IMM-1153-96
B e t w e e n:
MESBERGH BERNAR SMITH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) for judicial review of a decision dated March 8, 1996, whereby the Minister of Citizenship and Immigration, by her delegate, found that the applicant constitutes a danger to the public in Canada, pursuant to subsection 70(5) of the Act. Leave was granted by the Honourable Mr. Justice Campbell on September 26, 1996.
The applicant was born in St. Ann, Jamaica on January 3, 1956. He was granted permanent resident status in Canada on August 28, 1984, having been sponsored by his now ex-wife, Lola N. Smith (Immigrant Visa and Record of Landing, Citizenship and Immigration Record (CIR), p. 32; Respondent's Memorandum of Argument (RM), p. 1). The applicant has one son, one daughter, and one stepson in Canada (Submissions of applicant's counsel to the Minister, CIR, p. 6).
Prior to his incarceration, the applicant was steadily employed with various cleaning and janitorial companies. Most recently, the applicant was self-employed for seven years in his own business, A 1 Building Services Janitorial Carpet Cleaning. The applicant has never relied on social assistance or unemployment insurance, and indicates that if he is allowed to remain in Canada, he intends to continue with his business (Submissions of applicant's counsel to the Minister, CIR, p. 6; Section 27(1) Highlights Report, CIR, p. 35).
On January 14, 1994, the applicant was convicted of theft under $1000 contrary to s. 334(B) of the Criminal Code, for which he received a conditional discharge. On June 22, 1994, the applicant was convicted of possession of a narcotic for the purpose of trafficking contrary to subsection 4(2) of the Narcotic Control Act (NCA), R.S.C. 1985, c. N-1, for which he was sentenced to 30 months imprisonment, and possession of a narcotic contrary to subsection 3(1) of the NCA, for which he received a sentence of 6 months to be served concurrently (RCMP list of criminal convictions, CIR, p. 33; Affidavit of Mesbergh Bernar Smith, Applicant's Application Record (AR), p. 9).
On August 30, 1994, a Report under section 27 of the Immigration Act was issued by an immigration officer, in which it was alleged that the applicant was a person described in paragraphs 27(1)(d)(i) and 27(1)(d)(ii) of the Act (since amended). On September 8, 1994, the same immigration officer completed a Section 27(1) Highlights Report, which included details of the applicant's criminal history, as well as details of his personal circumstances. The Report recommended that the applicant be reported for inquiry (CIR, pp. 34-35). An immigration inquiry was held on March 29, 1995. The adjudicator found the applicant to be a person described in paragraph 27(1)(d)(i) of the Act, which at the time read 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 an information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who |
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[ ... ]
| (d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of |
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(i) more than six months has been imposed, or
At the conclusion of the inquiry, the adjudicator issued a deportation order against the applicant pursuant to subsection 32(2) of the Act (CIR, p. 36). That same day, the applicant filed a notice of appeal from the deportation order with the Immigration and Refugee Board (Appeal Division)(IAD)(Affidavit of Mesbergh Bernar Smith, AR, p. 8).
On July 10, 1995, Bill C-44, An Act to Amend the Immigration Act and the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, C. 15 came into force. Among the changes brought about by Bill C-44 was the introduction of subsection 70(5), the "danger to the public" provision. Subsection 70(5) 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 |
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| (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c. 2) or (d); |
(b) a person described in paragraph 27(1)(a.1); 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. |
By letter dated February 6, 1996, the applicant was advised that the Minister of Citizenship and Immigration was considering whether to issue an opinion, pursuant to subsection 70(5) of the Act, that the applicant constitutes a danger to the public in Canada (Notice of possible issuance of the Minister's Opinion, CIR, p. 26). The letter informed the applicant of the materials which would be considered by the Minister in coming to her decision. He was accorded fifteen days from receipt of the notice in which to address this evidence by forwarding representations, information or evidence regarding the issue of whether he is a danger to the public. The letter also informed the applicant that the consequence of an opinion being issued pursuant to subsection 70(5) of the Act would be to remove his right of appeal to the IAD.
