Judgments

IMM-358-03

2003 FC 1524

Steven Anthony Romans (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Romans v. Canada (Minister of Citizenship and Immigration) (F.C.)

Federal Court, Russell J.--Toronto, August 6; Ottawa, December 29, 2003.

Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Judicial review of IRB Appeal Division decision denying reopened appeal of deportation order, refusing stay -- Applicant came to Canada from Jamaica in 1967 at 18 months -- Parents became citizens but, due to ignorance, did not apply on applicant's behalf so still permanent resident -- Schizophrenic since teenager -- Has 36 criminal convictions -- Deportation ordered after s. 27 inquiry under former Act -- Appeal Division denied appeal, unable under existing case law to consider Jamaican country conditions -- Tribunal concluded applicant incapable of noticing circumstances worse if sent back -- Judicial review application denied as fundamental justice not breached -- Question certified but F.C.A. affirmed decision, S.C.C. denied leave -- Application to reopen on basis applicant treatable with new medication, new evidence Jamaican mental patients subjected to serious abuse -- M.C.I.'s position: applicant still danger to public -- Appeal Division concluded lacked jurisdiction to entertain Charter issues, denied appeal -- Judicial review application granted -- S.C.C. has held, as general rule, refugees not deported if torture risk -- Minister's argument: Court bound by S.C.C. judgment in Chiarelli v. Canada (Minister of Citizenship and Immigration) -- Appeal Division erred in view, at reopening, Charter to be entirely disregarded -- Tribunal should have addressed extent to which exercise of discretion affected by Charter, implications of Suresh v. Canada (Minister of Citizenship and Immigration) -- Applicability of Suresh discussed -- Whether Charter, s. 7 engaged by permanent resident's deportation -- Given mental condition, whether applicant deliberately violated condition of admission to Canada -- Court not bound by Chiarelli as to new country conditions evidence -- Immigration system not equipped to deal with exigencies of case at bar -- Minister resorting to crude expedient of deportation to discharge public protection duty -- Fundamental justice balance to be reconsidered but public safety remains significant issue -- Issue whether applicant's deportation in accordance with fundamental justice principles not to be evaded by pretending no worse off if deported -- Whether Appeal Board having jurisdiction to order applicant's detention pending treatment -- Statutory amendments having abrogated tribunal's power to detain, supervise detention orders -- Dangerous to confer on tribunal jurisdiction to detain mentally ill -- Matter under provincial jurisdiction.

Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Judicial review of tribunal decision denying reopened appeal of deportation order -- Issues: did IRB Appeal Division err in view unable to consider Charter at reopened appeal? -- Did it err in not considering whether discretion to be exercised in accordance with Charter as required by Suresh case? -- Whether Charter, s. 7 engaged herein -- If yes, whether deportation order in accordance with fundamental justice principles -- Application granted -- S.C.C. held in Chiarelli v. Canada (Minister of Citizenship and Immigration) where criminal's deportation at issue, no need to consider Charter, s. 7 as condition of remaining in Canada violated -- But, as applicant suffers from serious mental disorder, can it be said condition deliberately violated? -- Tribunal committed reviewable error in concluding Charter to be entirely disregarded at reopened appeal -- Tribunal should have addressed extent to which discretion exercise affected by Charter principles -- New documentary evidence that in Jamaica mentally ill incarcerated, abused, tortured -- Court not bound by Chiarelli as to new evidence of country conditions -- Fundamental justice balance requiring reconsideration.

This was an application for judicial review of an Immigration and Refugee Board Appeal Division decision denying applicant's reopened appeal against a deportation order and also refusing to stay the deportation order.

Applicant came to Canada from Jamaica in 1967 at age 18 months and is now a permanent resident. As a teenager, he began to display symptoms of schizophrenia and to get into trouble with the police. He has 36 criminal convictions, including assault causing bodily harm, sexual assault and crack trafficking. His deportation was ordered following a section 27 inquiry under the former Immigration Act.

At the time his appeal was denied, the Appeal Division was precluded by the Federal Court of Appeal's decision in Chieu v. Canada (Minister of Citizenship and Immigration) from considering country conditions in Jamaica. The Appeal Division concluded that there was a high likelihood that applicant would commit further offences and that he was a danger to the public. The tribunal did not think that applicant would notice much change in his circumstances if deported.

An application for judicial review of that decision was denied by Dawson J. The Judge concluded that, while Charter, section 7 was engaged, fundamental justice had not been breached. In addition, she considered herself bound by the Supreme Court of Canada decision in Chiarelli v. Canada (Minister of Employment and Immigration), in which it was held that Parliament has a right to prescribe the conditions whereunder non-citizens may enter or remain in Canada. Still, she certified a question as to whether fundamental justice is violated by the deportation of a permanent resident who has been here since early childhood and who suffers from such a severe mental illness as to be incapable of functioning within society. That question was answered in the negative by the Federal Court of Appeal. The Supreme Court denied leave to appeal.

Applicant then applied to reopen, based on his mother's affidavit to the effect that, if treated with a new medication, his condition could be treated. In addition, documentary evidence and the mother's personal knowledge were relied upon to establish that, in Jamaica, inmates are subjected to physical and sexual assaults and that applicant's life would be in danger. Although she and her husband became citizens five years after coming to Canada due to ignorance she failed to apply for citizenship on behalf of applicant. A psychiatrist gave expert evidence that applicant was capable of rehabilitation and that there was a good chance that he could become semi- independent. Counsel argued that there was now before the tribunal new evidence as to country conditions which had not been before the tribunal previously because the case law at that time did not allow for country conditions to be taken into account. In arguing for dismissal, the Minister submitted that applicant remained a danger to the public. The hearing adjourned on the understanding that, if the appeal were dismissed on equitable grounds, the Appeal Division would reconvene to deal with the Charter issues advanced in the notice of constitutional question. But, when it dismissed the appeal in equity, the Appeal Division asked for submissions as to its jurisdiction to consider Charter issues at a reopened appeal. Later, it ruled that its jurisdiction was limited to reopening an appeal from a removal order on discretionary grounds and dismissed the appeal.

The Appeal Division noted that the previous decision concluded that applicant posed a high risk of re-offending and referred to the expert evidence that his schizophrenia was complicated by crack cocaine addiction. The Appeal Division was not convinced that he was now motivated to remain in a hospital for treatment. Public safety could not be ensured were the deportation order to be stayed. It found that psychiatric care is available in Jamaica but that the quality thereof is less than that available in Canada. The Appeal Division wrote that conditions for the mentally ill in Jamaican hospitals, prisons and on the streets were worse than those in Canada, but it was not persuaded that conditions on Jamaican streets were such that applicant's hardships would be significantly worse than what he faces in Canada. As to jurisdiction, the Appeal Division wrote that, on a reopening, appellant cannot attack the constitutional validity of the removal order.

The following issues were raised by applicant: (1) whether the Appeal Division erred in concluding that it could not consider the Charter on a reopened appeal; (2) whether it erred in law in failing to consider whether it should have exercised its discretion in accordance with the Charter as required by Suresh v. Canada (Minister of Citizenship and Immigration); (3) whether Charter, section 7 was engaged; (4) if so, whether the deportation order was in accordance with fundamental justice principles; (5) whether the Appeal Division erred in concluding it lacked jurisdiction to order applicant's detention until he obtained treatment; and (6) whether it erred in law in its exercise of jurisdiction.

Held, the application should be allowed.

(1) It was argued for applicant that every tribunal must apply the law in accordance with the Charter. Although the deportation order's constitutionality had not been raised at the first appeal, it was raised upon the judicial review of that appeal and, based on the record, this Court found Charter, section 7 to be engaged. In Suresh, the Supreme Court indicated that, in discharging her statutory discretionary powers, the Minister must balance the relevant factors in a case in conformity with Charter, section 7 fundamental justice principles. As a general principle, the Minister ought to refrain from deporting refugees if to do so will place them at a substantial risk of torture. Applicant's argument was that, while it may be that the Appeal Division cannot consider other legal issues decided at the initial appeal, that reasoning did not apply to Charter issues. The Minister pointed to Chiarelli, in which the Supreme Court held that, in deciding whether the deportation of a criminal complied with the Charter, it was unnecessary to answer the threshold question whether deportation engaged the individual's right to life, liberty and security. Where a permanent resident has violated an essential condition under which he was permitted to remain in Canada, fundamental justice is not breached in terminating his right to remain. In the case of a permanent resident, this can be accomplished only by deportation. In the Minister's submission, Chiarelli is on all fours with the case at bar.

While there is authority supportive of the Appeal Division's decision that the constitutional validity of the deportation order could not, at that point be questioned, its view that, in exercising its discretion on a reopening, the Charter had to be entirely disregarded, was clearly wrong. The Appeal Division appeared to say that discretionary grounds only would be considered. It committed reviewable error in deciding not to consider Charter arguments with respect to execution of the deportation order.

(2) Applicant's argument, based on Suresh, was that, given the new evidence, his removal was bound to violate fundamental justice principles and that, accordingly, the Appeal Division had to exercise its discretion in his favour, any other concerns--including risk to the public in Canada--notwithstanding. The Minister countered that argument by suggesting that Suresh could be distinguished on the facts: (1) applicant is not a Convention refugee, and (2) it is not said that applicant faces the risk of torture if returned to Jamaica. The Minister also argued that the Appeal Division did not have to mention the Charter arguments in its reasons. All it had to do was to exercise its discretion in accordance with the Charter and principles of fundamental justice. That submission could not be accepted. The tribunal ought to have addressed the extent to which its exercise of discretion was affected by Charter principles as well as the implications of Suresh for the decision it had to make. It was unclear from its decision whether the Appeal Division saw the Charter as in any way relevant to the exercise of its discretion. The Charter being such a significant aspect of applicant's argument, the Appeal Division should have addressed it in its reasons and its failure to do so amounted to reviewable error.

