Pratt v. Canada (Citizenship and Immigration), docket IMM-3043-95

     IMM-3043-95

     IMM-3528-95

B E T W E E N :

     CHRISTOPHER ISAAC PRATT

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDERS

MacKAY J.

     These are two applications for judicial review of, and for an order setting aside, two decisions made under the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"). The first of these is a decision, dated October 24, 1995, by the respondent Minister's delegate pursuant to s-s. 70(5) of the Act, that in the Minister's opinion the applicant constituted a danger to the public in Canada. The second is a decision to execute an outstanding deportation order made against the applicant on December 19, 1994, an order that was the subject of an appeal by the applicant which was underway and had not been determined when the decision was made under s-s. 70(5). The deportation order was executed and the applicant was removed from Canada after these applications for leave and for judicial review were initiated.

     I note that an application to stay execution of the deportation order was dismissed by my colleague Mr. Justice Rothstein on December 11, 1995, since irreparable harm was not established, and the applicant was removed from Canada on December 13, 1995.

     When the applications were heard in Vancouver on August 14, 1996, they were argued together with an application raising similar issues in the matter of Milan Luksicek v. M.C.I. in Court file IMM-3160-95. Decision was then reserved and counsel were invited to submit in writing, following the hearing, any joint or separate submissions concerning questions that might be considered for certification pursuant to s-s. 83(l) of the Act for consideration by the Court of Appeal. Submissions were made by counsel in September, 1996.

     In light of subsequent decisions of the Court in other cases, concerning the validity and application of s-s. 70(5), it seemed appropriate to this Court that counsel in these applications have opportunity, at their option, to make further submissions in light of that evolving jurisprudence. Further written submissions were received in January, 1997. Soon thereafter it was known that other cases raising generally similar issues were scheduled to be heard by the Court of Appeal early in 1997 and this Court determined to reserve decision in this case pending decisions by the Court of Appeal. Those decisions were rendered in Tsang v. Minister of Citizenship and Immigration, Court file A-179-96, on February 11, 1997, ([1997] F.C.J. No. 151), and in Minister of Citizenship and Immigration v. Williams, Court file A-855-96, on April 11, 1997, ([1997] F.C.J. No. 393). The reasons which follow rely substantially on those decisions, referred to herein as Tsang and Williams, respectively.

The Facts

     The applicant was a permanent resident of Canada, born in the United Kingdom in January, 1972, who entered Canada with his parents some four months later, in May 1972, as a landed immigrant. Thereafter, until he was removed in December 1995, he lived all of his life in Canada.

     In 1992 and 1993 the applicant was convicted of a number of offenses under the Criminal Code, including theft of property valued over one thousand dollars, dangerous driving, possession of stolen property, unlawful possession of a narcotic, unlawful obstruction of a peace officer, assault causing bodily harm, and robbery of persons. For his various offenses he was sentenced, upon conviction, to terms of incarceration and probation.

     As a result of his criminal convictions, in 1994 an immigration inquiry was conducted pursuant to section 27 of the Act, and a report was completed on December 19, 1994 which found him to be a permanent resident convicted of offenses described under paragraphs 27(l)(d)(i) and (ii) of the Act. In accord with s-s. 32(2) of the Act, following that determination the adjudicator issued to the applicant, on that same date, a deportation order.

     Pursuant to s. 70 of the Act, as it then was, on December 19, 1994 the applicant filed an appeal from his deportation order. The appeal was to the Appeal Division of the Immigration and Refugee Board, which ultimately scheduled a hearing and received evidence and argument on September 7, 1995, when it reserved its decision.

     In the interim between the filing of the appeal in December 1994 and the hearing by the Appeal Division in September 1995, two significant events took place. On July 10, 1995 there came into force an Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, c.15 (the "Amending Act"). Key provisions relevant for purposes of these proceedings included an amendment to the Act, adding s-s. 70(5) and providing for its application. The former provides in essence that a permanent resident who, in the opinion of the Minister, constitutes a danger to the public in Canada, shall not have an appeal to the Appeal Division in relation to a deportation order issued against him.

