Date: 20010820
Neutral citation: 2001 FCT 920
BETWEEN:
FODA KENNEDY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision rendered by Mr. W.A. Sheppit, the Minister's delegate, on June 20, 2000, whereby he concluded, pursuant to subparagraph 46.01(1)(e)(i) of the Immigration Act (the "Act")[1], that the applicant constitutes a danger to the public in Canada.
[2] This application raises the following issues for determination, namely:
1. whether the principles of natural justice and procedural fairness were breached in the rendering of Mr. Sheppit's decision, in that the Minister failed to disclose to the applicant the "Ministerial Opinion Report" and failed to provide him with an opportunity to respond thereto;
2. whether the principles of natural justice and procedural fairness were breached in that the Minister failed to provide reasons in support of her opinion that the applicant constitutes a danger to the public in Canada;
3. whether Mr. Sheppit's decision, on the evidence, is reasonable, and;
4. whether the Minister's failure to render her opinion within the delay prescribed in Minutes of Settlement entered into by the parties on January 10, 2000, constitutes a breach of the principles of natural justice and procedural fairness.
[3] The facts can be briefly summarized as follows. The applicant, aged 26, was born in Nambia on June 16, 1975. He claims to have arrived in Canada in December 1989, at the age of 14. He was arrested on September 16, 1998, for drug trafficking (cocaine, crack cocaine and marijuana) and possession of cocaine. As a result, he was sentenced to imprisonment for a term of twelve months for each of eight counts under sections 4 and 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and for one count of obstructing a peace officer under subsection 129(a) of the Criminal Code of Canada, to be served concurrently in addition to his 181 days of pre-trial custody.
[4] On September 2, 1999, Canadian Immigration authorities (the "Immigration authorities") served upon the applicant a notice of intention to seek the Minister's opinion, pursuant to subparagraph 46.01(1)(e)(i) of the Act, that he constitutes a danger to the public in Canada.
[5] On November 4, 1999, the applicant applied for refugee status. It should be noted that upon making his claim to refugee status, the applicant had been in Canada illegally for almost ten years. Prior to his arrest in 1998, he had never reported to the Immigration authorities.
[6] On November 16, 1999, Mr. Sheppit concluded that the applicant was a danger to the public in Canada and hence, the applicant was ordered deported from Canada by an adjudicator on November 24, 1999.
[7] Shortly thereafter, the applicant filed an application for leave and for judicial review of Mr. Sheppit's decision dated November 16, 1999. On January 10, 2000, the parties entered into Minutes of Settlement pursuant to which, inter alia, Mr. Sheppit's decision was revoked and the applicant's removal from Canada was stayed. The Minutes of Settlement further provided that the applicant would remain in detention until the Minister rendered a new decision or for 90 days, whichever was earlier.
[8] On February 4, 2000, the Immigration authorities initiated a fresh notice of intention to seek the Minister's opinion pursuant to subparagraph 46.01(1)(e)(i) of the Act. On April 14, 2000, the applicant served on the Immigration authorities his written representations in response to the fresh notice of intention to seek a danger opinion, and on June 20, 2000, Mr. Sheppit rendered the decision which the applicant attacks in these proceedings.
[9] I will begin my analysis with the last issue raised by the applicant. In his application for leave and for judicial review, the applicant puts this issue in the following terms:
The decision of Mr. W.A. Sheppit, dated 20 June, whereby he formed the opinion pursuant to paragraph 46.01(1)(e) of the Immigration Act that the Applicant constituted a danger to the public in Canada was contrary to standards of procedural fairness in that the decision was contrary to the Minutes of Settlement agreed upon by both parties and therefore unlawful;
[10] In his Memorandum, the applicant has raised this issue under the heading of "Legitimate or Reasonable Expectation". He submits that the respondent created a legitimate expectation on his part
[...] by promising in the Minutes of Settlement to follow a specific procedure if the Minister of her Delegate decided to seek a new danger opinion. The Respondent breached the requirement of procedural fairness by following a different procedure.
[11] Specifically, the applicant submits that the Minister did not issue the danger opinion within the time prescribed in the Minutes of Settlement and hence, the Minister is barred from now rendering an opinion on the facts before her. For the purpose of clarity and for a better understanding, I hereby reproduce in full the Minutes of Settlement dated January 10, 2000:
BE IT KNOWN THAT the above noted parties have agreed to settle the within noted matter on the following terms:
1. THAT upon execution of this Agreement the decision of the Minister made pursuant to s. 46.01(1)(e) of the Immigration Act, dated November 16, 1999, that the Applicant is a danger to the public in Canada shall be and is hereby revoked.
