MARCO ANTONIO CHUNG Appellant v. THE MINISTER OF, 2017 FCA 68

Date: 20170331 Docket: A-100-16 Citation: 2017 FCA 68 CORAM: WEBB J.A. SCOTT J.A. GLEASON J.A. BETWEEN: MARCO ANTONIO CHUNG Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Heard at Winnipeg, Manitoba, on February 16, 2017. Judgment delivered at Ottawa, Ontario, on March 31, 2017. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: WEBB J.A. SCOTT J.A. Date: 20170331 Docket: A-100-16 Citation: 2017 FCA 68 CORAM: WEBB J.A. SCOTT J.A. GLEASON J.A.

BETWEEN: MARCO ANTONIO CHUNG Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT GLEASON J.A. [ 1 ] In this appeal, Mr. Chung seeks to set aside the November 30, 2015 judgment of the Federal Court in Chung v. Canada (Minister of Citizenship and Immigration) , 2015 FC 1329 , 261 A.C.W.S. (3d) 687 [ Chung FC], dismissing Mr. Chung’s application for judicial review of the January 28, 2015 decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (the IAD) in Chung v. Canada (Public Safety and Emergency Preparedness) , IAD File No.

VB3-02012 (available on CanLII) [ Chung IAD]. In that decision, the IAD dismissed Mr. Chung’s application for humanitarian and compassionate (H&

C) relief under sections 67 and 68 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), finding there were insufficient grounds to allow the

appeal or stay the deportation order made against Mr. Chung. In coming to its decision, the IAD considered the factors laid out in Ribic v. Canada (Minister of Employment & Immigration), [1985] I.A.B.D. No. 4 at para. 14, 1986 CarswellNat 1357 [ Ribic ] , which include the possibility of rehabilitation. In finding there to have been a low possibility of Mr. Chung’s rehabilitation, the IAD relied in part on its factual determination that Mr. Chung exhibited no remorse for his most recent crimes because he maintained he was innocent of them. [ 2 ] Mr.

Chung alleges that in so finding the IAD committed a reviewable error as he asserts that it is improper for the IAD to treat as a negative or aggravating factor the fact that an individual maintains that he or she is innocent of the crimes that form the basis for the deportation order under the IRPA . In support of this argument, Mr.

Chung draws an analogy to the well-developed principle in the sentencing context that prohibits a criminal court from considering as an aggravating factor in setting a sentence the fact that an accused pled not guilty and maintains his or her innocence. [ 3 ] The Federal Court dismissed this argument, holding that the IAD did not err in its treatment of the remorse issue and that its decision on other aspects of Mr. Chung’s appeal was reasonable. The Federal Court certified the following question under

section 74 of the IRPA : Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted? [ 4 ] For the reasons that follow I would answer this question in the negative and would dismiss this appeal. I.

Background [ 5 ] The relevant facts are summarized at length in the reasons of the IAD and the Federal Court, and, for purposes of this decision, it is only necessary for me to highlight the most salient of them. [ 6 ] Mr. Chung is a Chilean national with a criminal record that includes convictions for drug trafficking, attempted theft and fraud. A deportation order was issued against him in 1997 following two separate convictions for possession of cocaine for the purposes of trafficking. In 1999, the IAD granted Mr. Chung a stay of this deportation order. Mr.

Chung committed no further crimes between 1997 and 2006, and in 2006 the IAD quashed the deportation order. [ 7 ] In 2008, Mr. Chung pled guilty to a charge of fraud and in 2011, following a trial, was convicted a third time of possession of cocaine for the purposes of trafficking. He was sentenced to 15 months imprisonment. A new deportation order was issued against him on August 26, 2013, and Mr. Chung appealed this second order to the IAD. In support of his application for H&C relief, Mr.

Chung relied on his lengthy establishment and work history in Canada as well as his relationship with his common-law partner and his two adult children in Canada and their families, including a newborn grandson. [ 8 ] At his hearing before the IAD, Mr. Chung alleged he had committed neither fraud nor the third instance of cocaine trafficking. He claimed that the police had lied during his trafficking trial and that he pled guilty to the fraud charge as a matter of convenience. II.

Decisions of the IAD and of the Federal Court [ 9 ] The IAD commenced its decision by enumerating the factors it ought to consider in assessing the appeal, which it held were outlined in Ribic and later endorsed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para. 40 , [2002] 1 S.C.R. 84 and Al Sagban v. Canada (Minister of Citizenship and Immigration), 2002 SCC 4 at para. 11 , [2002] 1 S.C.R. 133.

The IAD noted that these factors included: the seriousness of the offence or offences leading to the removal order; the possibility of rehabilitation; the length of time the appellant has been in Canada and the degree to which the appellant is established; the impact the appellant’s removal from Canada would have on members of the appellant’s family; family in Canada and the dislocation to that family that removal of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return; and the hardship the appellant would face in the country to which he would likely be removed.

While it appears that there may be some overlap or duplication in these factors as listed, the existence of such overlap or duplication is not the issue in this appeal. [ 10 ] The IAD then moved to discuss Mr. Chung’s criminal record and the fact that he was sentenced to 15 months imprisonment for the third trafficking offence, finding this offence was a serious one. The IAD next considered the possibility of Mr. Chung’s rehabilitation, holding that his “lack of remorse and acceptance of responsibility despite his conviction [was] not a positive factor” .

The IAD noted that while there were several years between Mr. Chung’s earlier and more recent convictions, “considering the combination of his prior criminal history for the same offence along with his lack of acceptance of responsibility and minimal remorse” there was little possibility of Mr. Chung’s rehabilitation, which was a “negative factor” in his appeal ( Chung IAD at paras. 10-13 ). [ 11 ] The IAD next considered the positive factors in support of the appeal, including the supports in place that Mr. Chung alleged would help him from re-offending, the degree of Mr.

Chung’s establishment in Canada, his relationship with his partner and family and the best interests of his infant grandson. The IAD noted that in light of the grandson’s age, there would be minimal impact on the child’s best interests if his grandfather were deported. [ 12 ] After reviewing all the factors, the IAD concluded that while the positive factors indicated there were some H&C grounds to support a stay of the deportation order, they were “not sufficient to overcome the seriousness of [Mr.

Chung’s] offence and [his] lack of acceptance of responsibility or remorse which [affected] the possibility of rehabilitation” ( Chung IAD at para. 29 ). It therefore dismissed the appeal. [ 13 ] In its review of this decision, the Federal Court applied the correctness standard to the review of the IAD’s treatment of the

remorse issue, agreeing with Mr. Chung that this issue raises a “general principle of law, which should be interpreted consistently acrossjurisdictions” (Chung FC at para. 15). The Federal Court applied the reasonableness standard to the review of the balance of the IAD’sdecision. [14] On the merits, the Federal Court disagreed that the IAD had considered Mr. Chung’s lack of remorse to be an aggravatingfactor and instead found that it had focussed its discussion on the possibility of rehabilitation. The Federal Court further found that theIAD was entitled to consider the convictions as proof that Mr.

Chung had committed the offences in question and to find a poorlikelihood of rehabilitation based in part on his lack of remorse and acceptance of responsibility for the crimes. The Federal Court thenconsidered the other factors examined by the IAD and its overall conclusion and determined that both were reasonable. III. Analysis [15] In this appeal, this Court is required to step into the shoes of the Federal Court and determine whether it selected theappropriate standards of review and whether it applied those standards correctly: Agraira v.

Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559. [16] Here, I believe the Federal Court erred in selecting the correctness standard as being applicable to the assessment of the IAD’streatment of the remorse issue. That consideration was merely one point in its analysis of whether Mr. Chung warranted H&Cconsideration under sections 67 and 68 of the IRPA and cannot be viewed in isolation from the rest of its decision.

It is firmly settled thatthe deferential reasonableness standard applies to review of decisions like that made in the present case, which involve an exercise ofdiscretion by the IAD: Canada (Minister of Citizenship and Immigration) v.

Khosa, 2009 SCC 12 at paras. 52-59, [2009] 1 S.C.R. 339[Khosa]. [17] Moreover, the only potentially relevant exception to the presumptive application of the reasonableness standard in this case isthe possible exception which mandates selection of the correctness standard in those narrow situations when the point decided is one ofgeneral importance to the legal system as a whole that falls outside the expertise of the administrative decision-maker: Dunsmuir v. NewBrunswick, 2008 SCC 9 at paras. 58-61, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Canada (Human Rights Commission) v. Canada (Attorney General), 2016FCA 200 at para. 62, 402 D.L.R. (4th) 160. In the present case, evaluation of Mr. Chung’s lack of remorse was connected to the IAD’sassessment of his rehabilitative potential – a factor that is squarely within the IAD’s expertise and a matter for it to consider under Ribicand the other applicable authorities from the Supreme Court of Canada and this Court. Thus, even if the IAD’s treatment of the remorseissue can be viewed in isolation from the rest of the decision in Mr.

Chung’s case, it is nonetheless subject to review under thereasonableness standard. [18] I accordingly believe that the Federal Court ought to have applied the reasonableness standard to its review of the entirety ofthe IAD’s decision. [19] Turning to the merits of Mr. Chung’s arguments, I agree with him that when the IAD’s reasons are fairly read, it must beviewed as having treated Mr. Chung’s lack of remorse as an aggravating factor. However, I disagree that it was not open to the IAD to doso. [20] The cases from the criminal context that are relied upon by Mr. Chung – notably R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R.61; R. v. Forsyth, 2003 CMAC 9 (available on CanLII); R. v. Bremner, 2000 BCCA 345, 146 C.C.C. (3d) 59; R. v. Vickers, (BC CA), 105 B.C.A.C. 42 (available on CanLII) (BCCA); R. v. Alasti, 2011 BCSC 824, 95 W.C.B. (2d) 218 [Alasti] – areinapplicable to Mr. Chung’s situation. There is a significant difference between treatment of remorse in the context of a criminal trial andtreatment of remorse in an immigration proceeding, like that conducted by the IAD under sections 67 and 68 of the IRPA.