On February 19, 1996, applicant's counsel forwarded written submissions and letters of support from family, friends and business associates of the applicant. The letters portray the applicant as a hard-working, reliable, and non-violent person, who had committed himself to improving his work skills and general level of education while incarcerated (CIR, pp. 17-32). A letter from his Addictions Counsellor at Stony Mountain indicated that the applicant had been "a willing and attentive participant in the Cocaine Awareness program" which the Counsellor hoped would "help him to maintain a clean and sober lifestyle in the future" (CIR, p. 24). In her written submissions, applicant's counsel stressed the non-violent nature of the applicant's crime, and the fact that the applicant had been a productive member of Canadian society in the past, and wished to be so again upon his release from prison. She also emphasized that the applicant has a considerable support base in Canada consisting of friends, family, and former business associates.
On March 4, 1996, an immigration officer with the Case Management Branch of the Criminal Backlog Review Task Force completed a Criminal Backlog Review Ministerial Opinion Report (CIR, pp. 2-4). The report included information on the applicant's criminal record, the date of the deportation order issued against him, a summary of the submissions of the applicant's counsel, and a list of the supporting documents relied on in drafting the report. Under "Additional comments" the immigration officer made the following remarks:
| I do not concur with Counsel who states that Mr. Smith is not a danger to the public because his crime is not of a violent nature. |
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The thirty month sentence imposed by the Court reflects the severity of his actions.
The officer recommended that the Minister's opinion be requested that the applicant is a danger to the public for the purposes of subsection 70(5) of the Act. The Manager of the Criminal Backlog Review Task Force concurred in the opinion expressed by the immigration officer. His recommendation, dated and signed the 6th of March, 1996, included the following comments:
| - nature of crime & severity of sentence indicate that the subject is a danger to the public. |
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On March 8, 1996, the Minister of Citizenship and Immigration, by her delegate, issued the opinion pursuant to subsection 70(5) of the Act, that the applicant constitutes a danger to the public in Canada. As is always the case, no reasons for the danger opinion were given.
On April 1, 1996, the applicant filed this application for leave and for judicial review of the Minister's opinion.
By letter dated September 23, 1996, the Canada Immigration Centre in Winnipeg notified the applicant that arrangements had been made for his removal from Canada on September 27, 1996 (main file). On September 26, 1996, Mr. Justice Campbell issued an order staying the deportation order until such time as a question for certification regarding subsection 70(5) of the Act was determined by the Federal Court of Appeal in the case of Minister of Citizenship and Immigration v. Williams (April 11, 1997, A-855-96 (F.C.A.), overturning October 29, 1996, IMM-3320-95 (F.C.T.D.) - now reported at [1997] 1 F.C. 431). The Court of Appeal rendered judgment in that case on April 11, 1997. By order dated April 15, 1997, Mr. Justice Campbell ordered a further stay of deportation until May 27, 1997, the date on which this case was most recently scheduled to be heard. No further stays of execution appear on the file, although no further action to remove the applicant has been taken.
The effect of a danger opinion issued pursuant to subsection 70(5) of the Act is to remove the right of a person against whom a deportation order or a conditional deportation is made to appeal to the Immigration Appeal Division (IAD). Subsection 70(5) 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 |
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); 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.
As a preliminary argument, the applicant maintains that the Minister was without jurisdiction to issue the opinion that he constitutes a danger to the public in Canada because he initiated his appeal to the IAD before Bill C-44 came into force. Subsection 13(4) of Bill C-44 is the transition provision which addresses the application of subsection 70(5) of the Act:
| 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 has 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 82.1 of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5). |
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(emphasis not in original text)
In the present case, although the applicant filed his appeal with the IAD before July 10, 1995, the date that Bill C-44 came into force, no actual date for the hearing was ever set down. In written submissions, the applicant attempted to argue that, for the purposes of subsection 13(4), a hearing before the IAD is commenced the moment the appeal is filed with the IAD. This argument must be rejected. The issue was resolved by the recent decision of the Federal Court of Appeal in Tsang v. M.C.I. (A-179-96, February 11, 1997, (F.C.A.)), upholding the decision of Mr. Justice Dubé in (1996), 107 F.T.R. 214 (F.C.T.D.)). Tsang dealt with the appropriate interpretation to be given to subsection 15(3) of Bill C-44, the transitional provision governing the application of paragraph 77(3.01)(b) of the Act. Paragraph 77(3.10)(b) purports to remove the right of a sponsor to appeal to the IAD where the Minister issues an opinion that the "sponsoree" is a danger to the public. As with subsection 13(4) of Bill C-44, subsection 15(3) states that it "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." The Court of Appeal found that there was no ambiguity in s. 15(3): if the hearing before the IAD is commenced after July 10, 1995, the effect of the Minister issuing a "danger to the public" opinion pursuant to paragraph 77(3.01)(b) is to extinguish the sponsor's right of appeal to the IAD, even if the danger opinion is issued after the hearing before the IAD has already been commenced. As this Court noted in Gonsalves v. M.C.I. (IMM-1992-96, May 9, 1997, (F.D.T.D.)):
| The effect of Tsang is this: even if the hearing is commenced prior to the issuance of danger opinion [sic] the issuance of the danger opinion pursuant to subsection 70(5) of the Act strips the appeal division of the jurisdiction to hear the appeal (at page 8). |
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The applicant's preliminary argument therefore fails.