While the facts herein were different from those in Suresh, this did not remove the underlying considerations suggested by Suresh as applicable to decisions of this nature. While the proposition advanced by applicant's counsel, that fundamental justice demanded that he remain in Canada regardless of the risk to the public, could not be agreed with, it was an issue that should have been addressed by the Appeal Division in deciding whether to exercise its discretion. It appeared that the tribunal was not alive to the sort of analysis that Suresh now demands of it. That Supreme Court judgment constitutes an important part of the legal framework within which the Appeal Division must function in dealing with appeals against deportation orders. Its assertion that its jurisdiction was restricted to discretionary grounds lead to the conclusion that it had fallen into reviewable error.

(3) Applicant relied upon the Supreme Court of Canada's analysis in Blencoe v. British Columbia (Human Rights Commission) for his argument that his appeal engaged his section 7 Charter rights. Removal would profoundly affect this ability to make the most fundamental decisions about his life and would affect the power of those charged with his care to be able to look after him. He would suffer the type of psychological stress contemplated by the Court in Blencoe.

The Minister noted, however, that the Federal Court of Appeal, in Romans 1, found that it did not need to determine whether section 7 was engaged. That was the position taken by the Supreme Court in Chiarelli. The Minister further argued that applicant's claim to having an absolute right to remain in spite of his violent conduct and numerous convictions was inconsistent with Charter, section 6 and Immigration Act, subsection 4(2). Only Canadians have an absolute right to remain here. Another submission was that applicant was mistakenly relying on extradition case law--in particular the Supreme Court of Canada decision in United States v. Burns--as applicable to the deportation context. The Minister suggested that Burns should be restricted to its particular facts--the content of the extradition treaty with the U.S.A. and on the role played by Canada domestically and internationally in abolishing the death penalty.

In Romans 1, Dawson J. did find that applicant's Charter, section 7 rights were engaged and Décary J.A. indicated that the Court accepted, for the sake of discussion, "that section 7 of the Charter is engaged by the deportation of a permanent resident pursuant to paragraph 27(1)(d) of the Immigration Act". The rights found to exist by Dawson J. remained engaged in the reopened appeal.

(4) As to whether the deportation order herein was in accordance with fundamental justice principles, applicant argued that, on the new evidence, he could not be said to have deliberately violated one of the conditions of his admission to Canada. The psychiatrist's opinion was that applicant's offences were committed when he was not under treatment and hallucinating. Applicant also pointed to new evidence before the Appeal Division regarding the appalling conditions of the mentally ill in Jamaica. No evidence supported the Appeal Division's finding that, in Jamaica, applicant could receive adequate care for his serious, complex problems. There was documentary evidence that, in Jamaica, the mentally ill often end up in the penal system, where they undergo abuse and even torture. This evidence was not before the Court in Romans 1. The Court of Appeal had dismissed applicant's appeal because, on the facts before it, the evidence was not sufficient to satisfy the "shocks the conscience" test established by the Supreme Court of Canada. In Chiarelli, the Supreme Court wrote that Immigration Act, subparagraph 27(1)(d)(ii) applied to permanent residents who have "deliberately violated an essential condition under which they were permitted in Canada". But this Court had considerable reservations about applicant's assertion that the psychiatric evidence now demonstrates that he was not responsible for his crimes. This was a capacity issue on which Chiarelli was binding and conclusive. The Court's hands were not, however, tied by Chiarelli in respect of the new evidence as to country conditions and this was a matter not before Dawson J. The basic issue on this question is whether, in light of the new evidence, the appropriate "fundamental justice balance"--which the Supreme Court has said generally to preclude deportation to torture--was reached in the decision.

A reading of the impugned decision would suggest that the implications of Suresh were not taken into account.

This was an extremely difficult case and the immigration system is not equipped to deal with the exigencies of this situation. But, since the Minister is responsible for public protection, the crude expedient of deportation was resorted to and the Court was faced with this sorry state of affairs. The impugned decision revealed that these irreconcilables were grappled with but the conclusion reached that, since applicant is doomed wherever he is, he might as well be sent back to Jamaica where, at least, he will pose no threat to the public in Canada.

While the fundamental justice balance requires reconsideration, the Federal Court of Appeal rejected the proposition that but one result was possible. Public safety remains a significant issue so long as applicant is capable of refusing treatment and placing himself at large. Clearly, applicant is better off here, but this has to be balanced against the danger he poses to others to determine whether his deportation would be in accordance with the principles of fundamental justice. The issue should not be evaded by pretending applicant would be no worse off if deported.

(5) Applicant argued that the Appeal Board erred in concluding that it lacked jurisdiction to order his detention until he secured the treatment required. It possesses the powers of a court of record and, in granting a stay of deportation, can impose such conditions as it "may determine". Thus it could order applicant's detention until such time as he might be certified by a psychiatrist as no longer constituting a danger to the public. The Minister disagreed, arguing that if a "condition" of a stay is mandatory detention, that would not be a mere condition as it could constitute an indefinite term of imprisonment. Parliament had, by various statutory amendments, repealed the Appeal Division's power to detain or to even supervise detention orders. The Minister submitted that under the former Immigration Act, the extraordinary power to detain, on an ongoing basis, was explicitly granted to adjudicators by subsection 103(3), rather than by subsection 74(2), which dealt with ordinary terms and conditions. But adjudicators were not empowered to detain psychiatric patients for their own protection. The Minister drew the Court's attention to the reasons of Rothstein J. in Sahin v. Canada (Minister of Citizenship and Immigration), wherein that Judge cautioned against indefinite detention under the Immigration Act. He offered a list of criteria for the guidance of adjudicators when considering detention but the obtaining of psychiatric treatment did not appear on that list. The Minister suggested that the detention of the mentally ill falls under provincial jurisdiction and is dealt with by appropriate legislation, such as the Ontario Mental Health Act. It would, indeed, be dangerous to confer such a broad jurisdiction on the Appeal Division in relation to detention. It would be overstepping its jurisdiction were it to fix terms and conditions that implicated a provincial statute or agency in the absence of statutory authorization. The tribunal did not err in determining that it lacked jurisdiction to order applicant's detention until treatment was obtained.

(6) The final issue was whether the Appeal Division erred in law in the exercise of its jurisdiction by concluding that, while conditions in Jamaica were worse than those in Canada, applicant would be able to receive treatment there. It was argued for applicant that the tribunal ignored the facts that he now had a psychiatrist who has developed a treatment plan and there was a better than even chance that within a year he would be capable of functioning at a halfway house. The psychiatrist's opinion was that applicant's criminality had resulted from past neglect on the part of our mental health system. It was submitted that the tribunal displayed its ignorance of the situation of the mentally ill in suggesting that he "wouldn't know the difference" if returned to a country where the conditions were terrible. The Minister, however, expressed a fear that, if not forcibly confined, applicant might well disappear onto the streets and fail to take his medication. While his symptoms might be alleviated by the new medication, it could not be said that this would ensure a permanent cure. Counsel to the Minister added that the mistreatment of the homeless, even their murder, is not unknown in Canada.

This issue was, in part, already addressed, in applicant's favour, in these reasons. The tribunal did err in its exercise of jurisdiction. That said, it will have to be demonstrated that applicant will be looked after in such manner that he will pose no danger to the public. His treatment and confinement must not be left to speculation. This will have to be dealt with upon redetermination. An order herein will be issued after a delay to allow for submissions as to the certification of a question of general importance.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 6, 7, 12.

Immigration Act, R.S.C., 1985, c. I-2, ss. 4(2), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5), 74(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (a) (as am. by S.C. 1992, c. 49, s. 67), (b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (2) (as am. idem), 103 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19), 103.1(3) (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 12), (6) (as enacted idem; S.C. 1992, c. 49, s. 95).

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

Mental Health Act, R.S.O. 1990, c. M.7.

cases judicially considered

applied:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161 (as to capacity issue); Beaumont v. Canada (Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 189 (F.C.T.D.); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; Barone v. Canada (Minister of Citizenship and Immigration) (1996), 38 Imm. L.R. (2d) 93 (I.A.D.); United States v. Burns, [2001] 1 S.C.R. 283; (2001), 196 D.L.R. (4th) 1; [2001] 3 W.W.R. 193; 85 B.C.L.R. (3d) 1; 148 B.C.A.C. 1; 151 C.C.C. (3d) 97; 39 C.R. (5th) 205; 81 C.R.R. (2d) 1; 265 N.R. 212; Velupillai v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 863 (QL); Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; (1994), 24 C.R.R. (2d) 276; 85 F.T.R. 99; 30 Imm. L.R. (2d) 33 (T.D.).

distinguished:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Romans v. Canada (Minister of Citizenship and Immigration) (2001), 86 C.R.R. (2d) 139; 14 Imm. L.R. (3d) 215; 203 F.T.R. 108 (F.C.T.D.); Romans v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 34; 281 N.R. 357 (F.C.A.); leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 471.

considered:

Fernandes v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 49 (F.C.T.D.); Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); leave to appeal to S.C.C. refused [1997] 3 S.C.R. xv.

referred to:

Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605; (1998), 169 D.L.R. (4th) 173; 46 Imm. L.R. (2d) 163; 234 N.R. 112 (C.A.); Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242; (1991), 83 D.L.R. (4th) 440; 14 Imm. L.R. (2d) 13; 127 N.R. 342 (C.A.); Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; (1992), 93 D.L.R. (4th) 589; 10 C.R.R. (2d) 348; 145 N.R. 121 (C.A.); Da Costa v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 182; (1997), 137 F.T.R. 268; 41 Imm. L.R. (2d) 12 (T.D.); Almonte v. Canada (Minister of Citizenship and Immigration), [1995] I.A.D.D. No. 1254 (I.A.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Ledwich, [1998] I.A.D.D. No. 831 (QL); Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 6 C.R.R. (2d) 193; 129 N.R. 81.

APPLICATION for judicial review of an IRB Appeal Division decision ([2002] I.A.D.D. No. 1 (QL)) denying a reopened appeal against a deportation order and refusing a stay of the deportation order. Application allowed.

appearances:

Lorne Waldman for applicant.

