Date: 19990608
Docket No.: IMM-2720-99
OTTAWA, ONTARIO, THE 8th DAY OF JUNE 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
DARNETTE ADASSA RICHARDS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This matter was heard by teleconference on June 2, 1999 at which time I ordered a stay and gave oral reasons. Because of the issues involved, I am providing written reasons.
[2] Ms. Richards is a citizen of Jamaica who came to Canada in 1987 when she was 22 years old to live with her grandmother. She achieved landed immigrant status as a result of her grandmother`s sponsorship. In the time since then, her grandmother"s health has deteriorated and Ms. Richards on the evidence before me, is her grandmother"s primary caregiver.
[3] The problem which is before this Court arose when Ms Richards was convicted, not once but twice, of offences involving the importation of drugs into Canada. As a result of the second conviction, the Immigration authorities initiated a process which resulted in the Minister forming an opinion, pursuant to s. 70(5) of the Immigration Act that Ms. Richards was a danger to the public. This resulted in a deportation order being made against her. Ms. Richards seeks judicial review of the danger opinion and a stay of the deportation order pending the hearing of the application for leave and judicial review of the danger opinion.
[4] The test for the issuance of a stay is that found in Toth1, a decision of the Federal Court of Appeal. The portion of the test which is the most contentious in this case is the question of serious issue to be tried. Counsel for the Applicant raised issues arising from the failure of the immigration authorities to adequately notify the applicant of the making of the danger opinion. In my view, these arguments are matters of credibility and would not raise a serious issue. That which, in my view, does raise a serious issue is the application of the Thompson2 case to the facts of this case, and whether Thompson is still good law following the decision of the Court of Appeal in Williams3.
[5] In order to appreciate the problem one must consider the material upon which the Minister made her determination that Ms. Richards was a danger to the public. Following interviews with Ms. Richards after each of her convictions, the immigration authorities prepared 3 reports:
| 1- A Criminal Narrative Report dated January 9, 1998 |
| 2- A Danger to the public Ministerial opinion report dated July 20,1998 |
| 3- A Request for Minister"s opinion dated August 18, 1998 |
As a result of those reports, the Minister"s designate formed the opinion that Ms. Richards was a danger to the public. The portions of those reports which deal with Ms. Richard"s circumstances are reproduced below:
| Criminal Narrative Report pursuant to a.27(1) |
| Section 3 - Reportable Conviction(s)/offences est. all offences |
| DATE: CONVICTION/OFFENCE: SENTENCE: |
| 06 May, 1992 Importing a Narcotic 16 Months in Jail |
| 10 January, 1997 importing a Narcotic 21 Months & 15 Days Jail |
...
Section 5 - CIRCUMSTANCES OF ALLEGATION[S] ...
| Subject"s conviction in 1997 resulted out of a debt she owed $2000.00 to some people for drugs that she could not pay. She was threatened by them and claims that was told to go to Jamaica to pick up some cocaine. She went in December, 1995 and was returning on 4 March, 1996. She had swallowed a bag containing 78 pellets of cocaine before coming back to Canada. She was questioned at the Toronto Airport if she was importing some drugs and she has admitted to it and was taken to a Hospital. The street value of the drug was $59,000.00. |
| Subject traveled to Jamaica for a holiday in 1989. When she was returning to Canada she was asked at the Jamaica Airport by a long time friend if she would take a small bag for him to Canada for a friend. She claims that she agreed to it. Subject claims that as far as she knew the bag contained some spices and some types of food. |
| She agreed to take the bag and upon arrival in Canada she was asked by the Canadian Customs what was in the bag. She explained to them that it was not hers but is bringing it for a friend. The bag then was inspected and it was discovered to contain marijuana among other things. Subject claims that she did not know that the bag contained drugs. |
| The amount involved was 30 lb. Of marijuana street value of $138,200.00 |
| Section 6 - Degree of Establishment ... |
| Subject has been self-employed as a hairdresser for past couple of years, however she is not a licensed hairdresser. She was working out of her home. She has been residing with her 77 year old grandmother ever since she came to Canada. |
| Currently subject is residing at a Halfway House on 255 Wellesley St., Toronto, Ph: 924-3708 and she will be there until 22 March, 1998. |
| She is currently attending full-time Academy of Learning and is taking a Business Office skills diploma course. This course is to be completed in May, 1998. |
| Section 7 - Humanitarian and Compassionate Factors ... |
| Subject has an elderly grandmother in Canada. She is very close to her and claims that she took care of her since she was only 8 months old. Her grandmother later sponsored her to Canada. |
| Subject was addicted in the past to cocaine, which she started to take in 1988 while attending University of Toronto. Subject stated that it was her grandmother who helped her to stop using the drug. |
| Subject has not been reported by our department in the past. |
| Section 8 - Potential for Rehabilitation ... |
| Subject"s last conviction of importing narcotics was in January, 1997. It would be difficult to assess at this time to what extent she has rehabilitated herself. |
| Subject appears to be making an effort to upgrade her job skills and is attending school at this time full-time. |
She has expressed great remorse at the time of the interview and was co-operative.
| Subject has been convicted of importing narcotics two times and both time she has received a lengthy sentence, at both occasions a large amount of drugs was involved. She may be considered a danger to the public due to these convictions. |
| It is my recommendation that subject should go to an inquiry. |
Danger to the Public Ministerial Opinion Report
Sections 70(5) and 46.01(1)(e)(iv
| Subject has been convicted of importing Narcotic two times and both times a lar[a]ge amount of drugs was involved and as a result she has received a lengthy sentence both times. |
| Major Points of Submission |
| Subject has written a letter and in her own words she regrets her actions in the past. |
| She is stating that she is trying to change her life around and is attending Academy of Learning. |
| She will be graduating with honours diploma on 24 July, 1998 from Business Office Skills program and is also registered with this school to attend a Micro Computer Business Applications from 27 April, 1998 and should be graduating on 23 October 1998. Letter from school provided. |
| Subject is currently expecting a child on 22 September 1998 and the father of this child is Wayne Anthony Clarke who is a landed Immigrant. |
| Subject was interviewed at our office on 9 July, 1998. She appears to be making an effort to change her lifestyle. She is attending a school to upgrade her education and is currently expecting a child in September, 1998. |
| Subject has been married once in the past for a short period in 1994 and since she has obtained a divorce on 20 February, 1997. |
| She is currently still residing with her 72 year old legally blind grandmother who sponsored her in Canada. Subject claims that she met her current boyfriend who is also the father of her baby last summer while she was still at the Halfway House. She was introduced to him by a mutual friend. Subject is a Landed Immigrant with no criminal backround who is residing with his parents and is employed as a factory worker. |
| Part "D" - Other Considerations |
| If applicable, list humanitarian and compassionate public policy or removal risk considerations. |
| The humanitarian and compassionate consideration is that subject is close to her 72 year old legally blind grandmother with whom she has been residing since she came to Canada. |
| Subject is also expecting a child in September, 1998 and the father is Landed Immigrant, possibly may get married in the future, however no plans have been made. |
| Part "F" - Recommendations |
| On the basis of the above information and having considered all relevant factors, I recommend that pursuant to section 70(5) and 46.01(1(e)(iv of the Immigration Act, that the Minister"s opinion be requested that the above named is a danger to the public. |
| Date: 15 July 1998 Officer"s signature: |
| I CONCUR U I DO NOT CONCUR |
REQUEST FOR MINISTER"S OPINION - A70(5) and A46.01(1)(e) (iv)
| APPLICANT: RICHARDS, Darnette Adassa FILE: hq5-87131 |
| CLASS: Permanent Resident CITIZENSHIP: Jamaica |
RELEASE DATE:
| 97Jan10 - importing a narcotic, cocaine, section 5(2) NCA, sentenced to 21 months and 15 days, in addition to 10 months and 1 week pretrial custody |
| 92May06 - importing a narcotic, marihuana, section 5(2) NCA, sentenced to 16 months |
| REMOVAL RISK CONSIDERATION |
| There is no mention of risk in subject"s submission. |
| According to the Country Reports on Human Rights Practices for 1997, "Jamaica is a constitutional parliamentary democracy and a member of the Commonwealth of Nations. Two political parties have alternated in power since the first elections under universal adult suffrage in 1944; a third major party was established in late 1995. Prime Minister Patterson"s People"s National Party (PNP) won 50 of the 60 seats in Parliament in national elections on December 18. The general election campaign was significantly less violent than previous electoral campaigns. However, there continued to be intimidation of voters and party agents and restrictions on the free movement of voters. The judiciary is independent but lacks adequate resources. |
| The Government generally respects the human rights of its citizens; however, problems remained in certain areas. Although members of the security forces committed extrajudicial killings and beatings and carried out arbitrary arrests and detentions, the Government moved effectively to punish some of those involved. Prison and jail conditions remained poor with overcrowding, brutality against detainees, dismal sanitary conditions, and inadequate diet the norm. The judicial system was overburdened and lengthy delays in trials were common. Economic discrimination and violence against woman remained problems, as did mob violence against those suspected of breaking the law. |
| There is no reason to believe that the subject will be at risk upon return. The danger to Canadian society outweighs any danger that the subject may face. |
| REVIEWING OFFICER"S COMMENTS AND RECOMMENDATION |
| 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 Darnette Adassa Richards constitutes a danger to the public pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act. |
