Date: 19981008
Docket: IMM-2565-97
BETWEEN:
GEOFFREY ONONO ONGANDA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
(Delivered from the Bench at
Winnipeg, Manitoba, October 7, 1998)
HUGESSEN J.
[1] This is an application for judicial review of a decision of the Minister reached pursuant to section 70(5) of the Immigration Act:
| 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. |
[2] The applicant is a Kenyan citizen. He is black. He obtained landed immigrant status in Canada after which he was convicted of three offenses of trafficking in cocaine. The three offenses were committed almost contemporaneously and the applicant was only once arrested for them. He made one series of appearances before the courts and pleaded guilty. He was sentenced to a term of imprisonment. He was released on day parole but the day parole failed and the applicant went absent from his day parole after only two days. He was in due course re-arrested and re-imprisoned.
[3] In support of the application for judicial review the applicant takes two points. The first is based on section 15 of the Charter and the second is that the Minister's decision should be set aside because it is perverse.
[4] The section 15 argument itself falls into two parts: first the applicant says that subsection 70(5) and its related provision paragraph 46.01(1)(e)(iv) of the Immigration Act are invalid and should be struck down as presenting an unacceptable risk that they will be discriminatorily applied.
[5] The second part of the section 15 point taken by the applicant is that subsection 70(5) was in fact applied in his case in a discriminatory manner.
[6] The first section 15 argument is entirely novel. Counsel were unable to point to any case where anything of this sort has been done before. In effect, the applicant seeks to have a preventive invocation of section 15 of the Charter on the basis of the risk that a statute which is on its face neutral will be applied with discriminatory effect. I have serious doubts as to whether section 15 has this reach and it seems to me that one can argue that virtually any statute on the books presents a risk of its being discriminatorily applied. That is surely not a basis upon which a statute can be struck down.
[7] It is not, however, in my view, necessary that I decide the point in a definitive way. It is my view that even if section 15 is capable of a preventive application of the kind that is sought here by the applicant, no court could ever exercise that power without having evidence before it of either the actual application of the statute in a discriminatory manner or, possibly, of an intention to apply the statute in a discriminatory manner. There is no question in this case of any evidence of intention.
[8] This brings me to the second aspect of the applicant's section 15 submission, namely, the argument that the statute has in fact been applied in a discriminatory manner. The applicant has produced some evidence in support of his position but I am obliged to say that I find it woefully inadequate.
[9] I have been given some raw data as to the numbers of people who have been subjected to danger opinions under subsection 70(5) showing their countries of origin or the countries to which they were returned. Those data show, the applicant says, that as many as 75% of the persons subject to danger opinions come from countries where the population is predominantly black, hispanic, semitic, or asian. That assertion is of course a long way from establishing that 75% of the people subject to subsection 70(5) opinions are black, hispanic, semitic, or asian. In the first place the countries of origin which the applicant has identified as producing persons having those characteristics are not countries of homogenous populations; Jamaica to take a simple example, has a substantial caucasian population. Also, the countries which the applicant suggests have other racial origins, presumably white, such as the United States, Great Britain, and France all have very substantial populations of black, hispanic, semitic, and asian origin.
[10] But that is not the principal problem with the material that is put before me on this file. Even if I were to assume that 75% of the persons who were subject to danger opinions were in fact black, hispanic, semitic, or asian, that would not tell me that the section is being applied in a discriminatory manner. By definition section 70(5) applies to landed immigrants who have not yet obtained citizenship status and who have been convicted of serious crimes. That means that we are probably talking about relatively recent immigrants to Canada since they have not yet obtained citizenship status. We have no material before us indicating what proportion of the immigrant population which has not yet obtained citizenship status is made up or persons who are black, hispanic, semitic, or asian. If, of course, that proportion is at or approaching the 75% figure invoked by the applicant, there can be no inference from the material produced that there is any discrimination.
[11] Equally, the requirement that there be a conviction of a serious crime raises the question as to the population of immigrants who have been convicted of serious crimes. Is there a disproportionate representation of immigrants falling into the categories of black, hispanic, semitic, and asian who have been convicted of serious crimes? If so, the difficulty lies not in section 70(5) of the Immigration Act but in the administration of the criminal justice system, a matter which is beyond the reach of this Court.
[12] The applicant also points to the historic fact, and it no doubt is a fact, that Canada has had a sorry history of racial discrimination in its immigration policy. That, however, can do nothing to assist the applicant in his present attack on the present provisions of the Immigration Act. Canada's immigration law is now stated to be free of discriminatory policies. That does not of course eliminate the possibility that there may be discrimination. Such possibility does not however, in my view, provide a sufficient basis upon which one can strike down a provision of a statute, and still less does it provide a basis upon which, without any evidence peculiar to the situation of the applicant, a court could find that he has been the victim of racial discrimination.
[13] To put the matter another way, the fact that it may be difficult to prove a case of racial discrimination, and indeed it is, does not mean that the Court should presume a case of racial discrimination.
[14] This brings me at last to the applicant's second point, namely that the Minister's decision is perverse. As to that, I can only say that there was clearly before the Minister material which would allow her to conclude that the applicant represented an unacceptable danger. Whether or not I would have reached the same opinion is immaterial. The Minister is given a large discretion by the statute and, as was indicated by the Court of Appeal in the case of Williams, that is a discretion in which political considerations may properly be taken into account.
[15] In my view, the applicant to succeed on this point would have to establish that there was no evidence upon which any Minister acting reasonably could have concluded as she did. The material before me is far from establishing that.
[16] In consequence, the application will be dismissed. Before signing the order however, I would invite counsel if they have any suggestions as to the certification of an important question.
[17] ,Later" Counsel have asked that I should certify a question relating to the availability of section 15 on a preventive basis to attack sections 70(5) and 46.01 of the Immigration Act . Not without some hesitation, I must decline to do so. The basis of the judgment I have just rendered is that the materials showing discrimination in this case are simply inadequate to sustain any kind of a Charter attack. I do not foreclose the possibility of such an attack being made on proper materials being put before the Court but in this case in the absence of any proper factual basis I cannot see that any question of general importance arises and I decline to certify the question.
"James K. Hugessen"
Judge
WINNIPEG, MANITOBA
October 8, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2565-97
STYLE OF CAUSE: Geoffrey Onono Onganda v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 7, 1998
REASONS FOR ORDER
OF THE COURT: THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: October 8, 1998
APPEARANCES:
Mr. David Davis for the Applicant
Ms. Sharlene Telles-Langdon
Department of Justice
310 - 301 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Respondent
SOLICITORS OF RECORD:
David H. Davis Law Office
800 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19981008
Docket: IMM-2565-97
BETWEEN:
GEOFFREY ONONO ONGANDA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER