Date: 20000510
Docket: IMM-6818-98
BETWEEN:
SRIRANJAN RASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE J.:
[1] This applicant seeks judicial review of the decision of W.A. Sheppit, the delegate of the Minister of Citizenship and Immigration, dated August 25, 1998, wherein the delegate of the Minister decided that, pursuant to subsection 70(5) and paragraph 53(1)(d) of the Immigration Act, R.S.C., c. I-2, as amended, the applicant constituted a danger to the public in Canada.
FACTUAL BACKGROUND
[2] The applicant arrived in Canada in December, 1989. He was found to be a convention refugee by the Convention Refugee Determination Division of the Immigration and Refugee Board on July 8, 1991. He became a permanent resident of Canada in December, 1992.
[3] On March 25, 1998 the applicant pled guilty to three offences under the Criminal Code, R.S.C. 1985, c. C-46, namely:
| (1) Conspiracy to commit assault causing bodily harm, contrary to paragraph 465(1)(c); |
| (2) Conspiracy to use forged credit cards, contrary to paragraph 465(1)(c); and |
| (3) Possession of a restricted weapon (unregistered handgun), contrary to subsection 91(1). |
[4] On March 25, 1998 the applicant received the following sentences for the offences:
| (1) Conspiracy to commit assault causing bodily harm - time served of eleven (11) months plus seven (7) months imprisonment. |
| (2) Conspiracy to use forged credit cards - three (3) months imprisonment consecutive to the above. |
| (3) Possession of a restricted weapon - two (2) months imprisonment consecutive to the above. |
[5] According to the record, the applicant was arrested in the spring of 1997 by the Metro Toronto Police as the result of a wiretap operation they had conducted.
[6] The sentencing judge stated that the wiretap evidence disclosed that there were two organized criminal groups within the Tamil Community in the Greater Toronto Area. He stated that the applicant was a member of one of the criminal groups and that the evidence showed that he held a position of some authority in that criminal group.
[7] The group to which the applicant belonged was known as the V.V.T. and the A.K.Kannan was the name of the other criminal group.
[8] The sentencing judge in his sentencing remarks stated that, without minimizing the seriousness of the criminal activity involved and the accused"s role in it, he found the most alarming feature of the group"s organization was their willingness to resort to violence to preserve their criminal enterprise. He also stated the applicant"s role in this aspect of the gang"s activity was significant.
[9] The Metropolitan Toronto Police Force set up a pilot task force called the Metropolitan Toronto Police Tamil Task Force and this task force gave a report dated February, 1998 entitled, "Pilot Project Report Tamil Organized Crime". In summary, the report stated that police were identifying an increase in violent criminal activities in the Tamil community. The nature of the activity and the means to carry it out had the signs of an emerging organized criminal group.
[10] Subsequent to his conviction for the above-mentioned crimes, the applicant was served with a Notice of the Intention to seek the opinion of the Minister pursuant to subsection 70(5) and 53(1)(d) of the Immigration Act "that you are a danger to the public in Canada". The applicant was informed of the evidence that was going to be considered and was given an opportunity to make submissions as to why the Minister should not issue the opinion. Through his counsel, the applicant did make submissions.
[11] On August 25, 1998 the applicant was found to constitute a danger to the public in Canada within the meaning of paragraph 53(1)(d) and subsection 70(5) of the Immigration Act.
ISSUES
[12] The applicant raised the following issues:
| (1) Whether the applicant has a right, under the Charter, to an effective remedy for the breach of his protected rights. |
| (2) What is the standard of review of the Minister"s delegate"s decision under subsection 53(1) of the Immigration Act . |
| (3) Whether the Minister"s delegate breached the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms in reaching a determination under subsection 53(1) of the Immigration Act by: |
| (a) determining that the applicant be removed directly to Sri Lanka, a country where his life and freedom would be threatened, in the face of evidence of a substantial risk that the applicant would face cruel and unusual treatment or punishment in Sri Lanka at the hands of Sri Lankan authorities, either officially or extrajudicially, contrary to section 12 of the Charter of Rights and Freedoms. |
| (b) applying subsection 53(1) of the Act when it is of no force and effect under subsection 52(1) of the Constitution Act, 1982. |
| (c) making a subjective determination, on the basis of his own opinion, that the applicant can be forcibly removed to Sri Lanka, when the principles of fundamental justice require an objective determination of the issue of risk. |
| (d) making a determination on the issue of removal when it is apparent that he was not and cannot be an independent and impartial decision maker. |
| (e) reaching a determination that the applicant is a "danger to the public in Canada" when this phrase in subsection 53(1) of the Immigration Act is vague and overly broad such that it does not and cannot constitute sufficient legal notice to the applicant, and to the community at large, of the parameters of consideration to be given in the decision to effect refoulement of a convention refugee to a country where her life or freedom would be threatened. |
| (f) employing a procedure for the determination made which does not comply with the principles of fundamental justice, in that the applicant was not given adequate notice of the case against him and was not provided with a full and fair opportunity to respond. |
APPLICABLE LEGISLATION
[13] The Minister acted under paragraph 53(1)(d) and subsection 70(5) of the Immigration Act which state:
| Prohibited removal
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class 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;
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or
(c) the person is 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
(d) the person is 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.
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| Renvoi de réfugiés au sens de la Convention
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou don"t la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_:
a) elle 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 que, selon le ministre, elle constitue un danger pour le public au Canada;
b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada;
c) elle relève du cas visé au sous-alinéa 27(1)a.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada.Where limited right of appeal
70 (5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(c) 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.
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| Restriction
70 (5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_:
a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed; . . .
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
. . .
d) a été déclaré coupable d'une infraction prévue par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions: . . .
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| [14] The applicant has also raised arguments involving sections 1, 7, 12 and subsection |
52 (1) of the Canadian Charter of Rights and Freedoms:
| Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Life, liberty and security of person
7. 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.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
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| Attendu que le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et la primauté du droit :
Garantie des droits et libertés
Droits et libertés au Canada
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
Cruauté
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
Primauté de la Constitution du Canada
52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.
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Whether the applicant has the right under the Charter to an effective remedy for the breach of this protected right.
| [16] There is no doubt that a person has a right under the Charter to a remedy for the |
breach of his Charter rights. This is, of course, subject to the provisions of section 1 of the Charter.
The standard of review of the Minister"s delegate"s decision under section 53(1) of the Immigration Act.
| [18] For the purpose of this issue, it is assumed that section 53(1) of the Immigration |
Act is constitutionally valid and that the applicant does have a remedy for a violation of any of his Charter rights. It must now be determined what standard of review should be applied to the Minister"s decision. Is it correctness, reasonableness simpliciter or patent unreasonableness?
held that the exercise of the Minister"s discretion under subsection 114(2) of the Immigration Act, supra , was subject to review on a reasonableness simpliciter standard. Since the decision made by the Minister in this case is also a discretionary decision, I would apply the same standard of review to the decision made in this case. I must point out that the discretion vested in the Minister "in the opinion of the Minister" is a very broad discretion and may well be subject to a lesser standard of review than "reasonableness simpliciter". I do, however, believe I am bound by the decision in Baker, supra .
| [20] The applicant has argued that the standard should be correctness and cites the |
decision of the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 S.C.R. 982. That case, however, dealt with a review of a decision of the Immigration and Refugee Board. In the present case, the Court is dealing with a review of the discretionary decisions of a delegate of the Minister of Citizenship and Immigration ("Minister"). Therefore, the judgment of the Supreme Court of Canada in Baker v. Canada, supra, is more applicable with respect to the standard of review of the discretionary administrative decisions of the Minister made pursuant to subsections 70(5) and 53(1)(d) of the Immigration Act.
The applicant, under the third issue raises a number of sub-issues, all of which
allegedly go to breaches of section 7 of the Charter. I propose to address these issues in the following order:
| (1) Did the Minister breach her obligation under the International Covenant on Civil and Political Rights, the Conventions Against Torture or the Convention Relating to the Status of Refugees, thus causing a breach of section 7 of the Charter of Rights and Freedoms? |
| (2) Are the words "danger to public in Canada" in subsection 70(5) and paragraph 53(1)(d) void for vagueness, thus violating the principles of fundamental justice under section 7 of the Charter? |
| (3) Does the refoulement of the applicant to a place where it is likely that he may experience harsh or inhuman treatment by government authorities constitute a breach of section 12 of the Charter of Rights and Freedoms? |
| (4) Was the applicant afforded procedural due process under section 7 of the Charter in that: |
| (a) The Minister"s decision making process under section 53(1)(d) of the Immigration Act was a subjective decision making process. |
| (b) The applicant did not receive an oral hearing from the Minister. |
| (c) The applicant did not receive written reasons from the Minister. |
| (d) The Minister is alleged not to have acted fairly when making her decision under section 53(1)(d) of the Immigration Act. |
| [22] Did the Minister breach her obligation under the International Covenant on Civil |
and Political Rights, the Convention Against Torture or the Convention Relating to the Status of Refugees, thus causing a breach of section 7 of the Charter of Rights and Freedoms?
| [23] The applicant argues that the Minister"s decision to return the applicant to a |
country where he may likely face harsh or inhuman treatment violates the terms of the international agreement to which Canada is a party. This, I believe, the applicant argues causes a breach of either section 7 or section 12 of the Charter of Rights and Freedoms. I have read the thorough reasons of Justice Robertson, writing on behalf of the Federal Court of Appeal in Manickavasagam Suresh v. The Minister of Citizenship and Immigration and The Attorney General of Canada, unreported decision dated January 18, 2000 (docket A-415-99) and I adopt his conclusions. A summary of part of the conclusions is that:
| The International Covenant on Civil and Political Rights does not deal with the issue of the refoulement and in particular, it does not cover whether a prohibition against the refoulement of a convention refugee is a non-derogable right. The applicant relied on articles 4 and 7 of this Convention to make the argument that the Minister"s order under section 53(1)(d) of the Immigration Act amounted to subjecting the applicant to torture or to cruel, inhuman or degrading treatment which is absolutely prohibited by article 7 of the agreement. |
[24] I find that the torture referred to is torture or other unacceptable conduct that occurs within a geographic area over which the party has control. That is not the case here as Canada has no jurisdiction over Sri Lanka. Thus, there is no breach of the International Covenant on Civil and Political Rights.
