See case below and decide for yourself. In doing so note that a person can be deported with only one conviction in many cases, even if he or she has a job and tries to make mends. However, the message from the case below appears to be that if a person accumulates dozens of convictions, is an alcoholic, has no job, is completely dependent for support, but has "depression" , then he can get a reprieve. What do you think? Should a person with over 30 convictions in ten years, but with "depression", be treated with more leniency than a person who has one offence only? And how was it possible that CBSA did not pursue this individual after the first few convictions? Why do they allow some, but not other cases to reach such a high number of convictions? Why do they pursue more vigorously people with convictions such as DUI than others? Is there a double standard? Voice your opinion.
Ludu v. Canada (Minister of Public Safety and Emergency Preparedness)
Harpal Singh Ludu, appellant, and
Minister of Public Safety and Emergency Preparedness, respondent
[2010] I.A.D.D. No. 896
[2010] D.S.A.I. no 896
No. TA3-09807
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Pamila Ahlfeld
Heard: June 17, 2010.
Decision: June 24, 2010.
(26 paras.)
_____________________
Removal Order
Reasons for Decision
INTRODUCTION
1 These are the reasons1 for decision in the appeal of Harpal Singh LUDU (the appellant) from the removal order dated April 30, 2003 issued against him by Member Iozzo of the Immigration Division pursuant to subsection 36(1)(a) of the Immigration and Refugee Protection Act (IRPA).2 The basis of the removal order is the appellant's conviction in Toronto, Ontario on 4 January 2002 for assault causing bodily harm and forcible confinement contrary to sections 267(B) and 279(2) of the Criminal Code.3 Additionally, the appellant was convicted in Toronto on November 20, 2002 of assault with a weapon contrary to section 267(A) and two counts of uttering death threats contrary to section 264.1(1)(a) of the Criminal Code4.
2 There was no challenge to the validity of the removal order and the panel finds nothing in the evidence that would render the order legally invalid. Accordingly, the panel finds that the removal order is valid in law.
ISSUE
3 At issue in this case is whether, taking into consideration the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.5
DECISION
4 For the reasons outlined below, the panel finds that taking into consideration the best interests of a child directly affected by this decision, there exist sufficient humanitarian and compassionate considerations to warrant the granting of a stay of removal for three years.
BACKGROUND
5 The appellant was born in India on October 3, 1980.6 He came to Canada as the dependent of his mother who was sponsored under the family class. He became a landed immigrant on February 11, 1999.7
6 The appellant testified that he currently lives with his mother. He stated that he is single and he has no children.
7 The appellant's family in Canada consists of his mother, his sister and his brother. He testified that he has no family members in India.
8 The appellant has numerous convictions since 2001 (more than 30) including convictions after the issuance of the deportation order.8 Many of the appellant's convictions are violent including those convictions which are the subject of this report.
9 The appellant had his initial hearing on July 12, 2006. Evidence was heard and that hearing was adjourned so that two witnesses could be heard. Unfortunately, the Member who was seized of that case left the Immigration Appeal Division. The hearing resumed on June 20, 2007 by this panel and the parties requested that I proceed on the basis of the transcript from the first hearing.
10 At the end of the hearing on July 12, 2007 I ordered the transcript from the first sitting; however, the recording could not be found. It was therefore decided that I would hear all of the evidence at a new hearing.
11 In the interim, the appellant was in a serious motor vehicle accident and not fit to testify. With other issues that arose, the next hearing date was set for November 3, 2009. During the course of the hearing, the appellant testified that he was under the care of the official guardian's office and he was unable to explain why. He submitted into evidence a letter from Dr. Pilowsky who indicated that the appellant struggles with severe depression.9 As I was not confident about the appellant's understanding of the procedure and in view of the information that came out at the November hearing, I adjourned the proceedings in order to get medical evidence to determine whether or not the appellant required a designated representative.
12 The appellant submitted an assessment from the assessor under the Substitution Decisions Act 1992 through his counsel on January 26, 2010.10 The appellant was deemed incapable of looking after property.11 After two interviews, the assessor some of the following in his report:
• In spite of repeated explanations in both English and Punjabi on the occasion of both interviews (April 21 and May 5, 2009) Mr. Ludu had difficulty understanding the purpose of our meeting beyond the fact that it somehow related to money he may receive from his legal counsel in connection with the 2007 injuries. Even at the end of the second interview he remained unable to provide a reasonable explanation of the purpose of our meeting and clearly did not comprehend the significance of a finding of either capable or incapable stating to the translator "If the doctor tells me I can explain."