David W. Tyndale for respondent.

solicitors of record:

Waldman & Associates, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

[1]Russell J.: This is an application for judicial review of the decision of James Waters, member of the Appeal Division of the Immigration and Refugee Board (Appeal Division), dated January 3, 2003 [[2003] I.A.D.D. No. 1 (QL)] and communicated to the applicant on or about January 7, 2003 (decision) wherein the Appeal Division dismissed the applicant's reopened appeal against a deportation order dated June 7, 1999 (deportation order) and declined to grant a stay of the deportation order. The applicant seeks an order quashing the decision and an order remitting the matter back for redetermination by a differently constituted panel.

BACKGROUND

[2]The applicant is a permanent resident of Canada. He came to Canada from Jamaica as a young child in 1967 when he was approximately 18 months of age. He was admitted as a permanent resident and has retained that status ever since. In his teenage years, he began to display symptoms of schizophrenia. He got into trouble with the police. He was eventually arrested and convicted of 36 criminal offences. Three of these offences were sexual assault convictions, while others included trafficking in small amounts of crack. There were also assault and assault causing bodily harm convictions. On March 12, 1999, a report was issued under section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5] of the former Immigration Act [R.S.C., 1985, c. I-2] before an Adjudicator of the Immigration and Refugee Board. The result of the section 27 inquiry was the issuance of the deportation order on June 7, 1999.

[3]The applicant appealed to the Appeal Division. The Appeal Division dismissed the appeal. At the time of the appeal, the applicant was deemed incompetent to represent himself and a designated representative was appointed. At the initial hearing, the applicant's mother and the designated representative, a social worker, testified. At the time the appeal was dismissed, the Appeal Division was precluded from considering country conditions in Jamaica as a result of the decision of the Federal Court of Appeal in Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (C.A.).

[4]The Appeal Division concluded that the evidence was such that there was a high likelihood that the applicant would reoffend and that he posed a danger to the public. The Appeal Division also concluded that it would make no significant difference to the applicant if he was deported because he was unlikely to notice much change in his circumstances.

[5]A judicial review of the Appeal Division's decision was dismissed by Dawson J. in Romans v. Canada (Minister of Citizenship and Immigration), (2001), 86 C.R.R. (2d) 139 (F.C.T.D.) (Romans 1). In her reasons, Dawson J. concluded that, although section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] was engaged in the process, there had been no breach of fundamental justice and she felt she was bound by the decision of the Supreme Court of Canada in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 where the Supreme Court held that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Dawson J. concluded that the Supreme Court of Canada decision in Chiarelli, supra, was not "predicated upon the age or capacity of Mr. Chiarelli" (paragraph 28).

[6]Dawson J. certified the following question:

In light of the decision of the Supreme Court of Canada in United States of America v. Burns, [2001] S.C.J. No. 8, 2001 SCC 7 and in light of the evolved nature of Charter interpretation, is it a violation of fundamental justice to deport a permanent resident pursuant to paragraph 27(1)(d) of the Act in circumstances where the permanent resident has resided in Canada since very early childhood so as to have no establishment outside of Canada, and where the permanent resident suffers from a serious mental illness to an extent which makes him unable to function in society?

[7]The Federal Court of Appeal answered the certified question in the negative and rejected the applicant's appeal [Romans v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 34 (F.C.A.), at paragraphs 2 and 4]:

The fact that the appellant has resided in Canada since early childhood, has no establishment outside of Canada and suffers from chronic paranoid schizophrenia does not give him an absolute right to remain in Canada, that right being recognized by section 6(1) of the Charter to Canadian citizens only.

. . .

We are satisfied that, in doing so, the Appeal Division did a balancing of competing interests as mandated, albeit in different circumstances, by the Supreme Court of Canada in United States v. Burns, [2001] 1 S.C.R. 283 and could, on the evidence before it, reach the conclusion that the deportation of the appellant, in the circumstances of this case, was in accordance with the principles of fundamental justice. Madam Justice Dawson declined to intervene ( [2001] F.C.J. No. 740, 2001 FCT 466), and rightly so.

[8]The application for leave to appeal the Federal Court of Appeal decision in Romans 1 to the Supreme Court of Canada was dismissed [[2001] S.C.C.A. No. 471].

[9]The applicant then applied to reopen before the Appeal Division. The application contained an affidavit from the applicant's stalwart and faithful mother. She indicated that she had been in contact with psychiatrists and had discovered that, as a result of new medication, there was a good possibility that her son could be treated. She also indicated that she was advised that, if treated properly, the applicant had an excellent chance of responding positively and that it was desirable to transfer her son from the West Detention Centre, where he had been in detention, to Penetang. The applicant submitted extensive documentary evidence, and relied on the personal knowledge of his mother to indicate that, in Jamaica, persons who are detained in that country undergo humiliation, are often subjected to physical and sexual assaults, and that his life would be in danger.

DECISION UNDER REVIEW

[10]At the Appeal Division hearing that is the subject of this judicial review, the applicant's mother was appointed designated representative and she testified that the family came to Canada in 1965 and, at that time, the applicant was 18 months of age. She also testified that she and her husband became citizens about five years later and that, out of ignorance on her part, she did not apply for citizenship for the applicant. She said that until his late teens, the applicant was very obedient but then began to show signs that he was mentally ill. He was in his early 20s when he was diagnosed with chronic paranoid schizophrenia. She testified that there had been no systematic attempts to help her son. She also said that the applicant has no family in Jamaica, and that he would not be able to receive adequate treatment if he was sent there.

[11]Dr. Sameh Hassan was accepted as an expert witness to provide a psychiatric assessment of the applicant. He testified that there was still a healthy part of the applicant and that he could be rehabilitated. He also testified that there was a good opportunity to help the applicant to become semi-independent. Dr. Hassan also indicated that, with proper treatment, the applicant could be in a halfway house in a year and could live in society with low risk. Dr. Hassan pointed out that he had seen cases where patients with long-term residential treatment have been rehabilitated.

[12]Counsel for the applicant argued at the reopened hearing that, when the Appeal Division exercised its discretion, it had to do so in accordance with the Charter, and that, pursuant to the jurisprudence of this Court, including the judicial review of Romans 1 before Dawson J., the applicant's rights under section 7 of the Charter were engaged. Counsel argued that the case was now distinguishable from Romans 1 in that there was new evidence as to country conditions in Jamaica which had not been before the previous tribunal because the jurisprudence at that time had precluded consideration of country conditions. Counsel also noted at the reopened hearing that the Appeal Division had new evidence of expert psychiatric testimony that indicated that the applicant had a good chance for recovery with proper treatment. Counsel argued that, when exercising its discretion pursuant to the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Appeal Division had to have regard for principles of fundamental justice. Counsel took the position that the only possible way the Appeal Division could exercise its discretion in this case, given the evidence on country conditions, was to allow the appeal. Counsel argued, in the alternative, that the Appeal Division should issue a stay of the deportation order on the condition that the applicant be held in detention until such a time as he was found by a psychiatrist to be able to live on his own.

[13]The Minister argued for dismissal, based on his view that the applicant still posed a danger to the public. The hearing was then adjourned on the understanding that, if the appeal was dismissed on equitable grounds, the Appeal Division would reconvene to receive evidence and consider the Charter issues that had been raised in a notice of constitutional question put forward by the applicant. However, after the Appeal Division dismissed the appeal in equity, it requested submissions on jurisdiction to consider the Charter on a reopened appeal. After receiving submissions, it ruled that it only had jurisdiction to reopen an appeal from a removal order on discretionary grounds and dismissed the appeal.

[14]The applicant filed extensive documentary evidence on country conditions in Jamaica, including evidence of police brutality towards mentally ill detainees. The Appeal Division concluded that the conditions for mentally ill persons in prisons, hospitals and on the streets of Jamaica were worse than those that existed in Canada.

[15]The Appeal Division noted that the applicant had been ordered deported on June 7, 1999. His first appeal had been dismissed and the judicial review of that appeal had been dismissed. He had been granted an opportunity to reopen, but the Appeal Division made the following points [at paragraphs 2-3]:

Many of the findings of the original panel were not challenged at the new hearing by either party. Appellant's counsel did not challenge the prior finding that the offences for which the appellant had been convicted were serious. Minister's counsel did not seek to upset the prior findings that "the appellant, to the extent that he is established anywhere in the world, is established in Canada," nor did he contest the prior panel's conclusion that "there would be great emotional hardship to the appellant's family, and particularly to his mother, if he were to be deported from Canada." Given the appellant's medical condition and inability to give testimony, the issue of remorse was not canvassed extensively at either hearing.

The fresh evidence brought forward at the hearing was in relation to the possibility of the appellant's rehabilitation and the potential foreign hardship he may experience in Jamaica, which was established as his likely country of removal. [Footnotes omitted.]

[16]With respect to the possibility of rehabilitation, the Appeal Division referred to the previous decision in Romans 1 where the possibility of the applicant reoffending was found to be high. The Appeal Division went on to note that the applicant remained in detention and that Dr. Hassan had interviewed him and reviewed the records. It further noted that Dr. Hassan testified that the applicant was suffering from chronic paranoid schizophrenia, substance abuse and was potentially a danger to himself and the public if he was not in detention. The Appeal Division further noted Dr. Hassan's evidence that schizophrenia impairs judgment and blurs emotional cognitive functions and that the applicant's schizophrenia was further complicated by his addiction to crack cocaine. The Appeal Division acknowledged Dr. Hassan's evidence that there were new medications available that had not yet been administered to the applicant, but concluded that there were significant difficulties in the way of its ensuring the safety of the public if it were to stay the deportation order [at paragraph 10]:

The evidence indicates that the appellant has been admitted and discharged from the Scarborough Grace Hospital, the Queen Street Mental Health Centre and the Wellesley Central Hospital. The appellant's stays at each of these hospitals was short term despite the severity of his medical condition. The history of past hospitalizations indicate [sic] that the appellant was able to leave the hospital and return to the streets within a short period of time. There was insufficient credible or trustworthy evidence presented to find that the appellant's past motivation to be out on the streets rather than in a hospital, has changed. After careful consideration, I have determined that I am not able to draft conditions that would ensure the safety of the public if I stayed the deportation order. The proposed treatment plan does not specifically address the issue of the appellant's drug addiction. The plan with respect to obtaining treatment for his schizophrenia is laden with uncertainty and possible loopholes that could compromise public safety. [Footnote omitted.]

