Ottawa, Ontario, September 14, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The issue in this case is whether Stanhope St. Aubyn Cooper's convictions in relation to provincial automobile offences constitute a breach of the condition of the stay of his deportation requiring him to "Keep the peace and be of good behaviour and not commit further criminal offences".
Background
[2] Mr. Cooper arrived in Canada from Jamaica in 1992, at the age of 12. He was ordered deported in 2000 as a consequence of his having been convicted of four counts of armed robbery and two counts of using an imitation firearm. For these offences Mr. Cooper was given the equivalent of a penitentiary term of nearly six years, having been sentenced to a term of imprisonment of four years, on top of the 10 months that he had served in pre-trial detention for which he was given 20 months credit.
[3] On November 13, 2001, the Immigration Appeal Division of the Immigration and Refugee Board stayed Mr. Cooper's deportation for two years, provided that he comply with a number of conditions, including the condition that he "Keep the peace and be of good behaviour and not commit further criminal offences".
[4] In February of 2002, Mr. Cooper was released from prison on parole. He completed his parole on February 1, 2004.
[5] Mr. Cooper's case was reviewed by the IAD in June of 2004, at which time evidence was provided that Mr. Cooper had been convicted of several speeding and parking offences, as well as one count of breaching the Ontario Highway Traffic Act by failing to have or surrender a vehicle permit, and one count of failing to have or surrender an insurance card, contrary to the provisions of the Compulsory Automobile Insurance Act of Ontario.
[6] Mr. Cooper argues that the IAD erred in finding that he breached the conditions of his stay, contending that the addition of the phrase "and not commit further criminal offences" to the standard requirement that an individual "keep the peace and be of good behaviour" had the effect of modifying the first two parts of the condition such that he was only required not to commit any further criminal offences.
[7] Mr. Cooper also argues that the IAD erred in speculating as to whether he was also in breach of a second condition requiring that he "Respect all parole conditions and any court orders".
[8] Before addressing the arguments advanced by Mr. Cooper, it is first necessary to address his counsel's request to be removed from the record.
Counsel's Request to be Removed From the Record
[9] Shortly before the hearing of this application for judicial review, counsel for Mr. Cooper brought a motion to get off of the record, asserting that the relationship between counsel and client had broken down, and that counsel had been unable to obtain instructions from Mr. Cooper. Mr. Cooper did not respond to the motion. Given the late date on which the motion was filed, and the absence of any explanation as to why the motion could not have been brought sooner, Prothonotary Lafrenière declined to grant the relief requested, and adjourned the motion to be dealt with at the hearing of Mr. Cooper's application.
[10] Counsel for Mr. Cooper renewed the request to be removed from the record at the hearing, but acknowledged that she was prepared to address the merits of the case, if the Court so required. Having regard to the lateness of the request, and the potential prejudice to Mr. Cooper if the request were granted, I declined to remove counsel from the record, and counsel participated fully and ably at the hearing.
Standard of Review
[11] Although no authority was cited for the proposition, counsel for Mr. Cooper and for the respondent agree that questions relating to the IAD's interpretation of the conditions of Mr. Cooper's stay should be reviewed against a standard of reasonableness. In my view it is not necessary to decide whether this is the appropriate standard, as I am satisfied that the Board's interpretation of the condition was correct.
Analysis
[12] Counsel for Mr. Cooper submits that to constitute a breach of the conditions of his stay, Mr. Cooper's conduct had to be related in some fashion to his original offences. I do not agree.
[13] The requirement that an individual "Keep the peace and be of good behaviour" is one commonly seen in orders staying deportations under the former Immigration Act, and is, as well, a statutory condition in all probation orders in the criminal context: Criminal Code, R.S.C. 1985, c.C-46, s. 732.1(2)(a).
[14] While there is some question as to whether the requirement that an individual be "of good behaviour" can be breached without the individual offending any law or regulation (see R. v. Gosai, [2002] O.J. No. 359 at para. 27), the criminal jurisprudence is clear that to be of "good behaviour", one must abide by federal, provincial and municipal statutes and regulatory provisions: R. v. R. (D.) (1999), 138 C.C.C. (3d) 405 (Nfld. C.A.).
[15] Moreover, the jurisprudence of this Court is equally clear that a similar interpretation will be given to conditional orders made in the immigration context: Huynh v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 1844, at para. 7.
[16] There is no suggestion in the jurisprudence that any breach of conditions has to relate to the original offence.
[17] Counsel for Mr. Cooper also argues that the addition of the words "and not commit further criminal offences" to the standard requirement that he "keep the peace and be of good behaviour" has the effect of modifying the first two parts of the condition, such that he was only required not to commit any further criminal offences.
[18] I do not accept this submission. To accept counsel's interpretation would have the effect of rendering the requirement that Mr. Cooper "keep the peace and be of good behaviour" essentially meaningless.
[19] In my opinion, the better view is that the addition of the requirement that Mr. Cooper "not commit further criminal offences" does not modify the first two elements of the condition, but rather, tries to add a third element to the condition. In this regard, I agree with the Board that the phrase "and not commit further criminal offences" is really redundant, as the requirement that Mr. Cooper not commit any criminal offences is already implicit in the requirement that he be of good behaviour.
[20] Finally, counsel for Mr. Cooper relies on the decision of the Supreme Court of Canada in Marcotte v. Canada(Deputy Attorney General) [1976] 1 S.C.R. 108, for the proposition that clarity and certainty are important when the freedom of the individual is at stake. While this principle is unassailable, it does not assist Mr. Cooper, as, in light of the jurisprudence, the requirement that he be "of good behaviour" is clear.
[21] Having found that the IAD did not err in relation to its interpretation of the condition requiring Mr. Cooper to "keep the peace and be of good behaviour and not commit further criminal offences", it is unnecessary to address his arguments relating to the condition that he "respect all parole conditions and any court orders".
Conclusion
[22] For these reasons, the application is dismissed.
Certification
[23] Counsel for Mr. Cooper proposed the following question for certification:
Does the condition of stay "Keep the peace and be of good behaviour and not commit further
criminal offences" include non-criminal and/or criminal offence in either/or federal, provincial
and/or municipal statutory and regulatory provisions, or is the condition limited to criminal
offences?
[24] Counsel for the respondent opposes certification of the question, submitting that it is not a serious issue of general application, referring as it does to the IAD's interpretation of a specific condition in a specific order. Moreover, the proper interpretation of the phrase "be of good behaviour" is one that is well established in the jurisprudence.
[25] I agree that the proposed question is not an appropriate one for certification for the reasons cited by the respondent.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10455-04
STYLE OF CAUSE: STANHOPE ST. AUBYN COOPER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 12, 2005
REASONS FOR AND ORDER: MACTAVISH, J.
DATED: SEPTEMBER 14, 2005
APPEARANCES:
Seaborne Geale-Barker FOR APPLICANT
Lisa Hutt FOR RESPONDENT
SOLICITORS OF RECORD:
Ormston, Bellissimo, Rotenberg
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario FOR RESPONDENT