2. The removal Order as against the Applicant is hereby stayed and cannot be executed until such time as any new danger to the public certificate, if any, is issued.
3. THAT upon the execution of this Agreement the Applicant shall file a Notice of discontinuance on a without costs basis in respect of:
i) his motion for a stay of execution of deportation which motion was to be heard in the Federal Court of Canada - Trial Division at 1:30 pm on Tuesday, January 11, 2000; and
ii) his application for leave and judicial review in IMM-106-00 of the decision mentioned in paragraph 1 above.
4. THAT the Minister or her delegate may initiate a new process for the determination of an opinion set forth in s. 46.01(1)(e) of the Immigration Act according to the following schedule:
i) the Minister or her delegate will provide the applicant and his counsel, Warren Creates, with the standard notice with accompanying information relating to the case the Applicant must meet and the fact that a danger opinion is being considered within 30 days of January 11, 2000;
ii) thereafter, the Applicant shall have 30 days in which to provide any submissions and other material in response;
iii) thereafter, the Minister or her delegate shall have 30 days in which to issue a decision pursuant to s. 46.01(1)(e) of the Immigration Act.
5. THAT the Applicant (without conceding that he is a danger to the public or that he will not appear for any immigration proceeding) shall, subject to paragraph 5, remain detained at his present location or in a similarly acceptable institution to the Respondent until the Minister's decision has been rendered or 90 days whichever is earlier. During this time the Applicant shall undertake to agree to remain detained and to not seek to be released during any statutory reviews of such detention.
6. IN ADDITION having regard to the fact that the Applicant contemplates submitting a report of a forensic or other psychologist/psychiatrist in support of his position that is not a danger to the public in Canada, the parties agree to the following:
i) that should the Applicant, after having exercised all reasonable recourse to obtain the same, not be able to provide such a report within the time frame contemplated under paragraph 3(ii) above (ie., 60 days from January 11, 2000) the Applicant shall be entitled to a reasonable extension of time in which to file the same;
ii) thereafter, the Minister or her delegate shall issue an opinion pursuant to s. 46.01(1)(e) of the Immigration Act within 30 days of receipt of the above noted report; and
iii) the Applicant shall remained detained upon the same conditions as set forth in paragraph 4 above except that the period of 90 days mentioned therein is modified as required by these provisions - that is, the Applicant is to be detained and undertakes not to seek to be released until the Minister's decision has been rendered or 30 days from the date of the report mentioned herein is provided to the Minister or her delegate - which ever [sic] is earlier.
7. THE terms and conditions of this Agreement are not severable.
8. THE PARTIES confirm that neither one of them is under any disability which would prevent them from agreeing to the within terms and conditions and that such is given freely after having received independent legal advice.
[12] Paragraphs 4 and 6 of the Minutes of Settlement set out a schedule in regard to the Minister's commencement of a new process for the determination of an opinion under subparagraph 46.01(1)(e)(i) of the Act. In the present instance, the notice of intention to seek the Minister's opinion was sent to the applicant by letter dated February 4, 2000. As to the applicant's written submissions, they were provided to the Minister, following two extensions of time granted to the applicant pursuant to subparagraph 6(e) of the Minutes of Settlement, around April 14, 2000. The extensions of time were granted to the applicant so as to allow him additional time to obtain a forensic or other psychological/psychiatric report. For reasons that are irrelevant to the present determination, the applicant did not provide any such report to the Minister in support of his position that he is not a danger to the public in Canada. As I have already indicated, the Minister's opinion was rendered on June 20, 2000.
[13] In my view, the applicant cannot possibly succeed on this issue. The applicant's argument is that the Minister, by reason of her failure to issue an opinion within the time frame prescribed by the Minutes of Settlement, is barred from issuing an opinion on the facts as they existed at that time. The applicant takes that position because, in his view, he had a legitimate expectation that the opinion would be rendered within the time frame set out in the Minutes of Settlement. Consequently, according to the applicant, the Minister breached the requirements of procedural fairness by not respecting the delays agreed upon.
