Bosompem v. Canada (Minister of Public Safety and
Emergency
Preparedness)
Between
Ato Bosompem, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent
The Minister of Public Safety and Emergency Preparedness,
Respondent
[2012] F.C.J. No. 213
2012 FC 196
Docket IMM-4865-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: February 2, 2012.
Judgment: February 10, 2012.
Docket IMM-4865-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: February 2, 2012.
Judgment: February 10, 2012.
(42 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- Mr. Bosompem asks the Court to set
aside the decision of the Immigration Appeal Division of the Immigration and
Refugee Board dismissing his appeal and setting aside the stay of his removal
that it had previously granted on January 14, 2008.
Background
2 The
applicant is 27 years of age and is a citizen of Ghana. He landed in Canada in
2000 when he was 15 and became a permanent resident. He completed grades 9
through 12 in Canada and has been working at a food service company for the
past four years. He is the father of a two year old Canadian born daughter. The
mother is a former girlfriend who figures prominently in the events that gave
rise to the decision under review.
3 In
2003, when he was 18, Mr. Bosompem was arrested for robbing a convenience store
with his friend who was armed with a sawed-off shotgun. The record shows that
the applicant was there as a look out; he never entered the convenience store
and he did not carry a gun. The applicant was charged with armed robbery. He
pled guilty to robbery, was acquitted of armed robbery, and was sentenced to 18
months in prison.
4 As
a consequence of the criminal conviction, a deportation order was issued
against Mr. Bosompem; however, a consent order issued from the Immigration
Appeal Division in 2008 staying his deportation for a period of three years,
subject to conditions. Noteworthy among the conditions attached to the stay
were that he "[n]ot commit any criminal offences... [r]espect all parole
conditions and all probation orders...[and] [k]eep the peace and be of good
behaviour."
5 After
his release from custody, Mr. Bosompem entered into a relationship with a woman
he had known from school. Their period together was of short duration; however,
a child was born soon after they separated. Sometime in March or beginning of
April 2010, Mr. Bosompem and this former girlfriend had an argument concerning
their daughter. Although he was not living with the child and her mother, the
record indicates that he agreed to pay child support and he regularly visited
his daughter.
6 In
early 2010, the former girlfriend accused Mr. Bosompem of trying to choke their
daughter when he enlarged the hole in the nipple of the baby bottle so that
more food could flow. Because of that incident, his former girlfriend
prohibited Mr. Bosompem from seeing his daughter and refused to answer his
telephone calls.
7 On
April 22, 2010, following an argument relating to child support payments and
custody of his daughter, Mr. Bosompem left his former girlfriend a voicemail
stating: "I am going to murder you if you get me deported." He left a
second voicemail on May 5, 2010, stating: "I am going to beat you down and
cut your face the next time I see you." The former girlfriend reported
these two threats to the police on May 7, 2010. Criminal charges were laid
against Mr. Bosompem and he voluntarily surrendered himself to the police on
June 3, 2010.
8 He
pled guilty and on January 20, 2011, Mr. Bosompem was convicted of threatening
death and bodily harm contrary to subsection 264(1) of the Criminal Code, RSC 1985, c C-46. He received
a suspended sentence, 18 months probation, and was required to "attend and
actively participate in such counselling programs for anger management and
domestic violence program (PARS) and any other counselling programs within 30
days of this order as recommended by your probation officer."
9 As
required by his probation officer, Mr. Bosompem attended and completed an anger
management program conducted by The Salvation Army on October 23, 2010.
10 On
June 30, 2011, Mr. Bosompem appeared before the Board for a reconsideration of
the three year stay of deportation granted in 2008. On July 7, 2011, the Board
set aside the stay of removal.
The Board's Decision
11 The
Board properly conducted its analysis of the evidence using the factors
enunciated by the Board in Ribic v Canada (Minister of
Employment and Immigration), [1985] IADD 4, which were
approved by the Supreme Court of Canada in Chieu v
Canada (Minister of Citizenship and Immigration), 2002
SCC 3: the seriousness of the offence, the prospects of rehabilitation, the
establishment in Canada, the best interests of the applicant's daughter, and
the hardship on him and his family members.
