Date: 19980109
Docket: IMM-2805-97
BETWEEN:
LAM HUNG THAI
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent.
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks to have a decision by the respondent Minister set aside. The Minister's delegate issued an opinion, pursuant to subsection 70(5) of the Immigration Act, that the applicant was a danger to the public in Canada. The only issue is whether that decision was made without regard to the material before the decision maker (refer paragraph 18.1(4)(d) of the Federal Court Act).
[2] The applicant was convicted of sexual assault on January 31, 1996. The offence was committed on April 24, 1994. He was on bail while awaiting trial. He married during that time. The offence of April 24, 1994, is the only occasion on which he has been charged with a criminal offence. He was sentenced to two years minus a day.
[3] The sexual assault took place against someone whom he had met through dancing classes he was taking. He had dated her on a previous occasion. He enticed her by trickery to a hotel bedroom. He ceased his assault, although not immediately, when the victim struck out at him and repeatedly told him to stop. He then expressed remorse to her and apologized. He accompanied her back to her aunt and co-operated with the police when the victim's aunt called them and reported the incident.
[4] The sentencing judge noted that the applicant had enticed the victim into the hotel room by rather elaborate trickery, the victim had had to defend herself vigorously against his sexual advances, she suffered emotional trauma that could very well be lasting, she was not physically injured, her clothes were not torn, there was no gratuitous violence other than the sexual acts that were the subject of the complaint. The judge noted that the applicant eventually did cease the assault when the victim strenuously opposed it, he accompanied her
back to the location from which they had started out, was co-operative and well-behaved during the entire post-offence period both with her, her family and the police. The judge concluded this portion of her sentencing by stating:
| " The accused has been continuously employed since his arrival in Canada approximately six years ago. He's a man without a criminal record. This is an isolated incident of a sexual offence and, as his counsel has pointed out, it has not been repeated." (emphasis added) |
[5] The immigration officer who had responsibility for investigating the applicant's situation, contacted a Correctional Services Worker at the Fort Saskatchewan Correctional Centre, where the applicant was incarcerated. A letter dated September 30, 1996 was sent in reply. The Correctional Services worker essentially reported that the applicant's behaviour in detention had been exemplary:
| The subject's behaviour and conduct has been good at this Centre. There is no adverse report on file except one (1) incident when he was removed from the kitchen duties when he started to cook food for himself. He has not received any violations or charges during his incarceration. He receives regular visits from his family. He appears to be pleasant most of the time. He denies problems with alcohol or drugs. |
| No psychological assessment done on the subject. He appears to be in good physical and mental health. |
[6] The writer of the September 30th letter advised that the applicant was scheduled for a Parole Board hearing in October 1996 and that the immigration officer should contact Mark Pauline, a (community) case management officer in the Edmonton District Parole Office for information concerning the applicant's possible release on parole.
[7] Prior to this date, however, on September 13, 1996 the applicant had withdrawn his application for parole. He wrote in the withdrawal application:
| "I want to cancel application for full and day parole because I have not completed program." |
[8] The September 30th letter from the Correctional Services officer, and that subsequently sent by Mr. Pauline, dated October 15, 1996, show that the applicant, in prison, was denying that the events found at trial had occurred. He was stating that it was the girl's uncle who had caught them in the uncle's apartment, "red handed", and who had pressed charges. Since the applicant was denying guilt, he had not been referred to any of the programs available for sexual offenders. Mr. Pauline's letter indicates that he interviewed the applicant on September 13, 1996, with respect to the then extant parole application and while the applicant had initially denied guilt, after being confronted with some of the details, he started to admit to these.
[9] The applicant was given notice that a danger to the public opinion was being considered and he was sent the documents referred to above, on which an evaluation would be based, including the two letters. The applicant did not forward the documents (except for the notification letter itself) to his then counsel (counsel who had represented him at trial). His counsel, in response to the notification letter, wrote a letter in support of the applicant. This letter detailed the nature of that offence of which the applicant had been convicted, quoting part of the transcript of the victim's evidence at trial. The letter expressed the opinion that "Mr. Thai's one lapse from his otherwise exemplary record since he has been in Canada should not lead to a consequence so life destroying as deportation back to Vietnam". The letter concludes, after describing the offence and some of the trial evidence:
| From the foregoing, it will be seen that Mr. Thai is not a brutal man. He showed genuine remorse for his actions immediately after the incident ceased. Most important of all perhaps is the fact that although Mr.Thai appears to have gone beyond the proper limits for some period of time, ultimately, when the girl asked him to stop, he did and said he was sorry. |
| It is my earnest submission, therefore, that Mr. Thai not be deported. The phrase sexual assault conjures up grave doings, but if we consider carefully what really happened here, I would respectfully submit that the assault was in the very lower ranges of sexual assault. Mr. Thai appears to have acted out of character for some period of time, but as soon as he was himself again, his behaviour was considerate towards Ms Gan and he did everything she asked him to do. |
[10] I return then to Mr. Pauline's letter of October 15, 1996. There is little else on the file that can be seen as a basis for the subsection 70(5) opinion. He wrote that the factors that demonstrate "high risk" in the applicant's case are: (1) he had known the victim for only two months, it was only the second date, he was obsessed with her; (2) he enticed her into the hotel room by a well orchestrated trap; (3) the level of intrusiveness in the assault was moderate; (4) the applicant uses cognitive distortions to rationalize his behaviour (that behaviour is acceptable in Vietnam) and he has refused to participate in treatment; (5) if the victim had not defended herself the sexual assault would have increased.
[11] It is difficult to understand why any of these factors support a conclusion that there is a high risk of recidivism. Apart from point (4) they are all merely descriptions of the offence that occurred, an offence that the judge referred to as "an isolated incident".
[12] With respect to the applicant's denial of guilt when incarcerated, another factor that Mr. Pauline identifies as an indicator of high risk, this must surely be balanced against the evidence that he did express remorse at the time of the incident and at trial.
[13] While the writer of the October 15 letter stated that the applicant "has refused to participate in treatment for his offence", the Correctional Services officer had said that since the applicant denied his guilt "he was not referred to the Phoenix Program".
[14] While the writer of the October 15 letter states that when the applicant was informed that the officer would be contacting Canada Immigration "he immediately requested to withdraw his application for Parole", the applicant wrote in the withdrawal form, signed on September 13, 1996, that it was because he had not "completed program". The applicant had participated in an E.S.L. program and was preparing to write the G.E.D. program. As noted, he had not completed any sexual offenders program. It seems probable that what occurred is that he was informed by Mr. Pauline, during the September 13, 1996, interview, that Mr. Pauline would not recommend parole until he had completed a sexual offenders program. It is well known that community case management officers often refuse to recommend parole until an inmate has shown remorse and taken a course of the type described. The applicant's explanation for the withdrawal of his parole application is far more credible than the one appearing in the October 15th letter.
[15] The writer of the October 15 letter states that "[t]his offender's risk cannot be effectively managed in the community...", there "is a moderate to high risk of re-offending in a similar fashion", and "[h]e is a untreated sex offender with little insight into his criminal offence cycle." While the writer of the letter has expressed those views, he has not identified any facts that support them. He has not quoted any studies; no psychological assessment was done of the applicant while incarcerated; his behaviour in the correctional centre does not support a conclusion that his behaviour is such as to raise an apprehension of future risk; the circumstances of the offence itself do not demonstrate, as the judge noted, any gratuitous violence. The writer refers to the applicant's "criminal offence cycle". There was no cycle; there was one offence.
[16] A danger to the public opinion involves an assessment of present or future danger, that is, is there reason to think that the individual will repeat the particular activities which gave rise to his incarceration, or engage in other activities that would make him a danger to the public. The commission of one offence is not evidence of recidivism although some offences by their nature may be of a type that invite such a conclusion. There is virtually nothing in the record except for the speculative and unsupported opinions of one (community) case management officer, who interviewed the applicant on one occasion. While all that is required in these cases is "some evidence" to support a decision of the Minister's delegate, that evidence must have a substantial basis, it must be supported by facts.
[17] I must conclude that the danger to the public decision was rendered without regard to the material before the decision maker.
"B. Reed"
Judge
Edmonton, Alberta,
January 9th, 1998.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2805-97
STYLE OF CAUSE: Lam Hung Thai v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 7th, 1998
ORDER AND REASONS FOR ORDER BY: Reed, J.
DATED: January 8th, 1998
APPEARANCES:
Michael J. Tilleard for the Applicant
Douglas Titosky
Department of Justice for the Respondent
SOLICITORS OF RECORD:
Wright & McMenemy
Edmonton, Alberta for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent