Federal Court Decisions

Date: 19971208

Docket: IMM-1899-96

BETWEEN:

     MICHAEL DANIEL HOLMES

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     [Delivered from the Bench at Edmonton, Alberta

     on Wednesday, October 8th, 1997 as edited]

CAMPBELL, J.

[1]      In this case, the decision being reviewed is that of a minister's delegate rendering an opinion that the applicant is a danger to the public under Section 70(5) of the Immigration Act. The issue here is the degree to which the decision reached is responsive to the facts proved on the day the decision was made.

[2]      Indeed, this is a decision in which no reasons are given. The recommendations provided to the decision-maker by the immigration officer who reviewed the case are not reasons.

[3]      Mr. Justice Strayer in Appeal Division judgment in Williams (File no. A 855-96) comments on the considerations in such a case at 20 and 21 as follows:

"What has been recognized is that where a discretionary tribunal decision is either on its face perverse or where there is evidence of facts being before the tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a Court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, a Court may have to set aside the decision for one of the established grounds for Judicial Review, such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc."

[4]      In this case, I accept the facts as quoted in paragraphs 16 to 27 of the applicant's memorandum of argument as true and before the decision maker prior to the decision being made:

"16.      There was substantial evidence before the Minister's delegate that the Applicant was suffering from a mental illness as well as suffering from alcoholism at the time of the offences in question but that his illnesses had been brought under control subsequently.

17.      At page 26 of the Record in the transcript from the criminal proceedings which led to the first conviction, the Crown Prosecutor advises that both the Applicant and the victim had very bad drinking problems (line 16).

18.      At page 31 of the Record, counsel for the Applicant in the criminal proceedings, indicates to the Court that his client didn't start drinking until he was about 19 years of age, and that he then started drinking excessively (lines 18-20).

19.      At page 48 of the Record, the Court, in the criminal proceedings, concluded that there was no evidence to indicate that the Applicant intentionally ran over the victim but that there was clear evidence that the Applicant's judgment was impaired by alcohol (lines 14-18).

20.      At page 83 of the Record, the Court in the proceedings that led to the conviction for impaired driving on January 28, 1993, concluded that the Applicant had an illness both with alcohol as well as a paranoid schizophrenic psychosis or symptoms that bordered on that. The Court indicated that the Applicant could not be punished for a mental illness except with respect to abuse of alcohol (lines 7-17).

21.      There was also substantial evidence before the Minister's delegate that the Applicant's illness with schizophrenia as well as his illness with alcoholism had been brought under control since these incidents in 1988 and 1992.

22.      The Applicant's counsel made submissions to the Respondent and advised that the Applicant was under the care of a physician and that although the Applicant continued to have episodes including delusions, that the severity and frequency of those episodes had declined and that the Applicant could function normally at work and at home. Counsel advised that the Applicant had taken the benefit of life skills courses and addiction courses while in detention. Counsel further advised that the Applicant had been employed on a casual basis since January of 1995 and on a full-time basis since April of 1995 as a maintenance man for a senior citizens lodge. Lastly, the Applicant's counsel advised that the Applicant no longer used or consumed alcohol or narcotics.

23.      The Immigration Officer for the Respondent concluded that the Applicant had been conviction-free for the last 35 months; that the Applicant had been under the care of his doctor and appeared to have his symptoms controlled by medication such that he could work full-time as a maintenance man in a lodge; and that the Applicant no longer used alcohol or narcotics (page 4 of the Record).

24.      The evidence before the Minister's delegate was that there had been no offences committed since early 1992.

25.      The Record is clear that there was no evidence that the Applicant at any time was violent or that he ever intended harm to anyone.

26.      At page 28 of the Record, the Crown Prosecutor on the impaired driving causing death offence, stated that he wished to be very clear about the fact that the Crown was not attempting to indicate and could not prove any knowledge on the Applicant's part that the victim was present in front of the vehicle when he continued on or when he proceeded to drive the vehicle.

At page 33 of the Record, the same Crown Prosecutor states to the Court that because the Applicant approached the motor vehicle from the rear or from behind as opposed to the side or the front, that the Applicant was not in a position to see the victim or anyone who may have been in front of the motor vehicle, in a crouched position and attempting to remove the license plate. At page 48 of the Record, the Court concludes that there was no evidence to indicate that the accused intentionally ran over the victim.

27.      It is also clear from the Record, at page 68, that the Applicant suffered considerable remorse with respect to the unintentional death that led to the first conviction. He suffered from anxiety and was on anti-depressant medication. He was in the process of making arrangements to see a psychiatrist. He had indicated to his doctors that he was hearing voices and believed that car license plates had special significance for him.

This was what prompted his referral to a psychiatrist. The Applicant would misinterpret people's appearances or would mistake them for his late girlfriend. He had a number of panic attacks and possible disassociative states."

[5]      Accordingly, I find there is evidence of facts before the decision maker which manifestly required a different result. In the absence of reasons to establish how the result is rational, I hereby set the decision aside for failure to consider relevant factors.

[6]      There is no question to certify and I make no Order as to costs.

                                                          Judge

OTTAWA, ONTARIO

December 8, 1997