Seriousness of the offence
12 The
Board noted that although Mr. Bosompem did not have a lengthy criminal record,
it was nonetheless serious. It found that "a threat of harm and/or murder
from a person, who has in the past displayed a propensity towards violence by
virtue of having a firearm in the commission of an offence, would be
frightening and in my view makes the offence even more serious." Both of
the applicant's offences were stated to weigh heavily against him.
Prospects of rehabilitation
13 The
Board found that Mr. Bosompem "attempted to minimize the seriousness of
his last offence." This finding was based on his evidence that he did not
mean the threats, that his former girlfriend knew he would never hurt her, that
the threats were a result of her not allowing him to see his daughter, and that
he moved on with his life and was now seeing his daughter and communicating
with his former girlfriend through text messaging.
14 Further,
the Board stated that because of this "downplaying" of the offences
it was "not persuaded that he has accepted responsibility for them."
This was stated to be a factor that weighed heavily against him.
15 Lastly,
the Board noted that the only rehabilitative steps that were taken by Mr.
Bosompem were Court-ordered and this too was found to be a factor weighing
heavily against him.
16 As
a result, the Board found his "prospects for rehabilitation have
diminished given his new conviction ... demonstrates that he is still a
potential threat to Canadian society."
Establishment in Canada
17 The
Board attributed moderate weight in favour of Mr. Bosompem as a result of his
establishment because of his young age and his four years of stable employment.
· Family in Canada and best interests of a child directly affected by
the decision
18 The
Board noted the presence of some close family members such as Mr. Bosompem's
new girlfriend with whom he lives, his step-father and half-sister in Canada,
and his mother in the United States. The Board considered his young daughter to
whom he has access every second Sunday from 9:30 a.m. until 5:30 p.m.
19 The
Board found that Mr. Bosompem was genuinely interested in having a relationship
with his daughter. It stated that while it is usually in the best interests of
a child to have both parents close by, it is not always possible. The weight
awarded by this factor was diminished as the Board found that Mr. Bosompem
"still has an anger management problem which does not bode well for a role
model." Moreover, the Board was satisfied that the applicant's daughter
would have support in Canada, notwithstanding her father's deportation. The
Board noted that no evidence was adduced as to why Mr. Bosompem's daughter
could not travel to visit her father in Ghana later in life. Accordingly, only
minimal weight was awarded to the presence of family members in Canada.
Hardship on the applicant and family members
20 The
Board noted that Mr. Bosompem contributes financially to his child's support,
but said that no evidence was led as to the possibility of him obtaining
employment and sending money from Ghana. While the Board realized that Ghana's
economy does not equate to Canada's, it was not in the position to take
judicial notice of the fact that Mr. Bosompem would be unable to send money.
Nonetheless, some weight was given in his favour because of the financial
hardship his former girlfriend would endure if he is removed.
21 The
Board noted that Mr. Bosompem testified that he sometimes gives rides and money
to his sister. Although the sister and the stepfather were not present at the
hearing and they did not provide letters in support of his testimony, the Board
accepted that his removal from Canada would have some adverse affect on his
family. Accordingly, minimal weight was attributed to this factor.
22 As
for Mr. Bosompem's mother living in the United States, the Board stated that no
evidence was tendered as to why his mother could not visit him in Ghana.
Although it was accepted that Mr. Bosompem used to send some money to his 75
year-old grandmother in Ghana, no reasonable explanation was given to establish
that he could not provide for her from Ghana. Moreover, the Board found that
his personal hardship would be diminished since his grandmother lives in Ghana
and he lived with her for the six years prior to his immigration to Canada.
Similarly, the Board noted that a list of family members submitted in evidence
suggested he has a 19 year old sister in Ghana which could also diminish his
hardship. Although the record contains a document that indicates that Mr.
Bosompem has a sister in Ghana, that was clearly in error as the immediately
preceding document indicates that the very same named sister lives in Canada
and he testified that he drives that sister occasionally. Further, this issue
was specifically addressed at the hearing:
· COUNSEL: What about your family back home?
