Canada (Minister of Citizenship and Immigration) v. Davis, docket IMM-1810-97

     IMM-1810-97

     IMM-1937-96

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Applicant

     - and -

     STEVE CARL DAVIS

     Respondent

AND BETWEEN:

     STEVE CARL DAVIS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant in IMM-1937-96, Steve Carl Davis, seeks judicial review of a decision of a delegate of the Minister of Citizenship and Immigration dated May 22, 1996, wherein the Minister, pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act), rendered an opinion that the applicant constitutes a danger to the public in Canada. The applicant in IMM-1810-97, the Minister of Citizenship and Immigration, seeks judicial review of a decision of the Immigration Appeal Division (the I.A.D.) dated May 1, 1997, wherein the I.A.D., based on the reasoning in this Court's decision in Athwal v. Canada (M.C.I.)¹, concluded that, notwithstanding the fact that a subsection 70(5) danger opinion had been issued against the respondent Steve Carl Davis, the latter had not lost his right of appeal from the deportation order issued against him, as he had not been determined by an adjudicator to have been convicted of an offence punishable by ten years or more of imprisonment. These two files were consolidated by Order of this Court dated May 20, 1997.

         The only issue at play in the Minister's application in IMM-1810-97 is of a jurisdictional nature, and concerns the interpretation to be given to the wording of paragraph 70(5)(c) of the Act. That provision reads as follows:

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

[. . .]

( c) a person described in paragraph 27(1)(d) who has been convicted of any offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

         In Athwal, Mr. Justice Dubé concluded that the I.A.D. erred in deciding to dismiss Athwal's appeal for lack of jurisdiction on the basis that the Minister had issued a subsection 70(5) danger opinion against him. In Mr. Justice Dubé's view, it was incumbent upon the case presenting officer to specifically lead evidence at the Section 27 inquiry as to the nature of the offences for which Mr. Athwal was convicted, and the sentence which could therefore be imposed. At page 7 of the decision, Mr. Justice Dubé stated the following concerning the circumstances of the hearing before the adjudicator:

Although the facts in the instance case indicate that the applicant was convicted of two offences, each of which carry a potential term of imprisonment of ten years or more, this fact was not determined by the adjudicator at the applicant's inquiry. At that inquiry, the applicant's counsel did concede that the applicant was a person who has been convicted under paragraph 27(1)(d)(i) of an offence for which a term of imprisonment of more than six months has been imposed; he did not concede that he has been convicted of an offence for which ten or more

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years may be imposed. Thus, the Minister's representative would have been required to lead evidence of that offence, but did not do so.

(My emphasis.)

         In the present case, after entering all of the material in support of the respondent's criminal convictions, including the Informations and the respondent's Criminal Record proving that the respondent received criminal convictions for offences punishable by a term of imprisonment of ten or more years, the adjudicator addressed Mr. Davis:

ADJUDICATOR: Mr. Davis, you told me understand what the allegations are against you, and you told me you understand the possible consequences from the allegations. What is your position on the allegations that are before me? Are you conceding or, putting it very bluntly, pleading guilty, that all this is correct, or does Ms. Rapaj have to prove things to me?

PERSON CONCERNED: From what I've read of these things, I don't (inaudible) are charges I was convicted.

ADJUDICATOR: So you are conceding everthing's here is all correct then?

PERSON CONCERNED: Yeah

ADJUDICATOR: There's nothing left for Ms. Rapaj to prove?

PERSON CONCERNED: No.

ADJUDICATOR: Very well. Mr. Davis I accept your concession of the facts. The facts are straightforward. They describe quite simply your situation that you are a permanent resident who has been convicted of certain offences. You readily admit that this is correct. In any event, if you didn't, the documentary evidence in absence of proof to the contrary would prove the situation. I accept your concession, the facts at issue, those being the facts of the allegation are found to be proven, and on the basis of the proven facts, I find that you are a person described in paragraph -- or subparagraph 27.1(d-1) of the Immigration Act as alleged. Given that finding, I hereby order you deported from Canada.

( emphasis added)

         Therefore, in the case at bar, evidence of the convictions was submitted. After the respondent conceded the facts as contained in the documentary evidence, the adjudicator went on to make a finding that the respondent had been convicted of certain offences which, by operation of law, were punishable by ten or more years of imprisonment. In my view, it is clear that in this case the respondent's general concession with respect to the allegations made against him in the Section 27 report necessarily encompassed the more specific concession that he was convicted of offences for which a term of imprisonment of ten or more years may be imposed. As the above extract demonstrates, the adjudicator specifically indicated to the respondent that the documentary evidence submitted by the Minister's representative, to which he was conceding, proved that he had been convicted of the "certain offences" described therein. Those "certain offences" included offences for which a sentence of ten or more years imprisonment may be imposed. This case is therefore distinguishable from the case of Athwal where the applicant had merely conceded that he was a person who had been convicted of an offence for which a term of imprisonment of six months had been imposed, but did not concede that he had been convicted of any offence for which a sentence of ten or more years may be imposed. There is yet another basis on which to distinguish this case from Athwal. Unlike what transpired at the inquiry in the present case, in Athwal the Minister did not produce evidence of the criminal convictions at issue, likely as a result of the concession Mr. Athwal had made. There were therefore no factual findings on which the adjudicator's decision was based, except for the narrow concession made by Mr. Athwal. Accordingly, there was no evidence or concession of any criminal convictions which, by operation of law, would be punishable by ten years or more of imprisonment.