| Date: 18 August "98 Submitted by: "Bonnie Maystrenko" |
Bonnie Maystrenko
Reviewing Officer
| Date: 18 August "98 I concur: "Glen McBrien" |
Glen McBrien, Senior Analyst
Case Review
Case Management Branch
| If you are of the opinion that this person constitutes a danger to the public, please sign here and sign the attached form. |
| Date: 19/8/98 "W.A. Sheppit" |
W.A. Sheppit - Minister"s Delegate
Director General - Case Management Branch
[6] It can be seen from a perusal of this record that there is little, if any, information which could be construed as capable of supporting an opinion that Ms Richards is a danger to the public other than the fact of her two convictions. The basis of the recommendation that an inquiry take place is the fact of the two convictions. The only information in the Danger to the Public Ministerial Opinion Report which could support a danger opinion is the fact of conviction, since the balance of the information is either neutral or is positive. These facts raise squarely the application of the Thompson case in which my colleague Gibson J. held that the mere fact of conviction was not sufficient to reasonably support an opinion that an individual was a danger to the public.
| [19] I am satisfied that although there may be no need to impose formal guidelines on the respondent regarding what constitutes a danger to the public, that phrase must have some meaning in itself; it must constitute more than mere duplication of the conviction for a serious offence element of the legislative scheme. I am satisfied that Parliament did not intend for danger opinions to have no meaning, and that in order for the respondent to form an opinion pursuant to subsection 70(5), the fact of a conviction alone is an insufficient basis; the circumstances of each case must, over and above the conviction, indicate a danger to the public. By this, I do not wish to be taken as indicating that there is no instance where a danger opinion pursuant to subsection 70(5) could be properly issued where a person has only one conviction; I simply find that there must be circumstances in the case additional to a single conviction that indicate a danger to the public. There may very well be cases where the circumstances surrounding a single conviction point to a danger to the public. |
|
Thompson was considered in Williams where Mr. Justice Strayer, speaking for the Court of Appeal, in the context of a discussion as to whether s. 70(5) was unconstitutional for vagueness said the following:
| [29] ... In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven"indeed it cannot be proven"that the person will reoffend. What I believe the subsection adequately focusses the Minister"s mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case [see note 23 below] that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister"s forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court. |
|
The facts here raise the question as to whether the principle in Thompson applies in the case of two convictions as opposed to a single conviction and whether the Court of Appeal has implicitly overruled Thompson. The question is a serious one.
[7] With respect to irreparable harm, Counsel for the Respondent Minister argued that irreparable harm meant a serious threat to a person"s physical integrity. Counsel for the Applicant pointed to the Toth case where a stay was granted in circumstances where the deportation order would have meant the end of a business which was supporting the applicant"s family and a number of employees. The only harm was economic, was harm to persons other than the deportee, and the stay was granted. In the circumstances of this case, I am prepared to find that the loss of the applicant as a primary caregiver would represent a serious loss to the grandmother, notwithstanding the fact that the grandmother has had to make other arrangements during the periods of the applicant"s incarceration. The grandmother"s circumstances are serious due to her age and blindness. Toth is the authority for the proposition that irreparable harm can consist of harm to others and is not limited to harm to the person whose deportation is being sought.
[8] Like Gibson J. in Hogan v. Canada (M.C.I.) , [1996] F.C.J. No. 276, DRS 96-08504, I find that the balance of convenience and irreparable harm are closely interconnected. On the facts of this case, the balance of convenience lies with the Applicant.
[9] For these reasons, I order that execution of the removal of the applicant from Canada be stayed pending the hearing of her application for leave and judicial review. Submissions were made to me with respect to the matter of costs. Those submissions should be made to the judge hearing the judicial review application.
"J.D. Denis Pelletier"
Judge
__________________
1 Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.).
2 Thompson v. M.C.I. [1996] F.C.J. No. 1097.
3 Williams v. M.C.I. (1997), 212 N.R. 63; 147 D.L.R. (4th) 93 (F.C.A.) [leave to appeal to S.C.C. denied October 16, 1997, File No. 26509].
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