     The second development was that on September l, 1995, a letter was written to the applicant advising that the Minister would be considering whether to issue an opinion, pursuant to s-s. 70(5) of the Act, that Mr. Pratt was a danger to the public in Canada. The letter listed a number of documents said to be the evidence to be considered by the Minister, and copies of these were enclosed. Included among these was a Ministerial Opinion Report, as completed by the officer responsible in Vancouver, recommending the issuance of a s-s. 70(5) danger opinion of the Minister. It is not clear from the record when that letter of September 1 was received by or on behalf of the applicant, but his counsel responded by letter of September 27, urging that the proposed opinion not be issued for reasons submitted by counsel.

     On October 24, the Minister's delegate issued an Opinion of the Minister, under s-s. 70(5), that the applicant constitutes a danger to the public in Canada. The decision was sent to the applicant by letter dated October 26, 1996, which advised that as a result of the decision Mr. Pratt's right to appeal the deportation order was removed. The decision led to the applicant's application for leave and for judicial review of the decision by the Minister's delegate, filed November 9, 1995, (Court file IMM-3043-95).

     Following the issue of the Minister's opinion, an appeals officer of the respondent Minister's department advised the Appeal Division that the opinion had been issued and, it was said, this, in effect, terminated the Division's jurisdiction to consider the appeal of the applicant in relation to the outstanding deportation order. Counsel for the applicant made written submissions arguing to the contrary and the Appeal Division advised that it would treat the matter as a motion by the Minister to dismiss the applicant's appeal and that both parties should prepare formal submissions to be heard by oral argument.

     Thereafter, before the Appeal Division had dealt further with the matter, so that the applicant's appeal had been initiated and heard but not disposed of by the Division, the applicant was removed from Canada by officers of the respondent's department acting under the outstanding deportation order that was the subject of the appeal to the Appeal Division. His removal was completed despite submissions of his counsel that since his appeal had not been disposed of he had a statutory right to a stay of removal proceedings pursuant to s. 49 of the Act. As noted earlier, the applicant sought a stay of his removal by Court order, but his application was dismissed on the basis that no irreparable harm was established if he were to be deported before determination of his application for leave and for judicial review. The decision to execute the deportation order, which was effected on December 13, 1995, is the subject of the second application for judicial review in Court file IMM-3528-95.

The issues

     When leave was granted in relation to both applications, they were ordered to be heard together. When they came on for hearing another application, Luksicek v. M.C.I., IMM-3160-95, was presented at the same time since it raised issues expressed in the same way as the issues in IMM-3043-95, the first of the applications by Mr. Pratt, concerning the decision to render the danger opinion on behalf of the Minister. The issues posed are as follows.

1. The Minister erred in law and exceeded his jurisdiction by rendering an opinion that the Applicant was a danger to the public and executing the Applicant's deportation order pursuant to s.70(5) of the Immigration Act, when the Applicant's appeal to the Immigration Appeal Division had already commenced as contemplated by s. 13(4) of the Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, 42-43-44 Eliz. 11, Chapter 44.

2. The Minister failed to observe principles of natural justice or procedural fairness in rendering to [sic] opinion pursuant to s. 70(5) of the Immigration Act that the Applicant constituted a danger to the public in Canada.

3. The Minister failed to observe principles of fundamental justice pursuant to s. 7 of the Charter of Rights and Freedoms in rendering an opinion pursuant to s. 70(5) of the Immigration Act that the Applicant constituted a danger to the public in Canada.

4. The vague and overly broad wording of the phrase "constitutes a danger to the public in Canada" in s. 70(5) of the Immigration Act violates s.7 of the Charter because it does not permit the Applicant to know what test or standard he must meet to avoid being found "a danger to the public".

     Essentially the same issue as the first one noted above is raised as the primary issue in IMM-3528-95, the second application here by Mr. Pratt concerning the decision to remove him from Canada by executing the outstanding deportation order. It is urged that at the time that action was taken the applicant's appeal to the Appeal Division had commenced but had not yet been determined and the applicant, it is urged, was entitled to a statutory stay of removal pursuant to s. 49 of the Act.

     The first issue, set out above, insofar as it concerns the application of s-s. 70(5) and the applicant's right to appeal to the Appeal Division, in my opinion, is to be determined in light of the decision by the Court of Appeal in Tsang, which dealt with similar legislative provisions.

