Solis v. Canada (Minister of Citizenship and Immigration), docket IMM-4898-96

Date: 19980519

Docket: IMM-4898-96

BETWEEN:

EMMANUEL SOLIS

Applicant

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1]      This is an application for judicial review of opinions rendered by a Minister"s Delegate on December 5,1996 wherein Emmanuel Solis (the "Applicant") was found to be a danger to the public pursuant to each of sections 46.01(1)(e)(iv), 53(1)(d) and 70(5) of the Immigration Act (the "Act").

A. Background

[2]      The Applicant, who was born on December 26, 1976, came to Canada with his family in 1986 from Guatemala and, on November 22, 1990, was granted landed immigrant status.

Since 1992, the Applicant has been convicted of various criminal offences, the record of which reads as follows¹:

DATE	CHARGE	SENTENCE
March 5, 1992 (Youth Court)	B & E with intent	Probation 1 year.
February 5, 1993 (Youth Court)	(1) Robbery (2) Possession of a weapon	(1) 18 months secure custody & 18 months probation (2) 18 months secure custody con. & 18 months probation conc.
March 16, 1994 (Youth Court)	(1) Robbery (2) Assault	(1)-(2) 4 months secure custody to be served in adult facility on each charge conc & conc with sentence serving & probation 2 years on each charge conc.
March 23, 1994	(1) Robbery (2) Possession of a weapon (3) Unlawfully at large	(1)-(2) 2 years on each charge conc & conc with sentence serving & prohibition from possessing firearms, ammunition or explosive substance for 10 years.
December 21, 1995	(1) B.E. & Theft (2) Theft	(1) 18 months on each charge conc but consec. to sentence serving (2) 1 year conc.

[3]      On the basis of the Applicant's 1994 convictions, an inquiry was held before an Immigration Adjudicator on November 30, 1994, the result being that the Adjudicator found the Applicant to be a person described in s.27(1)(d)(i) of the Act. On this basis, the Adjudicator issued a conditional deportation order against the Applicant pursuant to s.32.1(4) of the Act. The Applicant claimed refugee status at that time and also filed an appeal to the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") against the deportation order.

[4]      By letter dated April 24, 1996, the Applicant was informed that the Respondent would be considering whether the Applicant constitutes a danger to the public pursuant to s.70(5) and s.46.01(1)(e)(iv) of the Act. The letter invited the Applicant to make representations to the Minister. That letter was later replaced by another dated September 17, 1996 which informed the Applicant that the Respondent would be considering whether the Applicant is a danger to the public pursuant to each of sections 70(5), 46.01(1)(e)(iv) and 53(1)(d) of the Act. The second letter disclosed the material that would be relied on by the Minister and provided the Applicant with fifteen days from the date of receipt of the letter to submit representations.

[5]      Representations were made by and on behalf of the Applicant. On December 5, 1996, a delegate of the Minister determined the Applicant constituted a danger to the public pursuant to each of the three noted provisions. The decision making in the Applicant"s case has been the subject of intensive judicial review, this being the last application to be concluded.²

B. Due process issues

     1. Deficiency of notice and documentation

[6]      The Applicant"s argument on this issue is based on the fact that the notice of September 17, 1996 merely included copies of 26 documents with the statement that they "may be considered by the Minister" in reaching an opinion, but without any indication of why they are relevant.³ That is, while the context of the Applicant"s situation is well set out in the documents, the precise issues of concern are not signalled and thus the Applicant is left guessing about what should be addressed in the response to the notice.

[7]      This lack of sufficient notice argument is coupled with an objection that two pieces of relevant material considered by the Minister were not sent to the Applicant being: a "Ministerial Opinion Report" dated July 31, 1996 in which a first level opinion is expressed on the danger issue⁴; and an internal memorandum dated March 3, 1995 providing an opinion on country conditions in Guatemala⁵.

