Whether an individual is remorseful is a factor in assessing humanitarian & compassionate considerations.
In Pu v Canada (Citizenship and Immigration), 2018 FC 600 Justice Diner held that:
With respect to remorse, the IAD concluded that the Applicant’s remorse was not genuine principally because (a) she had continued to misrepresent her position in 2009, and (b) at the IAD hearing she had attempted to deflect responsibility for her earlier actions. The IAD acknowledged the Applicant’s expressions of remorse at the appeal, but found that she had had since 2009 to take responsibility for her actions, and that the Applicant was ultimately remorseful only for having been caught at the hearing — several years after her initial interview with CBSA, during which she again misrepresented the circumstances of the marriage.
Although the Applicant disagrees that she deflected responsibility at the IAD appeal, I am of the view that the IAD’s findings were reasonably open to it based on the evidence before it. I also note that the IAD’s reasoning is consistent with other areas of law where late-stage accountability can weigh significantly against a party who seeks discretionary relief.
To conclude on this issue, I will cite from the IAD’s comments in Lin v Canada (Minister of Public Safety and Emergency Preparedness), 2017 CanLII 26505 (CA IRB), which are on point for this case:
Remorse is defined as deep regret or guilt for a wrong committed, and a feeling of being sorry for doing something bad or wrong in the past. There are two components to remorse in the context of a misrepresentation: one involves the actions preceding the IAD appeal; and the other is the expression of remorse in testimony at the appeal itself. An expression of remorse at the IAD appeal is less meaningful, if the Appellant continued to perpetuate dishonest conduct during the section 44 investigation process and the ID hearing.
Regarding remorse, the IAD held that Mr. Villaneuva
… stated that he understands the seriousness and that he lied to Immigration ofﬁcials because he was scared they would send him back home. He failed to acknowledge the damage to the integrity of Canada’s immigration system or the hurt and frustration he has caused to his wife and child. The appellant’s response indicates that he cares little about or appreciate Canada’s immigration system and how honesty is an integral part of our system.
Mr. Villaneuva relies on Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451 [Li], to support his position. There, Justice Shore observed at paragraph 10 that “[i]n examining the seriousness of the misrepresentation, as well as the Applicant’s remorse, the IAD found that the scheme orchestrated by the Applicant was serious, material, advertent and deliberate.” Justice Shore noted that the IAD doubted the genuineness of the Applicant’s remorse by making a plausibility finding “solely based on the panel member’s personal point of view of human behavior” (at paragraph 28), when the panel found thus:
Remorse is difficult to assess as people will admit to almost anything when their backs are up against a wall, and the remorse that they express is often their expression of regret for their misfortune at being caught. Based on what the panel has heard, it is satisfied that if he had not been caught up in his own malfeasances the appellant had no intention of ever repenting, and his cooperation with immigration authorities is primarily the result of his being caught and not out of an innate desire to finally do the right thing.
Despite the IAD pointing out that the Applicant expressed remorse, the Board found that Mr. Li was “not prepared to take full responsibility for his action by admitting his misrepresentation to all concerned” (at para 10). Justice Shore found this conclusion to be unreasonable, making the following observations at paragraphs 32-33:
Firstly, it was unreasonable for the IAD to doubt the Applicant’s remorse without making any negative credibility findings against the Applicant. While it is relevant for the IAD to consider that the Applicant did in fact misrepresent by entering into a marriage of convenience, the IAD’s finding that the Applicant is not honest and genuine in his remorse because of his previous misrepresentation is not supported by the evidence before the IAD. The officer’s report demonstrates the opposite: the Applicant expresses remorse for his action, readily admitted his involvement in a marriage of convenience; and, fully participated in the investigation when asked and has volunteered during the span of years tens of hours each month to benefit Canadian society.
Secondly, the IAD unreasonably held that an applicant can only demonstrate remorse if she or he tells his/her employer and his/her relatives of previous wrongdoing. While this might be one of several factors to consider, it is unreasonable to doubt the Applicant’s remorsefulness, simply because he did not tell his employer and all of his close relatives that he committed a misrepresentation in the past.
[Emphasis in original.]