     The second, third and fourth issues raised on behalf of Mr. Pratt in IMM-3043-95, and for Mr. Luksicek in IMM-3160-95, as noted in the discussion which follows, are here disposed of in light of the decision of the Court of Appeal in Williams.

     The essential facts in Williams were similar to those in the cases of Pratt and Luksicek. In Williams the applicant for judicial review, of the Minister's opinion that he constituted a danger to the public in Canada, was a native of Jamaica who came to Canada in 1976, when he was nine years of age, and he continued to reside here as a permanent resident since then. From 1984 to 1989 he was convicted of five offenses, including a criminal offence of assault and four offenses of trafficking in narcotics, including an offence for which, in 1992, he was sentenced to four years imprisonment. While he was incarcerated, an adjudicator found Williams was a person described in paragraph 27(1)(d) of the Immigration Act and a deportation order was issued against him.. That order he appealed to the Immigration Appeal Board, but before his appeal was heard he was notified, in November 1995, that the delegate of the Minister had signed an opinion under s-s. 70(5) of the Act that he constituted a danger to the public in Canada.

     Thereafter, Williams' application for leave, and for judicial review, was allowed. The hearing judge set aside the Minister's opinion on the basis that there was a denial of fundamental justice, natural justice and fairness because the Minister did not give reasons for the opinion under s-s. 70(5). Four questions concerning that determination were certified pursuant to s-s. 83(1) of the Act, and these were considered by the Court of Appeal at a hearing on March 20, 1997 and dealt with by Judgment and Reasons issued on April 11, 1997.

The application of s-s. 70(5)

     The first issue raised in the cases at bar concerns the application of s-s. 70(5) in light of the statutory interpretation of s-s. 13(4) of the Amending Act, which provides for the application of s-s. 70(5) in regard to matters in process when the amendment came into force. As noted earlier, in the cases of both applicants, Pratt and Luksicek, after deportation orders were issued against them, each filed a notice of appeal, seeking to contest the deportation order before the Appeal Division, as they were entitled to do under s. 70 of the Act as it then applied.

     The Amending Act changed that regime by adding s-s. 70(5), which came into force on July 10, 1995. It provides:

70. (5) No appeal may be made to the Appeal Division by a person described in subsection (l) 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(l)(c), (c.l), (c.2) or (d);

(b) a person described in paragraph 27(l)(a.l); 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.

The Amending Act by s-s. 13(4), provided for the application of s-s. 70(5) in a period of transition, in the following terms, in both official languages:

13.(4) Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person had been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.l of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5).

13.(4) Le paragraphe 70(5) de la même loi, édicté par le paragraphe (3), s'applique aux appels interjetés dans le cadre de l'article 70 dont l'audition n'est pas commencée à la date de son entrée en vigueur; cependant, toute personne visée peut, dans les quinze jours suivant la date à laquelle elle est avisée que, selon le ministre, elle constitue un danger pour le public au Canada, présenter une demande de contrôle juriciaire, dans le cadre de l'article 82.l, à l'égard de la mesure de renvoi ou de renvoi conditionnel.

     For the applicant it is urged that the phrase "on or before the coming into force of that subsection", in the opening words of the English version of s-s. 13(4), modifies the word "made" but not the word "commenced". The plain grammatical meaning, it is said, leads to the conclusion that s-s. 70(5) may apply only where the applicant's appeal to the Appeal Division has been "made" before July 10, 1995 and where the appeal has not commenced, that is, the hearings have not commenced (a time of commencement determined in accord with Chow v. Canada (Solicitor General), (1994), 83 F.T.R. 73, 27 Imm. L.R. (2d) 271), before the Minister forms her opinion pursuant to s-s. 70(5). In both these cases it is urged, in Pratt by hearings conducted September 7, 1995, and in Luksicek by hearings conducted September 5, 1995, that the appeal had commenced before the Minister's opinion was communicated, though the appeal had not been determined, since decision had been reserved at the end of the hearing in each case.