[8]      On the insufficiency of notice argument, the entry level opinion is cited as evidence of the issues which were to be addressed by the Minister, and which, therefore, should have been sent to the Applicant to provide notice of what to address in the response. The Immigration Procedures Manual used in the preparation of danger opinions, which requires that full disclosure of all relevant material be provided to the Applicant, is cited as support for this contention.

[9]      The policy of full disclosure is appropriate and consistent with due process requirements, but whether the deficiency concerns raised provide a ground upon which I should exercise my discretion depends on the facts of the case. In this case, I give no weight to the argument.

[10]      On the danger to the public issue, a reading of the some 34 pages of material sent to the Applicant leaves little doubt as to the points of concern to be addressed. The entry level opinion accurately cites them as:

Although subject was age 15 at the time of the robbery on November 16, 1993, he was tried in adult court and served his sentence in an adult federal institution; during the robbery on November 16, 1993, the subject held a knife to the victim"s chest and took him in a vehicle which drove away from where the robbery took place; during an interview with members of the City of Winnipeg police, the subject made statements which led the interviewing officers to belief [sic] that he "has the potential to prove himself as a dangerous offender and kill a policeman if he becomes re-involved with police"; subject does not appear to show any remorse for his actions.6

[11]      The fact that this opinion was not included in the documents sent to the Applicant does not in any way work to his prejudice for it merely states what is abundantly clear on the face of the documents provided. Given the obviousness of the issues which needed to be addressed in any response to the danger notice, I find that the Applicant was in no way deprived of making a full answer by not receiving the opinion.

[12]      In the response which was given to the notice, rather than providing a full response to the facts at hand, counsel for the Applicant chose to make the following statement:

In addition to these documents, I ask the Minister"s delegate to consider that Mr. Solis finds it impossible to respond in a directed fashion because there is nothing in the letter of April 24 that indicates why he may be considered to be a public danger. In order to be fairly treated he must be notified not only that he is being considered for a public danger opinion but also why he is being considered for a public danger opinion. The letter of notification has to establish a linkage between the facts of his case and the possibility of public danger. In his case, that linkage is not made.

The letter refers to attached documentation. None of that documentation suggests that Mr. Solis is a public danger. The only information in the documentation adverse to Mr. Solis is information of criminal convictions.7

However, I find that, in this case, no more was needed to be given as the linkage is obvious in the documents provided as they clearly suggest how the Applicant might be considered a public danger.

[13]      To be consistent in meeting the policy of full disclosure, the internal memorandum probably should have been sent to the Applicant. However, since the document supplies information which tends to support the Applicant on compassionate or humanitarian considerations in that it describes the violence, corruption and human rights abuses in Guatemala at the time it was written, I find that its omission from the documents sent to the Applicant does not work to his prejudice. Therefore, I decline to exercise my discretion to act on this omission.

     2. Submissions ignored

[14]      The Applicant argues that it appears from the following statement in the "Request for Opinion" dated December 6, 1997 that the reviewing officer made a reviewable error in that the Applicant"s second response letter was not considered:

While no submissions were received from counsel which specifically addressed the risk of return to Guatemala for this subject, other submissions in his support, notably a letter dated September 24, 1996 from the Mennonite Central Committee, point out that terrorism and human rights abuses remained prominent in Guatemala during 1995 and articulate concerns surrounding abuses towards returning refugees....8 [Emphasis added]

[15]      In fact, the italicized statement is accurate. The second response letter dated November 7, 1996, written by counsel for the Applicant, in its entirety, reads as follows:

Please find enclosed additional information for consideration for the public danger opinion.9

Enclosed with the letter was a statement by the Applicant"s mother providing details of the human rights abuses that her family had suffered in Guatemala prior to fleeing to Canada in 1986. Apart from the lack of argument properly cited in the "Request for Minister"s Opinion", the Reviewing Officer did go to some length to consider country conditions. Accordingly, I give no weight to this argument.

