugly process can be completed in a matter of months. That’s how easy it is.
And the consequences? Almost none. Those who marry fraudulently are rarely deported.
“It’s one of the biggest challenges for immigration,” said Richard Kurland, Vancouver-based veteran immigration policy analyst and immigration lawyer. “The problem knows no colour, no language.”
“The only people getting hurt are Canadians — in their hearts and their wallets,” he said.
Hundreds of fraudulent marriages take place every year. Citizenship and Immigration Canada acknowledges roughly 1,000 such cases are reported annually. In 2009, nearly 45,000 people immigrated to Canada as spouses.
“These are complicated cases,” said Doug Kellam, an immigration spokesman. “It is tough to prove bad faith by a sponsored partner.”
A bad-faith relationship must meet two criteria — that it is not genuine and that it was entered into to obtain immigration status.
CIC and Canada Border Services Agency do investigate immigration-related fraud but fraudulent marriages aren’t really a priority. Their main focus is on issues of national security.
CBSA has eight officers to investigate bad-faith marriages. There are about 350 immigration enforcement officers across Canada.
Last year, CBSA deported 14,762 people, said Patrizia Giolti, spokesperson for the agency. But there are no statistics on how many people are deported because of “misrepresentation,” she added.
“I bet none were related to fraudulent marriages,” said Sam Benet, president of Canadians Against Immigration Fraud.
The Toronto-based non-profit organization, which boasts almost 200 members across Canada, came into being after Benet’s son, Saranjeet Benet, was allegedly abandoned by his wife days after she arrived in Canada from India.
The organization launched a class-action lawsuit in 2009 against the federal government for failing to investigate and deport foreigners who trick Canadians into marriages of convenience.
At least 70 per cent of the cases are from South Asia, he said.
“It’s not a new phenomenon . . . foreigners have been defrauding us for years but what has the government done? Nothing,” said Benet, whose family is still scarred by what happened years ago. “She divided our family. . . it can never be the same again for us.”
Abandoned spouses are angry about what happened to them but they also worry they could be on the hook for thousands of dollars.
Fraudulent marriage or not, a Canadian sponsor remains obligated financially to a foreign spouse for up to three years under the terms of sponsorship. That means if the spouse ends up on government assistance, the sponsor must repay the government and risks being denied future sponsorships.
Even if they divorce, the Canadian sponsor remains financially obligated if the spouse goes on welfare.
The sponsorship period was 10 years but it was reduced to three years a couple of years ago.
In some cases, the government has asked sponsors to cough up as much as $100,000.
“Imagine being asked to pay money for a fiancée who has abandoned you?” said Jeff Vanderhorst. “That would be brutal.”
The Amherstburg, Ont.-native met Yennis Escobar Pompa in Cuba in 1999. Four years later, he sponsored her to Canada as his fiancée.
In three weeks, she disappeared, said Vanderhorst, now 48.
He complained to immigration and border services numerous times that Pompa had broken the terms of sponsorship, which specified the couple had to marry within 90 days.
Nothing was done, he said.
In the next couple of years, he discovered that she had obtained permanent residency and was living on welfare in Montreal.
No claim has yet been made on him but Vanderhorst, who is still angry about how immigration handled his case, is on the hook until 2013.
Seven years after she disappeared, he’s still very bitter. “I don’t trust women. . . . Yes, I am still hung up about it,” he said. “Until it happens to you, you'll never know how it hurts.”
Fraudulent marriages hurt Canadians the most and immigration laws need to be tightened, say some experts.
One proposal is to introduce a provisional visa valid for two years for new spouses. “Australia has it, so does the U.S.,” pointed out Julie Taub, an immigration lawyer.
Under this provision, if the marriage is still intact after the second year, the immigrating spouse can apply for a permanent visa.
It doesn’t eliminate the problem “but does make it slightly tougher for people to plan elaborate marriage frauds,” said Richard Kurland.
Not everyone agrees.
There are concerns that a temporary visa would force women to stay in abusive relationships.
“It creates a class of vulnerable people living in Canada,” said Rudolf Kischer, a well-known immigration lawyer in Vancouver.
He believes people need to be educated about the pitfalls of marrying outside Canada.
Those who get permanent status in Canada through fraud are eventually able to sponsor their own family members, said Taub.
It’s what she calls chain migration based on an original fraud.
Citizenship and Immigration Canada is planning to tighten policies to prevent people from gaining permanent residency through marriage fraud, said spokesperson Doug Kellam.
The sponsorship program is hard on some people and “minister (Jason) Kenney is looking at changes,” said Kellam. “He is consulting with different groups and looking at how the law might be structured to deal with this kind of a situation.”
Vanderhorst says he’ll be very happy if the law is overhauled.
“It won’t change anything for me personally but it’ll be a deterrent for foreigners who play with our emotions, make fools of us,” he said. “We can't let them get away with it.”
--------------------------------------------------------------------------------
Kashmir Janagal
His was a fairy tale wedding.
Markham’s Kashmir Janagal flew to Punjab, India, with his parents and a half-dozen relatives in early 2008. There were three pre-weddings parties, hundreds of guests and on Feb. 16, he married Parveen Kumari, a woman he and his family had known for years.
Janagal, now 34, returned home and filed his wife’s sponsorship papers. She flew to Toronto on Feb. 8, 2009. Janagal says his wife’s uncle, who lives in Montreal, was also at the airport. Eventually, everyone went to Janagal’s home.
“She didn’t want to talk to me but only to her uncle,” said Janagal, who was then training to be a primary school teacher.
He left for work the next day. When he returned, she was gone. Janagal says he tried calling dozens of time — there was no answer. Finally, he filed a missing person’s report. A few days later, she filed assault charges against him.
He next saw Kumari this January at the trial, where charges against him were dismissed.
It was vindication but not enough. “She has taken two years of my life. . . . The emotional pain is unbelievable,” said Janagal. “You fall totally in love and realize you’ve been used. I’ve lost faith in people.”
Janagal, who is still married to Kumari, has complained to CIC, CBSA and the Prime Minister’s office. “I’ll keep at it until I know what’s happening with her.”
Cindy Green
She was devastated when it happened; now she’s at peace.
“I know the government works slowly but I have faith . . . he will be deported eventually.”
Cindy Green, now 52, met Francisco Vargas while on holiday in Punta Cana, Dominican Republic, in 2003. They got married in October 2004, 18 months after they had first met. Vargas came to Canada in December 2005.
Green, who lives in Woodbridge, says everything was fine the first month and he even started working at a local restaurant. “In January, he started to change,” she said. He got upset at the slightest reason and “tried to provoke me into fights at every opportunity.”
On Jan. 31, 2006, seven weeks after landing in Toronto, he left without an explanation.
When Canada Border Services Agency didn’t do anything, Green hired a private detective in Punta Cana. Within weeks, he found that Vargas had a common-law wife and four children with her.
Armed with proof, she went to the border agency. Privacy issues still prevent her from knowing what exactly is going on “but I know that he has a deportation hearing soon.”
Green says she’s not bitter any more. “I just feel that we have to keep fighting to change our immigration system. Why is it that very few people are deported even though it’s proven they used marriage as a way to get to Canada?”
Evan Wilson
Evan Wilson, 36, of St. Thomas, Ont. met Yaemin Garcia Gonzalez while holidaying in Havana in September 2008.
There was an instant connection with the 23-year-old. He spent about five days with her and then returned to Canada. One thing led to another and they were married in Havana in December 2008, her young daughter by her side.
In January 2010, she arrived in Toronto. The two lived happily for some weeks. Then Wilson said he happened to see her email.
“She had written to her friend that her ex-boyfriend wanted her to claim abuse against me and go to a shelter,” he said.
He says he begged her to come clean. She said she wanted to go home. He bought her a ticket but she never boarded the flight. Wilson doesn’t know how but Gonzalez somehow wound up in Miami and then in Louisville, Kentucky.
“She’s illegal there and they will deport her . . . but to Canada and she’ll go on welfare here,” said Wilson. “She should go back to Cuba.”
Wilson has called and written to Citizenship and Immigration Canada and Canada Border Services Agency dozens of time. He says the two government agencies don’t care that she was charged with prostitution in 2005 and 2007 or that she circumvented the law here.
“There are too many such stories,” said Wilson. “Something needs to be done and quickly.”
Deepinder Mann
He had heard stories of brides and grooms abandoning their spouses once they reached Canada but Deepinder Mann never thought it would happen to him.
“I was marrying someone very close to my family in India,” said Mann, 36, a Brampton realtor.
He married Ranjit Kaur, 31, in Punjab, India, in January 2009. Mann says he spent two weeks with her but they did not consummate the marriage. He says he sensed something was wrong but she convinced him that she would be more comfortable once she lived with him in Canada.
She came to Canada in September but didn’t stay with Mann for long. She went to her aunt’s place, said Mann. When he went to talk to the aunt, he says he was told that his wife didn’t want to live with him.
“It slowly unravelled that she had a boyfriend in India . . . I was even given a letter in which she had admitted to it all,” said Mann.
Kaur returned to India within weeks and Mann wrote to Citizenship and Immigration Canada and Canada Border Services Agency, warning them against letting her into Canada again.
He also went to India and registered cheating cases against Kaur and her family.
In March, he discovered that she had come to Canada again.
“I complained to everyone and she still managed to come here,” said Mann. “The system is so soft and easy to abuse. It doesn’t happen anywhere else.”
Wednesday, July 14, 2010
MORE REASONS TO MIGRATE TO CANADA
This story appeared in MarketWatch, a US business publication.
MarketWatch
July 13, 2010, 9:16 AM ET.
Moody’s says Canada safe from double-dip recession.
It’s long been said that when the U.S. economy sneezes, Canada’s catches a cold. But these days, given recent upbeat economic news, more and more Canada watchers are saying, “What cold?”