     Thus in both cases it is urged that the applicant was entitled to a stay under paragraph 49(l)(b) of the Act which provides:

49.(l) Subject to subsection (l.l), the execution of a removal order made against a person is stayed

...

(b) in any case where an appeal from the order has been filed with the Appeal Division until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned;

...

     The applicant notes that the French text of s-s. 13(4) clearly provides that s-s. 70(5) applies to appeals when the hearing had not commenced before the date that subsection came into force, that is on July 10, 1995. Further, it is contended that while the English version, as interpreted by the applicant, and the French version, are both clear and not ambiguous but are in conflict, the applicant should have the benefit of the version which interferes least with pre-existing rights. For the Minister it is submitted that the interpretation of the English text is clearly the same as that of the French text, that they do not conflict, and that s-s. 70(5) was applicable to the circumstances of both the cases of Mr. Pratt and Mr. Luksicek, since in both cases the appeal hearings had not commenced before July 10, 1995.

     When the Appeal Division considered the appeal of the applicant Luksicek in the spring of 1996, the argument of the applicant dealt only with this issue. In its decision dated May 5, 1996, leading to its order of May 10, 1996, which dismissed the appeal for lack of jurisdiction since the conditions of s-s. 70(5) were met with the Minister's opinion, the Division's decision stated in part, in relation to s-s. 13(4) of the English text of that amending Act:

Grammatically, the lack of a comma between the phrases "on or before the coming into force of that subsection" and "in respect of which the hearing has not been commenced" and the existence of the word "and" between the two phrases, indicate that the sentence should be read conjunctively and that the timing requirement of "on or before the coming into force of that subsection" applies to both parts of the sentence.

     That decision of the Appeal Division was contrary to two earlier decisions of the Division, referred to by counsel for Mr. Pratt, in which the Division considered the application of s-s. 70(5). In those earlier decisions, Barnes v. Minister of Citizenship and Immigration, Doc. No T95-02198, Nov. 3, 1995, and Smith v. Minister of Citizenship and Immigration, Doc. No T94-05202, Jan. 26, 1995, the Appeal Division found the English version of s-s. 13(4) of the Amending Act to be ambiguous, and in the result those decisions supported the interpretation urged for the applicant in this case.

     A similar issue arose in relation to similar words used by Parliament in s-s. 15(3) of the same Amending Act, S.C. 1995, c.15, which relates to the application of s-s. 77(3.01) of the Act, enacted and in force at the same time as s-s. 70(5). The same words are used in the English and French texts of s-s. 15(3) as in s-s. 13(4), quoted above, of the Amending Act.

     In Tsang v. Minister of Citizenship and Immigration, (1996), 107 F.T.R. 214, my colleague Mr. Justice Dubé found no ambiguity in the English text of s-s. 15(3). He held that it clearly applied to exclude appeals, in that case under s-s. 77(3.0l), only where the appeal hearing had been commenced before July 10, 1995. If there were any uncertainty arising from the English text, the French text clearly supported the application of the Act as thus construed. That decision was recently upheld by the Court of Appeal in Tsang, supra. In his decision for that Court, Mr. Justice Marceau said, in part:

With respect, I do not accept that there is ambiguity in the English version of the provision...It seems to me that the second interpretation suggested gives no effect to the fact that the subject of the sentence is "subsection 77(3.01) of the Act," not "the appeal," and particularly presupposes the insertion of the words "before the filing of the Minister's opinion" after the phrase "the hearing has not been commenced." Such a reading, to me, is not open to the interpreter.

In any event, even if there were an ambiguity in the English version, the French version of the provision is not at all ambiguous and indicates beyond question that the first interpretation of the English version corresponds with the intent of Parliament. As the motions judge said, the principles of statutory construction would then require the ambiguity in the English text to be resolved so as to conform with the non-ambiguous French text. No secondary principle of statutory construction would come into play.

I will add, finally, that there is nothing in the Act which restricts the time-frame within which the Minister may exercise his or her power to reach an opinion that an individual is a danger to the public. There are obvious policy grounds for maintaining as much latitude in that process as possible in order to provide the maximum protection to the Canadian public. The intent of Parliament in that respect is to me perfectly clear.

