Date: 19990923
Docket: IMM-6521-98
BETWEEN:
KEVIN RICHARD ALYEA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is a review of a decision dated 20 November 1998 by a Delegate of the Minister of Citizenship and Immigration in which he expressed his opinion that the Applicant represents a danger to the public in Canada under ss. 70(5) and 46.01(1)(e)(iv) of the Immigration Act.
Background
[2] Kevin Richard Alyea was landed on 27 May 1983 and has the status of a permanent resident in Canada.
[3] As a result of incidents which occurred between 1990 and 1995, on 9 January 1997, Mr. Alyea was convicted by a judge and jury of two counts of sexual assault and three charges of sexual touching contrary to ss. 271 and 151 of the Criminal Code of Canada respectively. With respect to sentencing, a pre-sentence psychiatric report was prepared by Dr. Ian Postnikoff.
[4] On 3 April 1997, Mr. Alyea was sentenced to 30 months imprisonment on each of the charges of sexual assault and 18 months imprisonment for each of the charges of sexual touching, with the sentences to be served concurrently. While in custody, the following reports were prepared for Correctional Services Canada:
| A) 5 May 1997, a "Criminal Profile Report" by Case Management Officer D. Warren. |
| B) 23 June 1997, a "Penitentiary Placement Report" by Correctional Services Canada. |
| C) 7 August 1997, a "psychological/psychiatric" report Patricia Zapf, a psychology intern. |
[5] On 10 November 1997, the British Columbia Court of Appeal set aside two of the convictions for sexual touching leaving convictions for two counts of sexual assault and one charge of sexual touching.
[6] On 2 July 1998, a report under s. 27(1)(d) of the Immigration Act was issued by an immigration officer indicating that the Mr. Alyea holds the status of a permanent resident in Canada.
[7] On 7 September 1998, counsel for Mr. Alyea made initial submissions regarding the Danger Opinion in which he pointed out the fact that two of Mr. Alyea"s five convictions had been overturned at the Court of Appeal. The submissions included the pre-sentence report by Dr. Postnikoff and letters of reference. An extension of time was requested in order to allow a secondary examination to be conducted by Dr. Postnikoff.
[8] On 20 October 1998, the 14 page report from this secondary examination was submitted to the Ministry of Citizenship and Immigration. It outlined extensive concerns respecting the accuracy and preparation of the Correctional Services Canada reports, specifically the psychological/psychiatric report of Patricia Zapf. Dr Postnikoff also states the opinion that Mr. Alyea presents an extremely low risk to violently offend in the future.
[9] The next day, on 21 October 1998, a recommendation was made by an Immigration Officer that the Minister"s opinion be requested that Mr. Alyea constitutes a danger to the public. On 20 November 1998, the Minister"s delegate, signed the documents indicating he was of the opinion that Mr. Alyea is a danger to the public under ss. 70(5) and 46.01(1)(e)(iv) of the Immigration Act respectively.
The Materials Before the Minister"s Delegate
[10] The material submitted to the Minister"s Delegate includes a standard form which lists various documents that may accompany the Danger Opinion summary, with boxes provided to be checked off beside those that have been included in each particular file.
[11] In this instance, while there are lines in Part "F" designated "PSYCHIATRIC EVALUATIONS OR CERTIFICATES" and "PRE-SENTENCE REPORTS", the boxes beside these items are not checked off to indicate any such materials were submitted to the Minister"s Delegate despite the existence of the two reports prepared by Dr. Postnikoff.
[12] In fact, the only mention of the second psychiatric report prepared by Dr. Postnikoff is found in the two page document "REQUEST FOR MINISTER"S OPINION" prepared by an Immigration Reviewing Officer dated 22 October 1998. This document fails to mention, under the heading"Danger Profile", any of the substantive opinions expressed by Dr. Postnikoff but says only:
| -refer to the psychological/psychiatric assessment report from Correctional Services which provides the circumstances of subject"s criminal actions and provides an assessment regarding his risks of re-offending. |
[13] In fact, the only passing reference to Dr. Postnikoff"s reports in the entire summary is under the heading of "Removal Risk Considerations". There, the Reviewing Officer mentions:
| I note that on page 6 of Dr. Postnikoff"s report, he states |
| Mr. Alyea indicated there is nothing waiting for him in the United States. Mr. Alyea indicates if he is deported to the United States, he will likely seek work as a truck driver, or a job working in a sawmill possibly driving a loader or forklift. He indicates that he could always return to the bush as a trapper, this is not something her [sic] would prefer doing. He indicates he probably would settle in either Montana or Idaho. |
Analysis
[1] Counsel for the Applicant relies on the decision of McKeown, J. in Ngo v. Canada (Minister of Citizenship and Immigration)1 where he states at paragraph 31 that "...the Minister"s officials are allowed to interpret the evidence as long as it is substantially correct in their summary in the request for the Minister"s opinion".
[2] McKeown, J. goes on to say that the initial "Minister"s Opinion Report" and the subsequent "Request for the Minister"s Opinion" summaries provided to the Minister are not open to challenge "...as long as the two opinions do not introduce new evidence or materially mischaracterize the evidence".
[3] Counsel for the Applicant also relies on the decision Blais, J. in Lee v. Canada (Minister of Citizenship and Immigration). In examining a situation similar to the one in the present case, Blais, J. expressed concern about the fact that important documents were not checked off in Part F of the Ministerial Opinion Report, and in setting aside the decision of the Minister"s Delegate stated at paragraph 21 that "I am not convinced that all documents were submitted to the decision maker and this constitutes a reviewable error".
Conclusion
[4] Based on the evidence before me, I have concerns similar to those expressed in Ngo and Lee.
[5] The failure to indicate in Part F of the Ministerial Opinion Report that the pre-sentence and psychiatric reports of Dr. Postnikoff were in fact submitted to the Minister"s Delegate leaves me with a concern that they were not submitted.
[6] In addition, I find that the passing reference to Dr. Postnikoff"s second psychiatric report contained in the Request for Minister"s Opinion mischaracterizes the evidence in that it does not state the essence of the extensive opinion expressed which is favourable to Mr. Alyea.
[7] On these two grounds, I find reviewable error and, accordingly, set aside the decision of the Minister"s Delegate.
| (Sgd.) "Douglas Campbell" |
Judge
Vancouver, British Columbia
September 23, 1999
[8]
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6521-98
STYLE OF CAUSE: KEVIN RICHAR ALYEA
v.
MCI
PLACE OF HEARING: VANCOUVER, BC.
DATE OF HEARING: SEPTEMBER 15, 1999
REASONS FOR ORDER AND ORDER OF CAMPBELL J.
DATED: SEPTEMBER 23, 1999
APPEARANCES:
| MR. ZOOL SULEMAN FOR THE APPLICANT |
| MR. KIM SHANE FOR THE RESPONDENT |
SOLICITORS OF RECORD:
SULEMAN & COMPANY
| VANCOUVER, BC. FOR THE APPLICANT |
MORRIS ROSENBERG
DEPUTY ATTORNEY
| GENERAL OF CANADA FOR THE RESPONDENT |