[14] The Minister's failure to abide by the delays set forth in the Minutes of Settlement would have allowed, if necessary, the applicant to seek his release from detention as of the date upon which the Minister had undertaken to issue her opinion, Hence, on June 3, 2000, the applicant applied for release from detention. On June 7, 2000, Pierre Turmel, an adjudicator of the Adjudication Division of the Immigration and Refugee Board, made a conditional order for release on a bond of $2,500.00, if the Minister's danger opinion was not issued by June 21, 2000. At pages 34 and 35 of the transcript of the hearing before Mr. Turmel on June 7, 2000, the adjudicator makes the following remarks:
You are a person who lived in Canada for ten years illegally, without ever reporting to the Immigration. If you recall, I stated on November 24th that if you had come to Canada to seek protection, I could not understand why you had never presented yourself to the Immigration department. Since Canada is a well known country who is extending hospitality to refugee seekers, there is no reason for me to believe that you would not have heard of Canada's reputation.
You also managed to go undetected for all those years, you have used other names, than the one you claimed to be yours at this time, we have no evidence of who you are, we have no evidence that you would be a citizen of Liberia, you have not provided a single piece of identification document since you are being held into custody by the Immigration and by Adjudicators under orders of the adjudication division
So, all this to say that I have very serious concerns as to your future availability for removal. As we speak, you are to be removed from Canada, unless the minister's delegate does not make a danger opinion, which would then allow you to make a claim to convention refugee status. I think your lawyer would then see what avenue is to be taken to bypass the effective removal order, but there is still the possibility that the minister makes a danger opinion, even if the delay has expired.
However and in that view, I think that if a danger opinion is made, you will never show up to effect your removal from Canada, but if a danger opinion does not issue and then you are entitled to make a claim to Convention refugee status, as rightly pointed out by counsel, it is a process which will take months and months and in that context, in that perspective, one should look at alternatives to detention, which would alleviate any doubts that one might have concerning one's availability.
And what I intend today to do is order your release effective as of two weeks from now, we will set a date. It is a condition offer of release, let's say, I am pushing on the minister's delegate to make his decision. Also, if a decision has not been made on the danger aspect issue by June 21st, I am ordering release upon the presentation of a bond in the amount of 2 500$ in cash or condition and you will also have to respect the following conditions.
You will have to provide an address of residence prior to release. You will have to inform the Immigration office of any change in address prior changing residence. You will also have to report in person on the first working day following release and once a week thereafter. I want to here precise that if a danger opinion issues, this offer would not be valid. It is valid if there is not decision made or no opinion is issued. A decision is made, but is in favour of Mr. Kennedy.
[15] Following the issuance of the Minister's opinion, the applicant, on June 30, 2000, filed an application for leave and for judicial review thereof. On July 3, 2000, Lemieux J. stayed the execution of the removal order made against the applicant. On July 5, 2000, Michel Beauchamp, an adjudicator of the Adjudication Division of the Immigration and Refugee Board, ordered the applicant's release on a bond of $2,500.00.
[16] In my view, the short and simple answer is that the Minister, by agreeing to the terms and conditions set forth in the Minutes of Settlement dated January 10, 2000, did not, nor could she, waive her duty under paragraph 46.01(1)(e) of the Act. As the respondent correctly points out, there is no statute of limitation or compulsory legal time frame within which the Minister must examine a "request for Minister's opinion" under paragraph 46.01(1)(e) of the Act. In my view, no legitimate expectations arose from the Minutes of Settlement that the Minister would be barred from rendering an opinion if she failed to do so within the delay prescribed in the Minutes of Settlement.
[17] In my view, the applicant, through the doctrine of legitimate expectation, is seeking a substantive result. Recently, in Mount Sinai Medical Centre v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] S.C.J. No 43 (QL), the Supreme Court of Canada indicated in clear terms that the doctrine of legitimate expectations could not confer a substantive relief. At paragraphs 22 and 32 of his Reasons, Binney J. (with the Chief Justice concurring) made the following remarks:
22. The respondents argue that the doctrine of legitimate expectations can be used to compel not only procedural protection but a substantive result provided such result is not contrary to law and is otherwise within the power of the Minister, which in this case it would be (see S.J. Schnberg, Legitimate Expectations in Administrative Law), ch. 4). The prior jurisprudence in this Court is against such a proposition: see Old St. Boniface, supra, at pp. 1203-04, Reference re Canada Assistance Plan, supra, at pp. 557-58; Baker v. Canada, supra, at paras. 26. However, the respondents say that this doctrine is rapidly evolving and expanding, and has been employed in Canada and elsewhere to impose a substantive rather than merely procedural result on decision makers exercising statutory or prerogative powers. Relevant authorities include the decision of a panel of the Quebec Court of Appeal in Sous-ministre du Revenu du Québec v. Transport Lessard (1976) Ltée, supra; [...]