C. Constitutional challenge issues

[16]      Counsel for the Applicant served notice that the constitutional validity, applicability or effect of s.70(5) of the Immigration Act would be argued on the ground that the provision offends sections 6, 7, 12, and 15 of the Charter of Rights and Freedoms.¹⁰

     1. Section 6

[17]      This right reads:

Every citizen of Canada has the right to enter, remain in and leave Canada. [Emphasis added]

[18]      Whether the Applicant can take advantage of this right turns on whether, as a permanent resident, he is a "citizen of Canada". In support of such a finding, the Applicant makes the following argument:

A. Right to remain

1. The applicant submits that section 70(5) of the Immigration Act violates section 6 of the Canadian Charter of Rights and Freedoms on the facts of this case and is of no effect.

Canadian Charter of Rights and Freedoms section 52(1).

2. Section six of the Canadian Charter of Rights and Freedoms confers a right on every citizen to remain in Canada.

3. Citizenship cannot be whatever Parliament says it is, or else this provision would have no controlling effect on Parliament.

4. The constitution of Canada is the supreme law of the land.

Section 52(1).

5. The Canadian Charter of Rights and Freedoms applies to the Parliament of Canada in respect of all matters within its authority.

Section 32(1).

6. Because the Charter is the supreme law of the land, and because the Charter contains the notion of citizenship, there must be a constitutional notion of citizenship that is the supreme law of the land, and against which the Parliamentary notion of citizenship, as found in the statutes of Canada, can be judged. If Parliament purports to deny citizenship and allow for the removal of a person who is constitutionally a citizen, then section 6 of the Charter is violated.

7. In the United States, the courts have held that the notion of citizenship in the constitution has a meaning which may differ form the statutory meaning. In consequence, the courts have held various statutory provisions for revocation of citizenship unconstitutional.

Trop v. Dulles 356 U.S. 86 (1958) (U.S.S.C.)

Kennedy v. Mendoza-Martinez 372 U.S. 144 (1953) (U.S.S.C.)

Schneider v. Rusk 377 U.S. 163 (1964) (U.S.S.C.)

Afroyim v. Rusk 387 U.S. 253 (1967) (U.S.S.C.)

Vance v. Terrazas 444 U.S. 252 (1980) (U.S.S.C.)

8. The meaning of any right or freedom guaranteed by the Canadian Charter of Rights and Freedoms is to be ascertained by an analysis of the purpose of such a guarantee; it is to be understood in light of the interests it is meant to protect.

R. v. Big M. Drug Mart (1958) 18 C.C.C. (3d) 385 (S.C.C.)

Reference Re s.94(2) of the Motor Vehicle Act of B.C. (1985) 23 C.C.C. (3d) 289 at 299 (S.C.C.)

Hunter v. Southam (1984) 14 C.C.C. (3d) 97 at 106 (S.C.C.)

9. Charter rights are human rights. The purpose of the Charter in general and each of the rights in particular is to protect and promote human rights. The interests the Charter are meant to protect are the interests of humanity in individual dignity, self worth and self realization.

10. One human right that is an essential part of being human is the right of the individual to live in community with other members of their own culture, language and religion. It is this interest that is protected by the right to remain.

See also International Covenant on Civil and Political Rights, Article 27.

11. The right to remain is in the Charter in order to prevent Parliament and the Government of Canada from forcibly evicting a person who is part of the Canadian community from that community. The Charter entitles a person who is part of the Canadian community to live in Canada in community with other Canadians.

12. Whether or not a person is a member of the Canadian community for the purposes of section 6 of the Charter cannot be a matter of statutory law. For that would leave the Charter subject to the control of Parliament, rather than, as must be the case, have Parliament subject to the control of the Charter. Whether or not a person is a member of the Canadian community for the purposes of section 6 of the Charter is a question of fact.

