Should a driving conviction ever be enough to deport a permanent resident from Canada?
This is essentially the question that the Minister of Public Safety and Emergency Preparedness is asking in an appeal filed last week with the Federal Court of Appeal.
The case involves Shazam Ali who emigrated from Guyana to Canada in 1995 with his mother, brother, and four sisters.
In March 1998 he robbed a woman at knifepoint in the underground garage of his apartment building in an apparent attempt to feed his recently acquired addiction to crack cocaine. He forced her into the back of his car, tied her up, and drove her to a bank machine where he used her bankcard to withdraw $400.00 in cash. He then drove to a hotel and left her in the back seat with the motor running while he tried to check in. His victim succeeded in loosening her bonds and escaped.
In January 1999 he was convicted of kidnapping and robbery and was sentenced to 20 months imprisonment including ten months of pre-trial custody.
Consequently, a deportation order was made against him in March 2000.
He appealed the order to the Immigration and Refugee Board where he got very lucky. The Board noted that Ali had no previous criminal record and that although the offence was serious it was also “aberrant” and found that “it is not likely the appellant will re-offend”. The Board granted him a 5-year stay on the condition that he “keep the peace and be of good behaviour”.
The order meant that as long as Ali behaved himself for 5 years, he would be allowed to stay in Canada. If he breached the stay in any way, he would automatically be sent home without any further recourse.
As the five-year mark approached, Ali had avoided any further criminal activity and must have been looking forward to the cancellation of his deportation order.
However, just eight days before the completion of the stay-period, the Minister served notice that Ali’s stay should be cancelled.
Ali had been convicted of five traffic offences during the five-year stay period, namely: driving with no plates, operating an unsafe vehicle, fail to surrender insurance, unsafe lane change, and speeding…70 km in a 50 km zone.
The Minister argued that these offences, although not criminal, breached his undertaking to “keep the peace and be of good behaviour”. The Minister took the position that with respect to any federal, provincial, or municipal statutes “any failure to abide, no matter how trivial, is a breach of [this] condition.”
The IRB and the Federal Court Trial Division disagreed with the Minister who is now appealing those decisions to the Federal Court of Appeal.
No doubt, Ali scored big when he won himself a second chance at the IRB. While many would no doubt love to see him go, if Ali loses the appeal it will have a tremendous impact on other permanent residents in similar circumstances who are bound by the same provision but who have been convicted of far less serious crimes and who are clearly deserving of a meaningful second chance.
They may not be aware that the next time they go 20 kms over the speed limit they could be losing their “second chance” to stay in the country.
Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at firstname.lastname@example.org