Last week’s report that Canada’s resurgent economy created 10,000 more jobs — 93,000 in all — than its southern neighbors has focused a lot of U.S. media attention to just what’s going on in the Canadian economy.
MarketWatch’s Nick Godt, in his piece this week, noted that Canada’s “boring” regulated economy is working better than ours: “In Canada, ” he wrote, “where a regulated banking system and strong consumer protection laws helped the country weather the globe’s worst financial and economic crisis since the Great Depression, a vibrant private sector is hiring again.” He also noted that in Canada, “big money and business interests don’t have as much sway over policies as in the U.S.”
There’s been strong hiring in the service sector in Canada, and the left-leaning Huffington Post took note of this in a recent piece headlined, “Need a job? Try Canada, where hiring is booming and home prices are rising.”
“In terms of sheer job creation,” the HuffPo piece said, “June saw Canada create jobs at five times the rate predicted by economists.”
And now you can add Moody’s to the list of those who think Canada’s economic recovery is ongoing, even if the U.S. economy falls back into recession. Jimmy Jean, an economist at Moodys.com, says Canada’s economic recovery is safe, even if the U.S. suffers a double-dip recession.
“It is often thought that when the U.S. sneezes, Canada catches a cold,” he said in his report, “but with the shift toward a service-oriented economy over the last three decades, Canada has grown more immune to U.S. woes.”
Jean added: “The last two U.S. recessions are solid proof that Canada is now better able to withstand strong headwinds from the south. Not that they’ve decoupled altogether, but should a downside mild double-dip U.S. recession materialize, Canada’s recovery would very likely survive.”
In addition to Canada’s strong commodity sector, Jean said the success of Canada’s recovery is also because of policy makers acting quickly in the depth of the crisis, consumers shrugging off the recession and beginning to spend again, and Canadian employers believing in the recovery and hiring again.
Godt’s MarketWatch piece underlined this upbeat trend in Canada’s economy: “While Canada joined in the necessary global move to boost monetary and government spending to rescue the system over the past two years, its private sector is now able to take over the baton from the government.”
Godt also blasted the U.S. Senate’s refusal to extend unemployment benefits thusly:
“Isn’t blocking unemployment benefits for 2 million Americans a pretty good attempt to make sure consumer spending will drop, lead to less growth, and further job losses just in time for the midterm elections?”
It is inconceivable to this long-time Canada watcher that Canadian politicians — of whatever party — would ever refuse to extend these benefits to the unemployed. Many of my Canadian friends are shaking their heads in disbelief at the cynicism of U.S. Senators who voted against it.
MarketWatch
July 13, 2010, 9:16 AM ET.
Moody’s says Canada safe from double-dip recession.
It’s long been said that when the U.S. economy sneezes, Canada’s catches a cold. But these days, given recent upbeat economic news, more and more Canada watchers are saying, “What cold?”
Last week’s report that Canada’s resurgent economy created 10,000 more jobs — 93,000 in all — than its southern neighbors has focused a lot of U.S. media attention to just what’s going on in the Canadian economy.
MarketWatch’s Nick Godt, in his piece this week, noted that Canada’s “boring” regulated economy is working better than ours: “In Canada, ” he wrote, “where a regulated banking system and strong consumer protection laws helped the country weather the globe’s worst financial and economic crisis since the Great Depression, a vibrant private sector is hiring again.” He also noted that in Canada, “big money and business interests don’t have as much sway over policies as in the U.S.”
There’s been strong hiring in the service sector in Canada, and the left-leaning Huffington Post took note of this in a recent piece headlined, “Need a job? Try Canada, where hiring is booming and home prices are rising.”
“In terms of sheer job creation,” the HuffPo piece said, “June saw Canada create jobs at five times the rate predicted by economists.”
And now you can add Moody’s to the list of those who think Canada’s economic recovery is ongoing, even if the U.S. economy falls back into recession. Jimmy Jean, an economist at Moodys.com, says Canada’s economic recovery is safe, even if the U.S. suffers a double-dip recession.
“It is often thought that when the U.S. sneezes, Canada catches a cold,” he said in his report, “but with the shift toward a service-oriented economy over the last three decades, Canada has grown more immune to U.S. woes.”
Jean added: “The last two U.S. recessions are solid proof that Canada is now better able to withstand strong headwinds from the south. Not that they’ve decoupled altogether, but should a downside mild double-dip U.S. recession materialize, Canada’s recovery would very likely survive.”
In addition to Canada’s strong commodity sector, Jean said the success of Canada’s recovery is also because of policy makers acting quickly in the depth of the crisis, consumers shrugging off the recession and beginning to spend again, and Canadian employers believing in the recovery and hiring again.
Godt’s MarketWatch piece underlined this upbeat trend in Canada’s economy: “While Canada joined in the necessary global move to boost monetary and government spending to rescue the system over the past two years, its private sector is now able to take over the baton from the government.”
Godt also blasted the U.S. Senate’s refusal to extend unemployment benefits thusly:
“Isn’t blocking unemployment benefits for 2 million Americans a pretty good attempt to make sure consumer spending will drop, lead to less growth, and further job losses just in time for the midterm elections?”
It is inconceivable to this long-time Canada watcher that Canadian politicians — of whatever party — would ever refuse to extend these benefits to the unemployed. Many of my Canadian friends are shaking their heads in disbelief at the cynicism of U.S. Senators who voted against it.
Tuesday, July 13, 2010
REFUGEE CLAIMANTS PREFER CANADA
Canada has close to 50% acceptance rate, so this should come as no surprise.
Canada the top pick for asylum seekers: report
Canada the top pick for asylum seekers: report
Monday, July 12, 2010
CANADA BUSINESS OUTLOOK POSITIVE
Canada's business outlook brightens
Canada's business outlook brightens
National Post
For the first time in two years, businesses across Canada reported an improvement in their past sales growth, reflecting a strengthening Canadian economy, the Bank of Canada said in its summer business outlook survey on Monday.
Buoyed by increased 12-month sales growth for the first time in two years, Canadian businesses are set to hire more workers and invest in new machinery to meet rising demand pressure, the Bank of Canada said Monday in its summer business outlook survey.
Expectations for sales are positive, with 53% of businesses looking forward to greater growth in the coming year compared with 29% forecasting less growth.
The balance of opinion for this metric, however, is only +25, down compared with the four previous quarters, suggesting businesses remain cautiously optimistic about the country’s prospects next year.
“Given the growing concern over the U.S. and global economic outlook, dimmer sales and investment expectations are not surprising,” Michael Gregory, senior economist with BMO Capital Markets, said in a note Monday.
Even so, credit conditions have eased in the past three months, suggesting a healthier financing environment.
“While the balances of opinion on future sales growth and investment are lower than in recent surveys, and firms are concerned about global uncertainties, overall they are positive about the outlook for business activity over the next 12 months,” the bank said in its report.
Meanwhile, businesses expect both input and output prices to increase at a greater rate in the next year, although the vast majority expect total CPI inflation to stay within the Bank of Canada’s ballpark range of between 1% and 3%.
Sentiment on investments in new machinery and equipment remains positive, although to a lesser extent than the previous survey. Many in the services sector have recently completed investments that are unlikely to be repeated within a year, but machinery spending is solid in the goods sector, the bank said.
In the second quarter of 2010, 49% of businesses said their sales volume increased at a greater rate than it did a year ago, compared with 31% who said it declined.
This is the first time the balance of opinion has come out in the black since the second quarter of 2008, when 39% replied in the positive and 32% in the negative.
As for production and labour, a greater number of businesses at 39% said they would have difficulty meeting an unexpected increase in demand, compared with 30% in the first quarter.
Businesses may be looking to make additional hires, as the percentage of firms looking to decrease their level of employment has slipped to 10% from 12% in the prior quarter. The percentage of outfits that expect to increase their level of employment remains the same at an even 50%.
“This positive sentiment, supported by firms’ expectations of improving demand and plans for expansion, is widespread across all regions and most sectors,” the bank said.
Labour shortages are also not considered a factor, as the majority of companies consider the intensity of labour shortages to be either the same or less intense than this time last year. Only 12% of those surveyed said their businesses faced shortages that would actually restrict their ability to meet demand.
“The slight gain on the hiring side was a bit surprising, suggesting that the demand for labour remains robust,” Gregory said. “(This also suggests) recent strong employment growth readings, such as Friday’s surprising +93,200 print, are indeed indicative of a solid underlying trend.”
Overall, the latest positive results add weight to the argument for fiscal tightening from the Bank of Canada sooner rather than later, he said.
The Bank of Canada surveys senior management of about 100 firms based on the make-up of the country’s gross domestic product several times a year. The summer survey is based on results compiled between May and June.
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Read more: http://www.financialpost.com/news/Canada+business+outlook+brightens/3266520/story.html#ixzz0tVmfDNCk
Canada's business outlook brightens
National Post
For the first time in two years, businesses across Canada reported an improvement in their past sales growth, reflecting a strengthening Canadian economy, the Bank of Canada said in its summer business outlook survey on Monday.
Buoyed by increased 12-month sales growth for the first time in two years, Canadian businesses are set to hire more workers and invest in new machinery to meet rising demand pressure, the Bank of Canada said Monday in its summer business outlook survey.
Expectations for sales are positive, with 53% of businesses looking forward to greater growth in the coming year compared with 29% forecasting less growth.
The balance of opinion for this metric, however, is only +25, down compared with the four previous quarters, suggesting businesses remain cautiously optimistic about the country’s prospects next year.
“Given the growing concern over the U.S. and global economic outlook, dimmer sales and investment expectations are not surprising,” Michael Gregory, senior economist with BMO Capital Markets, said in a note Monday.
Even so, credit conditions have eased in the past three months, suggesting a healthier financing environment.
“While the balances of opinion on future sales growth and investment are lower than in recent surveys, and firms are concerned about global uncertainties, overall they are positive about the outlook for business activity over the next 12 months,” the bank said in its report.
Meanwhile, businesses expect both input and output prices to increase at a greater rate in the next year, although the vast majority expect total CPI inflation to stay within the Bank of Canada’s ballpark range of between 1% and 3%.
Sentiment on investments in new machinery and equipment remains positive, although to a lesser extent than the previous survey. Many in the services sector have recently completed investments that are unlikely to be repeated within a year, but machinery spending is solid in the goods sector, the bank said.
In the second quarter of 2010, 49% of businesses said their sales volume increased at a greater rate than it did a year ago, compared with 31% who said it declined.
This is the first time the balance of opinion has come out in the black since the second quarter of 2008, when 39% replied in the positive and 32% in the negative.
As for production and labour, a greater number of businesses at 39% said they would have difficulty meeting an unexpected increase in demand, compared with 30% in the first quarter.
Businesses may be looking to make additional hires, as the percentage of firms looking to decrease their level of employment has slipped to 10% from 12% in the prior quarter. The percentage of outfits that expect to increase their level of employment remains the same at an even 50%.
“This positive sentiment, supported by firms’ expectations of improving demand and plans for expansion, is widespread across all regions and most sectors,” the bank said.
Labour shortages are also not considered a factor, as the majority of companies consider the intensity of labour shortages to be either the same or less intense than this time last year. Only 12% of those surveyed said their businesses faced shortages that would actually restrict their ability to meet demand.
“The slight gain on the hiring side was a bit surprising, suggesting that the demand for labour remains robust,” Gregory said. “(This also suggests) recent strong employment growth readings, such as Friday’s surprising +93,200 print, are indeed indicative of a solid underlying trend.”
Overall, the latest positive results add weight to the argument for fiscal tightening from the Bank of Canada sooner rather than later, he said.
The Bank of Canada surveys senior management of about 100 firms based on the make-up of the country’s gross domestic product several times a year. The summer survey is based on results compiled between May and June.
.
Read more: http://www.financialpost.com/news/Canada+business+outlook+brightens/3266520/story.html#ixzz0tVmfDNCk
NINETEEN CRIMINAL CONVICTIONS....AND RELEASED
This case has just been reported. The respondent has NINETEEN criminal convictions, many of them very serious. However, that was not sufficient to keep him in detention, even when his detention was not his first, and his criminal record kept growing over time. I find it particularly interesting that his deportation could not be accomplished because Iranian law apparently prohibits the forcible return of its citizens. As the court states:"The only impediment to removal was the issuance of a travel document. Despite many discussions with officials from the Iranian Embassy during 2007, no travel document was obtained. Iranian officials indicated that Iranian law prohibits the return of nationals by force. CBSA officials apparently accepted this position. The respondent did not wish to be returned to Iran and what is more, felt he would be at risk if he returned. Therefore, he has refused to sign a document indicating he wishes to return to Iran." This is laughable and highlights the need for immediate reform in the area. Hundreds of people are deported for minor offences, so it stands to reason that serious offenders should be treated proportionately more severely despite their "wishes". This is unfair to those who are deported for minor transgressions and leads to a ridiculous result in the application of the law.
Canada (Minister of Citizenship and Immigration) v.
Panahi-Dargahloo
Between
The Minister of Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness, Applicants,
and
Hamid Reza Panahi-Dargahloo, Respondent
[2010] F.C.J. No. 787
2010 FC 647
Docket IMM-6634-09
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: February 4, 2010.
Judgment: June 15, 2010.
(66 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the Board) ordering the respondent released from detention on certain terms and conditions.
2 The applicant requests that the decision of the Board be set aside.
Background
3 The respondent is a citizen of Iran who arrived in Canada in 1998. He was found to be a Convention refugee in 1999. His application for permanent resident status received in 1999 was refused in 2002 because of criminal convictions.
4 The respondent has amassed several criminal convictions, nineteen in all, beginning in 2000, and has been detained by the Canadian Border Services Agency (CBSA) intermittently between July 2004 and June 2007 and continuously since July of 2007. A deportation order was issued against him in March of 2004 pursuant to paragraph 36(1)(a) of the Act by reason of serious criminality.
5 The history of the respondent's criminal offences is as follows:
• -
November 15, 2000: Convicted of theft under $5,000 and received a suspended sentence and prohibition for one year.
• -
May 22, 2001: Convicted of:
• *
impaired driving and received a $600 fine, six months probation and prohibited to drive for one year;
• *
two counts of theft under $5,000;
• *
two counts of failure to attend Court;
• *
assault;
• *
failure to comply with probation order; and
• *
theft over $5,000 and was sentenced to one day concurrently for each charge and time served 128 days.
• -
December 5, 2002: Convicted of theft under $5,000 and received a suspended sentence plus 18 months of probation and two days pre-sentence custody.
• -
February 9, 2004: Convicted of failure to comply with recognizance and failure to comply with a probation order and sentenced to 42 days in custody and two years probation.
• -
May 27, 2004: Convicted of:
• *
impaired driving (driving over 80 MGS);
• *
threatening bodily harm and received 60 days in jail;
• *
possession of stolen property over $5,000;
• *
theft;
• *
possession of stolen property under $5,000, failure to comply with recognizance and assault.
• -
August 29, 2005: Convicted of robbery and use of a firearm during the commission of an offence and was sentenced to six months in jail.
• -
November 1, 2006: Convicted of theft at a liquor store.
6 By way of an explanation for his conduct, respondent's counsel submitted to the Board that the respondent was physically and mentally abused by his father and as a result, has become a cocaine addict and an alcoholic.
7 The history of his immigration detentions is as follows:
• -
July 13, 2004: Detained based on a warrant for his arrest. Released after eight days on July 21, 2004.
• -
2004: Request for a danger opinion from the Minister was initiated.
• -
December 29, 2005: Detained.
• -
March 27, 2006: Released when his sister posted bond and the Toronto Bail Program offered supervision.
• -
November 2, 2006: Detained. Note: After serving his sentence for the November 1, 2006 theft above, he became subject to detention under the Act. The above conviction also violated the terms of the release order from his previous detention.
• -
May 25, 2007: Released on a $10,000 bond and with other conditions.
• -
June 15, 2007: Taken back into custody after bondsperson withdrew supervision.
8 On December 13, 2006, the Minister's delegate signed a danger opinion pursuant to paragraph 115(2)(a) of the Act, allowing the Minister to enforce the 2004 deportation order notwithstanding his status as a protected person. The only impediment to removal was the issuance of a travel document. Despite many discussions with officials from the Iranian Embassy during 2007, no travel document was obtained. Iranian officials indicated that Iranian law prohibits the return of nationals by force. CBSA officials apparently accepted this position. The respondent did not wish to be returned to Iran and what is more, felt he would be at risk if he returned. Therefore, he has refused to sign a document indicating he wishes to return to Iran.
9 For the respondent's detention review conducted on December 11, 2009, a new bondsperson was proposed. Continued detention after previous reviews by the Board had been on the basis that the respondent poses a danger to the public as understood by paragraph 58(1)(a) of the Act. These conclusions were supported by the respondent's 2001 and 2004 assault charges, his 2005 armed robbery charge and the 2006 danger opinion as well as the impaired driving charges.
10 The respondent sought judicial review of an October 2008 detention decision which, besides finding the respondent a danger to the public, found that the respondent was responsible for his own detention by failing to sign a document stating that he wished to return to Iran. In Panahi-Dargahlloo v. Canada (Minister of Citizenship and Immigration), 2009 FC 1114, [2009] F.C.J. No. 1670 (QL), Mr. Justice Mandamin set aside the detention decision because the length of the respondent's detention, his status as a Convention refugee and his substantial compliance with CBSA had not been adequately considered.
The Board's Decision
11 The Board concluded that with the right measures in place, the respondent would not pose a danger to the public. The charges and the danger opinion were all at least three years in the past. Even though the respondent had demonstrated a lack of rehabilitation evidenced by subsequent charges, the latest offence was also three years ago. The circumstances related to the respondent's past dangerous conduct related to a period when he was working in night clubs and abusing cocaine and alcohol. Since that time, he has availed himself of psychiatric treatment and substance abuse programs. The degree to which these programs have been effective has not yet been tested in the community.
12 The Board's conclusion on the respondent's risk of flight primarily turned on the respondent's demonstrated willingness to comply with the CBSA removal process in 2007. The Board considered that his refusal to state that he wished to return to Iran was partly justified by his status as a refugee and his well founded fear of persecution. The Board also considered the respondent's assurances to the new bondsperson that he would obey immigration instructions, but overall concluded that he was a flight risk was within the meaning prescribed in paragraph 58(1)(b) of the Act.
13 In considering alternatives to detention, the Board considered the Ministers' submission that the respondent's release in May of 2007 had been on the strength of a misrepresentation regarding the respondent's relationship with the bondsperson. Since the CBSA had elected not to press charges against the respondent under the Act for the misrepresentation, nor had it disclosed all of its information regarding the matter, the Board would not conclude that there had been a misrepresentation. The Board also considered that the respondent had complied with the release order accompanying his last release and the two and a half years which had elapsed since then. Finally, the Board considered the adequacy of a new bondsperson for the respondent and the adequacy of the quantum of the bond ($5,000) given the bondsperson's modest financial means. The Board's conclusion was that the respondent should be released with conditions that he attend substance abuse treatment and enroll in Alcoholics Anonymous.
Issues
14 The issues are as follows:
• 1.
What is the standard of review?
• 2.
Was the Ministers' counsel denied procedural fairness in the hearing?
• 3.
Was the Board's ultimate decision unreasonable?
Applicants' Written Submissions
15 Parties in a Board proceeding have a right to be heard. Procedural rights are enhanced in more judicial like decisions such as these. The Board in its reasons mentioned three treatment programs for the respondent, but did not see that the prospect of these programs was raised at the hearing, preventing the Ministers' counsel from making submissions with respect to their appropriateness. Given the opportunity, counsel would have submitted that some of the programs had not worked in the past.
