Docket: IMM-3399-10
Citation: 2011 FC 885
BETWEEN:
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ROMAN CHERNIKOV
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Minister’s delegate dated May 19, 2010, wherein the applicant was
found to constitute a danger to the public in Canada under paragraph 101(2)(b)
of the Act and is ineligible for refugee consideration.
[2]
The applicant requests that the decision of the Minister’s delegate
be set aside and the claim remitted for redetermination. In addition, the applicant
seeks costs in the amount of $7,500.
Background
[3]
Roman
Chernikov (the applicant) was born in the Kyrgyz Soviet Socialist Republic, now Kyrgyzstan, on February
19, 1972.
[4]
The
applicant left for Poland in 1990 and claimed refugee protection in Germany in 1991
which was denied. The applicant then returned to Kyrgyzstan where he
lived until 2000. From 2000 to 2006, the applicant resided in the United
States.
[5]
In
February 2004, the applicant was convicted of impaired driving causing bodily
injury in California. He was
further convicted of a probation violation and failure to appear in connection
with the impaired driving conviction.
[6]
The
applicant entered Canada in August 2006. He claimed refugee protection
in October 2009.
Minister’s Delegate’s
Decision
[7]
The
Minister’s delegate summarized the applicant’s criminality including charges
for disorderly conduct, robbery and possession of a controlled substance of
which the applicant was not convicted. He noted that he gave little weight to
the charges which did not result in convictions but noted that they provide
evidence of police involvement on numerous occasions.
[8]
The
Minister’s delegate then considered the circumstances of the applicant’s
convictions finding that the applicant pled no contest to impaired driving
causing bodily harm under the California Vehicle Code, division 11,
article 2, §23153(b). The applicant was released on his own recognizance, with
conditions, but was convicted of failure to appear. The Minister’s delegate
noted that the applicant successfully completed his drinking driver program on
April 5, 2005 but was subsequently convicted of violating his probation and
sentenced to two years. The Minister’s delegate determined that the length of
the applicant’s sentence indicated the severity of the crime according to the
sentencing judge.
[9]
The
Minister’s delegate then engaged in a danger assessment. He found that the
offence contrary to section 23153(b) of the California Vehicle Code
equates to paragraph 253(1)(b) of the Criminal
Code, RS 1985, c C-46, which is
punishable by a maximum term of imprisonment of ten years under subsection
255(2).
[10]
The
Minister’s delegate reviewed the applicant’s counsel’s submissions that Canada Border Services
Agency (CBSA) included statements about the applicant’s hospitalization for
alcohol withdrawal in an inadmissibility report pursuant to subsection 44(1)
and section 55 of the Act (the section 44 report) provided to the Minister’s delegate.
The Minister’s delegate found that the applicant was provided with an
opportunity to release his medical records to the CBSA to establish why he was
hospitalized.
[11]
The
Minister’s delegate found that the offence of impaired driving causing bodily
harm occurred because of the applicant’s problem with alcohol or drugs and that
the applicant was unable to comply with the terms of his probation or parole.
The Minister’s delegate found that the applicant has a continuing problem with
drugs or alcohol abuse which remains inadequately treated and therefore he may
reoffend by committing a similar offence in Canada. The Minister’s
delegate concluded that this presents an unacceptable risk to the public and
therefore the applicant was found inadmissible for serious criminality.
Issues
[12]
The
issues are as follows:
1. What is the appropriate
standard of review?
2. Did the Minister’s delegate
base his decision on an erroneous finding of fact that the applicant was
previously charged with robbery?
3. Was there a breach
of procedural fairness?
Applicant’s Written Submissions
[13]
The
applicant submits that the Minister’s delegate erred in finding that the
applicant was charged with robbery. The applicant submits that the US Federal
Bureau of Investigation report notes all arrest entries and the delegate
erroneously conflated the arrest entries with criminal charges. This error
influenced the Minister’s delegate’s danger assessment of the applicant. The
applicant submits that even if he were charged with these offences, it was an
error for the Minister’s delegate to find the charges to be evidence that the
applicant would reoffend.
[14]
The
applicant argues that the Minister’s delegate improperly relied on information
which was not disclosed. He submits that CBSA breached procedural fairness by
not disclosing the criminal documentation or the medical and financial evidence
referred to in the Minister’s delegate’s danger opinion. CBSA provided no
verifiable evidence that the applicant was being treated for alcohol
withdrawal. The Minister’s delegate’s request that the applicant produce his medical
records to counter CBSA’s allegations inappropriately reversed the onus of
proof. The onus was on the Minister’s delegate to establish that the applicant
is a danger to the public.
[15]
The
applicant submits that there was insufficient evidence for the danger opinion.
There was no evidence to support the finding that the applicant has a real
problem with drugs and alcohol. The Minister’s delegate had no details of the
offence or the applicant’s history. A danger opinion must be based on
underlying evidence and as this one was not, the judicial review should be
allowed.
Respondent’s Written Submissions
[16]
The
respondent submits that the applicant has not shown that the charges listed by
the Minister’s delegate were only arrests. Moreover, the Minister’s delegate
was entitled to rely on the evidence surrounding any charges that did not lead
to a conviction, as per Sittampalam
v. Canada (Minister of Citizenship and Immigration),
2006 FCA 326. The Minister’s delegate
gave little weight to any of the charges which did not result in
convictions and the applicant has not proven and found only that there was evidence
of police involvement on numerous occasions. The applicant has not proven that
the Minister’s delegate based his decision on any erroneous findings of fact.