13. Because the issue of citizenship, for the purposes of the Charter, is a question of fact, the decision whether a person can invoke the Charter as a citizen will vary with the facts of the case. Factors to be taken into account in determining whether a person is a citizen for the purposes of the Charter are:

a) is the person born in Canada?

b) did the person ever have statutory citizenship?

c) what are the familial, cultural and linguistic ties with Canada?

d) would denial of Canadian citizenship create a situation of statelessness?

e)if the person was born outside Canada, at what age did the person come to Canada?

f) how much of his/her life and for what part of his/ her formative

years did the person reside in Canada?

14. If a person, at one extreme, is born outside Canada, never had Canadian statutory citizenship, has no familial, cultural or linguistic ties to Canada, is a citizen of another country, came to Canada as an adult, and has spent only a small portion of his/her life in Canada, that person would not fall within the protection of section 6 of the Charter.

15. If a person, at the other extreme, was born in Canada, at one time in the past had statutory citizenship, has strong familial cultural and linguistic ties to Canada, is a citizen of no other country, and has never resided outside of Canada, that person would fall within the protection of section 6 of the Charter, even if the person did not now have statutory citizenship.

16. For other cases, in between these two extremes, the courts will have to decide, on a case by case basis, whether the person is a citizen for the purposes of section 6 of the Charter, taking the listed factors into account.11

     In response, the Respondent makes the following argument:

Citizenship has always been a statutory matter. Through the presence of section 6 in the Charter, certain protections are offered to those who have this legal status. The protections afforded by section 6 extend to a class created by statute; section 6 did not itself create a new class.

Though the Applicant claims that the word "citizen" in section 6 of the Charter has a meaning which is broader than that given to it by federal legislation, the Applicant has been unable to provide any authority which supports any definition of "citizen" which would include the Applicant. Nor has the Applicant provided any Canadian authority to support a definition of "citizen" in the Charter that would be any broader than the plain language meaning of "citizen", which is a person who has been conferred the rights of citizenship under the relevant federal legislation. To attempt to give any meaning to the word "citizen" outside of the definition under federal legislation is to render it meaningless.

...

The Supreme Court of Canada has already dealt with the issue of section 6 rights in relation to the deportation of a person who is a permanent resident. In Chiarelli, Sopinka J., in delivering the reasons of the Court, stated the following:

Thus, in determining the scope of principles of fundamental justice as they apply to this case, the court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or to remain in the country. At common law an alien has no right to enter or remain in the country...

...The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to Thus, Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada

M.E.I. v. Chiarelli (1992), 90 D.L.R. (4th) 289 (S.C.C.) at 303-304.

The Supreme Court of Canada has therefore considered the issue of deportation of permanent residents, in light of section 6 of the Charter, and has clearly indicated that Parliament does indeed have the ability to enact legislation governing the conditions under which non-citizens will be permitted to remain in Canada, despite the presence of section 6 in the Charter. The enactment of subsections 70(5) of the Act, and its application in this and any other case, therefore does not do anything other than that which the Supreme Court of Canada has already confirmed can be done by the Respondent.12

[19]      I do not believe I need to say more than that I completely agree with the submission of the Respondent, which concisely and effectively deals with the Applicant"s argument. Accordingly, I find this challenge fails.

     2. Section 7

[20]      This right reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[21]      The applicability of this right has apparently been settled by the Appeal Division"s decision in The Minister of Citizenship and Immigration v. Williams¹³ where the first certified question to be answered was: "Does subsection 70(5) of the Immigration Act , R.S.C. 1985, c.I-2 engage interests affecting liberty and/or security of the person pursuant to section 7 of the Charter of Rights and Freedoms?". The answer given was "No".

[22]      Counsel for the Applicant has argued that Williams can be distinguished in the Applicant"s case because Williams is only authority for what it did decide, not what it did not decide. That is, since the primary issues raised in Williams were vagueness and lack of reasons, its application extinguishes only these arguments. In addition, as I understand it, the Applicant argues that Williams is limited to opinions concerning "non-refugees", and since the Minister gave an opinion under s.46.01(1)(e)(iii), which is really a determination of the Applicant"s refugee status, the Applicant is outside the category of "non-refugee" and is, therefore, outside of the application of Williams .