| [25] The Convention Against Torture deals only with acts of torture that may be |
carried out in a territory within the state"s jurisdiction. Article 16 (2) states that the provisions of The Convention Against Torture are "without prejudice to the provisions of any other international instrument . . . which relates to extradition or expulsion." This qualification is very important because Canada is a signatory to the Convention Relating to the Status of Refugees . Articles 32 and 33 of that Convention read as follows:
Article 32
| 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
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1. Les États Contractants n"expulseront un réfugié se trouvant régulièrement sur leur territoire que pour des raisons de sécurité nationale ou d"ordre public.
2. L"expulsion de ce réfugié n"aura lieu qu"en exécution d"une décision rendue conformément à la procédure prévue par la loi. Le réfugié devra, sauf si des raisons imérieuses de sécurité nationale s"v opposent, être admis à fournir des preuves rendant à le disculper, à présenter un recours et à se faire représenter à cet effet devant une autorité compétente ou devant une ou plusieurs personnes spécialement désignées par l"autorité compétente.
3. Les États Contractants accorderont à un tel réfugié un délai raisonnable pour lui permettre de chercher à se faire admettre régulièrement dans un autre pays. Les États Contractants peuvent appliquer, pendant ce délai, telle mesure d"ordre interne qu"ils jugeront opportune.
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Article 33
| 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
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| 1. Aucun des États Contractants n"expulsera ou ne fefoulera, de quelque manière que ce soit, un réfugié sur les frontiéres des territoires ou sa vie ou sa liberté seraient menacées en raison de sa race, de sa religion, de sa nationalité, de son appartenance à un certain groupe social ou de ses opinions politiques.
2. La bénéfice de la présente disposition ne pourra toutefois être invoqué par un réfugié qu"il v aura des raisons sérieuses de considérer comme un danger pour la sécurité du pays ou il se trouve ou qui, avant été l"objet d"une condamnation définitive pour un crime ou délit particulièrement grave, constitue une menace pour la communauté dudit pays.
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| [26] It is apparent that Article 33(2) would allow the Minister, in appropriate cases, to |
order the refoulement of a refugee when that person"s life or freedom would be threatened. The Minister did not, by her exercise of discretion in the present case, breach any of the three named Conventions. The Minister, by issuing an order pursuant to section 53(1)(d) of the Immigration Act , was acting in a situation contemplated by Article 33(2) of the Convention Relating to the Status of Refugees. I would also adopt the reasoning of Robertson J. in Suresh, supra, with respect to the Chahal v. The United Kingdom decision and with respect to that part of the decision (paragraphs 30, 31, 32 and 33) which states that principles of customary international law may be recognized and applied in Canada only to the extent that these principles do not conflict with Canada"s domestic law. The customary international law urged upon the Court in this case would conflict with section 53(1) of the Immigration Act .
| [27] Are the words "danger to the public in Canada in subsection 70(5) and paragraph |
53(1)(d) of the Immigration Act void for vagueness, thus violating the principles of fundamental justice under section 7 of the Charter?
[28] The applicant has argued that the words "danger to the public" which are contained in subsection 70(5) and paragraph 53(1)(d) of the Immigration Act are void for vagueness. This he argues, violates his charter rights under section 7 of the Charter in that it is a violation of the principles of fundamental justice.
| [29] The first question that must be answered is whether or not the words "danger to |
the public" are void for vagueness because if they are not, then no breach of section 7 of the Charter has occurred. According to reported cases, that although the vagueness doctrine has often been argued, it has not often been successful. That, of course, does not mean that it could not be successful in this case. However, on the view I have taken, I do not believe that the words "danger to the public" are void for vagueness.
he then was) stated at page 1152:
It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards.
[31] Although this statement was made when the Court was dealing with a provision of the Criminal Code, there is no doubt that the same principles apply to a civil matter: [1992] 2 S.C.R. 606=">See R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. At page 643 of R. v. Nova Scotia Pharmaceutical Society, supra, Justice Gonthier wrote:
. . . a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.
[32] And Justice Robertson in Suresh, supra, stated as follows at page 43:
In support of his vagueness argument, the appellant cites the Supreme Court"s decision in R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606. In that case, the Court accepted that a vague law could violate the principles of fundamental justice under section 7 of the Charter on two grounds: (1) that the law fails to give citizens fair notice of the consequences of their conduct, so that they may avoid liability and benefit from a full answer and defence should they be tried and (2) the law fails to adequately limit law enforcement discretion. At page 643 Justice Gonthier wrote: "A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate." He described "legal debate" as the process of reaching a conclusion as to the meaning of a word or phrase by reasoned analysis and applying legal criteria.
