Date: 20010607
Docket: IMM-4146-00
Neutral Citation: 2001 FCT 607
BETWEEN:
CONRAD MULLINGS
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the delegate of the Minister of Citizenship and Immigration, C.A. Goodes, Director General, Case Management, CMB Case Research, to issue a danger opinion pursuant to subsection 70(5) of the Immigration Act ("danger opinion"), dated July 14, 2000 wherein the Minister's delegate determined that the applicant was a danger to the public in Canada.
FACTS
[2] The applicant was born in Jamaica on June 2, 1971. He is a citizen of Jamaica and of no other country. The applicant arrived in Canada on August 14, 1988 as a permanent resident of Canada. He was sponsored for landing by his mother. He has been a resident in Canada since his arrival in 1988 to the present date.
[3] His mother, sister, brother, a maternal aunt and uncle and five cousins are Canadian citizens. He also has a niece and cousin who reside in Canada. He has had the same girlfriend for five years. His girlfriend has a son. The applicant's father resides in Jamaica but left the family when the applicant was one year old.
[4] On January 7, 1992, the applicant was charged and convicted as being an accessory to robbery. He was the driver of the car used in the crime. At the time of the offence, he was 20 years old. He received a sentence of nine months for this offence and was released on parole after serving three months in prison.
[5] In May 1994, the applicant was also convicted for possession of an unregistered restricted weapon, possession of narcotics and a failure to comply with a recognizance. He was sentenced to ninety days for these offences.
[6] In August 1996, the applicant was fined $50.00 for being found in a common gaming house.
[7] In 1996, the applicant was charged with three counts of trafficking in narcotics. The maximum term of imprisonment for convictions on these charges is life. He was released on bail awaiting trial.
[8] On April 7, 1998 he was convicted and on April 27, 1998, sentenced to three years concurrent on each charge. He appealed this conviction to a court of appeal and the Supreme Court of Canada. His appeals were dismissed. While he awaited the outcome of these appeals he was out on bail. He had therefore been released on bail for three years.
[9] In the three years he was out on bail, the applicant lived with his mother and worked part-time for MDI as office staff. He earned $14,000 annually from that job. The applicant had previously worked as a cook. He was not working for approximately one year, during which time he was on social assistance.
ISSUES
[10] 1. Did the Minister's delegate err in law in failing to provide reasons for the decision, or alternatively, in providing reasons which are inadequate?
2. Did the Minister's delegate err in law in rendering a decision pursuant to subsection 70(5) of the Immigration Act which was unreasonable in all the circumstances of the case?
ANALYSIS
1. Did the Minister's delegate err in law in failing to provide reasons for the decision, or alternatively, in providing reasons which are inadequate?
[11] The applicant submits that the ministerial opinion report is not adequate reasons for a decision pursuant to subsection 70(5) of the Immigration Act. Furthermore, the applicant contends that the report merely refers to an earlier report which makes no mention of the applicant's submissions. The applicant is of the view that rationale for a decision which does not take into account the applicant's submissions and factors is inadequate.
[12] The applicant relies on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, where L'Heureux-Dubé J. commented on the duty of procedural fairness of an immigration officer dealing with applications pursuant to subsection 114(2) of the Immigration Act (compassionate or humanitarian considerations):
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision.
[13] In Ip v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 152 (F.C.T.D.), Dubé J. considered the application of the principles enunciated in Baker, supra, to the subsection 70(5) process. He held:
I agree with the applicant that written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act. This is clearly a case where a decision has enormous significance for the individual and is extremely critical to his future. The applicant will leave behind a wife and a child in Canada and face presumably hostile Chinese authorities from whom he fled to become a refugee here. Under these specific circumstances there was an obligation upon the Minister's delegate to explain why his decision, based solely on one crime, seems to have totally ignored the present day evidence which suggests that the applicant is no longer a danger to the public.
[...]
In the case at bar, there are no written reasons from the Minister of [sic] her delegate. Counsel for the Minister argued that no written reasons are necessary in this case pursuant to the Baker decision as "a Danger Opinion does not violate the Charter and is not a decision with significant consequences for the person with respect to whom the opinion is issued". Alternatively, he argued that if there is a duty to provide reasons, which the Minister expressly denies, then the "Request for the Minister's Opinion" meets the requirements set out in Baker.