• ...
• Mr. Ludu is subject to significant memory impairment that interferes with his ability to retain and process information of reasoned decision making. He lacks insight into the extent of his limitations and the nature of other aspects of his functioning (i.e. Alcohol use, nature of relationships with others) and the probable outcomes inherent to the same. In this regard he fails to fully comprehend and is unable to weigh information in a manner that enables him to make reasoned decision and the probable implications/outcomes inherent to decisions he may make.12
13 In light of the report and findings of the assessor as well as Dr. Pilowsky's report that the appellant suffers from severe depression, I was of the view that a designated representative was required in this case. Accordingly, the appellant's friend, Naseer Ahmad, was appointed as a designated representative.
14 It was apparent that I would be unable to elicit any more meaningful testimony from the appellant given his cognitive disability and I therefore opted to hold a case conference on June 17, 2010 with the appellant, his counsel, his designated representative and counsel for the Minister. The appellant's mother and sister also came to the conference in support of the appellant.
15 Counsel for the Minister indicated that he could not agree to the issuance of a stay of removal considering the appellant's long and violent criminal record, even though he stated that he recognized that removing the appellant at this juncture did not appear to be an option. Counsel for the appellant asked that I grant the appellant a stay of removal; that since 2008 he has not had any further convictions and that he lives a fairly quiet life with his mother; that he no longer poses a threat to the Canadian public.
ANALYSIS AND FINDINGS OF FACT
16 The panel remains guided in the exercise of its discretion by the factors outlined in Ribic,13 approved by the Supreme Court of Canada decision in Chieu14. These factors, which are not exhaustive, are:
• i) the seriousness of the offences leading to the deportation order;
• ii) the possibility of rehabilitation;
• iii) the length of time spent in Canada and the degree to which the appellant is established here;
• iv) the family in Canada and the dislocation to the family that deportation would cause;
• v) the support available to the appellant, within the family and within the community; and,
• vi) the potential foreign hardship the appellant will face in the likely country of removal.
17 The panel is also guided by section 3(1)(h) of IRPA which states:
• 3. (1) The objectives of this Act with respect to immigration are:
• (h) to protect the health and safety of Canadians and to maintain the security of Canadian society.
18 The panel is "alert, alive and sensitive" to the best interests of any child directly affected by the removal of the appellant.15
19 There is no question in the panel's mind that the appellant is extremely dependent on his support system in Canada. He lives with his mother and maintains a relationship with his siblings. According to information provided throughout the hearing of this case, the appellant has no one in India to care for him.
20 From the testimony that I heard at my first sitting, which was in June 2007 it was evident that the appellant had an ongoing alcohol problem. He had also been diagnosed by Dr. Srinivasan with depression with psychosis.16 The appellant's problems were exacerbated after his motor vehicle accident on October 26, 2007 when he was hit by a car.17 The appellant who was a pedestrian and who was drunk at the time of the accident sustained numerous physical injuries which include closed head injury, pelvic fracture with dislocation of the symphysis pubis, right sacral wing fracture, left knee injury, left shoulder sprain and atrophy and possible left axilliary nerve damage, right elbow sprain, left knee sprain, headaches, cervical spine strain, thoracic sprain and lumbar joint sprain.18
21 According to a recent report by Dr. Jeremy Hall, attached to his counsel's submission of April 28, 2010, the appellant, while slowly recovering, is still experiencing quite a bit of pain, most significantly in his left shoulder and pelvis. His doctor indicated that together these injuries may cause the appellant difficulties with his daily activities and his employment opportunities would be somewhat limited.
22 I find that the appellant's physical and mental condition is currently such that removal from Canada at this time would cause him significant and undue hardship. He has become very dependent upon his mother with whom he lives. It is questionable as to whether or not the appellant will be able to work in the future. Even prior to the motor vehicle accident, the appellant had a poor employment history and he was unable to show any steady employment pattern. He has no assets and he is clearly not established in Canada. While this factor weighs against the appellant, the hardships that he would endure if he were removed from Canada currently outweigh the other factors.