[33] As a starting point, a law does not violate the doctrine of vagueness simply because it may need to be interpreted. The Courts are always called upon to give meaning to the words of an enactment.
| [34] In Suresh, supra, the words under scrutiny were "danger to the security of |
Canada". The Federal Court of Appeal found these words not to be void for vagueness thus, there was no breach of section 7 of the Charter or Rights and Freedoms. These words are contained in paragraph 53(1)(b) of the Immigration Act and the words in issue in this case are contained in paragraph 53(1)(d) of the Immigration Act.
| [35] A review of subsection 70(5) and paragraph 53(1)(b) reveals that the legislation |
does not set out any criteria by which the meaning of the term "danger to the public of Canada" is to be determined. This, however, does not mean that the words are void for vagueness. It is the role of the Court to try to interpret and give a meaning to these words. The Court can do this so long as the words give sufficient evidence for legal debate: Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra. "Legal debate" was described "as the process of reaching a conclusion as to the meaning of a word or phrase by reasoned analysis and applying legal criteria." To determine the meaning of these words, the Court can use the processes it normally uses to ascribe a meaning to the words, i.e. accepted means of interpreting legislation such as the contextual analysis of the legislation. If the use of these processes allow the Court to give a meaning to the words in question, then the vagueness doctrine will not apply.
| [36] The Immigration Act outlines Canadian immigration policy in section 3 and in |
particular, subsection 3(i) which states:
| 3.(i) to maintain and protect the health, safety and good order of Canadian society; and
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3.i) de maintenir et de garantir la santé, la sécurité et l'ordre public au Canada;
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[37] It is obvious that one of the purposes of Canadian immigration policy is to protect the " . . . safety and good order of" Canada. That being said, it would not be unreasonable to say that one of the purposes of the legislation is to exclude from Canada, persons who engage in serious criminal activity while in Canada as a permanent resident.
| [38] In order to determine whether a person poses a danger to the public of Canada, the |
first step should be to determine whether or not the person fits within any of the classes of persons who can be removed after admission to Canada. The applicant in this case was found by the authorities to fit within paragraph 27(1)(d) of the Immigration Act. This is only the first step in the process to determine whether or not the applicant is a "danger to the public in Canada". He was found to have committed an offence as specified by paragraph 22(1)(d). He pled guilty to the following offences:
| (1) Paragraph 465(1)(c) of the Criminal Code - conspiring to commit assault causing bodily harm. |
| (2) Paragraph 465(1)(c) of the Criminal Code - conspiracy to use forged credit cards. |
| (3) Subsection 91(1) of the Criminal Code - possession of an unregistered handgun. |
| [39] The applicant was arrested in the spring of 1997 by Metro Toronto Police as the |
result of a wiretap operation. The sentencing Judge stated that the wiretap evidence disclosed that there were two organized criminal groups within the Tamil community in the greater Toronto area. The Judge stated that the applicant was a member of the V.V.T. gang and held a position of some authority in his criminal group as stated earlier. The sentencing Judge stated in part in his remarks:
Without minimizing the seriousness of the criminal activity to which I have just referred, and the accused"s role in it, what I find to be the most alarming feature of the group"s organization is the fact that they were all too willing to resort to violence and the use of prohibited weapons in order to preserve their criminal enterprise from any encroachment, which I believe is an inference I can clearly derive from the evidence before me. The accused"s role in this aspect of the gang"s activities is significant.
| [40] The Metropolitan Police set up a pilot task force called the "Metropolitan Toronto |
Police Tamil Task Force" which gave a report dated February, 1999 entitled, "Pilot Project Report Tamil Organized Crime" as previously stated. The executive summary of the report stated in part, as follows:
In the late 1990's police agencies in the Greater Toronto Area were identifying an increased number of violent criminal activities in which the common denominator was that the suspects and victims were Tamils. The nature of the offences and methods which were used to carry them out had all the traditional characteristics of an emerging organized criminal group. Investigative agencies were frustrated in seeking solutions to these violent crimes mainly due to lack of motive, witnesses and suspects. Social insulators such as language and culture were inhibiting the efforts of local law enforcement. Based on those suspicions a Pilot Task Force was implemented. This report summarizes the findings and accomplishments of that task force.