[17]The Appeal Division then went on to deal with foreign hardship, summarizing the applicant's evidence on country conditions in Jamaica and acknowledging that he has no contacts there. The Appeal Division went on to indicate that the only hospital in Jamaica that accommodates the mentally ill is Bellevue, and there were limited opportunities for rehabilitation there because it is usually filled to capacity and drugs for treatment are not available. The Appeal Division made the following significant comment [at paragraphs 13-14]:

Having regard to all the evidence, I am persuaded that psychiatric care is available in Jamaica. I am also persuaded that the quality of that care is less than that available in Canada.

The IAD concluded, based on the evidence at the original hearing, that the effect of appellant's illness had turned him into a street person in Canada. "If deported, he is unlikely to notice much change in his circumstances."

[18]The Appeal Division then came to the following conclusion [at paragraph 15]:

Having regard to all the evidence presented, I am persuaded, on a balance of probabilities, that conditions for the mentally ill in prisons, hospitals and on the streets of Jamaica are worse than those existing in Canada. . . . I am not persuaded, on a balance of probabilities, that the conditions on the streets of Jamaica are such that the hardship faced by the appellant would be significantly worse than that he faced in Canada.

[19]As a result, the appeal was dismissed. The Appeal Division then went on to make the following statement concerning its jurisdiction to entertain Charter arguments [at paragraph 17]:

The discretionary jurisdiction of the IAD is of a continuing nature in removal cases under the Immigration Act. The IAD has jurisdiction to re-open an appeal from a removal order on discretionary grounds only. Counsel for the appellant filed a notice of constitutional question prior to the hearing challenging the validity of section 36(1)(a), 44(1) and 48(1) of the current Immigration and Refugee Protection Act. This appeal is governed by the Immigration Act. Nevertheless, on a re-opening, the appellant cannot attack the constitutional validity of the removal order. The appeal is dismissed. [Footnote omitted.]

ISSUES

[20]The applicant raises the following issues:

Did the Appeal Division err in law in concluding that it could not consider the Charter on a reopened appeal?

Did the Appeal Division err in law in failing to consider whether or not it ought to have exercised its discretion in accordance with the dictates of the Charter as required by the Supreme Court of Canada in Suresh, supra?

Is section 7 of the Charter engaged in the appeal process in this case?

If section 7 of the Charter is engaged, is the deportation order in this case in accordance with the principles of fundamental justice?

Did the Appeal Division err in law in concluding that it did not have jurisdiction to order the applicant detained until such time as he obtained the necessary treatment?

Did the Appeal Division err in law in the manner in which it exercised its jurisdiction in this case?

STANDARD OF REVIEW

[21]Snider J. discussed the applicable standard of review for Appeal Division decisions in Beaumont v. Canada (Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 189 (F.C.T.D.) by reference to Romans 1 [at paragraph 20]:

The applicable standard of review is discussed in the case of Romans v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 740 (F.C.T.D), whereby the Court affirmed that the standard of review with respect to the findings of the IAD. The Court stated:

Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, and not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's decision. It is not enough that the Court might have exercised the discretion differently.

PERTINENT LEGISLATION

[22]Section 7 of the Canadian Charter of Rights and Freedoms provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[23]The relevant provisions of the Immigration Act, R.S.C., 1985, c. I-2 are as follows [sections 74 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 67), 103.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 12; S.C. 1992, c. 49, s. 95)]:

27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who

. . .

(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed.

. . .

74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may

(a) make any other removal order or conditional removal order that should have been made; or

(b) in the case of an appellant other than a permanent resident, direct that the appellant be examined as a person seeking admission at a port of entry.

(2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.

. . .

103.1 . . .

(3) Where the Minister has issued a certificate under subsection (2), the Minister may amend the certificate to which the detention relates to include any matter referred to in subparagraph (2)(a)(i) or (ii), following which the person shall be brought before an adjudicator forthwith and at least once during every seven day period thereafter, at which times the adjudicator shall review the reasons for the person's continued detention.

. . .

(6) Every review under subsection (2) or (3) of the detention of a person suspected of being a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) shall be conducted in camera.

ANALYSIS

Did the Appeal Division err in law in concluding that it could not consider the Charter on a reopened appeal?

[24]The applicant argues that the Appeal Division in this case concluded it could not consider the Charter because its power to reopen derived solely from its ongoing equitable jurisdiction, so that it could not consider legal issues in a reopened appeal. The applicant submits that it is abundantly clear that every tribunal must apply the law in accordance with the Charter. The constitutionality of the deportation order was not raised at the first appeal. It was raised, however, on application for judicial review of that appeal in Romans 1 and, based on the record, this Court concluded that section 7 of the Charter was engaged, but there had been no breach of fundamental justice.

[25]The applicant submits that there is no doubt that the Appeal Division has jurisdiction to consider and apply the Charter (Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242 (C.A.)) and that, as the Charter is the Supreme Law of Canada, all other legislation must give way to it. In Suresh, supra, the Supreme Court noted as follows [at paragraph 77]:

The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her.

. . .

In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.

[26]The applicant argues that, given these dicta, the Appeal Division was clearly wrong in concluding that it did not have the jurisdiction to consider Charter arguments. While it might well be the case that the Appeal Division could not consider other legal issues that were previously decided in the first appeal, that reasoning cannot apply to Charter issues. The Appeal Division clearly erred in declining Charter jurisdiction and in denying the applicant the opportunity to present evidence on Charter issues.

[27]In reply, the respondent submits that the decision was made in a manner consistent with the Charter. The Federal Court of Appeal in Romans, supra, at paragraphs 1 and 2 decided that it did not have to determine whether section 7 of the Charter was engaged. The same position was taken by the Supreme Court of Canada in Chiarelli, supra.

[28]In Chiarelli, supra, the Supreme Court of Canada determined that it was not necessary, in the context of deciding whether the deportation of criminals complied with the Charter, to answer the threshold question as to whether the right of life, liberty and security of the person is engaged by deportation. Rather, it found it sufficient to determine that there was no breach of the principles of fundamental justice.

[29]In Chiarelli, supra, the Court noted that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Where a permanent resident has violated an essential condition under which he or she was permitted to remain in Canada, there can be no breach of fundamental justice in giving practical effect to the termination of the permanent resident's right to remain in Canada. In the case of a permanent resident, this Court has held that deportation is the only way in which to accomplish this.

[30]The respondent says that Chiarelli, supra, is on all fours with the case at bar. The Supreme Court's decision was not predicated upon the age or capacity of Chiarelli. Rather, the Supreme Court held that [at page 734] "it is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances."

[31]The applicant's contention that he has an absolute right to remain in Canada irrespective of his violent conduct and several criminal convictions is also inconsistent with section 6 of the Charter and subsection 4(2) [as am. by R.S.C., 1985, (4th Supp.), c. 28, s. 3] of the Immigration Act. Only Canadians have an absolute right to remain in Canada.

[32]Applying Chiarelli, Supra; Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.); and Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), the Federal Court of Appeal has held that the certification of a person as a "danger to the public" (which takes away an applicant's right to an appeal before the Appeal Division) does not violate section 12 of the Charter, even if the person is suffering from mental illness. Da Costa v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 182 (C.A.); Canepa, supra.

[33]The respondent notes that the applicant conceded at the first hearing that the deportation order was valid in law. The initial board found the deportation order valid at law. At the second hearing, the respondent notes that the applicant tried to argue that the Appeal Division, on a reopened hearing, has the jurisdiction to revisit the legal (i.e. constitutional) validity of the deportation order. The respondent provided submissions to the effect that the Appeal Division, on a reopened hearing, does not have the jurisdiction to consider the constitutional validity of the deportation order because the Appeal Division does not have the authority to sit in review of another board on questions of law. Judicial review in this Court is the proper forum for such arguments.

[34]The respondent notes that this Court considered a challenge to the first Appeal Division decision on judicial review in Romans 1 and submits that this Court noted that the validity of the deportation order was not challenged before the Appeal Division and the judicial review was, therefore, restricted to examining the Appeal Division's treatment of whether, in light of all the circumstances, the applicant should not be removed from Canada (Romans 1, supra, at paragraph 7).

[35]The respondent provided precedents from previous Appeal Division decisions that held that, on a reopening, the Appeal Division's jurisdiction is limited to equitable considerations properly before the Appeal Division. The Appeal Division, in its reasons, relied on these precedents to find that it was not open to the applicant to argue the legality of the deportation order (Barone v. Canada (Minister of Citizenship and Immigration) (1996), 38 Imm. L.R. (2d) 93 (I.A.D.), at paragraph 21):

In addition to the scope of the Appeal Division's power to reopen, as articulated in Grillas, the Appeal Division, like other administrative tribunals, is bound by the principles set out in another decision of the Supreme Court of Canada, Chandler v. Alberta Association of Architects ((1989), 2 S.C.R. 848). In Chandler the Supreme Court set out four circumstances in which an administrative tribunal would have authority to reopen its own decision. One of those circumstances is where a tribunal makes an error which has the effect of rendering its decision a nullity. In my view, an error of jurisdiction falls within that category of circumstances. For example, if the Appeal Division wrongly concludes that an appellant is not a permanent resident, when the appellant is in fact a permanent resident, and on that basis declines to hear the appellant's appeal, the decision of the Appeal Division is a nullity. That may give rise to a duty to reopen the appeal. This may be the one instance in which the Appeal Division is bound to revisit a previous determination which it made with respect to its own jurisdiction. As I understand the position taken by the applicant, the decision of the Appeal Division dismissing his appeal for lack of jurisdiction amounts to an error of jurisdiction which renders the decision of the Appeal Division a nullity in light of the reasoning in Williams.

[36]I note that there is little mention of Charter issues in the decision itself. The Appeal Division [Romans, supra] merely says at paragraph 17:

The discretionary jurisdiction of the IAD is of a continuing nature in removal cases under the Immigration Act. The IAD has jurisdiction to re-open an appeal from a removal order on discretionary grounds only. Counsel for the appellant filed a notice of constitutional question prior to the hearing challenging the validity of section 36(1)(a), 44(1) and 48(1) of the current Immigration and Refugee Protection Act. This appeal is governed by the Immigration Act. Nevertheless, on a re-opening, the appellant cannot attack the constitutional validity of the removal order. (Almonte, Antoniov v. M.C.I. (I.A.D. T89-00826).)