Thus, in Baker, the Supreme Court found that the notes of Officer Lorenz were adequate. The Federal Court of Appeal in Suresh followed suit and accepted the memorandum of Mr. Gautier as sufficient.
I have perused both documents. The Lorenz notes, a two page type written document, deals in some detail with the case history of Mavis Pauline Baker from her entry in Canada on August 8, 1981, and comes to these conclusions:
[...]
The Gautier memorandum is a substantial eight page document dealing with issues, background, considerations and recommendation. [...]
In contrast, the Request for the Minister's Opinion in the instant case is merely a one page skeleton report dealing briefly in the first full paragraph with the kidnapping sentence and Reed J.'s decision. The second (and last) full paragraph titled Reviewing Officer's Comments reads as follows:
REVIEWING OFFICER'S COMMENTS
I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he forms an opinion that Kwok Wai IP constitutes a danger to the public pursuant to subsection 70(5) of the Immigration Act.
It seems obvious to me that this flimsy report cannot, by any stretch of the imagination, be accepted as adequate reasons reflecting the relevant factors involved in this matter. As the Supreme Court stated in Baker, "it would be unfair for a person subject to a decision such as this one which is so critical to [his] future not to be told why the result was reached".
[14] While the respondent acknowledges that there is some ambiguity as to whether or not there is a requirement for reasons with respect to a subsection 70(5) decision, the respondent relies on the decision of Teitelbaum J. in Atwell v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1710(F.C.T.D.).
[15] In Atwell, supra, Teitelbaum J. took note of the decision in Tewelde v. Canada (M.C.I.) (2000), 5 Imm. L.R. (3d) 86 (F.C.T.D.), in which Muldoon J. held that reasons were not required for subsection 70(5) opinions. Muldoon J. was of the view that the decision of the Federal Court of Appeal in Williams v. Canada (M.C.I.), [1997] 2 F.C. 646 (F.C.A.) was not overruled by the decision of the Supreme Court of Canada in Baker, supra. Muldoon J. observed that the Supreme Court of Canada in Baker, supra, had held that a decision's importance for or impact on an applicant was a significant factor in determining the level of procedural fairness appropriate to a particular decision-making process. Muldoon J. noted that in Williams, supra, the Federal Court of Appeal had considered the importance or impact of a subsection 70(5) opinion when it determined that reasons were not necessary.
[16] Teitelbaum J. then examined the decision in Williams, supra, and held:
In deciding whether reasons are required in the issuance of a danger opinion, the nature and significance of that decision must first be considered. In Williams, at paragraph 15, Mr. Justice Strayer held:
The effect then of the Minister forming and giving notification of her opinion under subsection 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of her discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under paragraph 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. I therefore find it difficult to characterize the Minister's opinion as the causa causans of the respondent's deportation. It is not even possible to say that the Minister's opinion is the causa sine qua non because it cannot be assumed that in its absence the Appeal Division would have found some error of fact not discernible through judicial review or would have exercised under paragraph (b) a discretion more favourable to the respondent than that exercised by the Minister in considering humanitarian and compassionate grounds.
Strayer J.A. further held that a danger opinion is not equivalent to a deportation order: it applies to persons who are already under a lawful deportation order. This is significant, according to Strayer J.A., because the procedural requirements of fundamental justice vary with the context in which they are invoked.
With regard to the specific issue of whether reasons are required, Strayer J.A. held at paragraphs 42-43:
I have some difficulty with the notion that a decision without reasons is invalid on the sole ground that it may be difficult to review by an appeal court or a court exercising judicial review powers. Recognizing once again that reasons are highly desirable it is quite possible for a tribunal, or a judge for that matter, to render a proper decision without reasons. Experience shows us that this happens in courts every day. Why should it be otherwise with tribunals? This is particularly true where tribunals are exercising largely discretionary powers, such as the Minister under subsection 70(5) where he or she is not required to apply existing legal principles to specific conclusions of fact as does a court or many tribunals.
I am at a loss to know why courts can as a matter of law render decisions without reasons but may insist that tribunals cannot, as a matter of law do so. A rationale for this proposition, as enunciated in the Doody case and by the Motions Judge in this case, is that without reasons being given by a decision maker, a court on judicial review cannot tell if that decision is correct. With respect, it seems to me that this approach is based on the premise that decisions by tribunals and officials are presumptively wrong unless they can be proven to be correct. But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement.