· APPELLANT: My family back home is only my grandma that's
there.
The Board erred in its assessment of the evidence
in this regard. This is of some importance as the Board relied on the applicant
having a sister in Ghana when considering his ability to reintegrate to society
in Ghana.
23 Mr.
Bosompem's 11 year stay in Canada was found to not be particularly long. The
Board found that apart from his years in high school in Canada, he was educated
in Ghana. "He is familiar with the culture and at the very least, his
grandmother and sister [live] there." The Board found no evidence as to
why he would not be able to work and live in Ghana.
24 Although
the Board was persuaded that Mr. Bosompem and his family would face some
hardship from his removal, it was not persuaded that any hardship was undue. As
such, minimal weight was attributed to this factor.
25 The
Board concluded that Mr. Bosompem was given a chance to demonstrate that his
behaviour would change but he chose to breach the conditions granted in 2008.
The seriousness of his convictions and his diminished prospects of
rehabilitation were found to outweigh the humanitarian and compassionate
considerations. The stay of the removal order was set aside and Mr. Bosompem's
appeal was dismissed.
Issues
26 The
applicant in his written submission raised a number of issues. At the hearing,
Mr. Waldman, counsel for Mr. Bosompem, candidly acknowledged that if the Court
was of the view, as argued by the respondent, that the applicant's submissions
amounted to a dispute as to the weight the Board gave to the evidence, then
this application could not succeed. His position was that the Board based its
decision on findings of fact that were not supported by the evidence.
Analysis
27 Having
carefully read the complete record as well as the decision under review, I have
concluded that some of the concerns raised by the applicant do not constitute a
mere reweighing of evidence; they amount to mischaracterizing or ignoring of
evidence that could have materially affected the result. Accordingly, while the
appropriate standard of review for all the substantive issues is
reasonableness, and while this is a deferential standard and the Court ought
not to substitute its own view for that of the Board, in the unique facts
before the Court, the decision under review, must be set aside.
28 In
its decision, the Board Member stated: "I agree with counsel for the
Minister that a threat of harm and/or murder from a person, who has in the past
displayed a propensity towards violence by virtue of having a firearm in the
commission of an offence, would be frightening and in my view makes the offense
even more serious." The Board observed in a footnote to that passage that
it "acknowledges that the appellant was convicted of robbery and not armed
robbery; however, it was the appellant's own testimony that revealed that there
was a firearm during the robbery." While it is true that Mr. Bosompem was
found guilty of robbery, it is important to note, which the Board did not, that
he was also found not guilty of armed robbery.
29 It
is clear from the passage above, as well as from an earlier statement of the
Board when reciting the facts behind the first conviction, namely that "he
testified that he had a sawed off shotgun that belonged to the friend he was with
at the time [of the robbery]," that the Board believed that Mr. Bosompem
was armed during the robbery; he was not. Mr. Bosompem's testimony quite
clearly shows that it was his friend, not he, who was armed.
· MINISTER' COUNSEL: It's kind of scary to think someone that's
capable of taking a shotgun and ...
· APPELLANT: It wasn't me that was holding it.
· MINISTER' COUNSEL: ... and holding up ... holding up a convenience
store ... someone that's capable of that calling you and telling you that
they're going to murder you, or telling you that they're gonna beat you down
and cut your face, don't you think?
· APPELLANT: I know I threatened her, but in my head ... and she
knows, and in her head too she knows I'm not going to do that.
30 In
my view, this error by the Board is significant because it undercuts the
finding that Mr. Bosompem has "in the past displayed a propensity towards
violence," a finding that played a large role in the Board's finding that
the recent offence involving his former girlfriend would have been seen by her
to be "frightening" and "makes the offense even more
serious."
31 The
Court does not discount the seriousness of the crime for which he was
convicted, threatening death and bodily harm, but it was an error for the Board
to give it increased weight based upon its false view of his previous record.