23 That being said, if the applicant wants to remain in Canada, he will have to remain crime-free. His record is significant and at times violent. In my view and from the numerous reports on file from health care professionals, the appellant's poor behaviour is directly linked to his drinking. Since his arrival in Canada in 1999, he seems to have had a drinking problem. The bulk of his criminal offences occurred during periods when he was intoxicated. This poses a real problem. Although the appellant indicated at his hearing in 2007 that he wants to give up drinking and he believes he will, to date he has not. While the probation report tendered for this conference indicates that the appellant has participated in counseling programs for alcohol abuse and he currently reports no alcohol consumption, at the case conference the appellant told the panel he had a few drinks last week at a friend's home.19
24 It would be unrealistic in my view to expect that the appellant, who has been an alcoholic for so many years, is going to become alcohol-free. It appears that he has continued to drink over the last two years in some limited capacity and he has been able to remain crime-free. He stated at the conference that he thinks he can stay away from alcohol but I am of the opinion that imposing a condition that he cannot drink at all would be setting him up to fail. That being said, I think it is incumbent upon me to ensure that he continues to get help with his alcoholism as well as ongoing counseling. I will impose the condition that the appellant attend Alcoholic's Anonymous and that he provide evidence that he has a sponsor at his first reporting date. Furthermore, I am going to impose a condition that the appellant seek and obtain counseling from a professional of his choice.
25 The appellant will need to be proactive in his ongoing mental and physical treatments to ensure that his condition does not cause him to commit any further offences. I explained to the appellant in front of his designated representative and his family members that a further serious conviction could result in his removal from Canada by operation of law and that non-compliance with the conditions as set out below could also result in his having to come before this tribunal again.
CONCLUSION
26 Having considered all of the evidence presented to date, I am therefore satisfied, taking into consideration the best interests of a child directly affected by the decision, that there are sufficient humanitarian and compassionate considerations to warrant the granting of a 3-year stay in light of all of the circumstances of this case.
CONDITIONS OF STAY OF REMOVAL ORDER
The removal order in this appeal is stayed. This stay is made on the following conditions - the appellant must:
• Inform the Canada Border Services Agency (the "Department") and the Immigration Appeal Division in writing in advance of any change in your address.
• The address of the Department is:
Canada Border Services Agency, The Greater Toronto
Enforcement Centre,
6900 Airport Road, P.O. Box 290, Mississauga, Ontario,
L4V 1E8.
• The address of the Immigration Appeal Division is: 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7.
• [1] Provide a copy of your passport or travel document to the Department or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Department.
• [2] Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Department.
[3] Not commit any criminal offences.
• [4] If charged with a criminal offence, immediately report that fact in writing to the Department.
• [5] If convicted of a criminal offence, immediately report that fact in writing to the Department and the Immigration Appeal Division.
• [6] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post to the Canada Border Services Agency, 6900 Airport Road, P.O. Box 290, Mississauga, Ontario, L4V 1E8. It is the responsibility of the appellant that the documents are received by the Department within any time period required by a condition of the stay.
• [7] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post; or by fax to the Immigration Appeal Division at 416-954-1165. Include your IAD file number. It is the responsibility of the appellant that the documents are received by the Immigration Appeal Division within any time period required by a condition of the stay.
• [8] Report to the Department in person (with a written report) at the Canada Border Services Agency, The Greater Toronto Enforcement Centre, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 on Friday, November 19, 2010 between 7:30 a.m. to 16:00 p.m., and every six months thereafter:
May 20, 2011
November 18, 2011
May 18, 2012
November 16, 2012
May 17, 2013
• [9] The reports are to contain details of the appellant's:
• - current living arrangements;
• - marital status including common-law relationships;
• - attendance at Alcoholics Anonymous including verification that he has a sponsor;
• - letter from the professional who is providing ongoing counselling.
• - other relevant changes of personal circumstances.
• [10] Engage in or continue psychotherapy or counselling with a professional during the course of this stay of removal. (Note: If you withdraw your consent to the foregoing condition, you must bring an application to the Appeal Division forthwith to have this condition removed.)
• [11] Attend a drug or alcohol rehabilitation program at Alcoholics Anonymous and obtain the assistance of a sponsor. (Note: If you withdraw your consent to the foregoing condition, you must bring an application to the Appeal Division forthwith to have this condition removed.)
• [12] Make reasonable efforts to maintain yourself in such condition that:
• i)
your alcoholism will not cause you to conduct yourself in a manner dangerous to yourself or anyone else; and
• ii)
it is not likely you will commit further offences.
• [13] Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.
• [14] Not own or possess offensive weapons or imitations of offensive weapons.
• [15] Respect all parole conditions and any court orders.
[16] Keep the peace and be of good behaviour.
FINAL RECONSIDERATION
Take notice that the IAD will reconsider the case on or about the 19th day of June 2013 or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address.
The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.
IMPORTANT WARNING
This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.
"Pamila Ahlfeld"
24 June 2010
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