The applicant relies on the decision in Baker for his argument that reasons are now required and that the Federal Court of Appeal's decision in Williams has been overtaken. I cannot agree with that contention. The decision in Baker dealt with issues of bias and the best interests of an applicant's Canadian born children in the context of a subsection 114(2) humanitarian and compassionate decision. Nothing in Baker states that Strayer J.A.'s decision in Williams must now be disregarded. Indeed, anything in Baker beyond bias and the best interests of Canadian born children vis-à-vis an H & C decision is obiter dicta and, as such, is not binding on this Court. I agree with Mr. Justice Muldoon's statement in Tewelde that Baker cannot be seen as having overruled Mr. Justice Strayer's cogent analysis in Williams. Furthermore, leave to appeal the Federal Court of Appeal's decision in Williams to the Supreme Court of Canada was denied: [1997] S.C.C.A. No. 332 (Q.L.) (S.C.C. File No. 26059). Accordingly, reasons are not required for a subsection 70(5) danger opinion.
[17] In Bhagwandass v. Canada (M.C.I.), [2000] 1 F.C. 619 (F.C.T.D.), Gibson J. examined the issue of whether the failure to disclose the request for Minister's opinion and ministerial opinion report to the applicant before a decision was made was a denial of procedural fairness. Gibson J. analysed the impact of the decision in Baker, supra on the conclusion of the Federal Court of Appeal in William, supra. Gibson J. concluded that the conclusions in Baker, supra, superseded those stated in Williams, supra, such that the principles in Baker, supra, now govern. Gibson J. concluded:
Against the approach to characterization of impact adopted by the Supreme Court of Canada in Baker, I can only conclude that the approach taken by the Federal Court of Appeal in Williams is overtaken and the approach adopted by the Motions Judge in Williams is appropriate to this matter. The characterization of the impact of a danger opinion under subsection 70(5) of the Immigration Act is then, and I paraphrase the words of Madam Justice L'Heureux-Dubé in paragraph 15 of Baker, the following. It is an opinion that, while in law providing only for a variation of the statutory scheme as it applies to a permanent resident who has fallen more or less dramatically afoul of the standard of conduct expected of persons in Canada, is nonetheless in substance an opinion that, in cases like this one, determines whether a person who has been in Canada all of his youthful and adult life but does not have citizenship can stay in the country or will be required to leave. It is an opinion that requires a person to leave Canada where he or she has become established, if he or she can indeed be said to be established anywhere. To paraphrase the words of Madam Justice L'Heureux-Dubé at paragraph 15 [page 834] of Baker, it is an important decision that affects in a fundamental manner the future of an individual's life or of individuals' lives.
[18] The Federal Court of Appeal in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 341 (F.C.A.), upheld Gibson J.'s decision and stated:
The second issue in Williams that should be considered in this case is whether reasons must be given for a danger opinion. The Court said that although it is always preferable for a decision maker to give reasons for his or her decision, failure to give reasons for a danger opinion is not a breach of the principles of fundamental justice or the duty of fairness.
These two propositions from Williams are based on a rejection of the argument that the legal effect of a danger opinion under subsection 70(5) is deportation. Clearly, a subsection 70(5) danger opinion is not a deportation order or removal order. It merely precludes an appeal of a deportation order to the Appeal Division of the Immigration and Refugee Board, which means, in practical terms, that the Appeal Division cannot consider the humanitarian and compassionate grounds for not executing the deportation order. It was said in Williams that those same considerations may be considered by the Minister under subsection 114(2) to grant the same discretionary relief. Therefore, it was said, the danger opinion merely substituted the possibility of one form of discretionary relief for another.
A similar argument was made by the Crown in this case. It was suggested that a negative subsection 114(2) decision represents an applicant's last chance for relief on humanitarian and compassionate grounds from the requirements of the Immigration Act, and that is a factor that may justify additional procedural protections. By contrast, a person who is the subject of a danger opinion retains the right to seek humanitarian and compassionate relief under subsection 114(2) from a deportation or removal decision. On that basis, it was argued, the effect of a danger opinion is not as dire as the effect of a negative subsection 114(2) decision, and the procedural protections should be correspondingly less.