     The decision of the Court of Appeal in Tsang would appear to put to rest the question here raised about the interpretation of s-s. 13(4) of the Amending Act. By analogy from that decision, it was open to the Minister in dealing with the circumstances of the applicant Pratt, and with Luksicek as well, to determine that each one constituted a danger to the public in Canada. By virtue of s-s. 70(5) of the Act, when the danger opinion was rendered, each one lost the right to appeal to the Appeal Division since his appeal hearing had not commenced before July 10, 1995 when that provision came into force.

     Thus, in respect of the first issue raised in the case of Mr. Pratt in IMM-3043-95, and the primary issue raised in his second application in IMM-3528-95, I conclude the Minister did not err in law by exceeding her jurisdiction in rendering an opinion pursuant to s-s. 70(5) in relation to the applicant.

     I turn to the other submissions made in regard to Mr. Pratt in IMM-3528-95 , and similarly raised in the case of Mr. Luksicek in IMM-3160-95.

Principles of natural justice or procedural fairness

and the decision pursuant to s-s. 70(5)

     The second issue raised by the applicant is that the Minister failed to observe principles of natural justice or procedural fairness in rendering the opinion pursuant to s-s. 70(5) of the Act with reference to the applicant.

     It is urged for the applicant that in this case the Minister erred by failing to provide an oral hearing, so that the applicant had no opportunity to cross-examine witnesses whose written reports or statements were included in materials put before the Minister's delegate, and moreover no written reasons were provided by the Minister for the decision under s-s. 70(5).

     At least in part, that argument is based upon a submission that the Minister was here acting in a judicial or quasi-judicial capacity, a submission based on comparison with the role of the Appeal Division acting pursuant to s-s. 70(1), as it applied and was invoked to act by the applicant prior to July 10, 1996, and it is based as well on the significance for the affected party of a decision made pursuant to s-s. 70(5).

     In Williams, (supra, at p. 11 of the decision) Mr. Justice Strayer for the Court of Appeal describes the Minister's opinion, as provided by the subsection in question, as an exercise of discretion, stated in the statute in subjective, not objective, terms. He refers to "ample authority", that, "unless the overall scheme of the Act indicates otherwise...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". Moreover, he indicates that, absent evidence to the contrary, a reviewing court must assume the decision-maker acted in good faith in considering the material before him or her.

     The other factors underlying the applicant's submission concerning failure to observe natural justice or procedural fairness are also dealt with by Strayer J.A. in Williams. Referring to the Supreme Court of Canada decision in Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711 at 734, he notes that in the case of permanent residents, like Mr. Williams in the case before him, as one might say for Mr. Pratt in this case or Mr. Luksicek in the case argued with this, the individual concerned deliberately violated an essential condition under which he was permitted to stay in Canada, i.e., by commission of serious criminal offenses. In such a case, any right of appeal originally conferred by Parliament can be qualified or abolished by Parliament, as Parliament here did in enacting s-s. 70(5). The fact that an appeal before the Appeal Division is replaced by an administrative discretionary decision subject to judicial review was found by Strayer J.A. in Williams to create no constitutional violation, or breach of fairness, where, as here, the matters put before the Minister were known to the applicant who was given an opportunity to comment on them, in writing, before the decision was made. While it is argued in relation to Mr. Pratt that the specific recommendation to the Minister's delegate by departmental officials was not known to the applicant and he had no opportunity to comment on that, I do not find this to be a breach of fairness or of natural justice. All matters underlying that recommendation were known to, and opportunity was provided for comment by, the applicant. The recommendation itself is simply a conclusion, the possibility of which was known to the applicant who had an opportunity to comment on the record on which that recommendation was based.

     The procedure established by departmental guidelines created no procedural unfairness and the process followed here, in accord with those guidelines, as in the similar case of Williams, met requirements for natural justice and procedural fairness.

     Nor did the absence of reasons for the Minister's decision violate any principle of fairness or of natural justice. In Williams, Question 4, dealt with by the Court of Appeal, was this:

4.      Does the failure to provide reasons for a determination under subsection 70(5) that a person constitutes a danger to the public in Canada, in the context of the procedure being used, breach the requirements of natural justice or procedural fairness?