[37]In my opinion, the Appeal Division makes it quite clear that it cannot consider the constitutional validity of the deportation order itself. It is also saying that is can only reopen an appeal from the deportation order on "discretionary grounds." This suggests to me that the Appeal Division decided it would not entertain the Charter issues raised by the applicants and, indeed, believed it did not have the jurisdiction to do so.

[38]As regards the Appeal Division's decision that the constitutional validity of the deportation order could not, at that point, be questioned, I believe there is authority to support such a position. See Almonte v. Canada (Minister of Citizenship and Immigration), [1995] I.A.D.D. No. 1254 (QL); Canada (Minister of Citizenship and Immigration) v. Ledwich, [1998] I.A.D.D. No. 831 (QL); Barone, supra. However, the Appeal Board's decision, in so far as it indicates that in exercising its discretion on a reopening, the Appeal Division must leave the Charter out of account entirely, is clearly wrong. Another way of putting this would be to say, as the respondent suggests, that the Appeal Division had to decide, in exercising its discretion on a reopening application, "whether the execution of the deportation order" would be a violation of the applicant's Charter rights. The decision is not entirely clear on this matter but, in my opinion, the Appeal Division appears to be saying that it will consider "discretionary grounds only."

[39]As regards the first issue raised by the applicant, in my opinion, the Appeal Division committed a reviewable error by deciding it could not consider the Charter arguments that the applicant wished to advance as regards the execution of the deportation order.

Did the Appeal Division err in law in failing to consider whether or not it ought to have exercised its discretion in accordance with the dictates of the Charter as required by the Supreme Court of Canada in Suresh, supra?

[40]The applicant submits that the Appeal Division erred in failing to apply and consider relevant Charter issues in the exercise of its discretion. In the case at bar, counsel for the applicant argues, based on the decision of the Supreme Court of Canada in Suresh, supra, that the Appeal Division had to exercise its discretion in accordance with the Charter. The applicant says that, given the new evidence that was before the Appeal Division in this case, (evidence that had not been considered either by the previous Appeal Division or this Court in Romans 1), the removal of the applicant would inevitably violate the principles of fundamental justice and the Appeal Division was obliged, therefore, to exercise its discretion in favour of the applicant.

[41]The applicant submits that there was clear evidence before the Appeal Division of the following:

1. the applicant arrived in Canada when he was 18 months old and has lived here all his life;

2. he became ill in Canada;

3. Dr. Hassan testified that the applicant could not be held responsible for his criminal convictions because he was mentally ill at the material time;

4. the applicant has not been given proper treatment for his illness in the past;

5. there are proper treatments available now that have a good chance of success;

6. the applicant has no connections to Jamaica;

7. the mentally ill in Jamaica are subject to systematic abuse;

8. the Bellevue Hospital (the only hospital that could potentially house the applicant in Jamaica) has limited facilities and is chronically overcrowded and has very limited rehabilitation options; and

9. as a result of these factors, there is a serious risk to the applicant's life if he is deported to Jamaica.

[42]In these circumstances, the applicant argues that his removal to Jamaica would necessarily violate the principles of fundamental justice, so that regardless of any other concerns, including risk to the public in Canada, the Appeal Division ought to have exercised its discretion in his favour (see Suresh, supra, and United States v. Burns, [2001] 1 S.C.R. 283). The applicant takes the position that the decision gives no indication that the Appeal Division even considered these matters.

[43]In reply, the respondent submits that Suresh, supra, is distinguishable from the present facts. The applicant in the case at bar has not been found to be a Convention refugee. Nor have there been any serious allegations put forward of substantial grounds to believe that the applicant faces a risk of torture if he is returned to Jamaica. While the Suresh, supra, principles may be considered when a removal is contemplated, their applicability is limited in the case at bar because of significant differences of fact.

[44]Besides the constitutional validity of the deportation order, counsel for the applicant also raised with the Appeal Division the extent to which the Charter limited its general discretion in this case and, in particular, the implications of the Supreme Court of Canada decision in Suresh, supra, for the exercise of that discretion.

[45]The respondent's argument on this issue is, essentially, that the Appeal Division had no obligation to mention the Charter arguments specifically; it merely had to exercise its discretion and perform its statutory duty within the terms of the Charter and in accordance with the principles of fundamental justice, which it did.

[46]In my opinion, the Appeal Division should have addressed the extent to which the exercise of its discretion was affected by Charter principles, and the implications of Suresh, supra, for the decision it had to make, particularly in light of the new evidence presented on country conditions in Jamaica and the fate faced by the applicant if he was returned there. The respondent's argument that the Appeal Division had no obligation to actually refer to the Charter and the Charter issues raised by the applicant around Suresh, supra, does not, in my opinion, really meet the point raised by the applicant. This is because it is not clear from the decision whether the Appeal Division regarded Charter issues as relevant in any sense to the exercise of its discretion. Because the impact of the Charter, particularly since the decision in Suresh, supra, was such a significant aspect of the applicant's argument, the Appeal Division should have addressed these matters in its decision. In my opinion, its failure to do so constitutes a reviewable error.

[47]The respondent attempts to distinguish the facts in Suresh, supra, from the facts in this case, and indeed they are different. But distinctions of fact do not remove the underlying considerations that Suresh, supra, suggests are applicable to decisions of this kind. In Suresh, supra, the Supreme Court of Canada said that "as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis" (paragraph 114). I am not suggesting that the evidence of country conditions in Jamaica and the likely fate awaiting the applicant are necessarily equivalent to the fate that awaited Mr. Suresh, and I do not agree with applicant's counsel that, in this case, fundamental justice demanded that the applicant remain in Canada, irrespective of the risk to the public. But this was an important issue that the Appeal Division should have addressed in deciding whether or not to exercise its discretion. It is not clear from the decision whether it did so or whether it felt that this was a legal issue associated with the constitutional validity of the deportation order that had to be left out of account.

[48]It is my opinion that, in this case, the Appeal Division was not alive to the kind of analysis that Suresh, supra, now demands of it. I note that Suresh, supra, has been considered and applied in favour of an appellant before the Appeal Division in at least one instance. In Velupillai v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 863 (QL), Panelist Egya Sangmuah was faced with an appellant who had been convicted of conspiracy to traffic in heroin and sentenced to a term of eight years' imprisonment. A removal order was issued for Mr. Vellupillai, which he appealed, and the Appeal Division noted as follows [at paragraphs 26-28]:

In Chieu, the Supreme Court of Canada held that, provided an appellant can establish on a balance of probabilities the likely country of removal, the IAD can consider evidence of potential foreign hardship. The appellant submitted that the likely country of removal is Sri Lanka. He has no other country of nationality or right to permanent residence in any other country. He is not a Convention refugee, as he was excluded by the CRDD and is not protected against refoulement. Counsel for the Minister did not dispute that the likely country of removal would be Sri Lanka. The appellant contended that given the links of his co-conspirators to the LTTE and allegations that he is a member of the LTTE he would be at risk of torture and other grave human rights violations if he were removed to Sri Lanka. I agree. The CRDD, with its special expertise in these matters, concluded that the appellant would be at serious risk of torture if were to return to Sri Lanka. The documentary evidence submitted by the appellant supports this view. I note that in Suresh the Supreme Court of Canada also held that the removal of an individual to a country where there was a serious risk of torture would in all but the most exceptional circumstances violate the principles of fundamental justice protected by section 7 of the Canadian Charter of Rights and Freedoms. It would be an understatement to say that the potential foreign hardship in this case is severe. This factor weighs heavily against the appellant's removal from Canada.

In conclusion, the appellant has established that on all the circumstances of the case he should not be removed from Canada. I gave considerable weight to potential foreign hardship, the absence of criminal activity on the part of the appellant since 1988 and the best interests of the appellant's children. While I also weighed the circumstances of the offence (including that the appellant knew that he was trafficking in association with LTTE members and that he ought to have known that some portion of the proceeds would be provided to the LTTE) heavily against the appellant, the positive factors outweighed this negative factor. Given the positive factors in this case, including the fact that the appellant is not likely to re-offend, a stay of the execution of the removal order would serve no purpose.

Accordingly, I allowed the appeal on all the circumstances of the case and quashed the removal order dated June 22, 1992. [Footnotes omitted.]

[49]In my opinion, Suresh, supra, is an important aspect of the legal framework within which the Appeal Division has to operate in considering appeals from deportation orders. It is not clear to me from the decision that the Appeal Division regarded these considerations as being within its jurisdiction. Its assertion that its jurisdiction was limited to "discretionary grounds only" leads me to the conclusion that it did not. In my opinion, this was a reviewable error.

Is section 7 of the Charter engaged in the appeal process in this case?

[50]The applicant submits that his appeal engages his section 7 Charter rights. Dawson J. found that the applicant's Charter rights were engaged in her judicial review of the previous decision of the Appeal Division in Romans 1. The applicant relies on the analysis of the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, also relied upon by Dawson J. in her decision. The removal of the applicant will profoundly affect his ability to make the most fundamental decisions about his life and will affect the power of those charged with his care to be able to assist him and care for him.

[51]The applicant says that the psychological stress that is associated with the enforced removal from the only support system available to him, and the only country that he has ever known, in circumstances where he is extremely vulnerable, is the type of psychological stress contemplated by the Court in Blencoe, supra.

[52]The respondent submits that the deportation of the applicant, a permanent resident and a serious criminal, complies with section 7 of the Charter. The respondent refers to the judgment of Strayer J.A. in Williams, supra, [at paragraphs 24 and 26]; leave to appeal to S.C.C. dismissed October 16, 1997, [1997] 3 S.C.R. xv:

. . . I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order?

. . .

On the basis of the jurisprudence to date, then, I am unable to conclude that "liberty" includes the right of personal choice for permanent residents to stay in this country where, as the Supreme Court said in Chiarelli:

They have all deliberately violated an essential condition under which they were permitted to remain in Canada [Footnote omitted.]