I am unable [sic] distinguish Haghighi on the basis suggested by the Crown. I do not quarrel with the conclusion in Williams that the issuance of a danger opinion does not engage section 7 of the Charter, but I do not take Williams as requiring a conclusion that the legal and practical effect of the danger opinion is less significant than a negative subsection 114(2) decision. As noted in Baker, a negative subsection 114(2) decision may have the effect of facilitating deportation, because an application under subsection 114(2) represents the last hope for avoiding removal from Canada. Similarly, the effect of danger opinion is to facilitate removal. This accords with what I understand to be the purpose of subsection 70(5) and subparagraph 46.01(1)(i)(e), which is to take away one potential obstacle to the speedy removal of dangerous criminals from Canada.
...
Finally, the Crown argues that the danger opinion procedure is not adversarial and for that reason the Minister's duty of fairness fall at the low end of the spectrum. I cannot accept this argument. It seems to me, on the contrary, that the danger opinion procedure adopted by the Minister suggests the need for a higher standard of fairness than for subsection 114(2) decisions. That is because the procedure is adversarial from the outset and remains so until its conclusion. [...]
[19] In Gonzales v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 240 (F.C.T.D.) Campbell J. examined the issue whether failure to provide reasons for decision made under subsections 70(5) and 53(1) of the Immigration Act constituted a breach of procedural fairness. Campbell J. held:
Applying Justice L'Heureux-Dubé's reasoning, I find that the importance of a s.70(5) and s.53(1) opinion is as "profound" as that of any humanitarian and compassionate decision, and, therefore, in fairness to Applicant and the members of his family, I find that reasons are required to be provided.
Therefore, I find that with respect to opinions rendered under s.70(5) and s.51(3) of the Act in the present case, failure to give reasons is a breach of the duty of fairness owed to the person affected.
[20] Although it has been held that failure to provide reasons for a decision under subsection 70(5) of the Immigration Act does not constitute breach of procedural fairness, it seems to me that the decisions in Baker, supra, and Bhagwandass, supra, support the assertion that failure to provide reasons constitutes a breach of procedural fairness.
[21] The question is therefore whether in the case at bar, reasons were provided.
[22] In Bhagwandass, supra (F.C.A.), the Federal Court of Appeal observed:
The Crown also argued that, according to Baker, the Ministerial Opinion Report and the Request for Minister's Opinion are "reasons" and therefore it makes no sense to require their disclosure before the decision is rendered. This argument evaporates when the Baker decision is properly understood. Before Baker, the general view was that the duty of fairness did not require reasons to be given for subsection 114(2) decisions. Baker established the proposition that reasons are required for such decisions. However, in the particular circumstances of that case, the notes of the decision maker were found to suffice as reasons. The basis for that conclusion is the factual inference that the reasons for the decision are disclosed in the notes made by the decision maker, even if they were not intended as reasons when they were written.
What is sought in this case is disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion when they are completed as far as the signatures of the reviewing officer and senior analyst, and before they are submitted to the Minister. At that point in time, they were not and could not be the reasons for rendering the danger opinion, because no opinion had been rendered. The Minister or Minister's delegate accepted the recommendation of the Ministry officials as set out in the two reports and rendered the danger opinion, and could have adopted the reports as the reasons for doing so. Whether the reports were so adopted in this case is a factual question that does not need to be addressed because the merits of the danger opinion itself are not in issue.
[23] It seems that the ministerial opinion report and the request for Minister's opinion can be considered reasons if they are adopted by the Minister or his delegate when rendering the danger opinion.
[24] In Ip, supra, Dube J. considered that the request for the Minister's opinionconstituted the reasons for the danger opinion but he was of the view that the reasons were inadequate.
[25] It has to be noted that in Ip, supra, the conclusion in the request for the Minister's opinion is exactly the same that in the case at bar. In the present case the request for the Minister's opinion states:
REVIEWING OFFICER'S COMMENTS AND RECOMMENDATION:
I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form an opinion that Conrad Constantine MULLINGS constitutes a danger to the public pursuant to subsection 70(58) of the Immigration Act.