[41] The report also stated that there were several Tamil gangs in existence in the Greater Toronto Area and that the two main groups were the A.K. Kannan and the V.V.T.
| [42] In this case, the applicant fits within one of the classes of persons who can be |
removed after admission to Canada according to paragraph 27(1)(d) of the Immigration Act. But that is not sufficient to state that the applicant is a "danger to the public in Canada". The Minister must make her assessment and decide whether or not to issue an opinion pursuant to paragraph 53(1)(d) and subsection 70(5) of the Immigration Act that the applicant is a "danger to the public in Canada".
| [43] I believe that it is necessary to look at the activity of the applicant to determine |
whether or not he is a danger to the public in Canada. For example, if the applicant had only been an inactive member of the criminal group and then resigned, the Minister would not be justified in issuing such opinions.
| [44] Simply because the meaning of the words "danger to the public in Canada" is not |
defined with precision, does not render their application to a particular set of facts impossible or even difficult, determining the meaning of words of a statute is one of the tasks of the Court. The Minister cannot flip a coin to decide whether or not to issue an opinion. She must take into consideration the facts of the case.
| [45] Justice Robertson stated in Suresh, supra, at page 49 as follows: |
[68] Further, the Supreme Court states that one of the objectives of the vagueness doctrine is to ensure that individuals have adequate notice or an understanding that certain conduct is the subject of legal restrictions.
[46] It is my opinion that the applicant clearly should know that the conduct he has engaged in is subject to legal restrictions. The Immigration Act which is part of the law of Canada states that he may be removed from Canada if he puts himself within the parameters of paragraph 27(1)(d) of the Immigration Act. Any person should know that having a significant role in an organized criminal group would make a person someone who would be considered to be a danger to the public interest. Simply put, the applicant was not involved with a benevolent group.
| [47] To summarize, I do accept the argument that the words "danger to the public in |
Canada" are void for vagueness. It is very easy to attribute a meaning to the words. Persons who carry out the activity carried out by the applicant are persons who are a danger to the public in Canada.
| [48] Does the refoulement of the applicant to a place where it is likely that he may |
receive harsh or inhuman treatment by government authorities constitute a breach of section 12 or section 7 of the Charter of Rights and Freedoms?
The applicant has argued that sending him back to a country where it is likely that he may receive harsh or inhuman treatment by government authorities constitutes a breach of his section 12 Charter rights. Section 12 of the Charter prohibits the imposition of "cruel and unusual treatment or punishment". The application of the Charter is confined to legislative and executive acts of Canadian governments. In the present case, the torture or punishment would not be imposed by Canada, but by another country. Thus, there is no breach of section 12 of the Charter.
Under section 7 of the Charter, everyone has the right to security of the person and can only be deprived of the right "in accordance with the principles of fundamental justice". Otherwise, there is a breach of section 7 of the Charter. What is meant by "fundamental justice"? The Supreme Court of Canada in the Reference re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 in defining fundamental justice stated at page 503 that:
. . . the principles of fundamental justice are to be found in the basic tenets of the legal system.
| [51] I have come to the conclusion that it is not necessary to precisely define what is |
meant by the words "fundamental justice" as I am of the opinion that to subject a person to "harsh or inhuman treatment" would not be in keeping with the principles of fundamental justice.
| [52] The Supreme Court of Canada has used two different approaches when deciding |
whether a law should be struck down as a result of a breach of section 7 of the Charter. Some judges state that the balancing of the state"s interests versus the rights of the person should be considered and balanced as part of the section 7 analysis. In other words, the Court would weigh the interests of the state and the person in coming to a conclusion as to whether paragraph 53(1)(d) is constitutionally valid under section 7 of the Charter. In this situation, the applicant would have to show that paragraph 53(1)(b) violated section 7 of the Charter. The other approach would have the consideration of the state"s rights versus the individual"s right to security of the person take place under section 1 of the Charter. Thus, the Court would determine whether the conduct violated section 7 of the Charter and then it would consider the state"s rights versus the individual rights when it determines whether or not the breach of section 7 of the Charter was justified under section 1 of the Charter.
| [53] Justice Robertson ruled in Suresh, supra, that the second approach was the |
approach to use in circumstances which are analogous to those in the case at bar, i.e. to do the balancing of interests when the section 1 analysis was being carried out. At paragraph 105 of the decision, he stated:
[105] In my respectful opinion, it is preferable to follow the approach adopted by Chief Justice Lamer and effect a balancing of interests under section 1 of the Charter as opposed to section 7. A law which exposes a person to a risk of torture must be accepted as being contrary to basic tenets governing our legal system and, therefore, a breach of the principles of fundamental justice. The real issue is whether the legislation in question is saved under section 1. It is to that issue I now turn.
This is the approach I adopt in this case.
| [54] As stated in Suresh, supra, at paragraph 106, the framework for considering the |
validity of the legislation under section 1 is as follows:
4) Section 1 of the Charter[106] The classic analytical framework for evaluating the constitutional validity of legislation under section 1 of the Charter was set out in R. v. Oakes, [1986] 1 S.C.R. 103. Applied strictly, it places a significant burden on the Attorney General to establish that: (a) the legislation addresses a pressing and substantial objective; (b) a rational connection between the legislative measure and the objective is present; (c) the legislation impairs rights and freedoms as little as possible; and (d) a proportionality exists between the salutary and deleterious effects of the legislation. More often than not the third requirement represents the most difficult hurdle for the government. It requires the government to show that Parliament chose the least injurious legislative means of achieving its goal.