16 The applicants also submit that there was no notice that the misrepresentation at the May 2007 release hearing would be challenged. The issue was not discussed at the hearing, yet the Board found that the Ministers had not met the burden of proving the alleged misrepresentation. Had the Board member indicated his difficulty with the matter, the Ministers had evidence they could have submitted.
17 Finally, the applicants submit that it was unfair for the Board not to give notice that it would be considering and questioning the strength of the danger opinion. In previous reviews, including one by the same member, it had not been in question.
18 The decision does not meet the standard of reasonableness says the applicants. The Board determined that the respondent was a flight risk because of his refusal to sign the voluntary return document and because the new bondsperson did not give assurances that she could get him to appear for removal. Yet the Board determined that he should be released to her. Given his continued refusal to sign the document, it is clear that on a balance of probabilities, removal will not occur. The respondent has chosen to frustrate removal at a point in time when he has no right to remain in Canada.
19 The applicants also say that the Board proceeded on the basis that there had been many new developments in the respondent's case. In reality, the respondent's conversion to Christianity, his treatment programs and his length of time in custody had all been considered in his previous review which had denied his release. The only change in December of 2009 was a new bondsperson and the fact that his length of detention was one month longer, yet the Board came to radically different conclusions with acknowledging the previous reasons.
Respondent's Written Submissions
20 The respondent submits that the decision, read as a whole, is reasonable. The decision also conforms with this Court's direction in Panahi-Dargahlloo above. While the applicants disagree with the decision, that is not a basis for judicial intervention. The Board did not ignore evidence of previous non-compliance with past orders, but reasonably found that the new evidence of rehabilitation, the length of detention and the new bondsperson outweighed other factors.
21 Specifically, it was not unreasonable for the Board to find that the new bondsperson was suitable despite her inability to guarantee the respondent's appearance for removal. The test for suitability is not 100% assurance.
22 Moreover, the respondent's status as a protected person was legitimately factored by the Board. It gives him a legitimate reason not to sign a document saying that he is voluntarily returning to Iran. The implication of the applicants' argument is that indefinite detention is reasonable even though that is contrary to section 7 of the Charter. Overall, the decision was not radically different from previous decisions. It only differed in a few areas which were thoroughly explained.
23 The respondent submits that there was no breach of procedural fairness. The mentioned treatment programs should not have been a surprise to the applicants. The Salvation Army program has been proposed in many detention reviews and in a previous review regarding the respondent.
24 Nor was there a breach of fairness in the Board's conclusion that the Ministers had not proven the alleged misrepresentation. The Ministers' counsel has made submissions about the alleged misrepresentation since June of 2007, but has never provided sufficient evidence in support. Yet, never in that time has an adjudicator concluded that a misrepresentation occurred. Rather, they have just noted the allegation, perhaps because it had not been an important issue. It was open to the Board to find that the applicants had not discharged their burden.
Analysis and Decision
Issue 1
What is the standard of review?
25 While the standard of review for most questions of law is correctness, the standard of review for questions of fact and for questions of mixed fact and law is reasonableness as set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL). The parties agree that the ultimate decision of the Board is subject to review against the standard of reasonableness.
26 The standard of review on the question of a breach of procedural fairness is correctness.
Issue 2
• Was the Ministers' counsel denied procedural fairness in the hearing?
27 It is trite that although the components of the duty of fairness will vary with the context, one of the most basic elements of natural justice is the right to be heard and to know the case one has to meet (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, [1999] S.C.J. No. 39 (QL), Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326).
28 Regardless of the level of procedural fairness determined by assessing the factors in Baker above, the duty of fairness owed to the Ministers' counsel in the context of a detention review hearing clearly included the right of the Ministers' counsel to have notice of and make submissions on all material aspects of the decision. Whether the Ministers were indeed prevented from meaningful participation and submissions on the factors the Ministers raised is within this Court's expertise to determine.
29 The applicants' first complaint is that while treatment programs for the respondent were referred to generally during the hearing, the applicants were not advised of the specific programs the Board eventually required the respondent to attend in the release order.
30 The Board began the hearing by discussing the new bondsperson and what had been gleaned at her interview. This new bondsperson constituted the primary aspect of the respondent's alternative to a detention proposal.
31 Next, the Ministers' counsel presented her submissions. With respect to the respondent's proposal, she did not discuss specific rehabilitation programs, only mentioning that previous release orders for the respondent had had components of rehabilitation:
• ...or both release orders had components of rehabilitation, however they have not had favourable influences on his behaviour as he finds himself in detention once again due to his non-compliance.
32 Accordingly, the Ministers' submissions with respect to the respondent's proposal focused on the non-suitability of the new bondsperson and not on specific treatment programs since none had been suggested. As she stated later with respect to the amount of the proposed bond:
• Therefore, the Minister feels that this amount does not offset concerns, but of course there is also the concern that there's no component being proposed today to address substance abuse issues, or to address the need for rehabilitation.
33 Next, the respondent's counsel presented and discussed the rehabilitation programs the respondent had participated in while in jail, namely AA and psychiatric therapy. With respect to rehabilitation programs upon release, counsel made the following submission:
• He has actually spoken to several agencies about intake with respect to his continued alcohol treatment, and many of those programs are out programs where he would actually have to sign up with them after he has been released. Several have refused to actually do intakes for inmates, but this Alcoholics Anonymous is a program that Mr. Panahi-Dargahloo is committed to, and is ready to follow through on - on his release.
And later:
• I am proposing today that a condition of his release be that within a certain period of time, and maybe days or may be a week or two period, after his release that he shows evidence of being involved or signed up with a comprehensive alcohol treatment program and AA group.
34 When given the chance to reply on this matter, the Ministers' counsel stated:
• Counsel does indicate that Mr. Panahi-Dargahloo has an alcohol and drug addiction, and he realizes that he will always have this. This further substantiates the Minister's concern that this will be an ongoing problem for him, and the Minister's view is that the requirement that he enrol simply in an alcohol program, of which he have [sic] no details of what his requirements would be; how he'd be tested; how often he would have to go; whether it's an in-treatment, and those sorts of things, and nothing to address the drug addiction that counsel has brought up. That is lacking in the alternative and that is a concern to the Minister as according to counsel that motivates much of his criminality.
35 The order for release added as conditions that the respondent enroll in the Salvation Army's Turning Point program within two weeks, provide proof of enrollment and to remain in good standing, then to enroll in the Harbour Light program and remain in good standing there until completion.
36 In the Board's reasons, it was mentioned that these two programs were considered as conditions in the respondent's May 2007 release and that the Board who had released the respondent had been under the reasonable view that danger to the public and flight risk could be adequately offset by means of a supervisory bondsperson and community substance abuse treatment.
37 In my view, the Ministers' counsel was offered a meaningful opportunity to present submissions on the issue of rehabilitation programs.
38 As Mr. Justice Mandamin noted in Panahi-Dargahlloo above, at paragraph 25, citing Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, detention reviews are not de novo hearings nor are they without regard to the previous hearings. Conclusions made at previous detention reviews become part of the overall record before the current decision maker. Moreover, they remain part of the record, even if not mentioned at the most previous review.
39 As such, the Ministers' counsel should not have been completely surprised by the Salvation Army's Turning Point program followed by the Harbour Lights program. These programs were put forth and discussed in his April 2008, April 2007, December 2006 and November 2006 review hearings.
40 To the extent that the Ministers' counsel was able to voice her objections to the suitability and potential for success of unspecified rehabilitation programs, she was given a meaningful opportunity to be heard.
41 If the Ministers had requested the specifics of the rehabilitation program being considered in order to make submissions on it, the Board may be required to offer the Ministers that opportunity. That did not occur here.
42 The Board requires procedural flexibility in its decision making process. It need not provide court-like fairness procedures. In the circumstances, the Board was entitled to hear the Ministers' reservations about the success of rehabilitation programs in general. It did so. If, as was the case, the Board ends up concluding that other factors outweigh those concerns, the Board has sufficient authority and flexibility to fine tune proposals for alternatives to detention with details, unless the Ministers bring to the Board's attention some reason why the Ministers ought to have the opportunity to make submissions on those details.
43 The applicants' second complaint is that the Board, in its reasons, held that the Ministers had not met the burden of proof with respect to the allegations that the respondent had made a misrepresentation. The matter was only briefly mentioned by the applicants at the hearing, apparently under the belief that it need not be proved.
44 In my view, there was no breach of procedural fairness here. As noted, the record from all previous detention reviews constitutes the starting point for each new detention review. No previous detention review decision had validated the allegation against the respondent or found that it was meritorious. The CBSA had long since abandoned its pursuit of charges against the respondent for the incident and the allegation remained on the record as simply that; an allegation. Therefore, the Ministers could not be under any reasonable assumption that its burden of proving the misrepresentation had been met.
45 As it turned out, when the Board made its decision, the fact that the allegation had not been proved was something that it mentioned. The Board was entitled to do this simply by consulting the record and was not required to give notice and call another hearing with respect to the matter.
46 The Ministers appear to be arguing that if the adjudicator finds evidence in support of a submission lacking, then he or she has an obligation to stop the proceedings in order to give counsel an opportunity to provide better evidence. There is absolutely no authority for this submission.
47 Finally, the applicants complain that the Board in its reasons, seemed to question the strength or validity of the danger opinion, yet did not provoke discussion of the matter at the hearing.
48 Again, I do not find that this amounted to a breach of procedural fairness. Of course, the danger opinion was valid and as it had not been challenged by the respondent by way of judicial review, must stand. I do not read the Board's reasons as questioning the validity of the danger opinion. The Board merely noted that the opinion itself had not been disclosed to him and that in any event, the period of time in which it had been rendered was a time in which the respondent had been abusing drugs and alcohol. This was contrasted with the respondent's current state of rehabilitation. I would not allow judicial review on this ground.
