Date: 19991214
Docket: IMM-87-99
ENTRE :
Kajendran VELUPPILAI,
DEMANDEUR;
C.
LE MINISTRE DE LA CITOYENNETÉ ET DE L"IMMIGRATION,
DÉFENDEUR.
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985 c. I-2 (Act) of a decision of W.A. Sheppit, a delegate of the Minister of Citizenship and Immigration (the Minister) dated October 22, 1998 wherein it was decided that the applicant constitutes a danger to the public in Canada in accordance with the terms of paragraph 53(1)(d) and subsection 70(5) of the Act.
[2] The applicant seeks an order setting aside the Minister"s decision on the basis that subsection 53(1) of the Act is unconstitutional. In the alternative, it is submitted that the decision should be set aside on the grounds that the applicant was treated unfairly in that he was not provided the reasons for the Minister"s opinion.
[3] In the further alternative, the applicant submits that the decision should be quashed on the grounds that there was no evidence to support the proposition that the applicant constitutes a danger to the public.
FACTS
[4] The applicant, a national of Sri Lanka, was born on March 9, 1966.
[5] The applicant came to Canada in 1992 and was determined to be a Convention refugee on May 31, 1993.
[6] On April 23, 1997, the applicant was convicted of two counts of assault with a weapon, pursuant to paragraph 267(1)(a) of the Criminal Code, and one count of possession of a weapon, pursuant to section 87 of the Criminal Code, for offences he committed in October 1996 in Montreal. He was sentenced to four years imprisonment on July 14, 1997 for each of the above charges but to be served concurrently.
[7] On December 4, 1997, a report was prepared pursuant to subsection 27(2) of the Act and a direction for inquiry was issued.
[8] The applicant was notified by letter dated June 30, 1998 that a representative of the Minister intended to seek an opinion from the Minister that the applicant is a danger to the public in Canada in accordance with the terms of subsection 53(1) of the Act.
[9] This letter gave the applicant an opportunity to respond, by way of written submissions, to the proposed opinion of the Minister. The letter also indicated that the applicant"s written submissions would be taken into account by the Minister in arriving at an opinion.
[10] In response to this letter, the applicant made submissions to the Minister, through his counsel, on the proposed danger opinion against him.
[11] The representative of the Minister then made a report to the Minister outlining the reasons for which the applicant should be deemed a danger to the public according to the criteria under subsection 53(1) of the Act.
[12] On October 22, 1998, the Minister issued an opinion that the applicant constituted a danger to the public in Canada, pursuant to paragraph 53(1)(d) and subsection 70(5) of the Act.
[13] The applicant received a copy of the Minister"s opinion on December 22, 1998.
[14] The applicant filed this application on January 6, 1999, nine days after the expiration of the statutory time period, and therefore sought, pursuant to subsection 82.1(5) of the Act, an order granting extension of time.
[15] On September 1, 1999, Mr. Justice Rouleau gave an Order granting the applicant an extension of time.
[16] The applicant now seeks judicial review of the opinion issued by the Minister under paragraph 53(1)(d) and under subsection 70(5).
STATUTORY PROVISIONS
Immigration Act, R.S.C. 1985, c. I-2
| 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless (a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or (c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or (d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. 70(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); (b) a person described in paragraph 27(1)(a.1); or (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
| 53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_: a) elle appartient à l'une des catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada; b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada; c) elle relève du cas visé au sous-alinéa 27(1)a.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada; d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada. 70(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_: a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada. |
ISSUES
[17] This application raises the following issues:
| (1) Is subsection 53(1) of the Act unconstitutional? |
| (2) Was the applicant treated unfairly by the Minister"s decision under subsection 53(1) of the Act in that he was not given written reasons? |
| (3) Is the Minister"s decision unreasonable? |
| (4) Is the commission of one serious criminal offence sufficient to trigger subsection 53(1) of the Act? |
POSITIONS OF THE PARTIES
Applicant"s Position
[18] The applicant submits that subsection 53(1) of the Act is unconstitutional as it permits the Minister to make a subjective determination based on an opinion which results in Convention Refugees being deported to countries where their lives and freedoms are likely to be threatened. It is argued that the principles of fundamental justice require an objective determination of all matters which would subject a person to the risk of being tortured or to other forms of cruel and inhumane treatment, and therefore this subsection is contrary to the principles of fundamental justice under section 7 of the Charter.