[26] In Alvarez v. Canada (M.C.I.), 2001 F.C.J. No. 409 (F.C.T.D.), the questions before Heneghan J. were, among others, whether reasons were required when an opinion is issued under section 70(5) of the Act and whether disclosure of the reports relied upon by the Minister's delegate was required. Heneghan J. allowed the application for judicial review on the basis that procedural fairness required that the ministerial opinion report and the request for Minister's opinion be disclosed in order to afford the applicant with a reasonable opportunity to respond to them.
[27] Without deciding the issue Heneghan J., commented on whether the request for ministerial opinion or the recommendation to the Minister's delegate constituted reasons:
I am not persuaded that the request for the Ministerial opinion or the recommendation to the Minister's delegate constitute reasons. At best, the requisition for the opinion is a summary of details relating to the personal situation of the Applicant, including a review of materials prepared by Correctional Services Canada. It is a history of events, with some commentary from those persons involved in assessing the Applicant after his conviction. The document was prepared by someone other than the decision-maker and prior to the decision being made.
The recommendation to the Minister's delegate contains some assessment of risk to the Application if he were returned to Columbia but does not address the issue of the present or future risk posed by the Applicant to Canadian society, and presumably that risk is a necessary part of the process leading up to the issuance of a danger opinion under section 70(5).
[28] In Do v. Canada (M.C.I.), [2001] F.C.J. No. 72 (F.C.T.D.), the question was whether the respondent had to provide the applicant with the report and documents sent to the Minister's delegate and whether the Minister's delegate should provide reasons for the opinions pursuant to sub-paragraph 46.01(e) and subsection 70(5) of the Immigration Act. Rouleau J. held:
[...] It seems one must now consider the reports as constituting the reasons, but the analysis must be taken a step further by considering the adequacy of those reasons.
In Navarro v. Canada (M.C.I.), [2000] F.C.J. No. 1496 (T.D.), Mr. Justice Pelletier concluded that the Minister had to give reasons in support of a 46.01(1)(e) danger opinion, given the importance of the decision for the individual and the fact that the decision is subject to judicial oversight. He added the following:
"I also find that reasons were not given. The Request for Minister's Opinion, which was produced after leave had been granted in this case, does not contain the reasons for the decision. After reading the document, one cannot say why the Minister's Delegate formed the opinion which he did. It may be that the Minister's Delegate thought that trafficking in drugs is so disruptive of social order in and of itself so to make those who engage in it a danger to the public without proof of more, but the Minister's Delegate has not said so. As a result, while the Request for Minister's Opinion may provide a basis for speculation as to why the Minister's Delegate formed the opinion which he did, it does not provide an explanation of the reasoning leading to the decision.
This statement emphasized, in my opinion, the importance that must be given to analysing whether or not the document purportedly constituting reasons is sufficiently detailed to provide the reasoning leading to the decision. I do not see why the Court should not follow this precedent.
It should then follow that the adequacy of those reasons, provided in the form of the "Request for Minister's Opinion" document, would come into scrutiny. The parties' arguments on this respect are not very well developed. Upon reading the report, however, it seems that it is possible to see how the decision was reached and I would perhaps conclude that these are adequate in the circumstances of this case.
[29] I admit that in the case at bar, the comments in the request for Minister's opinion do not permit me to understand how the decision was reached and only gives the applicant's background. There is no explanation of the Minister's opinion that the applicant constitutes a danger to the public. Furthermore, in light of the decision in Ip, supra, where the same exact wording was used, I have a difficulty not to agree with Dubé J.
[30] However, in the danger to the public ministerial opinion report, at section 11 which deals with the danger rationale, it is mentioned: "See criminal narrative report pursuant to A27(1)X2".
[31] This criminal narrative report pursuant to A27(1) is a detailed report on the circumstances of the allegations of offences committed by the applicant. It also considers circumstances such as the applicant's degree of establishment, humanitarian and compassionate factors, potential for rehabilitation. In section 9, "recommendation and rationale", it is stated:
In a Criminal Narrative Report Pursuant to A27(1) (see attached) it recommended a Direction for Inquiry and a Direction for Inquiry was issued which resulted in a Deportation Order dated 24 March 1998 for Robbery.
In the Judges Reasons for Sentence it reads, "In this particular case, I am satisfied that, given the facts, Mullings was a serious commercial trafficker of cocaine in high quality; that he was prepared, unless stopped, to continue trafficking, not only to the undercover agent, but any newcomer who wished crack cocaine."