Issue 3
Was the Board's ultimate decision unreasonable?
49 In Dunsmuir above, the Supreme Court of Canada stated as follows, concerning the role of a court on judicial review at paragraph 47:
• Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
50 And in Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 at paragraph 59, the Court stated:
• Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.
51 It is obvious from this jurisprudence that this Court, on review, is not to substitute its own views if the tribunal's decision falls within a "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
52 I am of the view that the adjudicator's decision in this matter fell within the range of possible, acceptable outcomes based on the facts and the law of the case. I would note that the Board is to be afforded significant deference with respect to its factual findings.
53 I will proceed by dealing with each of the alleged errors which the applicants say render the decision unreasonable.
54 The applicants say it was unreasonable for the Board to conclude that there was only a reasonable chance that removal will not be affected, given the respondent's refusal to sign the necessary document.
55 On reading the decision, it is clear that the Board understood the stalemate facing the CBSA, namely, Iranian officials insistence that the respondent sign a document indicating that his return was voluntary and the respondent's refusal to sign the document. So long as the stalemate continues, there is no chance that removal to Iran can be affected. The decision, however, contemplated that even if the travel document stalemate was overcome, there remained a possibility that the respondent would not cooperate and that the bondsperson could not guarantee he would appear for removal. This was not an unreasonable conclusion.
56 Second, the applicants say the Board ignored the evidence of non-compliance with past release orders. The Board did mention that the respondent's arrest in September of 2006 was a contravention of the release order. However, in paragraph 11, the Board followed that by stating:
• This is indicative of lack of rehabilitation up to that point. Since that time, he has availed himself of psychiatric treatment, alcohol abuse programs and religious counselling.
57 This was not a mischaracterization of the events. The respondent had been ordered to undertake treatment in his 2006 release, but had not done so. Thus, it was fair for the Board to comment later that the degree to which these programs have proven effective to rehabilitation has not yet been tested in the community.
58 The applicants rely on my decision in Canada (Minister of Citizenship and Immigration) v. Kamil, 2002 FCT 381. I would point out that that decision dealt with a person who refused to sign an application for his travel document. In the present case, the respondent has signed his application for a travel document to Iran but the Iranian government will not give him the travel document unless he signs a paper stating that he will voluntarily return to Iran. As well, the period of detention for the applicant in Kamil was four months, while here the respondent was in detention for about 37 months according to the Board's decision.
59 Section 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 states:
• 248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
• (a)
the reason for detention;
• (b)
the length of time in detention;
• (c)
whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
• (d)
any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
• (e)
the existence of alternatives to detention.
* * * * *
• 248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
• a)
le motif de la détention;
• b)
la durée de la détention;
• c)
l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
• d)
les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
• e)
l'existence de solutions de rechange à la détention.
60 The Board's decision reads in part as follows at paragraph 17:
• It is a statement of his willingness to comply with Canadian law, not that he would prefer not to return. Although I am of the view that his conduct engages Regulation 248(d) on the grounds that his lack of diligence has not been adequately explained, I give less weight to his non-compliance in this case than I would if he were not a protected person and the issue were one of a travel document, not willingness to return, given his well-founded fear of persecution. Although his explanation mitigates somewhat, it is not a complete answer. The Respondent has not been cooperative and has not acted diligently in facilitating his removal. He is not entitled to circumvent Canadian legal processes because he disagrees with the result. However, the fact that he has been otherwise cooperative and refuses to sign a document agreeing to return to persecution lessens the public policy rationale for lengthy detention for the purpose of encouraging compliance with a lawful Removal Order. This view is consistent with Justice Mandamin's statement that length of detention must be considered in the light of a number of factors, including the fact that he is a Convention refugee.
61 In Panahi-Dargahloo above, Mr. Justice Mandamin stated as follows at paragraph 47:
• Section 248 adds the length of detention as a consideration after determining the likelihood the detainee will appear for removal. The length of the Applicant's detention has to be considered against other factors besides his refusal to sign the letter required by Iranian authorities. This would include his status as a Convention refugee, the fact he reported to Immigration Officials during his last release, the passage of time since his last criminal conviction, whether or not the Applicant had an opportunity to receive rehabilitative treatment for his addictions while in the GTEC and the fact he has support in his rehabilitation proposal.
I agree with the statements of Mr. Justice Mandamin.
62 A review of the Board's decision does not satisfy me that the Board used the respondent's length of detention as a factor to justify his release from detention. The Board member determined that this factor did not favour the respondent but went on to weigh the other factors against this negative factor and came to the conclusion that those other factors outweighed the negative subsection 248(d) finding so as to allow his release from detention. The Board member took into consideration the existence of a supervisory bondsperson and the treatment the respondent undertook while in detention. I can find nothing unreasonable in the Board member's assessment.
63 As a result, the application for judicial review must be dismissed.
64 The applicants submitted the following proposed serious question of general importance for my consideration for certification:
• When a Convention Refugee with a Danger Opinion refuses to cooperate in obtaining a travel document to effect removal, does the continued detention, which is subject to a regular and meaningful detention review process, remain lawful?
65 I am not prepared to certify this question as it would not be determinative of this case. The Board member made no finding with regard to the lawfulness of the respondent's detention.
JUDGMENT
66 IT IS ORDERED that the application for judicial review is dismissed.
O'KEEFE J.
* * * * *
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection Act, S.C. 2001, c. 27
• 57.(1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.
• (2)
At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.
• (3)
In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.
• 58.(1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
• (a)
they are a danger to the public;
• (b)
they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
• (c)
the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
• (d)
the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
• (2)
The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
• (3)
If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.
* * *
• 57.(1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite.
• (2)
Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent.
• (3)
L'agent amène le résident permanent ou l'étranger devant la section ou au lieu précisé par celle-ci.
• 58.(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
• a)
le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
• b)
le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
• c)
le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
• d)
dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
• (2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
• (3)
Lorsqu'elle ordonne la mise en liberté d'un résident permanent ou d'un étranger, la section peut imposer les conditions qu'elle estime nécessaires, notamment la remise d'une garantie d'exécution.
The Immigration and Refugee Protection Regulations, SOR/2002-227
• 244.
For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person
• (a)
is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;
• (b)
is a danger to the public; or
• (c)
is a foreign national whose identity has not been established.
• 245.
For the purposes of paragraph 244(a), the factors are the following:
• (a)
being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
• (b)
voluntary compliance with any previous departure order;
• (c)
voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
• (d)
previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
• (e)
any previous avoidance of examination or escape from custody, or any previous attempt to do so;
• (f)
involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and
• (g)
the existence of strong ties to a community in Canada.
• 246.
For the purposes of paragraph 244(b), the factors are the following:
• (a)
the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;
• (b)
association with a criminal organization within the meaning of subsection 121(2) of the Act;
• (c)
engagement in people smuggling or trafficking in persons;
• (d)
conviction in Canada under an Act of Parliament for
• (i)
a sexual offence, or
• (ii)
an offence involving violence or weapons;
• (e)
conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,
• (i)
section 5 (trafficking),
• (ii)
section 6 (importing and exporting), and
• (iii)
section 7 (production);
• (f)
conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
• (i)
a sexual offence, or
• (ii)
an offence involving violence or weapons; and
• (g)
conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
• (i)
section 5 (trafficking),
• (ii)
section 6 (importing and exporting), and
• (iii)
section 7 (production).
• 247.(1) For the purposes of paragraph 244(c), the factors are the following:
• (a)
the foreign national's cooperation in providing evidence of their identity, or assisting the Department in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father or providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;
• (b)
in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;
• (c)
the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department, and the circumstances under which the foreign national acted;
• (d)
the provision of contradictory information with respect to identity at the time of an application to the Department; and
• (e)
the existence of documents that contradict information provided by the foreign national with respect to their identity.
• (2)
Consideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249.
• 248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
• (a)
the reason for detention;
• (b)
the length of time in detention;
• (c)
whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
• (d)
any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
• (e)
the existence of alternatives to detention.
* * *
• 244.
Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation :
• a)
du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
• b)
du danger que constitue l'intéressé pour la sécurité publique;
• c)
de la question de savoir si l'intéressé est un étranger dont l'identité n'a pas été prouvée.
• 245.
Pour l'application de l'alinéa 244a), les critères sont les suivants :
• a)
la qualité de fugitif à l'égard de la justice d'un pays étranger quant à une infraction qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale;
• b)
le fait de s'être conformé librement à une mesure d'interdiction de séjour;
• c)
le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle;
• d)
le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi;
• e)
le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard;
• f)
l'implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l'intéressé à se soustraire aux mesures visées à l'alinéa 244a) ou le rendrait susceptible d'être incité ou forcé de s'y soustraire par une organisation se livrant à de telles opérations;
• g)
l'appartenance réelle à une collectivité au Canada.
• 246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
• a)
le fait que l'intéressé constitue, de l'avis du ministre aux termes de l'alinéa 101(2)b), des sous-alinéas 113d)(i) ou (ii) ou des alinéas 115(2)a) ou b) de la Loi, un danger pour le public au Canada ou pour la sécurité du Canada;
• b)
l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi;
• c)
le fait de s'être livré au passage de clandestins ou le trafic de personnes;
• d)
la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
• (i)
infraction d'ordre sexuel,
• (ii)
infraction commise avec violence ou des armes;
• e)
la déclaration de culpabilité au Canada quant à une infraction visée à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances:
• (i)
article 5 (trafic),
• (ii)
article 6 (importation et exportation),
• (iii)
article 7 (production);
• f)
la déclaration de culpabilité ou la mise en accusation à l'étranger, quant à l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale :
• (i)
infraction d'ordre sexuel,
• (ii)
infraction commise avec violence ou des armes;
• g)
la déclaration de culpabilité ou la mise en accusation à l'étranger de l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances:
• (i)
article 5 (trafic),
• (ii)
article 6 (importation et exportation),
• (iii)
article 7 (production).