In that case the question was answered in the negative and in reaching that conclusion Mr. Justice Strayer stated (at p. 26):

...The decision-making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met.

     In my view, in light of the approval by the Court of Appeal of the process followed on behalf of the Minister in Williams, a process similar to that followed in this case, the minimal requirements for natural justice and for procedural fairness were here met. On the basis of Williams, in this case even though there was no oral hearing, the specific recommendation made to the Minister's delegate was not known to the applicant in advance, and the Minister provided no reasons for her opinion, it cannot be concluded that the Minister failed to meet the requirements for natural justice and procedural fairness.

Subsection 70(5) and s. 7 of the Charter

     The third issue raised by the applicant concerns the application of s-s. 70(5), as in this case, in light of the assurance under s. 7 of the Charter, and the guarantee by that provision that:

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.

This issue concerns the application of s. 7 of the Charter in a general sense and in particular in regard to the lack of reasons provided for the Minister's determination. In my opinion, the issue is effectively resolved by the Court of Appeal decision in Williams. There the first question to which the Court responded was as follows:

Does subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 engage interests affecting liberty and/or security of the person pursuant to section 7 of the Charter of Rights and Freedoms?

That question was answered in the negative by the Court of Appeal.

     I set out the basis of the applicant's argument that the decision in question, to formulate the opinion that the applicant constitutes a danger to the public in Canada, engages s. 7 of the Charter. The argument is based on the perception that the opinion, or the decision to make it, is a decision for detention and removal, or deportation of the applicant. As Strayer J.A. speaking for the Court of Appeal in Williams makes clear, the decision is not one for any of those consequences. Rather, it is a decision, the consequences of which the learned justice describes as follows (at p. 12):

Firstly, for the reasons set out above I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister's humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay.

Secondly, even accepting the motion judge's premise that it is the Minister's opinion which causes the removal of Williams, I am not persuaded that this engages a "liberty" or "security of the person" interest under section 7 of the Charter.

     Having dealt with removal of the applicant from Canada as being in accord with a deportation order made under the Act and not questioned by the applicant, Strayer J.A., in Williams (at p. 13) referred to the decision of the Court of Appeal in Chiarelli, [1990] 2 F.C. 299 at 318-19, 323 (C.A.), and to that Court's decision in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696, 18 Imm. L.R. (2d) 165 (F.C.A.). He concluded (at p. 15) that on the basis of the jurisprudence to date he was unable to conclude that "liberty" includes the right of personal choice for permanent residents to stay in this country where, as was said in the Supreme Court of Canada decision in Chiarelli, the persons concerned had deliberately violated an essential condition under which they were permitted to remain in Canada.

     No argument is here directed to the right to life and security of the person as affected by the decision under s-s. 70(5). In my view, in light of the decision of the Court of Appeal in Williams, it cannot be concluded that a decision under s-s. 70(5) engages the right to liberty in the circumstances of this case. As in Williams, the opinion here formed under s-s. 70(5) did not engage or violate any s. 7 Charter interests of the applicant.

Alleged vagueness in the wording of s-s. 70(5) and s. 7 of the Charter

     The final argument raised by the applicant in this case is that the wording of s-s. 70(5), in particular the phrase "constitutes a danger to the public in Canada" violates s. 7 of the Charter because it does not permit the applicant to know what test or standard he must meet to avoid being found "a danger to the public".

     Again, as with other issues raised, the Williams decision of the Court of Appeal is instructive. In the context of a question whether s-s. 70(5) is unconstitutionally vague in light of s. 7 of the Charter, Strayer J.A. for the Court of Appeal said (at pp. 15-17):

While it is clear that undue vagueness could violate the requirements of fundamental justice, I agree with the learned motions judge that subsection 70(5) does not display such vagueness.

It has been said by the Supreme Court in the Nova Scotia Pharmaceutical Society case [[1992] 2 S.C.R. 606 at 643] that a law is unconstitutionally vague "if it so lacks in precision as not to give sufficient guidance for legal debate". In the context of judicial review of a ministerial decision as to whether she "is of the opinion that a person constitutes a danger to the public in Canada" the question must be: does this phraseology give sufficient direction to the Minister so that both she and the Court can determine whether she is exercising the power for the purposes intended by Parliament? In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. 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 reoffender whose presence in Canada creates an unacceptable risk to the public. ... I agree with Gibson J. in the Thompson case [August 16, 1996, IMM-107-96 (F.C.T.D.) at 11 (unreported)] 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. ... 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.