[53]The respondent notes that the Federal Court of Appeal, in examining this applicant's circumstances of removal in Romans 1, decided that it did not have to determine whether section 7 was engaged. (Romans, F.C.A., supra). This is the same position that the Supreme Court of Canada took in Chiarelli, supra. In Chiarelli, the Supreme Court of Canada determined that it was not necessary, in the context of deciding whether the deportation of criminals complied with the Charter, to answer the threshold question as to whether the right of life, liberty and security of the person is engaged by deportation. Rather, it found it sufficient to determine that there was no breach of the principles of fundamental justice.

[54]The respondent submits that, in Chiarelli, supra, the Court unanimously noted that Parliament had the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. Where a permanent resident has violated an essential condition under which non-citizens will be permitted to enter and remain, there can be no breach of fundamental justice in giving practical effect to the termination of a permanent resident's right to remain in Canada. The respondent further submits that, in the case of a permanent resident, this Court in Romans 1 has held that deportation is the only way in which to accomplish this.

[55]The respondent notes that, in Chiarelli, supra, the decision was not predicated upon the age or capacity of Mr. Chiarelli. Rather, the Court held that "[i]t is not necessary, in order to comply with fundamental justice, to look beyond the criminal convictions to other aggravating or mitigating circumstances" (at page 734).

[56]The respondent further submits that the applicant's contention that he has an absolute right to remain in Canada, irrespective of his violent conduct and numerous criminal convictions, is also inconsistent with section 6 of the Charter and subsection 4(2) of the Immigration Act. The respondent submits that only Canadians have an absolute right to remain in Canada.

[57]The respondent argues that in Chiarelli, supra; Williams, supra; and Canepa, supra, the Federal Court of Appeal has held that the certification of a person as a "danger to the public" does not violate section 12 of the Charter, even if the person is suffering from mental illness.

[58]The respondent also argues that the applicant is erroneously relying on extradition jurisprudence, namely Burns, supra, at paragraph 65, to assist in the determination of the applicable principles of fundamental justice in the deportation context. The respondent submits that, in Burns, supra, this Court reaffirmed a contextual approach in determining what constituted the applicable principles of fundamental justice in the extradition context. The respondent argues that the decision in Burns, supra, turned very much on the particular facts of the case, on the particular content of the extradition treaty with the U.S., and on the particular role played by Canada domestically and internationally in abolishing the death penalty.

[59]The respondent suggests that principles developed within the context of extradition do not automatically apply to the immigration context and that this was recognized by the Supreme Court in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

[60]In Romans 1, Dawson J. concluded that the applicant's section 7 Charter rights were engaged. The respondent contends that the Federal Court of Appeal, in examining this applicant's circumstances of removal, decided that it did not have to determine whether section 7 was engaged (Romans (F.C.A.), supra). However, I note that in that decision, Décary J.A. indicated that the Court accepted, for the sake of its discussion [at paragraph 1], "that section 7 of the Charter is engaged by the deportation of a permanent resident pursuant to paragraph 27(1)(d) of the Immigration Act."

[61]As Dawson J. pointed out in Romans 1, at paragraph 22, the "consequence of the issuance of the [sic] deportation order against an individual is profound." In this case it "prohibits Mr. Romans from making the fundamental personal choice to remain in Canada where he receives the love and support of his family, financial support, and the support of his social worker and the health-care system." As a consequence, Dawson J. found that the issuance of a deportation order in the case of the applicant engaged his section 7 rights under the Charter. In my opinion, those rights remain engaged in a reopened appeal and the justifications offered by Dawson J. are equally applicable to the matters before me in the case at bar.

If section 7 of the Charter is engaged, is the deportation order in this case in accordance with the principles of fundamental justice?

[62]The applicant concedes that in Romans 1, Dawson J. concluded there was no breach of fundamental justice because, on the facts before her, there was no basis for distinguishing between this case and that of Chiarelli, supra. In Chiarelli, supra, the Supreme Court of Canada concluded that there was no violation of fundamental justice in deporting from Canada a non-citizen who had deliberately violated one of the conditions of his or her admission to Canada.

[63]The applicant submits that the evidence before the Appeal Division and before this Court now discloses that the applicant has been mentally ill since he was an adolescent. Dr. Hassan testified that the applicant's criminal convictions were related to his illness, especially when he was not receiving treatment and was hallucinating. Given this evidence, the applicant suggests it is not possible to conclude that the applicant "deliberately" violated one of the conditions of his admission to Canada so that there is now a significant difference between the case at bar and the Chiarelli, supra, situation.

[64]Moreover, the applicant submits that new and significant evidence was put before the Appeal Division concerning the appalling conditions awaiting the applicant as a mentally ill person in Jamaica. Contrary to what was asserted by the Appeal Division in its decision, there was no evidence at all that would suggest that the applicant would obtain adequate care for his very serious and complex problems. The letter from the Consul in Jamaica confirmed that there was very limited rehabilitation available and that the only relevant facility in that country was chronically overcrowded. The psychiatrist who testified indicated that the applicant's condition was treatable but required sophisticated treatment and drugs. The evidence disclosed that this treatment would not be available in Jamaica. Other documentary evidence disclosed a society in which the chronically mentally ill usually end up in the penal system, where they are subject to abuse and torture. The mentally ill who are not detained are subject to abuse and physical assault in the streets. They are virtually without protection.

[65]The applicant submits that, as a result of the decisions of the Supreme Court in Suresh, supra, and Burns, supra, it is now beyond dispute that the applicant's potential treatment in the country of deportation is relevant to a section 7 analysis. This evidence was not before this Court in Romans 1. This compelling evidence suggests that the treatment of the applicant will be as appalling as the potential torture that Mr. Suresh feared. It is as shocking to send the applicant back to these conditions in circumstances where he is defenceless as it was to send Mr. Burns or Mr. Rafay back to face the possibility of the death penalty.

[66]In Romans, supra, the Federal Court of Appeal dismissed the appeal because, on the facts before it, it concluded that the evidence was not sufficient to meet the "shocks the conscience" test as enunciated by the Supreme Court of Canada in Burns, supra.

[67]In this case, the applicant is mentally ill. As noted, there is a suggestion in the evidence that, given his illness, he cannot be said to have deliberately violated a condition of his admission to Canada. In Chiarelli, supra, at page 734, the Supreme Court talked about the "one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii) [of the Immigration Act]" as being that they "have all deliberately violated an essential condition under which they were permitted in Canada" (emphasis added) so that there can be "no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada." The applicant is in a state where he is unable to care for himself. Moreover, he has lived all of his life here in Canada and has no connections to Jamaica. Finally, the evidence discloses he is at considerable risk if he is returned there. Given these factors, the applicant submits that it would "shock the conscience" to deport him to Jamaica.

[68]The respondent argues that this Court has already considered and rejected the argument that Chiarelli, supra, can be distinguished from the present facts on the basis that the applicant is a product of Canada who, due to his mental illness, is not responsible for his actions. Dawson J. In Romans 1, supra, specifically referred to the passage in Chiarelli, supra, dealing with persons who "deliberately violated an essential condition under which they were permitted to remain in Canada" when concluding that Chiarelli, supra, was binding upon her. Dawson J. concluded that removing the mentally ill applicant from Canada would not violate section 7 of the Charter. There had been compliance with the principles of fundamental justice.

[69]The respondent argues that the principles of fundamental justice applicable here are grounded in the societal and legislative context of immigration law and are derived from the basic tenets of our legal system, a system that does not provide non-Canadians with an unqualified right to remain in Canada.

[70]The respondent further argues that the process followed in this case fully complied with the principles of fundamental justice. An adjudicator issued the deportation order following an inquiry at which the applicant was present and able to present evidence and make submissions. The deportation order was subject to an appeal to the Appeal Division on legal and equitable grounds in a hearing de novo. The Appeal Division may receive new evidence and is not bound to consider only the evidence that was before the adjudicator who issued the deportation order. At the hearing of his appeal, the applicant was afforded the opportunity to make oral submissions, to be represented by counsel, to have a designated representative appointed, to present fresh evidence, to call witnesses to testify on his behalf and to submit any documentation he wished the Appeal Division to consider.

[71]I have reviewed the decision of Dawson J. in Romans 1, supra. In that case, the applicant had argued that the situation was distinguishable from Chiarelli, supra, because the applicant was a product of Canada and, because of his mental illness, he was "not responsible to the same extent for his action." Dawson J. came to the following conclusions on these issues [at paragraphs 26-31]:

With respect to the prior decision of the Supreme Court in Chiarelli, Mr. Romans submitted that the Charter is a living document so that Chiarelli must be reconsidered today in light of recent jurisprudence. In any event, Chiarelli was said to be distinguishable because Mr. Chiarelli came to Canada as an adolescent of 15 years of age and hence was not a product of Canada. This was said to be distinguishable from Mr. Romans' situation. Mr. Romans is a product of Canada and due to his mental illness he is not responsible to the same extent for his actions.

Finally, reference was made by Mr. Romans to the decision of the Supreme Court of Canada in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 where in the context of extradition it was noted that there would be circumstances where extradition would violate section 7 of the Charter if the treatment to be received in the receiving state would shock the values of Canadians.

Despite the compelling argument of Mr. Romans' counsel, I am unable to distinguish the decision of the Supreme Court of Canada in Chiarelli which is binding upon me. I cannot conclude that the Supreme Court's decision was predicated upon the age or capacity of Mr. Chiarelli.

In Chiarelli the Supreme Court unanimously noted, at page 733, that Parliament has the right to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. The Court ruled at page 734 that:

One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.

This, in my view, is conclusive of the issue of whether Mr. Romans' removal violates section 7 of the Charter.

As for reliance upon Kindler, I note that Kindler predates Chiarelli, and I do not see how the express ruling in Chiarelli can be said to be modified by the Court's earlier decision. As well, rulings from the extradition context must be applied with great care to the present circumstances because extradition involves those accused, not convicted, of offences.

