Clarke v. Canada (Minister of Citizenship and Immigration), docket IMM-992-96

Date: 19971126

Docket: IMM-992-96

BETWEEN:

     LOUIS DEAN CLARKE,

                                         Applicant ,

     -and-

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                         Respondent .

     REASONS FOR ORDER

HEALD D.J.

[1]      This is an application for judicial review of a decision of a delegate of the Minister dated March 4, 1996 wherein the Minister rendered an opinion that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act¹. The applicant seeks to set aside the Minister's subsection 70(5) decision to remove the applicant's right of appeal and to refer the matter back to the Minister for reconsideration.

[2]      The applicant was born on April 12, 1966 and is a citizen of Jamaica. He came to Canada with his family at the age of 11 and became a permanent resident on January 14, 1978. Between 1984 and 1994, the applicant was convicted of a number of criminal offences including, possession of narcotics, breach of recognizance, obstruction of a police officer, mischief, assault, possession of property obtained by crime over and others.

[3]      On June 7, 1995 the applicant's status was reviewed and a Deportation Order was made on the basis that the applicant was a person described in paragraph 27(1)(d) of the Immigration Act.² By letter dated December 6, 1995, the applicant was advised that the Minister was considering whether or not the applicant constituted a danger to the public in Canada pursuant to subsection 70(5). The letter enclosed copies of documents that would be presented to the Minister and invited the applicant to make submissions on this issue. By letter dated March 4, 1996 the applicant was advised that a danger to the public opinion had been formulated and that as a result, he did not have a right of appeal to the Immigration Appeal Division.

ISSUES

1.      Is the procedure by which subsection 70(5) opinions are rendered arbitrary?

2.      Did the Minister err in forming the opinion that the applicant is a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act by relying on erroneous statements in the Ministerial Opinion Report, by relying on irrelevant evidence or by ignoring the submissions of the applicant?

Arbitrary Decision

[4]      In light of the Court of Appeal's decision in Williams v. The Minister of Citizenship and Immigration,³ there were two main issues argued before me. The applicant did submit, however, that the present case is distinguishable from Williams in that unlike Mr. Williams, the applicant in the present case challenges not just the process by which the danger to the public opinion was formed, but the substance of that decision.

[5]      With respect to the process under which a danger to the public opinion is formed, the applicant submitted that all permanent residents who have been convicted of an offence for which a term of more than six months has been imposed or for which a five year term may be imposed as outlined in subsection 27(1)(d) are subject to a hearing before the adjudicator. If the adjudicator finds that the factual basis of the allegation is correct, the adjudicator must order removal. The permanent resident is then entitled to an appeal of that decision unless a danger to the public opinion has been issued against that person pursuant to subsection 70(5) of the Act. The applicant submitted that since not all permanent residents who have been convicted of an offence outlined in subsection 27(1)(d) are the subject of an inquiry by the Minister under subsection 70(5), the process is arbitrary.

[6]      The respondent submitted that the Court of Appeal in Williams, supra reviewed the process leading up to the formation of an opinion by the Minister that a person is a danger to the public in Canada and found that the procedure is fair and does not violate the Charter. I agree with the respondent. The Court of Appeal in Williams, reviewed the scheme of the Act and found it to be constitutionally sound and in accordance with the principles of natural justice and fairness. A danger to the public opinion is by nature a discretionary decision to be made by the Minister based on a review of the evidence properly before the Minister.

Danger to the Public Opinion

[7]      On this issue, the applicant submitted that the ministerial opinion report, prepared by the criminal backlog review taskforce contains a number of reviewable errors: Firstly, a police report put before the Minister stating that the applicant is a pimp should not have been before the Minister. Since the applicant had never been convicted of living off the avails of prostitution, this document was improperly relied on by the Minister; secondly, the applicant asserts that the ministerial opinion report was altered in bad faith. This is reflected in a blank space appearing in the middle of a sentence on that report. Thirdly, the comments on the ministerial opinion report that describe him as having a "violent nature" are unfounded. Fourthly, the statement in the ministerial opinion report that reads: "Mr. Clarke has a string of criminal convictions, many involving drugs..." is misleading.