Pressing and Substantial Objective
| [55] Under this heading, the Court must determine whether the objectives which the |
provisions of the Immigration Act advance are of sufficient importance to overrule the section 7 rights of the applicant with the use of section 1 of the Charter. Two of the objectives of the Immigration Act are set out in subsections 3(g) and (i) which state:
| 3.(g) to fulfil Canada"s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;
. . .
(i) to maintain and protect the health, safety and good order of Canadian society; and
|
3.g) de remplir, envers les réfugiés, les obligations imposées au Canada par le droit international et de continuer à faire honneur à la tradition humanitaire du pays à l"endroit des personnes déplacées ou persécutées;
. . .
i) de maintenir et de garantir la santé, la sécurité et l"ordre public au Canada;
|
| [56] These subsections of the legislation speak for themselves. It is clear that the |
purpose of the Immigration Act is to have Canada fulfil its international legal obligations with respect to refugees and at the same time, maintain the safety and good order of Canadian society. This same purpose is contemplated by article 32(1) and article 33(2) of the Convention Relating to the Status of Refugees. By article 32(1), a contracting state can expel a refugee lawfully in the state on the ground of public order. In article 33(1), the contracting state cannot expel a refugee to a place where his "life or freedom would be threatened . . ." but pursuant to article 33(2), this protection does not apply to a refugee who "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to that country".
| [57] It is my conclusion that the objectives underlying paragraph 53(1)(d) of the |
Immigration Act are to protect the public in Canada from refugees who are a danger to the public. The conduct of the applicant certainly is the type of conduct that the legislation is trying to prohibit. The public in Canada has a right to be free from concern about criminal groups led by refugees to the country who themselves commit serious criminal offences.
Rational Connection
| [58] It is established that paragraph 53(1)(d) is related to the objectives of the |
legislation as this is the first part of the proportionality test. The Charter of Rights and Freedoms in subsection 6(1) differentiates between the rights of Canadian citizens and those who have failed to reach that status. Subsection 6(1) states that only a Canadian citizen has a right to enter or remain in Canada. Paragraph 53(1)(d) of the Immigration Act puts in place a means to remove people from Canada who constitute a danger to the public in Canada. This is a rational connection between the objective of paragraph 53(1)(d) and the process chosen to determine whether or not a person is a "danger to the public of Canada".
Minimal Impairment
| [59] The applicant"s right under section 7 of the Charter should be impaired as little as |
possible according to the second part of the proportionality test. There is an onus on the Attorney General to show that the legislation extends no further than necessary to achieve the goal of the legislation. Paragraph 53(1)(d) of the Immigration Act satisfies that requirement because:
| (1) Paragraph 53(1)(d) only allows the Minister to remove a person described in paragraph 27(1)(d) of the Immigration Act who has been convicted of an offence under an act of Parliament for which he may be imprisoned for ten (10) years or more and the Minister is satisfied that the person constitutes a danger to the public in Canada. |
| (2) The Minister"s decision can be reviewed on judicial review if leave is granted. |
| (3) The Minister"s use of her discretion is always subject to review at the time a judge of this Court reviews the file to determine whether or not leave should be granted. |
Salutary and Deleterious Effects
| [60] The last arm of the Oakes test states that there must be proportionality between |
the objective of the legislation and its deleterious effects. A further requirement was added by the Supreme Court of Canada in Dagenais v. CBC, [1994] 3 S.C.R. 835 at page 889, where it was stated that there must be "proportionality between the deleterious and salutary effects of the measures". However, in Thomson Newspapers v. Canada, [1998] 1 S.C.R. 877, Justice Bastarache, writing for the majority, ruled that the weighing of legislative objectives against the legislation"s deleterious effects is effectively accomplished during the rational connection and minimal impairment stages of the analysis.
| [61] I must now consider whether the salutary benefits of the legislation outweigh its |
deleterious effects. Paragraph 53(1)(d) of the Immigration Act certainly provides obvious benefits. It allows the Minister to deport or remove from Canada those persons who having been convicted of committing an offence under any act of Parliament for which a punishment of ten (10) years or more imprisonment could be imposed and who the Minister is of the opinion is a danger to the public in Canada. The legislation allows the Minister to remove from Canada those persons who are not desirable, in the sense that they are a danger to the public in Canada. Paragraph 53(1)(d) is in harmony with subsection 6(1) of the Charter in that it reflects the fact that non-citizens do not have an unfettered right to stay in Canada. There is no doubt that as a result of refoulement it is "likely that Mr. Rasa may experience harsh or inhuman treatment upon his return to Sri Lanka by government authorities as described in the above country report" (Record of Tribunal, page 4). I come to the same conclusion as did the Minister that the applicant is a danger to the public in Canada. As stated by the reviewing officers age page 4 of the Tribunal Record:
I have taken into consideration Canada"s obligations under the Convention Against Torture and believe that, notwithstanding this, the risks that Mr. Rasa represents to the Canadian public as a result of the nature and seriousness of his criminal involvement in Canada, far outweigh his risks upon return to Sri Lanka.
| [62] I am of the view that the salutary effects of the legislation in this case outweigh |
the deleterious effects on the applicant who faces refoulement and who may likely experience harsh or inhuman treatment upon his return to Sri Lanka. I am of the further view that the right of the public in Canada to be secure from the activities of the applicant outweigh the right of the applicant to be secure against possible harm. It is my finding that paragraph 53(1)(d) infringes section 7 of the Charter but is saved by section 1 of the Charter.