I am therefore satisfied that the expression "danger to the public in Canada" sufficiently directs the Minister to the question which he or she needs to consider, and adequately permits a reviewing court to determine whether he or she has had regard to relevant considerations.

     As earlier noted, in Williams the Court of Appeal also dealt with the issue whether the lack of reasons for the Minister's opinion constitutes a denial of fundamental justice, and concluded that it did not. In this regard Strayer J.A. said (at pp. 20-21) as follows:

We are frequently told that the principles of fundamental justice are to be found in the basic tenets of our legal system. In my view those basic tenets have never imposed a duty on tribunals to give reasons where a statute has not specifically so provided. This is particularly the case where the decision in question is essentially discretionary. We have been referred to no authoritative jurisprudence relevant to the particular issues here which seriously questions these principles.

What has been recognized is that where a discretionary tribunal decision is either, on its face, perverse, or where there is evidence of facts being before the tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, a court may have to set aside the decision for one of the established grounds for judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc. In such cases the tribunal decision is set aside not because of a lack of reasons per se but because in the absence of reasons it is not possible to overcome the inference of perversity or error derived from the result or the surrounding circumstances of the decision. ...

The learned justice commented further, at p. 23:

... the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision-maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision-maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement.

[footnotes omitted]

     In light of the decision in Williams, I conclude that the applicant's arguments that s-s. 70(5) is unconstitutionally vague in light of s. 7 of the Charter, and that the absence of reasons for the Minister's opinion conflicts with the principles of fundamental justice in s. 7 of the Charter, are both unacceptable.

The second Pratt application (IMM-3528-95)

     The primary issue raised in this application concerns the first issue earlier dealt with, that is, the authority of the Minister to formulate an opinion under s-s. 70(5) of the Act after the appeal to the Appeal Division was filed and heard but not decided. As noted, in my opinion, the Minister was acting within authority delegated by the Act.

     A secondary aspect of the application in IMM-3528-95, also referred to in Mr. Pratt's other application and in that of Mr. Luksicek, and briefly stated in written submissions but not argued at any length in writing or at the hearing of these applications, concerns the application of s. 49 of the Act when an opinion under s-s. 70(5) has been determined. I repeat that provision, so far as it is here relevant.

49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed

...

(b) in any case where an appeal from the order has been filed with the Appeal Division until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned.

     In light of that provision, the argument for Mr. Pratt in IMM-3528-95, apart from the Minister's authority to render an opinion under s-s. 70(5), not fully argued but set out in writing, is that the Minister had no authority to execute the outstanding deportation order before the Appeal Division had "heard and disposed of" the appeal of the applicant.

     In Solis v. Minister of Citizenship and Immigration, IMM-9-97 and IMM-4898-96, March 19, 1997 (F.C.T.D.), my colleague Mr. Justice Gibson refused to grant an order staying execution of a removal order made against a person who had been determined to be one who, in the opinion of the Minister's delegate, constituted a danger to the public in Canada pursuant to s-s. 70(5), and also pursuant to other provisions of the Act. Gibson J. declined to grant a stay order on the basis that there was already a statutory stay in place pursuant to paragraph 49(1)(b) of the Act, for the applicant had filed an appeal which had not been "heard and disposed of" or determined to have been "abandoned" by the Appeal Division. He concluded that an opinion under s-s. 70(5) did not, in itself eliminate the statutory stay applicable under paragraph 49(1)(b), and the Court of Appeal decision in Tsang did not determine that question.

     While this issue was not argued in Tsang, the question to which the Court of Appeal responded in that case was as follows:

When an appeal is made by a sponsor to the Immigration Appeal Division ("IAD") prior to July 10, 1995, with respect to a sponsoree who is inadmissible pursuant to s. 19(1)(c), (c.1), (c.2) or (d) of the Immigration Act, and the hearing before the IAD has commenced after July 10, 1995, does the effect of the Minister issuing a "danger to the public" opinion extinguish the sponsor's right of appeal pursuant to s. 77(3.01) of the Act and s. 15(3) of Bill C-44 and thereby terminate the jurisdiction of the IAD with respect to the appeal?

