Date: 19971124
Docket: IMM-2261-96
BETWEEN:
ROBERT JOHN O'CONNOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision reached on behalf of the respondent, pursuant to subsection 70(5) of the Immigration Act,1 that the respondent is of the opinion that the applicant constitutes a danger to the public in Canada. The decision is dated the 19th of January,1996 and was communicated to the applicant on the 18th of June, 1996.
[2] The factual background may be briefly summarized as follows. The applicant was born in the United Kingdom. He came to Canada at the age of three months with his adoptive parents. He has remained in Canada ever since his arrival. On the 19th of August, 1996, the applicant was 28 years of age.
[3] Between 1984 and 1995, the applicant accumulated an extensive criminal record. He was convicted of over 20 criminal offenses, including a number of convictions for break and enter and convictions of robbery, assault, assault causing bodily harm, dangerous operation of a motor vehicle and escaping lawful custody. He acknowledges that his criminal record is interrelated with his "...long term abuse of alcohol and drugs." The applicant attests that his robbery, assault causing bodily harm and assault convictions stemmed from a single incident. He continues: "I was at the time very dependent on alcohol and in an intoxicated state when the dispute arose."
[4] In the autumn of 1995, the applicant was notified that the respondent was considering whether or not to form the opinion that the applicant constitutes a danger to the public in Canada. The applicant was provided an opportunity to make submissions and after an extension of time was granted for the making of submissions, submissions were made on his behalf. Those submissions went primarily to the issue of humanitarian and compassionate concerns arising from the facts that the applicant was clearly a product of Canadian society, all of his known family members and his common-law spouse and her two children were here in Canada and the applicant had no connection to the United Kingdom.
[5] The danger to the public in Canada opinion issued. On the 18th of June, 1996, the applicant was ordered removed from Canada.
[6] On the material that was before the Court in this matter, counsel for the applicant raised a wide range of issues for the consideration of the Court. It was acknowledged before me that many of the issues raised were answered by the Williams v Canada (Minister of Citizenship and Immigration),2 in a manner binding on me. In the result, only one issue was argued before me, that being whether or not the respondent based her decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before her.
[7] In Williams, an appeal of a decision of the Trial Division on judicial review of a ministerial danger to the public opinion, Mr. Justice Strayer wrote:
| |
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 on the basis of irrelevant considerations. Further, when confronted with the record that 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. [citations omitted] |
|
[8] The words "such as" in the foregoing quotation would tend to indicate that the grounds of review thereafter enumerated are not exclusive. That this might not be the case appears to have been Justice Strayer's intent since, later in his reasons, he wrote:
| |
It may be that a motions judge looking at this material might be of the personal view that the evidence against Williams being a danger was stronger than the evidence for him being a danger but, with respect, that is not the issue. The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material. There is simply no evidence that any of these things occurred and I fail to see how the result can be regarded as perverse: that is I do not see how it can be said that it was not open to the Minister's delegate to form the opinion based on Williams' convictions, their nature and frequency, and the comments of the sentencing judge, that he represented a danger to the Canadian public. |
|
[9] In the latter quotation, I take the reference to "...on the basis of irrelevant criteria or evidence, or without regard to the material," to be the equivalent of "...upon the basis of irrelevant considerations" in the earlier quotation. Further, I take the lack of a reference to error of law as a ground of review in the second quotation to be simply based on the facts that were before Mr. Justice Strayer which demonstrated no error of law.
[10] I return to the Williams decision. Mr. Justice Strayer wrote:
| |
It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) [to the Immigration Appeal Division] "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. |
|
[11] Later he continued:
| |
The Court is not being asked to affirm the correctness of the Minister's opinion but only to determine whether there is any lawful basis for its review. |
|
[12] I reach the same conclusion with respect to the applicant here that Mr. Justice Strayer reached with regard to Mr. Williams in the second quoted extract from Williams, above. To paraphrase in part the last sentence of that quotation, there is simply no evidence that the respondent acted without regard to the totality of the material before her or formed an opinion that was perverse or capricious. I do not see how it can be said that it was not open to the respondent to form the opinion she did with respect to the applicant based on the applicant's convictions, their nature and frequency, and his long term abuse of alcohol and drugs, which he apparently overcame for a period of time when he remained conviction free, but to which he reverted.
[13] For the foregoing reasons, this application for judicial review will be dismissed.
[14] This application was heard before me at Calgary, Alberta on the 11th of June, 1997. Issues identified in the applicant's Memorandum of Fact and Law that were dealt with by the Federal Court of Appeal in Williams, were not argued before me but, because it was then generally known that leave would be sought to appeal the Williams decision to the Supreme Court of Canada, counsel for the applicant requested that the hearing be adjourned to await the outcome of any such application. I acceded to that request. As noted earlier, an application to appeal the Williams decision has been dismissed without reasons. Counsel have since been contacted through the Registry in Calgary and are in agreement that no purpose would be served in reconvening. Thus, I have treated this matter as closed and finalized these reasons.
[14] If counsel for either party wishes to propose a question of certification, it should be submitted to the Registry in Calgary within seven days of the date of these reasons. At that time, I will consider any such submissions and issue my Order.
__________________________
Judge
Ottawa, Ontario
November 24, 1997
__________________
1 R.S.C. 1985, c. I-2
2 [1997] 2 F.C. 646 (C.A.), leave to appeal to the Supreme Court of Canada dismissed (without reasons) 16 October 1997, [1997] S.C.C.A. No. 332 (QL)
Email this Content