Federal court rejects an application to quash enforcement proceedings


by Sukhram  Ramkissoon

Sukhram Ramkissoon

A 39-year old Pastor from Ghana, who arrived in Canada as a permanent resident in March 2008, will be deported shortly to his home country.

According to a recent Federal Court decision, Mr. X was convicted of sexual assault in June 2017 and sentenced to 20 months of imprisonment. As part of Mr. X’s sentence, he was given credit for his pre-sentence custody.

While Mr. X was serving his sentence, a Canada Border Services Officer visited him. This is a normal process, and applies to permanent residents or foreign nationals serving a criminal sentence, and who may be criminally inadmissible to Canada.

After meeting with Mr. X, the CBSA Officer prepared a report under the Immigration and Refugee Protection Act (IRPA), and recommended that he be referred to an admissibility hearing before the Immigration Division (ID) of the Immigration and Refugee Board [IRB].  The purpose of the admissibility hearing would be to determine if Mr. X is inadmissible for serious criminality under IRPA.   In February 2019, the matter was referred to the Immigration Division.

Persons who are convicted for a criminal offence of which the term of imprisonment is more than six months has no right of appeal. Those who have a right to appeal may file their notice of appeal to the Immigration Appeal Division.

Mr. X sought judicial review of the CBSA officer’s decision. He asked the Court for an order to quash the decision which referred him to an admissibility hearing.  The requested order also asked to direct an officer to grant his request against a referral to an admissibility hearing or, in the alternative, an order referring the matter to the CBSA for redetermination by a different officer in accordance with the law. The issue before the Court is whether this relief should be granted. The application was recently dismissed; he now faces facing removal from Canada.

According to the court judgment, when the Officer interviewed Mr. X, she delivered an Inadmissibility Report Background and Personal Information Form [the BPIF], which, amongst other things, included an Inadmissibility Report Supplementary Questionnaire [the BPIF Questionnaire].

At the interview at the jail the Officer also gave Mr. X a letter informing him of the BPIF’s purpose and possible outcomes; she invited him to make submissions. Mr. X informed her of his conviction and parole eligibility dates. They discussed other matters such as Mr. X’s family and home.

Mr. X completed the BPIF and returned it to the Officer in early November 2017. As to the circumstances surrounding the conviction, Mr. X wrote in the BPIF Questionnaire that:

I, and the victim had been together from 2011 till 2013 when the incidence happened, we lived together in Etobicoke in 2011 and moved to Burlington the same year.  Everything changed in 2013 when we started going through some hard times when she felt insecure about some of the ladies in the church I was pastoring in Toronto, we had a lots of arguments over that for a while until we decided to separate and work the relationship from a distance.

 In 2013 I visited her and met another male in her house and had argument on that which resulted in the incident I was charged and convicted of. I was at her house in Burlington July 2013, when a neighbour called 911 because of the long arguments we had during the night.”

 When asked on the questionnaire how he felt about the conviction, Mr. X wrote that:

“I really feel very shameful and very embarrassed because I play a very major role in my community as a pastor and I have opened up to my four children who look up to me as a Dad and a role model. Many people still can’t believe what happened because I and the victim never shared our struggles with the Community because people were looking up to us, especially me being a pastor of a church with different nationalities.”

 When asked on the questionnaire what he needed to change in order to avoid any future involvement with the law, Mr. X wrote, “I simply have to make right and good choices in every circumstance and learn to let go”.  Finally, when asked if he was enrolled in any rehabilitation programs, he stated that he had already completed a four section life skills about sexual offenders programme which was recommended by his trial lawyer; the judge also ordered him to enroll in sex offenders programme upon his release.

Earlier in the BPIF, Mr. X added that he had learned “a lot about self-control, anger management and how to engage in a healthy relationship” because of this counselling.

Mr. X made little reference to the sexual assault or to the victim in the BPIF Questionnaire. He did not mention any feelings of remorse or the impact on the victim. He did not confirm any further plans for rehabilitation besides the counselling which already completed.

In the Federal Court application, Mr. X filed an affidavit with various exhibits including various certificates and letters concerning his rehabilitation efforts, including documentation about his parole. As these documents were not before the Officer, it was ruled that it is improperly before the court and was struck from the application record.  The court had to decide two substantive issues that require the Court’s attention: (I) was there a breach of procedural fairness; and (ii) was the decision to refer Mr. X to an admissibility hearing reasonable?  

The judge ruled “I am of the view that the duty of fairness is clearly not at the high end of the spectrum in the context of decisions in making admissibility reports. Even assuming that a permanent resident is entitled to a somewhat higher degree of participatory rights than a foreign national as a result of a greater establishment in Canada leading to more serious consequences in the event of removal, I am satisfied that the process followed in this case satisfies the requirements of procedural fairness. Prior to the decision to make a report, the appellant was interviewed, given a letter setting out the nature of the decision to be made, and advised that he would have no right to appeal the removal order if one was issued by the Immigration Division.

 He was also invited to make written submissions and to provide letters of support, and he availed himself of these options. The submissions and supporting documents he presented were considered by the Officer. Bearing in mind that the decisions to write a report and to refer it to the ID do not involve a final determination of the appellant’s rights to stay in Canada, as was the case in Baker, I have no doubt that the appellant was afforded the kind of participatory rights that decisions of this nature warrant.”

The court further ruled that all of Mr. X submissions were misguided and without merit and dismissed his application. The Canada Border Services will now be taking steps to have him removed.

The lesson in this case is to answer questions clearly and truthfully.  Be detailed in your answers and also have supporting documents to establish your claims submitted in the application being reviewed by an Officer.  It is important to be forthright with the authorities.

This article should not be taken as legal advice. Any person in similar circumstances or you know of any person in a similar circumstance should seek proper legal advice from an experienced authorized representative.

SUKHRAM  RAMKISSOON  is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone  416 789 5756.