[19] It is further submitted that subsection 53(1) is unconstitutional as it fails to ensure that there is an oral hearing where credibility is at issue, and does not require that the principles of fairness and natural justice are respected in the decision-making process.
[20] Secondly, the applicant submits that he was treated unfairly by the Minister on the basis that he was not provided with reasons for the danger opinion issued against him pursuant to subsection 53(1) of the Act. The applicant does not make this submission pursuant to subsection 70(5).
[21] The applicant argues that given the importance of a decision issued under subsection 53(1) of the Act, the individual affected should have the right to be given written reasons.
[22] Lastly, it is argued that the evidence before the Minister does not support a finding that the applicant is a danger to the public in Canada. The applicant alleges that the Minister failed to identify any circumstances, over and above his convictions, which would lead to the conclusion that the applicant constitutes a danger to the public.
Respondent"s Position
[23] The respondent argues that the authority conferred upon the Minister under subsection 70(5) and paragraph 53(1)(d) of the Act is purely discretionary and therefore the merits of the decision are not subject to judicial review. Rather, the decision may only be reviewed for its legality.
[24] It is submitted that the discretion of the Minister was exercised in accordance with the prescribed statutory limits and displays no bad faith, errors of law, or consideration of irrelevant factors.
[25] The respondent refers the Court to the decision in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.F.) where the Court held that a decision made by the Minister pursuant to subsection 70(5) of the Act without written reasons does not constitute a violation of the principles of natural justice.
[26] As I stated, I believe the applicant does not contest this submission.
[27] Lastly, it is submitted that there is no evidence to suggest that the applicant was treated in an arbitrary or unfair manner, and therefore no interference by this Court is justified.
ANALYSIS
Constitutionality of subsection 53(1) of the Act
[28] It was agreed by counsel for the applicant and respondent that because of the reasons given by Mr. Justice McKeown in the case of Suresh v. Canada [1999] F.C.J. No. 865, I should disallow the constitutional submissions of the applicant. It was stated that the case of Suresh, supra, is now before the Court of Appeal on a certified question. Also, the Court of Appeal has the matter under reserve and, in order to protect the constitutional issue of the applicant, I will certify a question similar or the same as in Suresh, supra.
[29] I believe it should be made clear that persons who are permitted to remain in Canada as refugees and who are not yet permanent residents cannot repay Canada for this privilege by committing serious crimes while in Canada.
[30] I do not know of another country, at the present time, other than Canada, that is so receptive to refugee claimants. If a person is accepted as a refugee claimant and then commits serious crimes for which a legal danger opinion is given, and this for the protection of the Canadian public notwithstanding that the refugee claimant may be in some danger if returned in his country, that refugee claimant should not be permitted to remain in Canada.
Duty to Provide Reasons
[31] The applicant submits that given the importance of the Minister"s decision under subsection 53(1) of the Act, there is a right to written reasons. In support of this assertion, the applicant refers to the decision in Baker v. The Minister of Citizenship and Immigration [1999] S.C.J. No. 39 where it was articulated that in some circumstances, the duty of procedural fairness requires the provision of written reasons.
[32] I also note that the respondent has agreed at paragraph 35 of his supplementary memorandum that the Minister has an obligation to justify, in writing, a decision taken under subsection 53(1) of the Act. However, the respondent emphasizes that in Baker, supra, the Court indicated that the decision-maker must be given some latitude to determine what type of explanation is sufficient in the circumstances.
[33] While I am in complete agreement with the applicant that the impugned decision is one of profound importance and significance for the individual, the circumstances surrounding this decision are, in my opinion, very different from those in the case of Baker, supra.
[34] In Baker, supra, the decision at issue was one made by an immigration officer under subsection 114(2) of the Act based upon "compassionate or humanitarian considerations". Such a decision is based upon a broader assessment of the relevant factors than a decision made pursuant to subsection 53(1) of the Act.
[35] The respondent submits that the request, with the supporting documents, for an opinion pursuant to subsection 53(1) by the Minister, is a sufficient explanation in itself for the Minister"s opinion that the applicant constitutes a danger to the public in Canada. The respondent further argues that the decision in Baker , supra, was rendered after the applicant filed his application for judicial review, and since that time the applicant has had the opportunity to file a supplementary affidavit after having reviewed the reasons for the Minister"s decision as contained in his memorandum of law.
[36] I am satisfied that the factors considered by the Minister in determining that the applicant constituted a danger to the public in Canada are self-evident. The applicant has a serious criminal record which he has obtained while in Canada and for which he has been imprisoned. These undisputed facts led to the request for an opinion by the Minister and formed the basis of that opinion.
[37] There is no doubt that this in itself is a sufficient basis for the determination that the applicant is a danger to the public in Canada. In fact, this case goes to the very reason for the existence of subsection 53(1). I am also satisfied that in the case at bar the applicant bore the burden of demonstrating to the Minister, through his written submissions, that he was not a danger to the public in Canada.
[38] Therefore, I find it acceptable in these circumstances, given the nature of the criminal record of the applicant, the fact that the crimes were committed while the applicant was a refugee in Canada and that he is now imprisoned or on parole for these offences, that the Minister does not have to give specific written reasons for this purely discretionary decision. The notes submitted to the Minister requesting the subsection 53(1) opinion can be considered the reasons for the Minister"s opinion. These notes or submissions can be found at pages 3 to 5 of the Tribunal Record.
[39] Having reviewed the arguments of the parties on the first and second issues raised by this application and I now turn to the question of whether the Minister"s decision was reasonable.
[40] I find it pertinent to refer to the reasoning of Strayer J. in Williams v. Canada (M.C.I.), [1997] 2 F.C. 646 at page 664 where the Court addressed the Minister"s decision, pursuant to subsection 70(5) of the Act, that the claimant was a danger to the public in Canada:
| ... unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, such subjective decisions cannot be judicially reviewed except on grounds such as ... the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations. |
[41] The applicant argues at paragraph 32 of his written submissions that there is absolutely no evidence, outside the commission of a single serious offence, to support a finding that the applicant constitutes a danger to the public in Canada.
[42] With all due respect, I find that the commission of a violent offence in this country is sufficient to find that a person is dangerous, much less the conviction of two counts of assault with a weapon and one count of possession of an illegal weapon.
[43] The evidence before the Court is clear, and it is the same evidence that was before the Minister when it was determined that the applicant constituted a danger to the public in Canada. I do not believe that the Minister"s decision would outrage the standards of decency in this country.
[44] Each case must be judged on the particular set of facts surrounding the commission of the crime.
[45] In the present case, the applicant was convicted of 2 counts of assault with a weapon and one count of possession of a weapon, an 8 inch kitchen knife. It is interesting to note of what the applicant was found guilty of and its effects.
| DÉLITS: Monsieur Velupillai a été reconnu coupable de voies de fait sur deux victimes alors qu"il utilisait un couteau et d"une possession d"un couteau dans un dessein dangereux, délits commis le 14 octobre 1996. Il a poignardé une des victimes en lui transperçant le crâne par le front et l"autre a subi des coupures mineures au crâne. Il semble qu"un conflit perdurait dans la communauté sri-lanquaise: un groupe de jeunes hommes avait des comportements irrespectueux envers des jeunes femmes de même nationalité qu"eux. Le justiciable maintient qu"il a agi pour sa protection et celle des siens (self défense). Il attribue les torts aux victimes et leurs amis. Il ajoute que le conflit est maintenant réglé entre les deux groupes impliqués. |
| Les enquêteurs nous informent qu"ils n"ont pas eu de collaboration du justiciable. Selon le sergent-détective Leclair, les victimes ont fait l"objet de menaces et d"offres monétaires avant le procès. Autant les victimes que les accusés viennent de bonnes familles. Le justiciable n"était pas connu des policiers comme violent ou fauteur de trouble. Il qualifie le geste de violence gratuite, alors que des gens ont pris la justice entre leurs mains. |
[46] I am satisfied that the evidence in the Tribunal"s Record shows that the crime was of a most serious nature, as counsel for the applicant admits. Furthermore, on page 65 of the Tribunal Record, one can see the following:
| Nous constatons que la personnalité du sujet présente une grande impulsivité. |
[47] This shows that the applicant has the capacity of becoming violent. Therefore, the decision of the Minister as it relates to subsection 53(1) of the Act is not unreasonable.
[48] The application for judicial review is denied.
[49] The applicant shall, if he wishes, submit questions to be certified within a delay of 7 days of today"s date and the respondent shall have 7 days to reply.
[50] Each party will submit to the other party any submissions made to the Court.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
December 14, 1999