Does Paragraph 53(1)(b) - Shock the Conscience?
[63] The so called Oakes" test does not deal with the test set down by the Supreme Court of Canada for assessing the constitutional validity of legislation which puts section 7 of the Charter into play, the test known as "shock the conscience test". Like Justice Robertson in Suresh, supra , I am unable to measure objectionally how Canadians would consider a law that allowed a person such as the applicant to be sent back to a country where he may be subjected to harsh or inhuman treatment.
| [64] The law requires me to opine on this point. I am of the opinion the removal of the |
applicant to a country where he may be subjected to harsh or inhuman treatment would not shock the conscience of the Canadian people. It must be noted that the applicant engaged in activity in Sri Lanka that might get him in trouble with the government. He also engaged in criminal activity in Canada while still not a Canadian citizen. These choices were his and he must live with the consequences. Canada"s immigration laws are in conformity with the Charter of Rights and Freedoms and are in agreement with all of Canada"s international obligations concerning the removal of persons such as the applicant from Canada.
| [65] In fact, I am of the opinion that Canadians would have a very dim view of a |
system that would not allow Canada to remove persons such as the applicant.
The Minister"s Decision
[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 misapprehesnion of the facts would also lead to a finding that the discretion was not exercised judicially.
| [67] The Supreme Court of Canada has made other decisions with respect to the |
exercise of discretion by a tribunal (see Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 577 at page 607). Then in 1999 the Supreme Court of Canada considered the standard of review to be applied to a discretionary decision of the Minister of Citizenship and Immigration made pursuant to subsection 114(2) of the Immigration Act. In Baker v. Canada, supra, the Court ruled that the standard of review of a discretionary decision of the Minister was reasonableness simpliciter. I do not take this discussion to state that the Minister when making a decision which related to a question of law would not have to make a correct decision. What was being dealt with by the Minister in Baker, supra, and in this case was the exercise of discretion.
| [68] I find that the Minister"s decision to form the opinion pursuant to paragraph |
53(1)(d) of the Immigration Act that the applicant constitutes a danger to the public in Canada is a reasonable decision. The applicant was allowed to make written submissions before the opinion was formed. The Minister had at her disposal the written notes of the reviewing officer and the A/Director Case Review, Case Management Branch. The Minister assessed the risk of torture if the applicant was returned to Sri Lanka, she assessed and came to the opinion that he was a danger to the public in Canada and the Minister balanced the risk of danger to the public against the risk of torture to the applicant. This is clearly evidenced by reference to page 4 of the Record:
The information contained in the Pilot Project Report provides a synopsis on the VVT gang, the role and background of Mr. Rasa as they relate to his terrorist affiliations and the link demonstrated between all three entities, the VVT gang, the LTTE and the WTM (N.B. Pages 8 and 9 of the report were not disclosed as they provide information not releasable). As a result of his affiliations with these groups and his criminal actions while in Canada, it is likely that Mr. Rasa may experience harsh or inhuman treatment upon his return to Sri Lanka by Government authorities as described in the above country report. I have taken into consideration Canada"s obligations under the Convention against Torture and believe that, notwithstanding this, the risks that Mr. Rasa represents to the Canadian public, as a result of the nature and seriousness of his criminal involvement in Canada, far outweigh his risks upon return to Sri Lanka.Source (attached & publicly available at the IRB Documentation Centre): - U.S. Country Reports on Human Rights Practice for 1997 - entry for Sri Lanka - Amnesty International Report for 1997 - entry for Sri Lanka.
[69] I am therefore, of the opinion that the decision of the Minister to form an opinion that the applicant was a danger to the public is a reasonable decision.
| [70] In the alternative, if I am in error and the standard of review of the Minister"s |
decision is correctness, I am of the opinion that the decision was correct.
| [71] An additional question needs to be asked - Does the Minister"s decision breach |
the applicant"s right to security of the person under section 7 of the Charter? Justice Robertson in the Suresh, supra, case recast the Supreme Court"s test as follows:
. . .: Would the deportation of the appellant to Sri Lanka in the circumstances of this case violate the principles of fundamental justice such that it could be said that the proposed governmental action would shock the conscience of the Canadian people?