The answer to that question was "yes". In the course of his decision for the Court of Appeal, Marceau J.A. discussed the matter of the effect of the opinion that a person, being sponsored for immigration in that case, constituted a danger to the public in Canada. He said, in part, (at p. 5):

...The "validity" of the Minister's opinion is necessarily dependant on its consequence; it will be said to be "valid" if it produces the only thing it is meant to produce, i.e. if it extinguishes the appeal, the sole purpose of the Ministerial power.

                                 [footnote omitted]

     In Williams, decided April 11, 1997, after the decision of Gibson J. in Solis, Mr. Justice Strayer, in discussing the effect of the Minister's opinion under s-s. 70(5), said, in part (at pp. 9-10):

Williams' counsel also complains that, once the right of appeal was terminated, he lost the statutory stay of deportation to which he was previously entitled under paragraph 29(1)(b) of the Act. Such stays arise automatically when an appeal is filed with the Appeal Division and can last for several years pending the final disposition of the appeal. In place of this the respondent was put in the position, once the Minister's opinion issued, of having to launch judicial review proceedings against the deportation order and then having to convince a judge that the deportation order should be stayed pending determination of the judicial review. ...

The effect then of the Minister forming and giving notification of her opinion under subsection 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of his discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under paragraph 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. ...

     In view of the decision in Williams, it is my opinion that the appeal to the Appeal Division initiated by Mr. Pratt, which the Division had heard but not determined, was effectively rendered nugatory, or was effectively extinguished, by Parliament's determination that in the circumstances the applicant could not exercise the right of appeal granted by s-s. 70(1). While it is true the Appeal Division had not heard and disposed of the appeal, it could provide no possible disposition other than to recognize that under the Act, by virtue of the Minister's opinion under s-s. 70(5), the Appeal Division had no jurisdiction to deal with the appeal by Mr. Pratt. In the circumstances, in my opinion the very basis of the statutory stay under paragraph 49(1)(b) of the Act, that is, an outstanding appeal the outcome of which was not determined, is effectively removed by the rendering of the Minister's opinion under s-s. 70(5). In my view, the implications of the Williams decision are clearly that the ground for a statutory stay under paragraph 49(1)(b) is removed once a Ministerial decision is made under s-s. 70(5).

     Thus, I conclude that the decision to execute the outstanding deportation order was within the authority of the Minister under the Act after the opinion was determined under s-s. 70(5) that the applicant constituted a danger to the public in Canada. From that time the statutory stay pursuant to paragraph 49(1)(b) was effectively removed. Thus an order goes dismissing Mr. Pratt's application for judicial review in Court file IMM-3528-95.

Conclusion

     As noted earlier, following the hearing of these applications counsel submitted proposed questions for consideration for certification under s-s. 83(1) for the Court of Appeal. Those questions related essentially to matters now resolved, in my opinion, by decisions of that Court in Tsang and in Williams, as described in these reasons. No further issues were raised which would warrant certification for consideration by the Court of Appeal.

     In these circumstances, the application for judicial review by the applicant Pratt, raised in IMM-3043-95 in relation to the Minister's opinion formed under s-s. 70(5) of the Act, and the application by the applicant Pratt raised in IMM-3528-95 in relation to the decision to execute an outstanding deportation order against him, are dismissed.

     For reasons similar to those set out in relation to the second, third and fourth issues here raised on behalf of Mr. Pratt, issues that were also raised at the hearing of the application by Milan Luksicek in Court file IMM-3160-95, that application for judicial review is also dismissed by separate order.

     A copy of these reasons should be filed on each of the files concerning applications by Mr. Pratt, that is, i.e. IMM-3043-95 and IMM-3528-95. A copy is also appended to brief reasons describing the factual background in relation to the application by Mr. Luksicek, i.e. on file IMM-3160-95.

     _________________________________

     JUDGE

Ottawa, Ontario,

April 30, 1997.