• 247.(1) Pour l'application de l'alinéa 244c), les critères sont les suivants :
• a)
la collaboration de l'intéressé, à savoir s'il a justifié de son identité, s'il a aidé le ministère à obtenir cette justification, s'il a communiqué des renseignements détaillés sur son itinéraire, sur ses date et lieu de naissance et sur le nom de ses parents ou s'il a rempli une demande de titres de voyage;
• b)
dans le cas du demandeur d'asile, la possibilité d'obtenir des renseignements sur son identité sans avoir à divulguer de renseignements personnels aux représentants du gouvernement du pays dont il a la nationalité ou, s'il n'a pas de nationalité, du pays de sa résidence habituelle;
• c)
la destruction, par l'étranger, de ses pièces d'identité ou de ses titres de voyage, ou l'utilisation de documents frauduleux afin de tromper le ministère, et les circonstances dans lesquelles il s'est livré à ces agissements;
• d)
la communication, par l'étranger, de renseignements contradictoires quant à son identité pendant le traitement d'une demande le concernant par le ministère;
• e)
l'existence de documents contredisant les renseignements fournis par l'étranger quant à son identité.
• (2)
La prise en considération du critère prévu à l'alinéa (1)a) ne peut avoir d'incidence défavorable à l'égard des mineurs visés à l'article 249.
• 248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
• a)
le motif de la détention;
• b)
la durée de la détention;
• c)
l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
• d)
les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
• e)
l'existence de solutions de rechange à la détention.
Canada (Minister of Citizenship and Immigration) v.
Panahi-Dargahloo
Between
The Minister of Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness, Applicants,
and
Hamid Reza Panahi-Dargahloo, Respondent
[2010] F.C.J. No. 787
2010 FC 647
Docket IMM-6634-09
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: February 4, 2010.
Judgment: June 15, 2010.
(66 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the Board) ordering the respondent released from detention on certain terms and conditions.
2 The applicant requests that the decision of the Board be set aside.
Background
3 The respondent is a citizen of Iran who arrived in Canada in 1998. He was found to be a Convention refugee in 1999. His application for permanent resident status received in 1999 was refused in 2002 because of criminal convictions.
4 The respondent has amassed several criminal convictions, nineteen in all, beginning in 2000, and has been detained by the Canadian Border Services Agency (CBSA) intermittently between July 2004 and June 2007 and continuously since July of 2007. A deportation order was issued against him in March of 2004 pursuant to paragraph 36(1)(a) of the Act by reason of serious criminality.
5 The history of the respondent's criminal offences is as follows:
• -
November 15, 2000: Convicted of theft under $5,000 and received a suspended sentence and prohibition for one year.
• -
May 22, 2001: Convicted of:
• *
impaired driving and received a $600 fine, six months probation and prohibited to drive for one year;
• *
two counts of theft under $5,000;
• *
two counts of failure to attend Court;
• *
assault;
• *
failure to comply with probation order; and
• *
theft over $5,000 and was sentenced to one day concurrently for each charge and time served 128 days.
• -
December 5, 2002: Convicted of theft under $5,000 and received a suspended sentence plus 18 months of probation and two days pre-sentence custody.
• -
February 9, 2004: Convicted of failure to comply with recognizance and failure to comply with a probation order and sentenced to 42 days in custody and two years probation.
• -
May 27, 2004: Convicted of:
• *
impaired driving (driving over 80 MGS);
• *
threatening bodily harm and received 60 days in jail;
• *
possession of stolen property over $5,000;
• *
theft;
• *
possession of stolen property under $5,000, failure to comply with recognizance and assault.
• -
August 29, 2005: Convicted of robbery and use of a firearm during the commission of an offence and was sentenced to six months in jail.
• -
November 1, 2006: Convicted of theft at a liquor store.
6 By way of an explanation for his conduct, respondent's counsel submitted to the Board that the respondent was physically and mentally abused by his father and as a result, has become a cocaine addict and an alcoholic.
7 The history of his immigration detentions is as follows:
• -
July 13, 2004: Detained based on a warrant for his arrest. Released after eight days on July 21, 2004.
• -
2004: Request for a danger opinion from the Minister was initiated.
• -
December 29, 2005: Detained.
• -
March 27, 2006: Released when his sister posted bond and the Toronto Bail Program offered supervision.
• -
November 2, 2006: Detained. Note: After serving his sentence for the November 1, 2006 theft above, he became subject to detention under the Act. The above conviction also violated the terms of the release order from his previous detention.
• -
May 25, 2007: Released on a $10,000 bond and with other conditions.
• -
June 15, 2007: Taken back into custody after bondsperson withdrew supervision.
8 On December 13, 2006, the Minister's delegate signed a danger opinion pursuant to paragraph 115(2)(a) of the Act, allowing the Minister to enforce the 2004 deportation order notwithstanding his status as a protected person. The only impediment to removal was the issuance of a travel document. Despite many discussions with officials from the Iranian Embassy during 2007, no travel document was obtained. Iranian officials indicated that Iranian law prohibits the return of nationals by force. CBSA officials apparently accepted this position. The respondent did not wish to be returned to Iran and what is more, felt he would be at risk if he returned. Therefore, he has refused to sign a document indicating he wishes to return to Iran.
9 For the respondent's detention review conducted on December 11, 2009, a new bondsperson was proposed. Continued detention after previous reviews by the Board had been on the basis that the respondent poses a danger to the public as understood by paragraph 58(1)(a) of the Act. These conclusions were supported by the respondent's 2001 and 2004 assault charges, his 2005 armed robbery charge and the 2006 danger opinion as well as the impaired driving charges.
10 The respondent sought judicial review of an October 2008 detention decision which, besides finding the respondent a danger to the public, found that the respondent was responsible for his own detention by failing to sign a document stating that he wished to return to Iran. In Panahi-Dargahlloo v. Canada (Minister of Citizenship and Immigration), 2009 FC 1114, [2009] F.C.J. No. 1670 (QL), Mr. Justice Mandamin set aside the detention decision because the length of the respondent's detention, his status as a Convention refugee and his substantial compliance with CBSA had not been adequately considered.
The Board's Decision
11 The Board concluded that with the right measures in place, the respondent would not pose a danger to the public. The charges and the danger opinion were all at least three years in the past. Even though the respondent had demonstrated a lack of rehabilitation evidenced by subsequent charges, the latest offence was also three years ago. The circumstances related to the respondent's past dangerous conduct related to a period when he was working in night clubs and abusing cocaine and alcohol. Since that time, he has availed himself of psychiatric treatment and substance abuse programs. The degree to which these programs have been effective has not yet been tested in the community.
12 The Board's conclusion on the respondent's risk of flight primarily turned on the respondent's demonstrated willingness to comply with the CBSA removal process in 2007. The Board considered that his refusal to state that he wished to return to Iran was partly justified by his status as a refugee and his well founded fear of persecution. The Board also considered the respondent's assurances to the new bondsperson that he would obey immigration instructions, but overall concluded that he was a flight risk was within the meaning prescribed in paragraph 58(1)(b) of the Act.
13 In considering alternatives to detention, the Board considered the Ministers' submission that the respondent's release in May of 2007 had been on the strength of a misrepresentation regarding the respondent's relationship with the bondsperson. Since the CBSA had elected not to press charges against the respondent under the Act for the misrepresentation, nor had it disclosed all of its information regarding the matter, the Board would not conclude that there had been a misrepresentation. The Board also considered that the respondent had complied with the release order accompanying his last release and the two and a half years which had elapsed since then. Finally, the Board considered the adequacy of a new bondsperson for the respondent and the adequacy of the quantum of the bond ($5,000) given the bondsperson's modest financial means. The Board's conclusion was that the respondent should be released with conditions that he attend substance abuse treatment and enroll in Alcoholics Anonymous.
Issues
14 The issues are as follows:
• 1.
What is the standard of review?
• 2.
Was the Ministers' counsel denied procedural fairness in the hearing?
• 3.
Was the Board's ultimate decision unreasonable?
Applicants' Written Submissions
15 Parties in a Board proceeding have a right to be heard. Procedural rights are enhanced in more judicial like decisions such as these. The Board in its reasons mentioned three treatment programs for the respondent, but did not see that the prospect of these programs was raised at the hearing, preventing the Ministers' counsel from making submissions with respect to their appropriateness. Given the opportunity, counsel would have submitted that some of the programs had not worked in the past.
16 The applicants also submit that there was no notice that the misrepresentation at the May 2007 release hearing would be challenged. The issue was not discussed at the hearing, yet the Board found that the Ministers had not met the burden of proving the alleged misrepresentation. Had the Board member indicated his difficulty with the matter, the Ministers had evidence they could have submitted.
17 Finally, the applicants submit that it was unfair for the Board not to give notice that it would be considering and questioning the strength of the danger opinion. In previous reviews, including one by the same member, it had not been in question.
18 The decision does not meet the standard of reasonableness says the applicants. The Board determined that the respondent was a flight risk because of his refusal to sign the voluntary return document and because the new bondsperson did not give assurances that she could get him to appear for removal. Yet the Board determined that he should be released to her. Given his continued refusal to sign the document, it is clear that on a balance of probabilities, removal will not occur. The respondent has chosen to frustrate removal at a point in time when he has no right to remain in Canada.
19 The applicants also say that the Board proceeded on the basis that there had been many new developments in the respondent's case. In reality, the respondent's conversion to Christianity, his treatment programs and his length of time in custody had all been considered in his previous review which had denied his release. The only change in December of 2009 was a new bondsperson and the fact that his length of detention was one month longer, yet the Board came to radically different conclusions with acknowledging the previous reasons.
