IMM-789-96
BETWEEN:
KANT SARMA LAL,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
Let the attached reasons for order which are a footnoted and an edited version of those delivered orally from the bench at Vancouver, British Columbia, on Wednesday, September 10, 1997, be filed to comply with section 51 of the Federal Court Act.
OTTAWA, Ontario.
September 17, 1997.
Judge
IMM-789-96
BETWEEN:
KANT SARMA LAL,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
(footnoted and edited version of those delivered orally
from the bench on September 10, 1997)
REED J.
I have no doubt that the decision must be set aside, as perverse, or made on the basis of findings of fact taken without regard to the material before the decision-maker. The applicant was convicted of two counts of assault with a weapon and one count of common assault. The victim in all cases was his then wife. The offences took place within a three week period. The sentence imposed speaks volumes. The judge imposed two months for each offence, to be served concurrently, on weekends. My recollection is that the Department's own guidelines direct that those who are making these danger to the public recommendations should consider both the sentence imposed by the judge and any comments made by the judge on sentencing. It appears to me that, little weight or attention was given to the very light sentence that was imposed in this case.
Secondly, there is virtually no evidence on the record that this gentleman is a present or future danger to the public. The only evidence is the wife's recitation of him being behind her with a mean look on his face, as she was entering the church they both attended. She did not know where he went, or see him after that. The writer of the recommendation that the Minister issue an opinion that the applicant is a danger to the public based that recommendation on this evidence. This has got to be, and again I use the word perverse.1
In addition, there was a breach of natural justice in indicating to the applicant that the pre-sentence report would be considered and, then, not including anything except the first page of that report in the record. I think the applicant is entitled to take at face value the statement made to him, in the notification letter, that the report would be considered. I do not think there is an obligation on him to monitor whether or not the Minister's record in fact contains what he has been told it will contain. And, as I said when Ms. Taylor was arguing, I find it incredible that this docket includes a written statement from the wife made at the time of the charging of the offences,2 which includes the recitation of events relating to charges of which the applicant was never convicted, but not the pre-sentence report. It is bizarre.
For the reasons given the application is allowed.
__________________1. The reviewing officer wrote: ... what is very disturbing in this case, is the fact that subject clearly minimizes his actions although he was convicted of violent offenses and that apart from the parenting course he has attended in order to have access to his son (Court has granted him supervised access to his son), he has not attended nor shown any willingness to attend any counselling on abuse or spousal violence. The victim impact statement clearly describes a very aggressive person which is, apparently, supported by the Court's determination of guilt. The wife's testimony of continued harassment and subsequent report to Crown counsel appears to support the fact that he continues to remain a threat. I agree with the CIC determination that subject remains at high risk to reoffend in a similar manner and concur with the request that the Minister form an opinion that this person constitutes a danger to the public pursuant to section 70(5) of the Immigration Act. (underlining added)
cont'd ...
... cont'd
The statement that the reviewing officer calls a victim impact statement is the wife's witness statement to the police at the time of the charges. It is misnamed by the reviewing officer. A statutory declaration from the applicant that is part of the record before the reviewing officer states:
I realize that the problems I have had with my wife in the past are in the large part my fault and I accepted responsibility for those problems. I am trying my best to adapt to Canadian society. I swear on my oath that I will have no further criminal problems. While I was convicted of assaulting my wife with a weapon I deny that allegation to this day, however it in no way excuses the fact that I did assault her. I come from a different culture where the relationship between a man and his wife is different than it is here. Since I have been in Canada and since the incident with my wife I have come to clearly understand that violence is never an answer to problems that people may have with each other. I have spoken a great deal about the assault on my wife with the Pastor at my church and he has given me the spiritual guidance necessary to arrive at the conclusion that I was terribly wrong in assaulting my wife. If I had the opportunity to express to my wife how sorry I am for that I would indeed do that, however given that I can have no contract with her I will not do that. (underlining added)
In addition letters from the applicant's employer, his pastor, friends and 52 members of his church were received by the immigration officials attesting to his character and stating in one form of wording or another that he was not a person who was a danger to his family or the public.
The civil restraining order requiring him not to contact his wife was an ex parte order issued on February 11, 1993, which he has never moved to have set aside.
The evidence on which he was found to be harassing his wife and therefore a danger to the public is the following report she made on September 17, 1995:
At around 1100 HRS I was walking up the steps into my church at 739E 33rd Av. with my baby. I looked behind me and I saw my husband walking towards me from behind. He had a very mean look on his face. I ran into the church and sat on the balcony steps and then went to the balcony. Then I went to the nursery because the baby was crying. I was very scared. I did not see him again and I don't know where he went.
(underlining added)
2. Erroneously referred by the immigration officials as a victim impact statement.