In a criminaltrial, the accused individual benefits from the presumption of innocence throughout the proceeding: R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45 at para. 10, 165 D.L.R. (4th) 193. Accordingly, a criminal court may not treat a plea of not guilty and lack ofremorse as an aggravating factor during sentencing as this would undercut the presumption of innocence, as noted for example in Alastiat paragraphs 25 to 30. [21] The presumption of innocence is inapplicable outside the criminal context.

Moreover, where, as here, the civil inquiry isconducted after the criminal proceedings are completed, it is difficult to see how the inquiry could have any bearing whatsoever on thepresumption of innocence. [22] In many situations similar to that before the IAD, decision-makers have regard to an individual’s lack of remorse as anaggravating factor. For example, lack of remorse and a continued failure to recognize guilt is routinely viewed by the Parole Board as anaggravating factor, which is a practice that has been endorsed by this Court in Ouellette v.

Canada (Attorney General), 2013 FCA 54 atparas. 30, 74-76 (available on CanLII). Similarly, labour adjudicators consider as an aggravating factor in assessing an appropriatepenalty for employee workplace-related criminal conduct the employee’s failure to accept responsibility for crimes for which he or shewas convicted: see, for example, Basra v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 28 at para. 71, 118 C.L.A.S.171; Stene v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 36 at para. 151, 127 C.L.A.S. 223. [23] In many respects, this case is similar to Khosa.

There, the IAD held that statements made to it by Mr. Khosa, contesting thevalidity of his conviction, were “not to his credit”. However, it did not go so far as to identify Mr. Khosa’s claimed innocence as anegative factor: Khosa v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 1268 at paras. 13-15, 2004CarswellNat 6953 [Khosa IAD]. The Supreme Court upheld the IAD’s treatment of this factor and its assessment that Mr.

Khosa did notwarrant H&C consideration, finding the decision to be reasonable. [24] The respondent concedes that the slightly different treatment of the issue by the IAD in the present case renders the questioncertified by the Federal Court appropriate as this case is not on all fours with Khosa. While I agree that this is so, I believe that Khosa ishighly instructive and leads to the conclusion that it was open to the IAD to treat Mr. Chung’s lack of remorse in the present case in the

manner it did. Thus, the principal argument advanced by Mr. Chung in this appeal fails. [ 25 ] In addition to the arguments related to the certified question, Mr. Chung also contested the IAD’s treatment of the positive factors in its decision. [ 26 ] Only one of the arguments advanced by Mr. Chung in this regard has any possible merit. More specifically, I agree with him that the IAD’s comment about his grandson was inappropriate as the young age of a child ought not be a justification to separate a child from a family member.

However, this one comment does not warrant interfering with the IAD’s decision as there was very little evidence before the IAD to support any real degree of connection between Mr. Chung and the child or the likelihood that Mr. Chung would be involved in any significant way in the child’s future. Indeed, when questioned about this issue, the grandson’s father (Mr. Chung’s adult son) had to be prompted by counsel to give an answer that was even moderately favorable to Mr. Chung’s position (Appeal Book at page 103).

Thus, the IAD’s conclusion that the best interests of the grandson did not warrant granting the requested stay was reasonable. [ 27 ] The other points raised by Mr. Chung have no merit as the IAD did consider as positive his relationship with his family and partner and did look at the factors that Mr. Chung claimed would help him to avoid re-offending. It simply found the former insufficient to warrant the relief Mr. Chung sought and the latter unconvincing. I see nothing unreasonable in either assessment. Nor do I find the IAD’s rejection of the requested stay unreasonable.

The result reached was certainly open to the IAD, especially in light of Mr. Chung’s record and lack of rehabilitative potential. [ 28 ] I would therefore dismiss this appeal and would answer the certified question as follows: Question : Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted? Answer: No. “Mary J.L. Gleason” J.A. “I agree. Wyman W. Webb J.A.” “I agree. A.F.

Scott J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-100-16 STYLE OF CAUSE: MARCO ANTONIO CHUNG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: February 16, 2017 REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: WEBB J.A. SCOTT J.A. DATED: March 31, 2017 APPEARANCES :

David Matas For The Appellant Brendan Friesen Neil Goodridge For The Respondent SOLICITORS OF RECORD : Barrister and Solicitor Winnipeg, Manitoba For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent