Date: 20010216
Docket: IMM-64-00
Neutral citation: 2001 FCT 91
BETWEEN:
LINTON ANDREW WISHART
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, for judicial review of a decision dated December 9, 1997, by Mr. W.A. Sheppit, a delegate of the Minister of Citizenship and Immigration, declaring that the applicant constitutes a danger to the public in Canada under subparagraph 46.01(1)(e)(i) of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act").
1. The Facts
[2] The applicant was born on April 16, 1952, in Georgetown, Guyana. He is a citizen of Guyana who has lived illegally in Canada since 1983. In 1989, he entered Canada at Toronto's Pearson International Airport and indicated to immigration authorities that he was a Canadian citizen. He produced a baptismal certificate from Québec which he later admitted to having purchased illegally to establish a fraudulent identity in Canada.
[3] On June 12, 1997, the applicant was convicted under paragraph 465(1)(c) of the Criminal Code of Canada of conspiracy to commit an indictable offence, namely, trafficking in a narcotic contrary to subsection 4(1) of the Narcotic Control Act. The maximum penalty for this offence is life imprisonment and he was sentenced on June 27, 1997, to seven years imprisonment.
[4] The applicant was paroled after serving 28 months of his sentence, on October 27, 1999. He was released by Correctional Services Canada into immigration custody. On October 29, 1999, the applicant was granted immigration bail by the immigration authorities. An immigration warrant expires on June 26, 2004, coinciding with the end of the sentence for his conviction in 1997.
[5] On July 2, 1997, shortly after he was convicted, a report was issued against the applicant under paragraph 27(2)(g) of the Act by immigration officer Dunn because he was a person who came into Canada with a false or improperly obtained document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact. The report identified the applicant as a person other than a Canadian citizen or a permanent resident. The report stated:
| Linton Andrew Wishart, aka Joseph André Wishart, last entered Canada sometime in 1989 at Toronto Lester B. Pearson airport. He cannot remember the exact date but he states that he was returning to Canada from a trip to Europe. At the time that he entered cannot [sic] he identified himself as Joseph Andre Wishart born April 3, 1953, a Canadian citizen with documentation in the form of a baptismal certificate from Montreal, Quebec. Checks conducted at the Quebec Department of Vital Statistics and the Parish show that there is no birth record for anyone by this name. The subject himself admits that he purchased these documents for a cash fee to establish a fraudulent identity in Canada. Wishart has been in Canada since 1983 with this fraudulent identity and has never approached immigration to regularize his status. |
[6] On September 16, 1997, immigration officer Dunn in Kingston, Ontario, sent a further report to the manager of the Citizenship and Immigration Canada office in Kingston, Ontario, ("CIC Kingston") as follows:
| This report refers to Linton Andrew Wishart, also known as Joseph Andre Wishart born 16 April 1963 in Guyana. |
| Mr. Wishart last entered Canada in 1989. At that time he was using the identity of Joseph Andre Wishart born 3 April 1953. The RCMP confirmed that the birth certificate he was using from Quebec, was fraudulent. At the time of his arrest, he admitted to his fraudulent identity, and being in Canada illegally. It will be noted that Wishart has been in Canada posing as a Canadian citizen since 1983. |
| Subject came to Immigration attention after an investigation was conducted by the Royal Canadian Mounted Police, resulting in the subject being charged with a fraudulent passport offence. The subject was one of several people who were using fraudulent Quebec Baptismal Certificates. |
| He was convicted on 12 June 1997 at Toronto, Ontario, of one offence of conspiracy to traffic in a narcotic and was sentenced to seven (7) years imprisonment. |
| Mr. Wishart is presently incarcerated in Beaver Creek Institution under FPS 320462 D. His full parole dated [sic] is 27 October 1999 and the statutory release date is 25 February 2002. |
| In view of the foregoing, a Direction for Inquiry is recommended. It is also suggested that we seek the Minister's Opinion in respect to 46.01(1)(e)(i), to prevent him from making a refugee claim at inquiry. [Emphasis added.] |
[7] On November 3, 1997, while he was incarcerated, the applicant received a package sent by the manager of CIC Kingston. The package included the section 27 report, a copy of the memorandum to the Minister dated September 16, 1997, a copy of a warrant of committal, a copy of a criminal profile report, a copy of arrest and synopsis, and a copy of the judge's reasons for sentence. The package also contained a notice that immigration officials intended to seek an opinion of the Minister under subparagraph 46.01(1)(e)(i) of the Act that the applicant constituted a danger to the public in Canada. The notice stated:
| You are hereby advised that Citizenship and Immigration Canada (CIC) possesses evidence suggesting you are a person in Canada who is a danger to the public. We intend to request an opinion to that effect from the Minister of Citizenship and Immigration. This opinion, if given, will have serious consequences for you as explained below. |
| If the Minister is of the opinion that you are a danger to the public in Canada, under subparagraph 46.01(1)(e)(i) of the Immigration Act, if you have made or intend to make a refugee claim it will not be referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for determination. |
| The Minister will consider whether you are a danger to the public as well as any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat that you pose to the public in Canada and the possibly [sic] of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality, or the country of your birth. This following is a list of documents which may be considered by the Minister. |
| Before the Minister forms the opinion, you make such written representations or arguments as you deem necessary and submit any documentary evidence you believe relevant. Please note however, that all such material must be submitted in one of Canada's official languages. Any such representations, arguments or evidence will be considered by the Minister but must be received by CIC at the address noted above on or before the expiration of 15 days from receipt of this letter. Your evidence, argument or other representations should address whether or not you are a danger to the public, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedoms are threatened by removal from Canada. |
| You will be informed in writing of the decision of the Minister. [Emphasis added.] |
[8] On November 10, 1997, CIC Kingston received written submissions from the applicant. On November 25, 1997, the manager of CIC Kingston signed a Ministerial Opinion Report approving the recommendation of immigration officer Dunn to seek the Minister's opinion under subparagraph 46.01(1)(e)(i).
[9] On December 8, 1997, a reviewing officer stated the following in a request for the Minister's Opinion:
| I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form an opinion that Linton Wishart constitutes a danger to the public pursuant to subparagraph 46.01(1)(e)(i) of the Immigration Act. |
[10] On December 9, 1997, W.A. Sheppit, a delegate for the Minister of Citizenship and Immigration, declared that the applicant constituted a danger to the public in Canada under subparagraph 46.01(1)(e)(i) of the Act. That decision is the subject of this application for judicial review.
2. Analysis
[11] When this matter was heard, counsel for the applicant urged that there were several grounds, in the circumstances of this case, upon which this Court should intervene: the Minister did not provide reasons for the decision, the evidence did not support the danger opinion, the applicant was denied procedural fairness, and the decision was contrary to the rights guaranteed under sections 7 and 15 of the Charter. In my opinion, the result here depends on an issue of jurisdiction in light of the purpose for which the danger opinion was issued.
[12] The Act provides for the Minister or her delegate to determine that a person constitutes a danger to the public in certain circumstances. Under the relevant provisions, when an immigration officer determines that a person has committed a serious offence in Canada, or a comparable offence outside of Canada, unless the Minister is satisfied that the person has rehabilitated himself or herself in the five years following a conviction, a disclosure package may be sent to the person advising him or her that the Minister may determine whether the person is danger to the public. The disclosure package contains all of the information from the department that the Minister or the Minister's delegate will consider. The person concerned has 15 days to make any desired submissions to be considered by the Minister. If submissions are received, the Minister or the Minister's delegate considers those, as well as the information previously included in the disclosure package, and determines whether the person constitutes a danger to the public.
[13] The Act provides that the procedure may be used in the case of a refugee claimant who has been convicted of a serious offence to determine whether he or she constitutes a danger to the public. If so, that person is precluded from having his or her refugee claim considered [subparagraph 46.01(1)(e)(i) of the Act]. Further, the procedure may be used to determine that a permanent resident or a Convention refugee constitutes a danger to the public because he or she has committed a serious offence. If so, that person may not appeal to the Immigration Appeal Board, as he or she may otherwise do, if a removal order is issued against him or her [subsection 70(5) of the Act].
[14] In this case, the decision was made pursuant to subparagraph 46.01(1)(e)(i) of the Act, which provides:
| 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 |
. . .
|
46.01(1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes_ :
[. . .]
| e) l'arbitre a décidé, selon le cas_ : |
| i) qu'il appartient à l'une des catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada |
[. . .]
|
[15] Subparagraph 46.01(1)(e)(i) eliminates a prospective Convention refugee claimant's right to have a refugee claim determined if the Minister has determined that the claimant constitutes a danger to the public in Canada and the claimant has been convicted in Canada of an offence punishable by ten years of imprisonment [paragraph 19(1)(c)] or if there are reasonable grounds to believe that the person has been convicted of an offence outside of Canada which would constitute an offence punishable by ten years of imprisonment in Canada, unless the Minister is satisfied that the person has rehabilitated himself or herself, and that at least five years have elapsed since the expiration of the sentence [subparagraph 19(1)(c.1)(i)].
[16] In Baker v. M.C.I., [1999] 2 S.C.R. 817 at page 853, Madam Justice L'Heureux-Dubé judicial review of discretionary decisions:
| [53] Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. . . . However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121">[1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038). [Emphasis added.] |
[17] In Suresh v. M.C.I., [2000] 2 F.C. 592 (C.A.), the Federal Court of Appeal discussed the familiar principles of law regarding discretionary decisions of government officials at p. 672:
| [131] The law does not recognize the concept of "unfettered discretion". All discretionary powers must be exercised "according to law" and, therefore, their exercise by administrative officers are subject to certain implied limitations. Those implied limitations are in addition to those which involve procedural deficiencies amounting to breaches of the fairness rules. The expression most often used in the Federal Court is that a discretion must be exercised "judicially". That term is taken to mean that if a decision were made in bad faith, that is for an improper purpose or motive, in a discriminatory manner, or the decision maker ignored a relevant factor or considered an irrelevant one, then the decision must be set aside. |
[18] In Bhagwandass v. M.C.I., [2000] 1 F.C. 619 (T.D.), Mr. Justice Gibson quotes from Williams v. M.C.I., [1997] 2 F.C. 646 (C.A.) to illustrate the basis for the judicial review of a danger opinion:
| [9] In paragraph 17 [pages 663-664] of Williams, the Court wrote: |
| It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of the opinion" . . . , not "where a judge is of the opinion" that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" . . . that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, such subjective decisions cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations. Further, when confronted with the record which was, according to undisputed evidence, before the decision maker, and there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith in having regard to that material. [Emphasis added.] |
[19] In Rasa v. M.C.I. (2000), 6 Imm. L.R. (3d) 52 (F.C.T.D.), Mr. Justice O'Keefe discusses the principles which may justify overturning a discretionary decision of the Minister:
| [66] I have already ruled that the standard of review to be applied to the Minister's decision pursuant to paragraph 53(1)(d) is reasonableness simpliciter. The Minister's decision must now be scrutinized from an administrative law viewpoint to determine whether the decision is a reasonable decision. It is accepted that when a delegate such as the Minister has been granted wide discretion by the use of words such as "and the Minister is of the opinion that the person constitutes a danger to Canada", then in those cases, considerable deference should be afforded to the Minister's decision. That is not to say that the Minister's decision need not be reasonable. The Courts have traditionally only overturned the Minister if certain implied limitations have not been met or if there are procedural deficiencies which amount to breaches of the fairness rule. The discretion must be exercised judicially. A discretion would not be exercised judicially if it was made in bad faith, that is, for an improper purpose or motive or if it was made in a discriminatory manner or if the tribunal ignored a relevant fact or considered an irrelevant fact. An exercise of discretion based on a mistaken principle of law or misapprehension of the facts would also lead to a finding that the discretion was not exercised judicially. [Emphasis added.] |
[20] In Thompson v. M.C.I. (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.), Gibson J. states:
| [14] I consider the nature of the respondent's decision-making power in subsection 70(5) to be broadly discretionary. The language of "opinion" clearly denotes a legislative intent to provide the respondent Minister with a wide discretion to determine "danger to the public in Canada". Considering the discretionary nature of the decision under review, I am guided by the decision of the Federal Court of Appeal in Shah v. Canada (M.E.I.), where Hugessen J.A. noted with respect to the burden on an applicant to demonstrate an error in the exercise of a discretion: |
| To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. It is a heavy burden . . . |
| I adopt the dicta of Hugessen J.A. as it relates to this application. I consider the reviewability of this decision to be contingent on counsel for the applicant establishing that the decision-maker erred in law, acted in bad faith, or proceeded on a wrong principle. As Hugessen J.A. noted, the burden on the applicant is a heavy one. [Emphasis added.] |
[21] Finally, in [1959] S.C.R. 121">Roncarelli v. Duplessis, [1959] S.C.R. 121, Mr. Justice Rand states:
| "Good faith" in this context, applicable both to the respondent and the general manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status. [Emphasis added.] |
[22] The evidence here demonstrates that the purpose for issuing the danger opinion was to prevent Mr. Wishart from claiming refugee status at an immigration hearing, as the letter of September 16, 1997, from immigration officer Dunn proposed. Moreover, the covering letter with the package which was sent to the applicant on November 3, 1997, stated, if the Minister were to conclude he constituted a danger to the public, any refugee claim Mr. Wishart might make would not be referred to the CRDD.
[23] Under the Immigration Act, the Minister may issue danger opinions, but only under limited circumstances. While the time when this may be done is not restricted under the statue, the danger opinion is to be considered in circumstances where the concern about danger to the public is bona fide. Parliament surely did not intend otherwise. To form the opinion for the purpose of foreclosing an opportunity, otherwise open under the Act, to claim refugee status, in my opinion, is not within the discretion vested in the Minister under the Act. The Minister's use of the danger opinion here, to prevent Mr. Wishart from making a refugee claim, effectively deprived him of an opportunity which was his under the Act. In my view, that was an error of jurisdiction.
[24] The appropriate standard of review in considering an error that goes to jurisdiction is correctness. In Syndicat des employés de production du Québec et de l'[1984] 2 S.C.R. 412">Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412, Beetz J. explained jurisdictional error in these terms at at p.420:
| A jurisdictional error results generally in an excess of jurisdiction or a refusal to exercise jurisdiction, whether at the start of the hearing, during it, in the findings or in the order disposing of the matter. Such an error, even if committed in the best possible good faith, will result nonetheless in the decision containing it being set aside. . . . |
[25] This was affirmed in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, where Mr. Justice Iacobucci held at p.590:
| Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. . . . |
| At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error). . . . |
[26] Mr. Wishart has been in Canada illegally since 1983. Although immigration officials commenced the procedure to remove him from Canada by issuing a section 27 report to initiate an immigration inquiry, I note that since he was in Canada illegally, no danger opinion was necessary for a removal order to be issued against him. If in those circumstances, Parliament leaves opportunity for him to claim refugee status, which he had not yet done, that opportunity is not to be eliminated by a danger opinion that is made primarily for that purpose.
3. Conclusion
[27] The Minister erred in the exercise of jurisdiction by issuing a danger opinion for an improper purpose, namely, to prevent the applicant from making a refugee claim. An Order will issue quashing that opinion made against the applicant. Since the Minister committed an error of jurisdiction, the matter will not be referred for reconsideration by the Minister, who is left to deal with the applicant in accord with the procedures established by the Act .
[28] Counsel for the applicant suggested questions for consideration pursuant to subsection 83(1) of the Act, questions related to other grounds than the issue of improper purpose which is the basis of this Court's determination. Counsel for the respondent argued that the questions proposed were not appropriate for certification. In my opinion, no question within subsection 83(1) relevant to this decision was proposed and no question suggested by counsel for the applicant is certified.
[29] Since the issue upon which I base my decision was not dealt with significantly in argument by counsel, it seems to me appropriate that before issuing an order allowing the application, counsel for the parties should have a further opportunity to consider a question for certification under subsection 83(1). I invite counsel to consult and to submit any question upon which they may agree, or about which their views may differ, on or before March 1, 2001.
(signed)W. Andrew MacKay
JUDGE
OTTAWA, Ontario
February 16, 2001
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