[72] I note as Justice Robertson did in Suresh, supra, that if the standard of review is correctness, it is important to note that Sri Lanka is still a member of the Commonwealth and has an independent judiciary. As I stated earlier, it is difficult for me to determine the mind of the Canadian people, but I do not believe that the removal of the applicant to a country where he may likely experience harsh or inhuman treatment would not shock the conscience of the Canadian people. The process used by the Minister recognizes all of Canada"s international obligations in relation to refugees. Canada is under its international obligations allowed to remove people such as the applicant to a place where he might be subject to torture. I, as the Federal Court of Appeal in Suresh, supra , am of the belief that the Canadian people would lose faith in the refugee system if the applicant was allowed to remain in Canada. It was the applicant"s choice to be involved in the criminal activity including committing serious criminal offences and being a significant person in the V.V.T. gang.
| [73] The applicant has also argued that the omission of the requirement in paragraph |
53(1)(d) of the Immigration Act that the Minister consider whether refoulement would expose a person to a risk of torture, and if yes, to weigh whether the state"s interest outweighs the individual"s right not to be exposed to a risk of torture is contrary to the principles of fundamental justice. Paragraph 53(1)(b) does not state that this balancing is required. The Federal Court of Appeal in Suresh, supra , held that the principles of fundamental justice do not require a statutory source for the ministerial obligation to conduct a risk assessment and a balancing of interests, as that obligation is found in section 7 of the Charter.
| [74] Was the applicant afforded procedural due process under section 7 of the Charter in that: |
| (1) The Minister"s decision making process under section 53(1)(d) of the Immigration Act was a subjective decision making process. |
| (2) The applicant did not receive an oral hearing from the Minister. |
| (3) The applicant did not receive written reasons from the Minister. |
| (4) The Minister is alleged not to have acted fairly when making her decision under section 53(1)(d) and subsection 70(5) of the Immigration Act. |
| (a) There is no question that the Minister"s decision making process under paragraph 53(1)(d) is a subjective decision making process. The legislation has given the Minister the discretion to form an opinion as to whether a person "constitutes a danger to the public in Canada". The applicant argues that section 7 requires that this decision be made on an objective basis. The Federal Court of Appeal in Suresh, supra , ruled that this was not the case. If the applicant was correct, Parliament could not validly legislate by giving a discretionary decision making power to the Minister. This is not the law. |
| (b) The applicant argued that the Minister was required to hold an oral hearing prior to making her decision in order to satisfy the fundamental justice requirements of section 7 of the Charter. The Federal Court of Appeal held in Suresh, supra, that an oral hearing was not required. Since the applicant had an opportunity to and did make written submissions to the Minister before the decision was made, I would hold that an oral hearing is not required in this case in order to satisfy section 7 of the Charter. |
| (c) The applicant has argued that he did not receive reasons |
| from the Minister for her decision and that the duty of fairness and principles of fundamental justice require that reasons be given. I find that the written reasons for the Minister"s decision are contained in the request for the Minister"s opinion dated November 30, 1998 and signed by Denise Bernard and Linda Hill. This is in keeping with the decision of the Federal Court of Appeal in Suresh, supra , and the Supreme Court of Canada in Baker, supra. |
| (d) The applicant stated before me that: |
| (i) The Minister"s delegate determined that the applicant posed a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act thereby denying the applicant a right of appeal to the Immigration Appeal Division; and |
| (ii) The Minister"s delegate also determined that |
| pursuant to paragraph 53(1)(d), the applicant was a member of an inadmissible class that he constituted a danger to the public in Canada. |
| [75] The applicant also argued that the Minister"s delegates who speak for the Minister |
and act on her behalf in removal and refugee proceedings were the officials seeking the Minister"s concurrence on removal of the applicant. The applicant further stated that by virtue of the Act, the Minister is acting both as prosecutor and judge in the matter and worse still, she has already made the decision before the matter comes before her again for a determination under subsection 53(1) of the Act. The applicant states that his does not constitute "impartial or independent decision making". Basically, the applicant is arguing that a different decision maker would have to act at each stage of the proceedings. This would require the government to establish a separate independent tribunal for each decision making process. This is not the law. The Supreme Court of Canada has held that overlapping functions that are authorized by statute do not result in an apprehension of bias as long as the statutory provisions are followed. (See Brosseau v. Alberta Securities Commission [1989] 1 S.C.R. 301 at pages 309-10).
| [76] The applicant"s application for judicial review is dismissed with costs. |
| [77] Further to my earlier Order either or both counsel may, within 15 days of the issue |
of these Reasons, submit a draft of any question to be certified. The Court will then reserve the right to endorse any such question and incorporate it or them into a formal Order.
"John A. O"Keefe"
J.F.C.C.
Halifax, Nova Scotia
May 10, 2000
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6818-98
STYLE OF CAUSE: SRIRANJAN RASA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, SEPTEMBER 20, 1999
REASONS FOR ORDER BY: O"KEEFE J.
DATED: THURSDAY, MAY 11, 2000
APPEARANCES:
Mr. Ron Poulton
FOR APPLICANT
Ms. Cheryl Mitchell
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Ron Poulton
Jackman, Waldman and Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
FOR APPLICANT
Ms. Cheryl Mitchell
Department of Justice
Ontario Regional Office
Suite 3400, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
| THE MINISTER OF CITIZENSHIP |
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