In written submissions, the applicant challenges the process leading up to the issuance by the Minister of the opinion that he constitutes a danger to the public in Canada, pursuant to subsection 70(5) of the Act. In the opinion of the Court, all of the applicant's arguments have been superseded by the decision of the Federal Court of Appeal in Williams, which found that the procedure currently in place complies with the requirements of procedural fairness, natural justice and fundamental justice.
The applicant objects that it was unreasonable for the Minister to conclude that he is a danger to the public in Canada on the basis of one conviction for a crime which involved no violence. The applicant has not demonstrated to the Court that the danger opinion itself should be "set aside...for one of the established grounds of judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc" (Williams, p. 6). The Criminal Backlog Review Ministerial Opinion Report set out the humanitarian and compassionate factors weighing in the applicant's favour, including the applicant's efforts to rehabilitate and improve himself while in prison, his commitment to restarting his business once released, and his family connections and obligations in Canada. It is true that there is no evidence of battery, wounding, abduction or other like crimes of violence committed by the applicant. But, cocaine is not aspirin: it can ruin lives as much as can extreme violence because it is addictive and makes its consumers forget their societal responsibilities. Frequently young, stupid or thoughtless cocaine consumers render themselves unfit to hold a job or hold a baby. The applicant by merchanting cocaine committed, then, acts of violence against Canada and Canadians.
As to the applicant's remorse, if any, there was some discussion by counsel, for the applicant's counsel argued that the Minister's decision was perverse, even on March 8, 1966 for opining that the applicant was evading responsibility, because, she said he had rehabilitated himself. That conclusion is not clear on the record. It is clear that he had experienced a certain self-interest in that he had almost ruined, if not lost, his own life. It is possible however to conclude that he evinced no remorse for the lives he might well have ruined by selling cocaine to susceptible fools. There is nothing before the Court now to indicate whether the applicant pleaded "Guilty" or not.
The Court's only concern is that by now, a year after release from prison, he could well be seen at last to be rehabilitated and as stated in Williams, it cannot be proved that he will reoffend. Perhaps he should be re-assessed on the eve of his deportation. If not he certainly will now bear some responsibility for his past offenses.
The report nevertheless recommended to the Minister that the applicant be found to be a danger to the public. Both the immigration officer and his manager placed significant weight on the applicant's trafficking conviction.
While the applicant obviously wished for the opposite result, there is nothing inherently absurd, perverse or capricious in the decision of the Minister's delegate to follow the recommendation in the Criminal Backlog Review Ministerial Opinion Report that a danger opinion should issue. As stated by Mr. Justice Strayer in Williams:
| I agree with Gibson J. in the Thompson case [footnote omitted] 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 offence 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 (at page 16). |
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(emphasis not in the original text)
Since the Court finds that the Minister committed no reviewable error, this application must be dismissed.
F. C. Muldoon
Judge
Winnipeg, Manitoba
July 15, 1997
FEDERAL COURT OF CANADA
TRIAL DIVISION
Court No.: IMM-1153-96
BETWEEN:
MESBERGH BERNAR SMITH
Applicant,
- and -
THE MINISTER OF CITIZEHSHIP AND IMMIGRATION
Respondent.
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REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1153-96
STYLE OF CAUSE: MESBERGH BERNAR SMITH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: July 14, 1997
REASONS FOR ORDER BY: Honourable Mr. Justice Muldoon
DATED: July 15, 1997
APPEARANCES:
Renate Krause for the Applicant
Sharlene M. Telles-Langdon for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
Legal Aid Manitoba
635 Broadway
Winnipeg, Manitoba
R3C 0X1 for the Applicant
Mr. George Thomson, Q.C.
Deputy Attorney General
of Canada,
Ottawa, Ontario for the Respondent
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