Federal Court Decisions

     IMM-2621-96

BETWEEN:

     MICHAEL LINDO

     Applicant

     - AND -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

McKEOWN J.

     The applicant seeks an order staying the execution of a deportation order. The applicant also seeks an order granting an abridgment of time to file this motion, which is granted. The primary issue in this stay is whether there is a serious issue to be tried in the application for judicial review; there are also the issues of irreparable harm and the balance of convenience which are the other two parts of the test that must be met in a stay application.

     The key question of whether there is a serious issue revolves around whether the Minister complied with the principles of fundamental justice in rendering his decision that the applicant is a danger to the public pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the Act). The applicant submits that he has been deprived of his liberty within the meaning described in section 7 of the Charter. The applicant states that subsection 70(5) fails to establish adequate procedural safeguards so as to comply with requirements of fundamental justice and, therefore, since the applicant is deprived of his liberty, this is a violation of section 7 of the Charter. The applicant further submits that subsection 70(5) is vague and imprecise and as such it contravenes principles of justice and is of no force or effect. In addition, the applicant submits that the Minister had a duty to give reasons.

     The applicant submits that, if deported, he will suffer irreparable harm because Jamaica does not offer a proper treatment program for persons who have been convicted of child abuse. The program which the applicant intends to attend is only available in Canada and the failure to receive such treatment, the applicant submits, constitutes irreparable harm to the applicant.

FACTS

     The applicant is a citizen of Jamaica and a landed immigrant in Canada. In 1992, on three occasions, the applicant touched his then wife's daughter on her vagina. His relationship with his then wife ended and he stopped living with her and her daughter in 1993. In 1994, the applicant attended a program offered by the Metropolitan Toronto Special Committee on Child Abuse. He successfully completed the 20-week course. In June 1994, the applicant was charged with sexual assault as a result of the 1992 incidents and in June 1995 on a plea of guilty was convicted and sentenced to 18 months in prison. The applicant was released in June 1996. In May 1996, the Minister of Citizenship and Immigration formed the opinion that the applicant is a danger to the public and as a result of that opinion on June 14, 1996 he was ordered deported from Canada. The applicant has remarried and has a young son who is a Canadian citizen. While in prison the applicant contacted the Special Committee on Child Abuse in order that he might enter a program upon his release. He has been informed that a new program will be commencing in September 1996 and that interviews for that program will commence on August 14, 1996. His deportation is scheduled for August 9, 1996.

     The applicant has been informed by a member of the Special Committee on Child Abuse that he has demonstrated a necessary willingness and desire to complete the program but no decision can be made until after the interview. The applicant has not re-offended since he took the program in 1994. The applicant has also arranged to return to the employer for whom he worked prior to his imprisonment.

ANALYSIS

     The applicant has argued that his liberty interest is involved under section 7 of the Charter. An individual's right to liberty may only be compromised in a manner which is consistent with the principles of fundamental justice. In cases where argument has been made that an individual's right to liberty is involved, but there is evidence sufficient to demonstrate that there has been no denial of fundamental justice, the Supreme Court of Canada has refused to determine if the individual's liberty interest is, in fact, involved. This is the case here. I am not prepared to rule on whether the applicant's liberty interest is involved as there has been no breach of fundamental justice.

     The Federal Court of Appeal in Nguyen v. Canada (Minister of Employment & Immigration), [1992] 18 Imm. L.R. (2d) 165 has held that section 7 of the Charter is not engaged with respect to a deportation order in and of itself. Marceau J.A. stated at page 171 that:

... If one bears in mind that a non-citizen has no absolute right to enter or remain in the country, one can see that the establishment by Parliament, and their enforcement in particular cases, of conditions to be observed by landed immigrants in order to retain their right to remain in Canada and avoid deportation may only offend the Charter in two ways: either the conditions are in themselves discriminatory (breaching thereby the right of all landed immigrants under s. 15 of the Charter to equal treatment under the law); or their implementation in particular cases is not made with full regard for the rules of fundamental justice (thus breaching the right of everyone under s. 7 of the Charter not to be deprived of liberty except in accordance with the principles of fundamental justice). Now, certainly, the requirement of no serious criminal convictions is not illegitimate or arbitrary, and the procedure set up by the Act to determine breach of the requirement in practice - a procedure scrupulously followed in this case - does not violate rules of fundamental justice.      [footnote omitted]

     In my view the Nguyen case is binding on me. I do not agree that the Nguyen case can be distinguished on the basis that it related to an individual who was in Canada making a claim to Convention refugee status as opposed to, as is true in this case, an individual who was in Canada with landed or permanent residence status. In fact, it might be said that there should be greater protection afforded to refugees who will be removed from Canada to a country where they will potentially be persecuted than to persons whose lives are in less need of protection.