[8]      In Williams, supra at page 11, Strayer J.A. deals with the standard of review of the Minister's opinion. He states:

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.

[9]      I am not persuaded that the Minister acted in bad faith, erred in law or acted upon the basis of irrelevant considerations in rendering the opinion that the applicant is a danger to the public in Canada. There is no evidence that the ministerial opinion report was altered in any way nor is there evidence of bad faith. Even if the document had been altered in some way, the document as it appears on the record is the report that was before the Minister and was reasonably relied upon.

[10]      The comments on the ministerial opinion report before the Minister which state that the applicant has a violent nature and has been convicted of a number of offences involving drugs are reasonable on this record. The applicant has been convicted of trafficking in and possession of drugs. Additionally, he has a number of convictions for assault.

[11]      The applicant submitted that a police information report should not have been before the Minister because it is irrelevant and unduly influenced the decision-maker. The respondent's answer was that when the applicant was notified that the Minister was considering the issuance of a danger to the public opinion against him, he was advised that the police report would be before the Minister and was invited to make submissions. He did not make any submissions with respect to the police report.

[12]      The police information report was part of the entire package of material before the Minister.

[13]      In any event, the evidence before the Minister was sufficient to enable him to form the danger opinion absent any reference to the police report.

[14]      The applicant also submitted that the Minister's delegate erred in failing to consider all of the applicant's submissions when rendering the danger opinion. He specifically referred to the evidence that he was enrolled in an anger management course, that he was employed and that he had shown efforts at rehabilitation.

[15]      The ministerial opinion report does not summarize all of the applicant's submissions. Gibson J. was faced with a similar issue in Moffatt v. Canada (Minister of Citizenship and Immigration).⁴ He relied on the decision in Williams, supra, where Strayer J.A. wrote (also at page 11):

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.

[16]      Gibson J. concluded that although the summarized material did not contain all of the applicant's submissions, in the absence of evidence to the contrary, the Court should conclude that, because the submissions were actually before the Minister, the Minister acted in good faith and with regard to the material on the record.

If I were able to conclude that the Respondent's delegate relied solely on the material prepared for his consideration by officials in the Respondent's Ministry, I would conclude that the Respondent erred in a reviewable manner in forming the opinion reached on her behalf. But I cannot reach that conclusion. By reference to the last sentence of the quotation from Williams above, I am here confronted with a record that was, according to undisputed evidence, before the Respondent's delegate. In the absence of evidence to the contrary, I must assume that the Minister's delegate acted in good faith in having regard to that material. I take this to imply, "... in having regard to the totality of that material". There was no evidence before me that the Respondent's delegate did not have regard to the totality of the material that was before him. In the result then, I must assume that, despite the inadequate material prepared for his use, the Respondent's delegate himself had regard to the totality of material, including all of the material tending to show that the Applicant does not represent a present or future danger to the public in Canada.

[17]      Similarly, in the case at bar, there is nothing to suggest that the complete record was not before the Minister's delegate. The applicant's submissions are contained in that record, and in the absence of contradictory evidence, I assume that the Minister's delegate acted in good faith having regard to that record. Having regard to the totality of the evidence, the opinion that the applicant constitutes a danger to the public in Canada is reasonable. Accordingly, this application for judicial review is dismissed.

[18]      Neither of the parties suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.

                             Darrel V. Heald                              Deputy Judge

OTTAWA, ONTARIO

November 26, 1997

__________________

     ¹      Subsection 70(5) reads as follows:
     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
         (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.

     ²      That subsection reads as follows:
     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.

     ³      A-855-96, April 11, 1997, leave to appeal to S.C.C. denied, October 16, 1997.

     ⁴      IMM-705-96, July 21, 1997.