         It is therefore clear that, to the extent that the Athwal decision is good law,² it would not operate in the circumstances of the case at bar to vitiate the applicability and operation of subsection 70(5) of the Act, which removes the respondent's right of appeal to the I.A.D.. Consequently, based on the decision in Tsang v. Canada (M.C.I.) (February 11, 1997), A-179-96 (F.C.A.) upholding the Trial Division's decision in (1996), 107 F.T.R. 214, it is my opinion that the I.A.D. lost jurisdiction over the respondent Davis' appeal from the deportation order issued against him once the Minister issued an opinion that the respondent constituted a danger to the public in Canada, pursuant to paragraph 70(5)(c) of the Act.

         Given the above reasons, the Minister's application in IMM-1810-97 must be granted, and the impugned decision set aside. It will further be declared that the I.A.D. lost jurisdiction over Steve Carl Davis' appeal from the deportation issued against him when the Minister of Citizenship and Immigration issued an opinion that the former constituted a danger to the public in Canada, pursuant to paragraph 70(5)(c) of the Act. The only question proposed for certification under subsection 83(1) of the Act by counsel for the respondent in application IMM-1810-97 is the question certified in Athwal. Given my finding that the present case is distinguishable from the case of Athwal, the question is irrelevant to the case at bar. This matter raises no other question of general importance for the purpose of certification.

         As to the application for judicial review of the danger opinion itself, in IMM-1937-96, in my view, other than the argument based on section 12 of the Charter, this application raises no issues that have not been effectively disposed of by the Federal Court of Appeal's recent decision in M.C.I. v. Williams (April 11, 1997), A-855-96. More specifically, concerning the issue of the non-disclosure of the Ministerial Opinion Report to the person facing deportation, it appears clear from the following extract from Williams that the Federal Court of Appeal was aware this Report had not been given to the respondent Williams before the issuance of the ministerial opinion pursuant to paragraph 70(5)(c) of the Act:

In short, Mr. Williams faces deportation because as a non-citizen he has committed serious crimes in this country. It is not suggested that he had other than fair trials leading up to his convictions; that his deportation order was wrong in law or in fact; or that he lacked the opportunity to express his views on all the material submitted to the Minister (other than the "Ministerial Opinion Report" summarizing that material for the Minister's delegate which was not given to the respondent at the time but which was produced for the purpose of judicial scrutiny in the judicial review).

         It is accordingly implicit in Williams, given the ultimate decision in that case, that the failure to disclose the Ministerial Opinion Report to the person facing deportation does not constitute in itself a violation of procedural fairness, so long as there are no significant facts in the report that do not appear in the material already provided to that person, which, in my view, is the case here.

         With respect to the applicant's argument that, in the circumstances, the loss of his appeal to the I.A.D. as a result of the issuance of the ministerial opinion pursuant to paragraph 70(5)(c) of the Act, constitutes cruel and unusual treatment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms, I am of the view that it must be set aside on the basis of the Supreme Court decision in Chiarelli v. Canada (M.E.I.) [1992] 1 S.C.R. 711, where Sopinka J. wrote for the full Court, at pages 735-736:

(b) Section 12

The respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the many "relatively less serious offences" which are covered by s. 27(1)(d)(ii).

I agree with Pratte J.A. that deportation is not imposed as a punishment. In [1993] S.C.R. 269">Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1993] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were "not concerned with the penal consequences of the acts of individuals". See also Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment & Immigration), supra. Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines "treatment" as "a process or manner of behaving towards or dealing with a person or thing . . . ." It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.

The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted

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conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.

(My emphasis.)

         Similarly, in the case at bar, it is unnecessary to determine whether deportation, as a result of the ministerial opinion issued pursuant to paragraph 70(5)(c) of the Act and the consequential loss of an appeal before the I.A.D., constitutes a "treatment" within the meaning of section 12 of the Charter, since I am of the view that such a deportation is not cruel and unusual. To paraphrase Sopinka J. in Chiarelli, the deportation of a permanent resident who has deliberately violated an essential condition of his being permitted to remain in Canada by committing criminal offences punishable by imprisonment of ten years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.

         For the above reasons, the applicant Davis' application in IMM-1937-96 is dismissed. Applicant's counsel proposed two questions for certification. The first question is alleged to arise from the case of Ibraham v. M.C.I. (November 29, 1996), IMM-766-96, which I note was decided before the Federal Court of Appeal's decision in Williams. The second arises from the case of Canepa v. Canada (M.E.I.) (1992), 93 D.L.R. (4th) 589, which left open the question of whether deportation constitutes "treatment" within the meaning of section 12 of the Charter. In my view, neither of these two questions warrant certification under subsection 83(1) of the Act, and this matter raises no other question of general importance for the purpose of such certification.

OTTAWA, Ontario

June 4, 1997

                                

                                         JUDGE

__________________

     ¹      (January 23, 1997), IMM-1458-96 (Dubé J.).

     ²      See Gonsalves v. M.C.I. (May 9, 1977), IMM-1992-96 wherein Muldoon J. took a different view of the matter to that adopted by Dubé J. in Athwal.