     Marceau J.A. discussed the possible engagement of section 7 of the Charter in Nguyen, supra, at page 173 wherein he stated:

In the Chiarelli case, a permanent resident had been ordered deported after having been found to be a person described in s. 27 of the Act, and his right to appeal on compassionate grounds under the then para. 72(1)(b) of the Act [Immigration Act, 1976, S.C. 1976-77, c. 52] (now para. 70(1)(b)) had been removed due to the issuance of a security certificate by the Minister under ss. 82.1 and 83 of the Act (now 81 and 82). The Supreme Court, following in that respect the approach of this court, examined the constitutional challenge as being aimed at the scheme viewed as a whole. The removal of the special right to appeal was perceived as the removal of a means to oppose the deportation order and, as a result, might engage s. 7 of the Charter. Similarly in our case, while a determination of the ineligibility under subpara. 46.01(1)(e)(ii) of the Act is only indirectly linked to the deportation order, nevertheless it has the effect of taking away the only possible barrier to the issuance of an unconditional deportation order, and as such participate in the deprivation of liberty and, possibly, the security of the individual which results from deportation. More generally, the deprivation of liberty involved in any forced deportation is given a new dimension by the fact that the individual to be deported claims to be a refugee. It is appropriate, therefore, to assume that s. 7 of the Charter is brought into play with respect to the scheme as a whole, that is to say with respect not only to the issuance of the deportation order, but also to the ineligibility decision based on the public danger certificate. The question becomes whether the issuance of the public danger certificate, the central feature of the scheme as a whole, could be said to have violated a principle of fundamental justice.

A complete answer to the question requires that two aspects be examined: the substantive aspect, which is concerned with the contents or the substance of the legislative provision, and the procedural aspect, which looks at the manner in which the legislation is in fact implemented. Counsel made lengthy submissions on both aspects. None of these submissions, however, convinces me that the legislation or its implementation in this case is constitutionally unacceptable.

     The applicant submitted that subsection 70(5) failed to establish adequate procedural safeguards so as to comply with the requirements of fundamental justice. Lamer, J. (as he then was) dealt with the scope and content of fundamental justice in Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 (S.C.C.). He stated at page 503 that:

... the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system ...

     It was submitted by the applicant that given the historical importance of permanent resident status and the fundamental issues of liberty associated with this status, the denial of an applicant's right to appeal a deportation order must be undertaken in a manner which limits the arbitrary exercise of the discretion involved in recognizing that right. In my view, the procedure in place for the Minister to form the opinion that an individual is a danger to the public does not involve an arbitrary exercise of discretion and is, rather, in accordance with the principles of fundamental justice.

     On the issue of the requirement that the Minister provide reasons, I agree with MacKay J. in Canales v. Minister of Citizenship and Immigration, June 20, 1996, Court File No. IMM-1913-96, wherein he held that no reasons are required, stating at page 5:

... the jurisprudence again is clear that in these circumstances there is no obligation on the Minister to provide reasons for her opinion. There is no statutory requirement for reasons to be stated and the decision of the Minister is clearly one within her statutory discretion ...

     The Supreme Court of Canada dealt with the subject of vagueness in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 where Gonthier J. stated at page 643:

... a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate ...

     And at pages 639-640 the Court stated:

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary ...

     Although it is uncertain as to whether the question of vagueness was argued in the Nguyen case, Marceau J.A. stated the following at pages 173-174:

... I do not believe that the Minister needs to be compelled to follow formal guidelines as to the factors he should take into account in forming his opinion, and I consider the Minister's opinion in respect of public danger as reliable as that of a court ... Neither the Refugee Division nor the Minister, however, need to conduct such a balancing, since it is irrelevant to the decisions that, under the law, they are called upon to make. Moreover, I do not understand, for that matter, how and on what basis a meaningful balancing between an actual danger to the Canadian public and the fear of persecution of a foreign citizen could ever be made ...

     In my view, subsection 70(5) is not void for vagueness. The wording of the subsection, that a person is a danger to the public, is sufficient to engage legal debate.

     It was submitted by the applicant that in the immigration context the rights affected are so basic that the standards of fundamental justice required by section 7 of the Charter must be very high indeed and, in fact, close to the standard recognized as being applicable in the criminal context for the same basic rights are at stake. Marceau J.A. in Ahani v. Her Majesty the Queen, July 4, 1996, Court File No. A-639-95 stated:

As to the second proposition, we are of the view that the section 40.1 context is, in no way, akin to a criminal context. In a criminal law context, we have an individual charged with breaking the criminal law of the land who faces punishment if the state succeeds in overcoming his presumption of innocence. In a section 40.1 context, we have an alien who may lose the qualified right to stay in Canada that he gained by being given refugee status, but whose liberty will not then be otherwise impeded ...

     In my view, the same argument is applicable in the case of a permanent resident. The standard cannot be a criminal one.

     Accordingly, in my view there is no serious issue to be tried in the judicial review application.

     With respect to the issue of irreparable harm, the applicant submits that he needs treatment and that the appropriate treatment is only available in Canada and not in Jamaica. However, this is not the test for irreparable harm. Rather the question is whether the applicant's life and health will be put in danger if he is returned to Jamaica. Since the respondent owes no duty to the applicant, it is hard to agree that Canada must provide treatment to someone who has breached its criminal law. There is no irreparable harm.

     Finally, in my view, the balance of convenience favours the respondent. The Minister is seeking to protect the Canadian public and, with that objective in mind, she has made a decision affecting the applicant but has provided the applicant with fundamental justice.

     Accordingly, the application for stay is dismissed.

                         ______________________________

                                 Judge

OTTAWA (ONTARIO)

August 29, 1996