[23]      The answer to the certified question in Williams set no conditions. Therefore, I do not accept that the Applicant"s argument takes me over the hurdle that Williams imposes. Accordingly, I find this challenge fails.

     3. Section 12

[24]      This right reads:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[25]      The Applicant"s argument respecting this right is as follows:

The applicant submits that the decision that the applicant is a public danger is cruel and unusual treatment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms. The Board must determine on a case by case basis, whether treatment, on the facts of that case, amounts to cruel and unusual treatment. The applicant submits that issuance of a public danger certificate in the particular circumstances of this case is cruel and unusual.

The Federal Court of Appeal, in the case of Canepa, held that in order to respect the Charter prohibition against cruel and unusual treatment of people who have established a deep rooted connection with Canada, there must be "a careful and balanced examination of the applicant's claim to remain in Canada from an equitable rather than from a legal point of view" of the sort provided by the Appeal Division of the Immigration and Refugee Board.

Canepa v. M.E.I. (1992) 93 D.L.R. (4th) 589 at 599.

...The applicant has a deep rooted connection with Canada, since he has been here as a landed immigrant since 1990. He has with him in Canada his mother, four sisters and four brothers. In these circumstances, it is submitted that it would be grossly disproportionate to deport him without the careful and balanced examination of his claim to remain in Canada from an equitable rather than from a legal point of view of the sort provided by the Appeal Division of the Immigration and Refugee Board and which the Federal Court of Appeal in Canepa has said is required by the Charter.

The applicant submits that, constitutionally, the public danger opinion procedure can be used only for people who have no deep rooted connection to Canada. The balancing of humanitarian considerations with criminality is inevitably more complex when a person has a deep rooted connection to Canada. That balancing can be properly done only at the time of an oral hearing before the Immigration and Refugee Board, which can hear witnesses and assess credibility, something that is impossible with a procedure in writing.14

[26]      The Respondent argues that the Applicant"s argument should not be given weight because at issue is the Minister"s opinion under s.70(5), not the deportation order. Moreover, the Respondent argues that if s.70(5) does not engage interests affecting liberty and/or security of the person pursuant to s.7 of the Charter , s.12 rights cannot be infringed.

[27]      I agree with the Respondent"s arguments, and echo the words that Rothstein J. used in dealing with a similar s.12 challenge to s.70(5) in Gillespie v. The Minister of Citizenship and Immigration¹⁵: "I fail to see any connection between issuance of a danger opinion and cruel

and unusual treatment as the term is used in s.12 of the Charter of Rights and Freedoms." Accordingly, I find this challenge fails.

     4. Section 15

[28]      This right reads:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[29]      The Applicant"s argument is set out in the "Notice of Constitutional Question" as follows:

Section 70(5) of the Immigration Act is inconsistent with section 15 of the Charter of Rights and Freedoms, and is of no force or effect. Section 70(5) of the Immigration Act provides inadequate safeguards against the use of the expedited deportation procedures contained therein on grounds that are prohibited by section 15 of the Charter, such as discrimination on the basis of race, national or ethnic origin, colour or religion. Given Canada"s historical practice of discriminating against immigrants on the basis of race, national or ethnic origin, colour or religion in the terms of its immigration legislation and in the administration of its immigration legislation, such safeguards are necessary for such legislation to be valid. The legislation also is inconsistent with [section] 15 of the Charter by failing to extend the same procedural safeguards to permanent residents sought to be designated as a public danger as other groups of individuals (eg. those suffering from a mental disability who are detained at the pleasure of the Lieutenant Governor after being found not guilty of a criminal offence by reason of insanity). The Subsection is also contrary to s.15 of the Charter as it makes a distinction on a personal characteristic, that the person has committed a criminal offence.