32 Further,
the Board failed to consider the timing of the report to the police by the
former girlfriend of these threats when it considered the seriousness of the
offence, her reaction, and Mr. Bosompem's testimony that he did not mean to
harm her and she knew that.
33 The
former girlfriend reported the applicant's threats on May 7, 2010 - two weeks
after the first telephone message was left and two days after the second. If
she believed the applicant was serious and that her life was at risk, one would
have expected her to have reported the first call to the police immediately
after receiving it. This evidence strongly supports the applicant when he testified
that she knew that he would not harm her and that his comments were made out of
frustration when he was denied access to his daughter.
34 Moreover,
it appears from the record that the police were of the same view. Although the
report was made to them on May 7, 2010, they appear to have taken no steps to
arrest the applicant. The record indicates that Mr. Bosompem voluntarily turned
himself in to police on June 3, 2010, nearly a month after the offences were
reported to the police. It is not evident from the record how the applicant
learned of the charges, however, it is clear that he was working during this
time and his former girlfriend knew his address at home and at work. There was
therefore no impediment to arresting him if the police were of the view that
these allegations placed the former girlfriend in imminent danger.
35 The
Board concluded that the applicant had not accepted responsibility for his
offences because he "downplayed" the offenses. The Board made that
assessment based on his evidence (i) that he did not mean the threats, (ii)
that the former girlfriend knew he would never harm her, and (iii) that the
threats were the result of him being prevented from seeing his daughter. In
fact, there is ample evidence in the record to establish that each of these
statements is factually accurate. If so, they cannot be a basis for finding
that he failed to take responsibility for his actions. Further, the Board
failed to consider evidence that did show that he did take responsibility for
his actions, such as the fact that he pled guilty to the offences, that he
voluntarily surrendered to the police, that he gave frank testimony to the
Board regarding his criminal offences, and that there was no action taken by
him on either of the threats made - in fact there was no evidence that he ever
approached the former girlfriend at all.
36 I
am also troubled that the Board made a negative inference from Mr. Bosompem's
lack of taking rehabilitative courses on his own initiative. He says that there
was nothing in the record to suggest that he needed such courses. He says that
there was also no evidence that he had "anger problems." He submits
that the fact that in difficult circumstances he threatened his former partner,
does not support a finding of generalized anger problems.
37 Mr.
Bosompem does not have an extensive history of problems with the law. He had a
serious conviction in 2003 and then kept out of trouble for seven years until
2010. The victim was not harmed and no violence was involved. Mr. Bosompem
submits that in finding that he continued to be a threat, the Board ignored his
general pattern of conduct, the context in which the incident occurred, and the
post-offence conduct.
38 In
my view, the Board erred in its analysis of the applicant's alleged anger
management problem and failed to properly consider the remedial action that had
been taken to address any anger management concerns.
39 With
respect to the first point, the Board writes that the weight it would normally
award the applicant relating to his child's interests in having him present
"is diminished somewhat by the appellant's recent conviction which in my
view displays that he still has
an anger management problem [emphasis added]." There is no evidence at all
that the applicant had any issues controlling his anger prior to the events
that gave rise to these recent convictions. If his recent actions prove that he
has an "anger management problem" then it is one of recent origin.
40 Further
and addressing my second point, the Criminal Court as part of Mr. Bosompem's
sentence ordered him to undergo whatever anger management therapy the probation
officer considered appropriate. He was told to take a one-day course, which he
completed successfully. Apparently the probation officer, someone more
experienced than the Member in assessing anger management problems and required
therapy, was of the view that a one-day course was sufficient to address any
problems the applicant had controlling his anger. While it is open to the Board
to disagree with that assessment, it must explain the basis for any such
disagreement and for its view that more was required. If no more was required,
then it was unreasonable to fault the applicant for failing to voluntarily take
unnecessary additional courses and programs of treatment.
41 As
a result of these errors, this decision must be quashed and remitted to a new
panel for determination after a full hearing.
42 Neither
party proposed a question for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that this application is allowed, the decision is set aside and the
applicant's appeal is remitted to a differently constituted panel for
determination after a full hearing. No question is certified.
ZINN J.