Respondent's Written Submissions
20 The respondent submits that the decision, read as a whole, is reasonable. The decision also conforms with this Court's direction in Panahi-Dargahlloo above. While the applicants disagree with the decision, that is not a basis for judicial intervention. The Board did not ignore evidence of previous non-compliance with past orders, but reasonably found that the new evidence of rehabilitation, the length of detention and the new bondsperson outweighed other factors.
21 Specifically, it was not unreasonable for the Board to find that the new bondsperson was suitable despite her inability to guarantee the respondent's appearance for removal. The test for suitability is not 100% assurance.
22 Moreover, the respondent's status as a protected person was legitimately factored by the Board. It gives him a legitimate reason not to sign a document saying that he is voluntarily returning to Iran. The implication of the applicants' argument is that indefinite detention is reasonable even though that is contrary to section 7 of the Charter. Overall, the decision was not radically different from previous decisions. It only differed in a few areas which were thoroughly explained.
23 The respondent submits that there was no breach of procedural fairness. The mentioned treatment programs should not have been a surprise to the applicants. The Salvation Army program has been proposed in many detention reviews and in a previous review regarding the respondent.
24 Nor was there a breach of fairness in the Board's conclusion that the Ministers had not proven the alleged misrepresentation. The Ministers' counsel has made submissions about the alleged misrepresentation since June of 2007, but has never provided sufficient evidence in support. Yet, never in that time has an adjudicator concluded that a misrepresentation occurred. Rather, they have just noted the allegation, perhaps because it had not been an important issue. It was open to the Board to find that the applicants had not discharged their burden.
Analysis and Decision
Issue 1
What is the standard of review?
25 While the standard of review for most questions of law is correctness, the standard of review for questions of fact and for questions of mixed fact and law is reasonableness as set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL). The parties agree that the ultimate decision of the Board is subject to review against the standard of reasonableness.
26 The standard of review on the question of a breach of procedural fairness is correctness.
Issue 2
• Was the Ministers' counsel denied procedural fairness in the hearing?
27 It is trite that although the components of the duty of fairness will vary with the context, one of the most basic elements of natural justice is the right to be heard and to know the case one has to meet (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, [1999] S.C.J. No. 39 (QL), Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326).
28 Regardless of the level of procedural fairness determined by assessing the factors in Baker above, the duty of fairness owed to the Ministers' counsel in the context of a detention review hearing clearly included the right of the Ministers' counsel to have notice of and make submissions on all material aspects of the decision. Whether the Ministers were indeed prevented from meaningful participation and submissions on the factors the Ministers raised is within this Court's expertise to determine.
29 The applicants' first complaint is that while treatment programs for the respondent were referred to generally during the hearing, the applicants were not advised of the specific programs the Board eventually required the respondent to attend in the release order.
30 The Board began the hearing by discussing the new bondsperson and what had been gleaned at her interview. This new bondsperson constituted the primary aspect of the respondent's alternative to a detention proposal.
31 Next, the Ministers' counsel presented her submissions. With respect to the respondent's proposal, she did not discuss specific rehabilitation programs, only mentioning that previous release orders for the respondent had had components of rehabilitation:
• ...or both release orders had components of rehabilitation, however they have not had favourable influences on his behaviour as he finds himself in detention once again due to his non-compliance.
32 Accordingly, the Ministers' submissions with respect to the respondent's proposal focused on the non-suitability of the new bondsperson and not on specific treatment programs since none had been suggested. As she stated later with respect to the amount of the proposed bond:
• Therefore, the Minister feels that this amount does not offset concerns, but of course there is also the concern that there's no component being proposed today to address substance abuse issues, or to address the need for rehabilitation.
33 Next, the respondent's counsel presented and discussed the rehabilitation programs the respondent had participated in while in jail, namely AA and psychiatric therapy. With respect to rehabilitation programs upon release, counsel made the following submission:
• He has actually spoken to several agencies about intake with respect to his continued alcohol treatment, and many of those programs are out programs where he would actually have to sign up with them after he has been released. Several have refused to actually do intakes for inmates, but this Alcoholics Anonymous is a program that Mr. Panahi-Dargahloo is committed to, and is ready to follow through on - on his release.
And later:
• I am proposing today that a condition of his release be that within a certain period of time, and maybe days or may be a week or two period, after his release that he shows evidence of being involved or signed up with a comprehensive alcohol treatment program and AA group.
34 When given the chance to reply on this matter, the Ministers' counsel stated:
• Counsel does indicate that Mr. Panahi-Dargahloo has an alcohol and drug addiction, and he realizes that he will always have this. This further substantiates the Minister's concern that this will be an ongoing problem for him, and the Minister's view is that the requirement that he enrol simply in an alcohol program, of which he have [sic] no details of what his requirements would be; how he'd be tested; how often he would have to go; whether it's an in-treatment, and those sorts of things, and nothing to address the drug addiction that counsel has brought up. That is lacking in the alternative and that is a concern to the Minister as according to counsel that motivates much of his criminality.
35 The order for release added as conditions that the respondent enroll in the Salvation Army's Turning Point program within two weeks, provide proof of enrollment and to remain in good standing, then to enroll in the Harbour Light program and remain in good standing there until completion.
36 In the Board's reasons, it was mentioned that these two programs were considered as conditions in the respondent's May 2007 release and that the Board who had released the respondent had been under the reasonable view that danger to the public and flight risk could be adequately offset by means of a supervisory bondsperson and community substance abuse treatment.
37 In my view, the Ministers' counsel was offered a meaningful opportunity to present submissions on the issue of rehabilitation programs.
38 As Mr. Justice Mandamin noted in Panahi-Dargahlloo above, at paragraph 25, citing Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, detention reviews are not de novo hearings nor are they without regard to the previous hearings. Conclusions made at previous detention reviews become part of the overall record before the current decision maker. Moreover, they remain part of the record, even if not mentioned at the most previous review.
39 As such, the Ministers' counsel should not have been completely surprised by the Salvation Army's Turning Point program followed by the Harbour Lights program. These programs were put forth and discussed in his April 2008, April 2007, December 2006 and November 2006 review hearings.
40 To the extent that the Ministers' counsel was able to voice her objections to the suitability and potential for success of unspecified rehabilitation programs, she was given a meaningful opportunity to be heard.
41 If the Ministers had requested the specifics of the rehabilitation program being considered in order to make submissions on it, the Board may be required to offer the Ministers that opportunity. That did not occur here.
42 The Board requires procedural flexibility in its decision making process. It need not provide court-like fairness procedures. In the circumstances, the Board was entitled to hear the Ministers' reservations about the success of rehabilitation programs in general. It did so. If, as was the case, the Board ends up concluding that other factors outweigh those concerns, the Board has sufficient authority and flexibility to fine tune proposals for alternatives to detention with details, unless the Ministers bring to the Board's attention some reason why the Ministers ought to have the opportunity to make submissions on those details.
43 The applicants' second complaint is that the Board, in its reasons, held that the Ministers had not met the burden of proof with respect to the allegations that the respondent had made a misrepresentation. The matter was only briefly mentioned by the applicants at the hearing, apparently under the belief that it need not be proved.
44 In my view, there was no breach of procedural fairness here. As noted, the record from all previous detention reviews constitutes the starting point for each new detention review. No previous detention review decision had validated the allegation against the respondent or found that it was meritorious. The CBSA had long since abandoned its pursuit of charges against the respondent for the incident and the allegation remained on the record as simply that; an allegation. Therefore, the Ministers could not be under any reasonable assumption that its burden of proving the misrepresentation had been met.
45 As it turned out, when the Board made its decision, the fact that the allegation had not been proved was something that it mentioned. The Board was entitled to do this simply by consulting the record and was not required to give notice and call another hearing with respect to the matter.
46 The Ministers appear to be arguing that if the adjudicator finds evidence in support of a submission lacking, then he or she has an obligation to stop the proceedings in order to give counsel an opportunity to provide better evidence. There is absolutely no authority for this submission.
47 Finally, the applicants complain that the Board in its reasons, seemed to question the strength or validity of the danger opinion, yet did not provoke discussion of the matter at the hearing.
48 Again, I do not find that this amounted to a breach of procedural fairness. Of course, the danger opinion was valid and as it had not been challenged by the respondent by way of judicial review, must stand. I do not read the Board's reasons as questioning the validity of the danger opinion. The Board merely noted that the opinion itself had not been disclosed to him and that in any event, the period of time in which it had been rendered was a time in which the respondent had been abusing drugs and alcohol. This was contrasted with the respondent's current state of rehabilitation. I would not allow judicial review on this ground.
Issue 3
Was the Board's ultimate decision unreasonable?
49 In Dunsmuir above, the Supreme Court of Canada stated as follows, concerning the role of a court on judicial review at paragraph 47:
• Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
50 And in Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 at paragraph 59, the Court stated:
• Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.
51 It is obvious from this jurisprudence that this Court, on review, is not to substitute its own views if the tribunal's decision falls within a "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
52 I am of the view that the adjudicator's decision in this matter fell within the range of possible, acceptable outcomes based on the facts and the law of the case. I would note that the Board is to be afforded significant deference with respect to its factual findings.
53 I will proceed by dealing with each of the alleged errors which the applicants say render the decision unreasonable.
54 The applicants say it was unreasonable for the Board to conclude that there was only a reasonable chance that removal will not be affected, given the respondent's refusal to sign the necessary document.
55 On reading the decision, it is clear that the Board understood the stalemate facing the CBSA, namely, Iranian officials insistence that the respondent sign a document indicating that his return was voluntary and the respondent's refusal to sign the document. So long as the stalemate continues, there is no chance that removal to Iran can be affected. The decision, however, contemplated that even if the travel document stalemate was overcome, there remained a possibility that the respondent would not cooperate and that the bondsperson could not guarantee he would appear for removal. This was not an unreasonable conclusion.
56 Second, the applicants say the Board ignored the evidence of non-compliance with past release orders. The Board did mention that the respondent's arrest in September of 2006 was a contravention of the release order. However, in paragraph 11, the Board followed that by stating:
• This is indicative of lack of rehabilitation up to that point. Since that time, he has availed himself of psychiatric treatment, alcohol abuse programs and religious counselling.