[30]      The test for determining a breach of s.15 is set out by McLachlin J. in Miron v. Trudel¹⁶ as follows:

The analysis under s. 15(1) involves two steps. First, the claimant must show a denial of "equal protection" or "equal benefit" of the law, as compared with some other person. Second, the claimant must show that the denial constitutes discrimination. At this second stage, in order for discrimination to be made out, the claimant must show that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics. If the claimant meets the onus under this analysis, violation of s. 15(1) is established. The onus then shifts to the party seeking to uphold the law, usually the state, to justify the discrimination as "demonstrably justified in a free and democratic society" under s. 1 of the Charter .

[31]      I find that there is no possibility of the second stage argument succeeding. That is, even if a denial of "equal protection" or "equal benefit" of the law is somehow proved, it has not, and in my opinion, cannot be proved that the denial rests on a ground enumerated in s.15, or an analogous ground. The advanced ground of "permanent resident who has committed a criminal offence" is incapable of meeting this test. Accordingly, I find this challenge fails.

D. Conclusion

[32]      For the above reasons, this application is dismissed.

E. Certified Questions

[33]      Section 83(1) of the Immigration Act reads as follows:

A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.

[34]      In Liyanagamage v. Canada (Minister of Citizenship and Immigration)¹⁷ the Federal Court of Appeal stated that, in order for a "serious question of general importance" to be

certified pursuant to s. 83(1), the following conditions must exist:

...a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of "importance" by Catzman, J., in Rankin v. McLeod, Young Weir Ltd. et al . (1986), 57 O.R. (2d) 569 (H.C.)), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.

[35]      As a result of the circulation to counsel of the above reasons in draft, and having received argument on questions which meet the test in Liyanagamage, I certify the following questions:

1. Does the word "citizen" in s. 6 of the Charter of Rights and Freedoms have a meaning independent from statute? If the answer to this question is yes, does an opinion under s.70(5) of the Immigration Act violate a s.6 right?

2. Can s.12 of the Charter of Rights and Freedoms be violated where s.7 of the Charter is not violated? If the answer to this question is yes, does an opinion under s.70(5) of the Immigration Act violate the s.12 right.

     J.F.C.C.

OTTAWA, ONTARIO

__________________

¹¹      Record of the Applicant at 17.

²²      On December 9, 1996, before a refugee status determination, and before the appeal before the Immigration Appeal Division had taken place, the Minister issued the danger opinions in question. Following the issuance of the danger opinions, a Senior Immigration Officer determined that the Applicant is not eligible to make a refugee claim because of the s.46.01 danger opinion. This resulted in an application for leave and judicial review of that decision to this court. Leave was denied (File IMM 9-97). On June 23, 1997, the Applicant"s appeal to the Appeal Division was dismissed for lack of jurisdiction because of the s.70(5) danger opinion. This resulted in an application for leave and judicial review of that decision to this court. Leave was denied on December 12, 1997. (File IMM 3217-97). However, before this decision was made, the Applicant was deported on July 21, 1997. That deportation took place after an unsuccessful stay application was brought to this court. This court found that there was no evidence of irreparable harm sufficient to grant the stay.

³³      Tribunal Record at 39.

⁴⁴      Ibid. at 36-38.

⁵⁵      Ibid. at 34-35.

⁶⁶      Ibid. at 36-38.

⁷⁷      Ibid. at 74.

⁸⁸      Ibid. at 5.

⁹⁹      Ibid. at 104.

¹⁰¹⁰      Following argument on the following Charter provisions, it was agreed that should I find a challenge succeeds, further opportunity for argument under s.1 of the Charter would be provided to the Respondent. For the reasons which follow, this step is unnecessary.

¹¹¹¹      Record of the Applicant at 89-91.

¹²¹²      Respondent"s Further Memorandum of Argument at 4-5.

¹³¹³      [1997] 2 F.C. 646 (F.C.A.).

¹⁴¹⁴      Record of the Applicant at 103-104.

¹⁵¹⁵      Unreported decision, IMM-1046-96, October 20, 1997.

¹⁶¹⁶      [1995] 2 S.C.R. 418 at 485.

¹⁷      Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 at 5 (F.C.A.)