[32] In Reference re. Canada Assistance Plan, Sopinka J. (citing Old St. Boniface, supra) regarded the doctrine of legitimate expectations as "an extension of the rule of natural justice and procedural fairness" which m ay afford "a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity" (p. 557 (emphasis added)). In referring to the making of representations, of course, Sopinka J. was not limiting relief just to representations but intended to include whatever procedural remedies might be appropriate on the facts of a particular case. Procedure is a broad term. The door was shut only against substantive relief. It seems to me, notwithstanding the respondents' argument, that this conclusion should be affirmed. If the Court is to give substantive relief, more demanding conditions precedent must be fulfilled than are presently required by the doctrine of legitimate expectation.
[18] Consequently, I am deciding the fourth issue in favour of the respondent. The applicant submits that I should certify the following question as constituting a question of general importance under subsection 83 (1) of the Act:
Did the Minutes of Settlement signed on January 10, 2000, preclude the Minister's delegate from rendering a danger opinion following the issuance of a Notice of Intention to seek the opinion of the Minister pursuant to sub-paragraph 46.01(1)(e)(i) of the Act?
[19] In my view, this question is not a question of general importance as defined by the Federal Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4. The question, therefore, will not be certified.
[20] I now turn to the first issue raised by the applicant. For the reasons that follow, I need not discuss the second and third issues. The first issue is whether there was an obligation upon the respondent to disclose to the applicant the document entitled "Request for Minister's Opinion" submitted by Bonnie Maystrenko, Analyst, on June 12, 2000, and concurred in by Denise Bédard, Senior Analyst - Case Review, on June 13, 2000. On June 20, 2000, Mr. Sheppit, after review of the document, concluded that the applicant constitutes a danger to the public.
[21] The applicant's position is straightforward. Relying on the Federal Court of Appeal's decision in Bhagwandass v. Canada (M.C.I.), 2001 FCA 49, [2001] F.C.J. No. 341 (QL), the applicant submits that the respondent breached the duty of fairness owed to him when she failed to disclose the request for Minister's opinion and failed to give him an opportunity to respond thereto. In my view, the applicant's position is well founded. The respondent has not persuaded me that the Court of Appeal's decision in Bhagwandass, supra, can be distinguished. Consequently, I have no choice but to apply the Court of Appeal's decision to the facts of the present case. Had I been free to decide this issue, I would have decided it in favour of the respondent. In my view, the Minister's failure to disclose to the applicant the request for Minister's opinion and the failure to provide the applicant with an opportunity to respond thereto did not breach the principles of natural justice and procedural fairness.
[22] As a result, I must conclude that the Minister breached the duty of fairness owed to the applicant by not providing him with a copy of the request for Minister's opinion and by not affording him an opportunity to respond. Although the respondent has not sought leave of the Supreme Court of Canada to appeal the Court of Appeal's decision in Bhagwandass, supra, leave has been sought to appeal the Court of Appeal's decision in Chu v. Canada (M.C.I.), 2001 FCA 113, [2001] F.C.J. No. 554 (QL), where the same issue arises. I am, therefore, prepared to certify the following question proposed by the respondent:
Was there an obligation to disclose and share the ministerial opinion report and/or the request for the Minister's opinion to the applicant and give him an opportunity to respond before the Minister's delegate made his decision under paragraph 46.01(1)(e) of the Immigration Act?
[23] With respect to the second and third issues, as well as the fourth issue, in respect of which I have refused to certify the question proposed by the applicant, the parties will nonetheless have the opportunity of raising these issues before the Court of Appeal. In effect, in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, the Supreme Court of Canada held that once a question was certified, all aspects of an appeal could be considered by the Court of Appeal.
[24] For these reasons, this application for judicial review shall be allowed. The opinion of the Minister's delegate, dated June 20, 2000, that the applicant constitutes a danger to the public in Canada, made under subparagraph 46.01(1)(e)(i) of the Act, shall be set aside, and the matter will be returned to the respondent for re-determination.
Marc Nadon
JUDGE
O T T A W A (Ontario)
August 20, 2001
[1] Paragraph 46.01(1)(e) of the Immigration Act reads as follows:
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
[...]
(e) has been determined by an adjudicator to be
(i) a person 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,
(ii) a person described in paragraph 19(1)(e), (f), (k) or (l) and the Minister is of the opinion that it would be contrary to the public interest to lave the claim determined under this Act,
(iii) 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
(iv) 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.