Mr. Villanueva points out that, unlike Mr. Li, he voluntarily notified immigration authorities of his mistake, which demonstrates his remorse: he did not wait until he was caught. However, Mr. Villaneuva argues that similar to Li, the IAD unreasonably minimized his remorse. Here, the tribunal found that Mr. Villaneuva expressed “regret” but not “remorse.” In his view, the IAD essentially penalized him for saying “sorry” the wrong way.
I agree that this finding is unreasonable in light of both Mr. Villaneuva’s actions, in terms of him writing the disclosure letter, and his words, in terms of his testimony at the IAD hearing. Mr. Villaneuva’s voluntary admission one year after landing and apologetic testimony both acknowledge that he should have declared his son before landing, but was afraid he “would be deported” if he did. His disclosure letter explained that his application was submitted when he was “still a student and single,” and that “when I fathered the child out of wedlock our parents were so disappointed because of their plans for me.”
At the 2017 IAD appeal, Mr. Villaneuva testified as follows:
Q: So you weren’t honest with that immigration officer. You didn’t tell the truth.
A: Yes, sir.
Q: Yes, sir? Yes, you didn’t tell the truth?
A: Yes, I didn’t tell the truth.
Q: And was the reason you didn’t tell the truth the same as the reason you didn’t put the child in the application?
A: I’m just scared that time. I don’t know what to do. I’m really sorry for that. Just give a second chance to stay in here.
Then, in cross-examinations, Mr. Villanueva testified as follows:
Q: So is it fair to say your parents knew about the baby, they told you not to declare, your sister, who was sponsoring, told you not to declare, you chose not to declare, and then again you didn’t declare at the port of entry?
A: Yeah, I just followed them.
Q: But you were 21 years old, you were an adult, and you knowingly did not declare your son.
A: Yeah. Yes, ma’am. I am really sorry about that not to declare my son.
Clearly, in his inarticulate way – as might well be expected of someone testifying in his situation with high stakes and in a second language – Mr. Villaneuva admitted his mistakes, explained the reason for his original misrepresentation, and apologized for his actions.
In short, remorse can be more complex than a formulaic, specific combination of words. There are other factors that must be considered, including the actions of the individual. While, as the tribunal said, he might have “failed to acknowledge the damage to the integrity of Canada’s immigration system” or the “hurt and frustration he has caused to his wife and child,” he displayed his sorrow for his actions and their ramifications both in his actions (voluntary disclosure), and words (both orally and in writing). I therefore do not find it reasonable to conclude that Mr. Villaneuva’s “response indicates that he cares little about or appreciate Canada’s immigration system and how honesty is an integral part of our system.” Actions, like pictures, are worth a thousand words. Of course, the other adage would say that actions speak louder than words.
Together, actions and words are powerful and can speak volumes. A tribunal must be mindful that other human barriers can impact the articulation of the words used to express remorse, including a second language, lack of sophistication, or the pressures and stakes brought to bear on an applicant at legal proceedings before a tribunal. These frailties could have applied to Mr. Villaneuva, given the situation he put himself into upon entry, and then voluntarily disclosed after consulting an immigration consultant (and it should be noted that Mr. Villaneuva and his family were unrepresented during the course of their immigration application and landing in Canada).
Justice O’Reilly wrote about another example of this ex post facto, or retrospective, remorse in Thavarasa v Canada (Citizenship and Immigration), 2015 FC 625 at para 23:
Further, the IAD reasonably found that the applicants lacked remorse. Mr Ratnasingam admitted to misrepresentation only after he was confronted by the officer with contradictory evidence. Similarly, Ms Thavarasa stated that she decided to wait to see if the false information in her husband’s application was going to be a problem. In my view, this evidence supported the IAD’s conclusion that the applicants were not remorseful about their misrepresentations.
For all the reasons listed above, I do not find the IAD’s conclusion on remorse to have been reasonable.
In Yavari v. Canada (Public Safety and Emergency Preparedness), 2020 FC 469, Justice Pentney further stated that an individual stating that they were drunk when an offence was committed is not an indication that they lacked remorse, but rather a statement of fact.