[72]Once again, applicant's counsel has introduced new evidence and has raised extremely able arguments to ask this Court to reach a different conclusion from the one reached by Dawson J. in Romans, supra. I have, in any event, considerable reservations about his assertion that Dr. Hassan's evidence now shows the applicant was not responsible for his crimes. However, having undertaken the same exercise as Dawson J., and after reviewing the jurisprudence, I cannot see how the new evidence adduced by the applicant concerning his mental capacity can help him on this issue.

[73]The evidence concerning the impact of his mental illness on the crimes he was convicted of is, at bottom, a capacity issue and, to borrow the words of Dawson J. in Romans 1 [at paragraph 28] "I cannot conclude that the Supreme Court's decision was predicated upon the age or capacity of [the applicant]." Chiarelli, supra, is also binding upon me and is conclusive of this issue. However, as regards the new evidence of country conditions I feel that Chiarelli, supra, does not tie the Court's hands and this was a matter that was not before Dawson J. in Romans 1.

[74]The Court in Suresh, supra, indicated as follows [at paragraphs 54, 56, 58, 77-79 and 129]:

While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here. In Burns, nothing in our s. 7 analysis turned on the fact that the case arose in the context of extradition rather than refoulement. Rather, the governing principle was a general one--namely, that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government's participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada's participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada's participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand.

. . .

While this Court has never directly addressed the issue of whether deportation to torture would be inconsistent with fundamental justice, we have indicated on several occasions that extraditing a person to face torture would be inconsistent with fundamental justice. As we mentioned above, in Schmidt, supra, La Forest J. noted that s. 7 is concerned not only with the immediate consequences of an extradition order but also with "the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country" (p. 522). La Forest J. went on to specifically identify the possibility that the requesting country might torture the accused and then to state that "[s]ituations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7" (p. 522).

. . .

Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state's genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada's constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere.

. . .

In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.

We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 "only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like": see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.

In these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter. What is at issue is not the legislation, but the Minister's obligation to exercise the discretion s. 53 confers in a constitutional manner.

. . .

We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter's s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter.

[75]In light of this, I regard the basic issue before me on this question raised by the applicant as being whether, in light of the new evidence adduced by the applicant and his supporters concerning the fate awaiting him in Jamaica, the appropriate "fundamental justice balance" was reached in the decision, bearing in mind that the Supreme Court has said in Suresh, supra, that [at paragraph 78] "the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis."

[76]I recognize, of course, that it is not the intention of the Minister in this case to deport the applicant to face torture and that there is room for debate concerning what he does actually face if deported to Jamaica. But my reading of the decision suggests to me that the member does not really confront this issue and fails to take into account the implications of Suresh, supra, for the situation before him.

[77]The applicant presents an extremely difficult case. He is a danger to himself and the Canadian public, but he is also extremely vulnerable and faces grave danger and possible death if returned to Jamaica. He just cannot look after himself and needs the support of his mother and others. He needs dramatic medical intervention. He has been in Canada since he was a small child. It is a matter of mere oversight on the part of his mother that he is not a Canadian citizen. The applicable provincial laws should have been used long ago to ensure that he gets the treatment he needs for his illness and to ensure that he is detained in an appropriate institution until he ceases to be a danger to himself and the public.

[78]The immigration system is not equipped to deal with the exigencies of this situation. It doesn't have the flexibility. Yet the Minister must ensure that the public is protected. Hence, the crude expedient of deportation and the sorry state of affairs before the Court is this application.

[79]The decision itself reveals the member grappling with these irreconcilables but, taking everything into account, he concludes that the applicant appears to be doomed wherever he is and so he might as well be in Jamaica where he will not pose a threat to the Canadian public. A decision has to be made. In this regard, the words of Joyal J. in Fernandes v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 49 (F.C.T.D.) should be born in mind [at paragraphs 15-16]:

The Board, in dealing with an appeal from a deportation order as in the case at bar, is exercising equitable jurisdiction. This, of course, is meant to alleviate what might be termed the harshness of the law which more often than not can only speak in black or white terms. Seized of such an appeal, the Board must of necessity maintain a judicious respect for both the rule of law and the humanitarian and compassionate considerations involved. This is not easy and it is obvious, as in the case before me, that it imposes on the members of the Board particular attention to all of the circumstances. Sooner or later, however, the Board has to make up its mind one way or the other.

Naturally, the tribunal's decision will not always win a popularity contest. Yet to the extent that the tribunal thoroughly applied its mind and carefully weighed all of the evidence before it, that decision merits respect.

[80]As I shall discuss later, I do not believe that the member had the power to order that the applicant be detained indefinitely until he receives the medical and other attention he needs under provincial law to ensure he is no longer a danger to the public. So, a choice had to be made, and, unless the applicant's support group ensures that he does get the assistance he needs to ensure he is no longer a danger to the public, that choice will have to be made again.

[81]I do not believe the fundamental justice balance was adequately considered by the member in this case and that, with particular regard to Suresh, supra, and the applicant's section 7 Charter rights, I believe it needs to be considered again. But I do not accept the argument of applicant's counsel that, if it is done properly, only one result is possible. In all of the circumstances of this case, public safety must remain a significant issue while the applicant remains capable of refusing treatment and placing himself at large. The respondent says that the appropriate balancing was done, but I am not happy with a conclusion that says "I am not persuaded, on a balance of probabilities, that the conditions on the streets of Jamaica are such that the hardship faced by the appellant would be significantly worse than that he faced in Canada." This conclusion seems perverse to me in light of the evidence that was before the member on the conditions that confront the mentally ill in Jamaica and, in contrast, the support that the applicant has available to him in Canada. The applicant is an extremely vulnerable human being. He cannot take care of himself. He is clearly better off in Canada, in my opinion. Whether, when these considerations are balanced against the dangers he poses to others, the deportation order is in accordance with the principles of fundamental justice, still requires determination. But the issue should not be evaded by pretending that what the applicant confronts in Jamaica is not significantly worse than he faces in Canada.

Did the Appeal Board err in law in concluding that it did not have jurisdiction to order the applicant detained until such a time as he obtained the necessary treatment?

[82]The applicant submits that the Appeal Division unduly fettered its discretion when it concluded that it did not have the jurisdiction to order him detained and to impose conditions that would adequately protect the public. The Appeal Division noted that it considered the imposition of these conditions but concluded it did not have the jurisdiction to act in the way suggested by the applicant. However, it is submitted that, in reaching this conclusion, the Appeal Division interpreted its powers on granting a stay in an unduly restrictive manner. This appeal was decided under the former Immigration Act. The power to impose terms and conditions is set out in subsection 74(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the former Act, a provision similar to that contained in Immigration and Refugee Protection Act [S.C. 2001, c. 27] IRPA:

74. . . .

(2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.

[83]The applicant submits that there is nothing in the wording of this section that would restrict the Appeal Division's power to impose conditions when granting a stay. The power is to grant such terms and conditions as it "may determine". The Appeal Division is vested with all the powers of a court of record and there is nothing in the wording of this section to prevent it from ordering the applicant's detention until such time as he is certified by a psychiatrist as not being a danger to the public. Moreover, the applicant argues that the dicta of the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 are instructive of the scope of the Appeal Division's jurisdiction in this regard [at paragraphs 46-47]:

Parliament has structured the I.A.D. to provide robust procedural guarantees to individuals who come before it and to provide a significant degree of administrative flexibility to I.A.D. board members and staff. The I.A.D. is a court of record (s. 69.4(1)) with broad powers to summons and examine witnesses, order the production of documents, and enforce its orders (s. 69.4(3)). A removal order appeal is essentially a hearing de novo, as evidence can be received that was not available at the time the removal order was made. The I.A.D. has liberal rules of evidence, and may "receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it" (s. 69.4(3)(c)). Written reasons must be provided for the disposition of an appeal under ss. 70 or 71 when such reasons are requested by either of the parties to the appeal (s. 69.4(5)). As with the statutory stay, Parliament has not provided similar procedural guarantees for decisions by the Minister.

Furthermore, the remedial powers of the I.A.D. are very flexible. Pursuant to s. 73(1) of the Act, the I.A.D. can dispose of an appeal made pursuant to s. 70 in three ways: by allowing it; by dismissing it; or, if exercising its equitable jurisdiction under ss. 70(1)(b) or 70(3)(b), by directing that execution of the order be stayed. When a removal order is quashed, the I.A.D. has the power to make any other removal order or conditional removal order that should have been made (s. 74(1)). When a removal order is stayed, the I.A.D. may impose any terms and conditions it deems appropriate, and review the case from time to time as it considers necessary (s. 74(2)). Stays may be cancelled or amended by the I.A.D. at any time (s. 74(3)). When a stay is cancelled, the appeal must be either dismissed or allowed, although the I.A.D. retains its powers under s. 74(1) to substitute a different removal order. [Underlining in original.]

[84]The applicant submits that, given these dicta, the Appeal Division clearly erred in concluding that, when granting a stay, its jurisdiction prevented it from ordering the continued detention of the applicant.

[85]In reply, the respondent argues that imposing a term and condition in order to grant the applicant a stay of execution of the deportation order is, in effect, to grant the applicant a reprieve from removal. If the applicant chooses to violate the terms and conditions of the stay, the Appeal Division can use the violation as a factor in whether it chooses to exercise its discretion in the applicant's favour. If a "condition" of a stay is mandatory detention, this is not a condition at all, but is tantamount to being a term of potentially indefinite imprisonment. The respondent's position is that Parliament specifically repealed the Appeal Division's jurisdiction to detain, or even supervise detention orders as a result of various amendments from 1976 through 1992. The respondent submits that the Appeal Division no longer has any authority regarding detention of appellants so that the applicant's arguments are simply misplaced.

[86]From 1992 to June 28, 2002 (when the Immigration Act was superceded by the IRPA), the jurisdiction to detain was contained in section 103 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19] of the Immigration Act, an extraordinary power to be exercised by senior immigration officers and adjudicators alone.

[87]The respondent argues that the applicant is wrong in suggesting that subsection 74(2) of the former Immigration Act conferred upon the Appeal Division the jurisdiction to detain the applicant. The respondent contends that there was no statutory authority under subsection 74(2) to permit the Appeal Division to order a person detained as a "term and condition" where a stay of execution of a removal order was granted pursuant to subsection 74(1).

[88]The respondent contends that under the former Immigration Act, the extraordinary power to detain an individual (on an ongoing basis) was granted to adjudicators under subsection 103(3) where there was explicit statutory authority, and not subsection 74(2), which merely spoke of ordinary "terms and conditions":

103. . . .

(3) Where an inquiry is to be held or is to be continued with respect to a person or a removal order or conditional removal order has been made against a person, an adjudicator may make an order for

(a) the release from detention of the person, subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond;

(b) the detention of the person where, in the opinion of the adjudicator, the person is likely to pose a danger to the public or is not likely to appear for the inquiry or its continuation or for removal from Canada; or

(c) the imposition of such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond.

[89]The respondent further contends that explicit procedural protections governing ongoing detention under subsection 103(3) were contained in subsection 103(6) [as am. by S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19], which required that the reasons for detention be reviewed by an adjudicator on a regular basis. Subsection 103(6) contained no authority for adjudicators to detain any person, including psychiatric patients, for their own protection:

103. . . .

(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.

[90]The respondent submits that fundamental principles of statutory interpretation would militate against an interpretation of subsection 74(2) of the Immigration Act that would confer extraordinary power to detain an individual where there is no explicit statutory authority for it nor any procedural protections as contained in section 103.

[91]The respondent contends that the applicant appears to be arguing that the Appeal Division had the jurisdiction to order "indefinite detention" of the applicant pending a highly speculative course of treatment to cure his schizophrenic condition.

[92]The respondent submits that Rothstein J. in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.) cautioned against there being authority under the Immigration Act to indefinitely detain a person. Immigration detention is an extraordinary restraint and should not be indefinite. Rothstein J. enumerated a non-exhaustive list of criteria for adjudicators to consider when considering detention under subsection 103(6) of the Immigration Act. None of these criteria, enumerated at page 231, suggest the power to order someone detained to obtain psychiatric treatment or for their protection:

(1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public.

(2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release.

(3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.

(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc.

[93]The respondent contends that if this Court accepts the applicant's argument, subsection 74(2) of the Immigration Act could provide the Appeal Division with the authority to indefinitely detain persons to receive psychiatric treatment at its pleasure with none of the protections mandated by statute nor jurisprudence. The respondent submits that this would be contrary to the clear legislative intent of Parliament to carefully circumscribe the extraordinary power to detain by the protective mechanism contained in subsection 103(6) of the Immigration Act.

[94]The respondent concludes that the Appeal Division correctly held that detention of the mentally ill falls within provincial authority, such as under the Ontario Mental Health Act [R.S.O. 1990, c. M. 7]. The Federal Immigration Act contains no authority for the Appeal Division to order an indefinite psychiatric detention.

[95]I agree with the respondent's interpretation of the Appeal Board's powers of detention.

[96]I have not been able to identify any previous applications of subsection 74(2) of the Immigration Act that support the applicant's argument in this case that it could be used to support the Appeal Division's discretionary powers relating to the granting of detention orders in the way suggested by the applicant. The rules of statutory interpretation obligate me to consider the more specifically applicable provision in the Immigration Act to be the appropriate provision to apply in this case.

[97]Neither subsection 103(3) or 103(6) of the Immigration Act describe any sort of circumstances that would approximate to those of the applicant, wherein the person subject to detention is being detained for their own benefit. As the respondent argues, this could arguably lead to indefinite detention. It is possible that Parliament did not anticipate circumstances such as those faced by the applicant, but it would be dangerous for the Appeal Division or this Court to confer such a broad jurisdiction on the Appeal Division in relation to detention. Subsection 103(6) of the Immigration Act provides important procedural protections when the examination, inquiry, or removal of a person cannot take place promptly. The Appeal Division would surely be overstepping its jurisdiction in setting terms and conditions that implicate a provincial statute and/or provincial agencies without the requisite statutory authorization.

[98]Even though a limited detention may benefit the applicant in this case and may be possible under subsection 74(2), I find that the Appeal Division did not err in law in determining that it did not have jurisdiction to order the applicant detained until such a time as he obtained the necessary treatment.

Did the Appeal Division err in law in the manner in which it exercised its jurisdiction in this case?

[99]Finally, the applicant submits that the Appeal Division erred in the exercise of its discretion by concluding that, although conditions in Jamaica were not as good as they were in Canada, the applicant would obtain treatment. The Appeal Division addressed this issue as follows [at paragraph 15]:

Having regard to all the evidence presented, I am persuaded, on a balance of probabilities, that conditions for the mentally ill in prisons, hospitals and on the streets of Jamaica are worse than those existing in Canada. The appellant has endured hardship on the streets in Canada. I am not persuaded, on a balance of probabilities, that the conditions on streets of Jamaica are such that the hardship faced by the appellant would be significantly worse than that he faced in Canada.

[100]The applicant submits that, in making this finding, the Appeal Division ignored and indeed did not even mention all of the significant evidence related to country conditions that clearly established the applicant's life and security would be placed at risk in Jamaica. The Appeal Division ignored the fact that there was now a psychiatrist committed to caring for the applicant, that the psychiatrist had developed a treatment plan, that he stated the applicant had committed to obtain the treatment, that there were new drugs available in Canada and that, within a year of treatment, there was a higher than 50 percent chance that the applicant would be able to function effectively in a halfway house. The Appeal Division concluded that there was a chance that the applicant would be allowed to go out in public and would pose a public risk. In making that finding, the applicant says the Appeal Division ignored the evidence of Dr. Hassan who said he would certify the applicant if his condition remained as it was, i.e. if he was still a danger to himself and others. Dr. Hassan made it clear that the applicant had been neglected by the mental health system in the past and that his criminality was the product of inadequate treatment. By concluding that there would not, in effect, be any difference if the applicant were deported, the Appeal Division ignored the evidence of terrible conditions in Jamaica and ignored the evidence of potential treatment in Canada. The applicant submits that by suggesting that he "wouldn't know the difference," the Appeal Division displayed a lack of understanding of the situation of the mentally ill. The Appeal Division appears to suggest that, because the applicant is mentally ill, he doesn't feel anything, so that, wherever he is, he will not be in a materially different position. It is submitted that there was no evidence to suggest that, if the applicant were in detention in Jamaica, in circumstances where he was subject to physical and sexual abuse, he would not suffer from abuse. The applicant submits that this finding is patently unreasonable.

[101]In reply, the respondent submits that the Appeal Division's decision was reasonable and was made with regard to the evidence before it.

[102]The respondent points out that, contrary to the assertions of the applicant, Dr. Hassan never undertook to certify the applicant for involuntary admission. Dr. Hassan spoke of hypothetical situations and specifically indicated that he would not be the doctor who would look after the applicant in the event that he was involuntarily admitted to a facility. Dr. Hassan indicated that if the applicant were released from detention he would have the authority to assess the applicant, but there were no guarantees. Dr. Hassan had made no attempt to have the applicant certified and placed in protective psychiatric detention and considered that immigration detention was sufficient to prevent the applicant hurting himself and others. Dr. Hassan also stated that if the applicant voluntarily went to hospital he could not be forcibly confined and would be at liberty as a patient. Were the applicant not forcibly confined it would be up to the applicant to show up for his medication. Dr. Hassan indicated there was a risk that the applicant would disappear onto the streets and fail to take the suggested medication.

[103]The respondent submits that the Appeal Division was sensitive to the applicant's specific situation as a mentally ill person. The applicant has previously demonstrated that he will refuse to take medication and will walk away from hospitals and live on the streets when he is not in immigration detention pending his deportation. There is no guarantee that the applicant will be forcibly detained in a psychiatric facility or that he will respond to, or even take, medication that might alleviate some of his psychotic tendencies. The applicant views his very supportive Canadian family as a threat. It was open to the Appeal Division to determine that, with no guarantees that the applicant can be forcibly treated in Canada, and using his past behaviour as an indicator, if the applicant is not deported to Jamaica, he may very well end up on the streets in Canada. His symptoms might be alleviated by new medication, but there is no evidence he will be permanently cured.

[104]With regret, the respondent submits that no amount of sensitive balancing will assure the safety of the Canadian public or the amelioration of the applicant's suffering. The treatment course suggested by the applicant's witness was based upon speculation. There was no assurance that the applicant would be willing and able to comply with any of the terms suggested, and it is not within the Appeal Division's jurisdiction to impose psychiatric detention or forcible psychiatric treatment.

[105]The respondent submits it was open to the Appeal Division to conclude that there was insufficient evidence presented by the applicant to the Appeal Division to make an informed decision on the situation of street people in Canada vis-à-vis those in Jamaica. The applicant failed to discharge his onus of presenting evidence of harm suffered by psychiatric patients in Canada, either in institutions or on the streets, to enable the Appeal Division to contextualize the documentary evidence concerning the mistreatment of psychiatric patients or homeless people in Jamaica. Unfortunately, the mistreatment of homeless people, including murder, is not unknown in Canada. Ultimately the applicant's dispute is with the probative value or weight accorded by the Appeal Division in assessing the documentary evidence in light of all of the circumstances of the applicant's case. The respondent submits that such a dispute regarding evidentiary weight does not warrant intervention by this Court.

[106]I have already indicated that the Appeal Division failed to address the applicant's section 7 Charter rights, the implications of Suresh, supra, and the appropriate fundamental justice balance for the case before it.

[107]I have also indicated that I believe the member was perverse in his conclusions that the hardships faced by the applicant in Jamaica would not be significantly worse than he faced in Canada where the applicant has a support group and the possibility of treatment.

[108]In this sense, then, I believe the Appeal Division did err in law in the manner in which it exercised its jurisdiction.

[109]I do, however, consider it is incumbent upon the applicant and his supporters to demonstrate that he will be taken care of in such a way that he will not pose a danger to the Canadian public. He has demonstrated in the past that he is quite capable of walking away from his family and the medical facilities where he is placed. His treatment and confinement cannot be based upon speculation. These will be matters of vital concern when this matter comes up for redetermination.

[110]Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons for order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.