Drugs are a menace to society.
A recommendation is made that the Minister's Opinion be sought pursuant to Subsection 70.(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act.
[32] This is adequate reasons for the Minister's opinion. Although the criminal narrative report was not made by the Minister's delegate, I am of the view that the Minister's delegate adopted these reasons.
[33] In my view, the applicant failed to demonstrate that the Minister's delegate had not provided adequate reasons when determining that the applicant was a danger to the public in Canada.
2. Did the Minister's delegate err in law in rendering a decision pursuant to subsection 70(5) of the Immigration Act which was unreasonable in all the circumstances of the case?
[34] On the standard of review to be applied, Gibson J. held in Bhagwandass, supra:
Based on the analysis in Baker, and having regard to the impact of the danger opinion for the applicant in this matter, I conclude that the appropriate standard of review on this application for judicial review is reasonableness simpliciter. I am satisfied that the conclusion reflected in paragraph 17 of the Williams decision that a subjective decision such as a danger opinion under subsection 70(5) of the Immigration Act "...cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations" is overtaken by the Baker decision. I am also satisfied that the danger opinion here under review, albeit a subjective decision, can be set aside on judicial review if, on the facts of the matter, the decision is unreasonable or if the appropriate content of the duty of fairness was not provided. ...While I am not called upon to decide the standard of review on an application for judicial review such as this, I nonetheless conclude that it is reasonableness simpliciter.
[35] In Tewedle, supra, Muldoon J. held:
A Minister's delegate may determine that someone is a danger to the public under subsection 70(5) of the Act if there is a possibility that he has committed a serious crime in the past and that he may seriously be thought to be a potential re-offender; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.) at 668 Mr. Justice Gibson, in Thompson v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1097, (IMM-107-96, August 16, 1996) (F.C.T.D.), points out, however, that this does not mean that the mere fact of a conviction is sufficient to base a finding that someone is dangerous.
[36] The applicant contends that the decision is unreasonable since with the exception of the last conviction for narcotics trafficking, the applicant's criminal convictions have related to relatively minor offences.
[37] With respect to narcotics trafficking, the applicant was sentenced to three years, the lower end of the sentencing scale for similar type offences. Further, until the time of his sentencing, the applicant was out in the public on bail, a period which lasted approximately three years. During that time he worked, lived at home with his mother, kept the peace and was not charged with nor convicted of any criminal offences. It is submitted that the fact that he was out on bail for some three years is a highly significant factor, apparently ignored by the immigration officer.
[38] The applicant relies on the decision in Chedid v. Canada (M.C.I.), (1997), 127 F.T.R. 81 (F.C.T.D.) :
In the case at bar, there is neither evidence of a likelihood to commit further criminal offences (in fact, there is evidence to the contrary), nor of an established pattern of violent or criminal behaviour or lifestyle or values. It has been stated in this Court (albeit, in obiter) that the standard for release from custody under the Immigration Act is the same as that for release pursuant to the bail provisions of the Criminal Code. The applicant has already been determined, albeit by the criminal system, not to be a threat to society. Just as is Archibald, the problem in the case at bar is that there is no nexus between the applicant's criminal conviction and the likelihood to commit further criminal offences. In the absence of such a nexus, and in the face of a considerable body of evidence that the applicant does not pose a danger to public leads me to conclude that, at the very least, the Minister based her decision on an erroneous finding of fact, made without regard for the material before her.
[39] Despite the applicant's able arguments, in my view, there was sufficient evidence before the Minister's delegate to support his decision. The decision cannot be said to be unreasonable in light of the evidence.
[40] Therefore, this application for judicial review is dismissed.
[41] Counsel for the respondent submitted two questions for certification:
a) Is the effect of the issuance of a danger opinion pursuant to subsection 70(5) of the Immigration Act to deprive the subject of the opinion of a statutory right of appeal only, or does it play a role in the subject's loss of status and removal from Canada as well?
b) Should Ministerial Reports prepared under section 70(5) of the Immigration Act be taken, by inference, to be the reasons for the Minister's delegate's opinion?
[42] Counsel for the applicant submitted that the certification of those questions is not necessary.
[43] I am not convinced that those two questions raise a serious question of general importance. In consequence, no question is certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 7, 2001