57 This was not a mischaracterization of the events. The respondent had been ordered to undertake treatment in his 2006 release, but had not done so. Thus, it was fair for the Board to comment later that the degree to which these programs have proven effective to rehabilitation has not yet been tested in the community.
58 The applicants rely on my decision in Canada (Minister of Citizenship and Immigration) v. Kamil, 2002 FCT 381. I would point out that that decision dealt with a person who refused to sign an application for his travel document. In the present case, the respondent has signed his application for a travel document to Iran but the Iranian government will not give him the travel document unless he signs a paper stating that he will voluntarily return to Iran. As well, the period of detention for the applicant in Kamil was four months, while here the respondent was in detention for about 37 months according to the Board's decision.
59 Section 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 states:
• 248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
• (a)
the reason for detention;
• (b)
the length of time in detention;
• (c)
whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
• (d)
any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
• (e)
the existence of alternatives to detention.
* * * * *
• 248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
• a)
le motif de la détention;
• b)
la durée de la détention;
• c)
l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
• d)
les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
• e)
l'existence de solutions de rechange à la détention.
60 The Board's decision reads in part as follows at paragraph 17:
• It is a statement of his willingness to comply with Canadian law, not that he would prefer not to return. Although I am of the view that his conduct engages Regulation 248(d) on the grounds that his lack of diligence has not been adequately explained, I give less weight to his non-compliance in this case than I would if he were not a protected person and the issue were one of a travel document, not willingness to return, given his well-founded fear of persecution. Although his explanation mitigates somewhat, it is not a complete answer. The Respondent has not been cooperative and has not acted diligently in facilitating his removal. He is not entitled to circumvent Canadian legal processes because he disagrees with the result. However, the fact that he has been otherwise cooperative and refuses to sign a document agreeing to return to persecution lessens the public policy rationale for lengthy detention for the purpose of encouraging compliance with a lawful Removal Order. This view is consistent with Justice Mandamin's statement that length of detention must be considered in the light of a number of factors, including the fact that he is a Convention refugee.
61 In Panahi-Dargahloo above, Mr. Justice Mandamin stated as follows at paragraph 47:
• Section 248 adds the length of detention as a consideration after determining the likelihood the detainee will appear for removal. The length of the Applicant's detention has to be considered against other factors besides his refusal to sign the letter required by Iranian authorities. This would include his status as a Convention refugee, the fact he reported to Immigration Officials during his last release, the passage of time since his last criminal conviction, whether or not the Applicant had an opportunity to receive rehabilitative treatment for his addictions while in the GTEC and the fact he has support in his rehabilitation proposal.
I agree with the statements of Mr. Justice Mandamin.
62 A review of the Board's decision does not satisfy me that the Board used the respondent's length of detention as a factor to justify his release from detention. The Board member determined that this factor did not favour the respondent but went on to weigh the other factors against this negative factor and came to the conclusion that those other factors outweighed the negative subsection 248(d) finding so as to allow his release from detention. The Board member took into consideration the existence of a supervisory bondsperson and the treatment the respondent undertook while in detention. I can find nothing unreasonable in the Board member's assessment.
63 As a result, the application for judicial review must be dismissed.
64 The applicants submitted the following proposed serious question of general importance for my consideration for certification:
• When a Convention Refugee with a Danger Opinion refuses to cooperate in obtaining a travel document to effect removal, does the continued detention, which is subject to a regular and meaningful detention review process, remain lawful?
65 I am not prepared to certify this question as it would not be determinative of this case. The Board member made no finding with regard to the lawfulness of the respondent's detention.
JUDGMENT
66 IT IS ORDERED that the application for judicial review is dismissed.
O'KEEFE J.
* * * * *
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection Act, S.C. 2001, c. 27
• 57.(1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.
• (2)
At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.
• (3)
In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.
• 58.(1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
• (a)
they are a danger to the public;
• (b)
they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
• (c)
the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
• (d)
the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
• (2)
The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
• (3)
If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.
* * *
• 57.(1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite.
• (2)
Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent.
• (3)
L'agent amène le résident permanent ou l'étranger devant la section ou au lieu précisé par celle-ci.
• 58.(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
• a)
le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
• b)
le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
• c)
le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
• d)
dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
• (2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
• (3)
Lorsqu'elle ordonne la mise en liberté d'un résident permanent ou d'un étranger, la section peut imposer les conditions qu'elle estime nécessaires, notamment la remise d'une garantie d'exécution.
The Immigration and Refugee Protection Regulations, SOR/2002-227
• 244.
For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person
• (a)
is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;
• (b)
is a danger to the public; or
• (c)
is a foreign national whose identity has not been established.
• 245.
For the purposes of paragraph 244(a), the factors are the following:
• (a)
being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
• (b)
voluntary compliance with any previous departure order;
• (c)
voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
• (d)
previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
• (e)
any previous avoidance of examination or escape from custody, or any previous attempt to do so;
• (f)
involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and
• (g)
the existence of strong ties to a community in Canada.
• 246.
For the purposes of paragraph 244(b), the factors are the following:
• (a)
the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;
• (b)
association with a criminal organization within the meaning of subsection 121(2) of the Act;
• (c)
engagement in people smuggling or trafficking in persons;
• (d)
conviction in Canada under an Act of Parliament for
• (i)
a sexual offence, or
• (ii)
an offence involving violence or weapons;
• (e)
conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,
• (i)
section 5 (trafficking),
• (ii)
section 6 (importing and exporting), and
• (iii)
section 7 (production);
• (f)
conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
• (i)
a sexual offence, or
• (ii)
an offence involving violence or weapons; and
• (g)
conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
• (i)
section 5 (trafficking),
• (ii)
section 6 (importing and exporting), and
• (iii)
section 7 (production).
• 247.(1) For the purposes of paragraph 244(c), the factors are the following:
• (a)
the foreign national's cooperation in providing evidence of their identity, or assisting the Department in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father or providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;
• (b)
in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;
• (c)
the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department, and the circumstances under which the foreign national acted;
• (d)
the provision of contradictory information with respect to identity at the time of an application to the Department; and
• (e)
the existence of documents that contradict information provided by the foreign national with respect to their identity.
• (2)
Consideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249.
• 248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
• (a)
the reason for detention;
• (b)
the length of time in detention;
• (c)
whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
• (d)
any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
• (e)
the existence of alternatives to detention.
* * *
• 244.
Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation :
• a)
du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
• b)
du danger que constitue l'intéressé pour la sécurité publique;
• c)
de la question de savoir si l'intéressé est un étranger dont l'identité n'a pas été prouvée.
• 245.
Pour l'application de l'alinéa 244a), les critères sont les suivants :
• a)
la qualité de fugitif à l'égard de la justice d'un pays étranger quant à une infraction qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale;
• b)
le fait de s'être conformé librement à une mesure d'interdiction de séjour;
• c)
le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle;
• d)
le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi;
• e)
le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard;
• f)
l'implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l'intéressé à se soustraire aux mesures visées à l'alinéa 244a) ou le rendrait susceptible d'être incité ou forcé de s'y soustraire par une organisation se livrant à de telles opérations;
• g)
l'appartenance réelle à une collectivité au Canada.
• 246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
• a)
le fait que l'intéressé constitue, de l'avis du ministre aux termes de l'alinéa 101(2)b), des sous-alinéas 113d)(i) ou (ii) ou des alinéas 115(2)a) ou b) de la Loi, un danger pour le public au Canada ou pour la sécurité du Canada;
• b)
l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi;
• c)
le fait de s'être livré au passage de clandestins ou le trafic de personnes;
• d)
la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
• (i)
infraction d'ordre sexuel,
• (ii)
infraction commise avec violence ou des armes;
• e)
la déclaration de culpabilité au Canada quant à une infraction visée à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances:
• (i)
article 5 (trafic),
• (ii)
article 6 (importation et exportation),
• (iii)
article 7 (production);
• f)
la déclaration de culpabilité ou la mise en accusation à l'étranger, quant à l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale :
• (i)
infraction d'ordre sexuel,
• (ii)
infraction commise avec violence ou des armes;
• g)
la déclaration de culpabilité ou la mise en accusation à l'étranger de l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances:
• (i)
article 5 (trafic),
• (ii)
article 6 (importation et exportation),
• (iii)
article 7 (production).
• 247.(1) Pour l'application de l'alinéa 244c), les critères sont les suivants :
• a)
la collaboration de l'intéressé, à savoir s'il a justifié de son identité, s'il a aidé le ministère à obtenir cette justification, s'il a communiqué des renseignements détaillés sur son itinéraire, sur ses date et lieu de naissance et sur le nom de ses parents ou s'il a rempli une demande de titres de voyage;
• b)
dans le cas du demandeur d'asile, la possibilité d'obtenir des renseignements sur son identité sans avoir à divulguer de renseignements personnels aux représentants du gouvernement du pays dont il a la nationalité ou, s'il n'a pas de nationalité, du pays de sa résidence habituelle;
• c)
la destruction, par l'étranger, de ses pièces d'identité ou de ses titres de voyage, ou l'utilisation de documents frauduleux afin de tromper le ministère, et les circonstances dans lesquelles il s'est livré à ces agissements;
• d)
la communication, par l'étranger, de renseignements contradictoires quant à son identité pendant le traitement d'une demande le concernant par le ministère;
• e)
l'existence de documents contredisant les renseignements fournis par l'étranger quant à son identité.
• (2)
La prise en considération du critère prévu à l'alinéa (1)a) ne peut avoir d'incidence défavorable à l'égard des mineurs visés à l'article 249.
• 248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
• a)
le motif de la détention;
• b)
la durée de la détention;
• c)
l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
• d)
les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
• e)
l'existence de solutions de rechange à la détention.
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