Further, at no point does the applicant deny that he was charged with the
crimes listed in the summary of criminality and his counsel’s submissions are
not evidence.
[17]
The
respondent submits that the medical information was disclosed to the applicant through
the section 44 report. The applicant’s counsel had the opportunity to respond
to the information and the applicant had the opportunity to release his medical
records to CBSA, which he chose not to do. As such, the applicant has waived
the right to assert procedural unfairness. The respondent further submits that
even if the applicant has not waived procedural fairness, the onus of proof is
not on the respondent and nor does procedural fairness require the CBSA to
disclose information it receives from tips from reliable sources.
[18]
Finally,
the respondent urges the Court to rely on the further affidavit of CBSA officer
Kane, filed on December 9, 2010, which included fifteen pages of medical
documents concerning the applicant. These documents indicate that the applicant
was, in fact, being treated for alcohol related issues and does have a serious
problem with alcohol. The respondent submits that these documents are
admissible despite being new evidence and hearsay as they are necessary for the
respondent to rebut statements made by the applicant in his memoranda and they
are reliable because they were made about the applicant by Calgary Health
authority personnel.
Analysis and Decision
[19]
Issue
1
What is the
appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a
particular issue, the reviewing court may adopt that standard (see Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[20]
Questions
of procedural fairness, including the right to know and be able to respond to
the case against oneself, are evaluated on a standard of correctness (see Noha
v Canada (Minister of
Citizenship and Immigration), 2009 FC 683 at paragraph 21).
[21]
Issue
2
Did the Minister’s
delegate base his decision on an erroneous finding of fact that the applicant
was previously charged with robbery?
The applicant submits that
there are two problems with the Minister’s delegate’s findings regarding the
criminal charges against him. First, that he was not charged but rather only arrested
for the offence of robbery. Second, that even if he were charged, it was an
error for the Minister’s delegate to use a charge which did not result in
conviction as evidence of the applicant’s likelihood to reoffend in Canada.
[22]
Regardless
of whether the applicant was arrested or charged with robbery in the United
States,
the Minister’s delegate
did not rely on the charges or arrests in the danger assessment. The Minister’s
delegate reviewed the offence in California of impaired driving causing bodily harm, the
equivalent offence in Canada. The Minister’s delegate
then determined that the applicant was likely to reoffend based on the
information in the section 44 report that the applicant has a continuing
problem with alcohol which is untreated.
[23]
The
charge of robbery was not relevant to the Minister’s delegate’s conclusions.
[24]
Issue
3
Was there a breach of
procedural fairness?
The respondent submits that
procedural fairness was not breached when CBSA included unsourced medical
information in the section 44 report, and, even if there were a breach, the
applicant waived his right to assert procedural unfairness rights by refusing
to produce his medical records to contradict the allegations of the CBSA
officer.
[25]
According
to the affidavit of CBSA officer Kane, the CBSA officer received a tip from
Calgary Health Region that the applicant had been hospitalized for alcohol
withdrawal issues and had checked out against the orders of the doctors.
[26]
The
CBSA officer included this information in his section 44 report to the Minister’s
delegate for use in the danger assessment. However, the officer did not include
the source of the information or any documentary evidence such as medical
records.
[27]
The
respondent submits that procedural fairness does not require CBSA to disclose
information it receives from tips from reliable sources. However, this runs
contrary to the guidelines for officers requesting a danger opinion. The ENF
28 Ministerial Opinions on Danger to the Public and to the Security of Canada developed
by CIC, indicates in section 7.5 that “all documentation must be releasable to
the person concerned and to the person’s counsel” and that a CIC or CBSA
officer should not present information to the Minister’s delegate which is “speculative in nature”,
“cannot be sourced”, or “was not disclosed to the person by CIC.”
[28]
While
the ENF 28 Manual is only a guideline and policy document, it outlines the
appropriate conduct in drafting a danger opinion. The CBSA officer should not have
included the information from the Calgary Health Region tip in the section 44
report and doing so amounted
to a breach in procedural fairness.
[29]
The
applicant’s counsel objected to the inclusion of the medical information in the
section 44 report. Counsel’s danger opinion submissions state that there was a
“lack of any disclosed medical or other evidence to corroborate this finding.
The office has submitted no hospital records, charts or statement from doctors
to verify any of his statements or conclusions.”
[30]
I
will not consider the further affidavit of the CBSA officer which includes
medical documentation on the applicant’s hospitalization and treatment.
Affidavits containing extrinsic information may be admitted in judicial review
proceedings where they are relevant to reviewing issues of procedural fairness
or jurisdiction at the level of the decision maker and where they are necessary
(see Quiroa v Canada (Minister of Citizenship and Immigration) 2007 FC
495 at paragraphs 26 and 27). The information in the further affidavit was not
before the delegate at the time of drafting the danger opinion. The
information, although related to the issues before this Court, does not address
the breach of procedural fairness that occurred in including in the danger
opinion unsourced information that was not disclosed to the applicant. The
further affidavit is therefore not properly before this Court.
[31]
The
respondent submits that after reviewing these submissions, the Minister’s delegate
provided the applicant with the opportunity to release his medical records to
CBSA and by not doing so, the applicant waived the right to claim a lack of
procedural fairness.
[32]
Contrary
to the respondent’s position that the “onus of proof is not on the respondent”,
the applicant was not under a duty to produce his medical records, as the Minister’s
delegate does, in fact, bear the burden to show that the applicant is a danger
to the public. As Madam Justice Judith Snider held in Hasan v Canada (Minister
of Citizenship and Immigration), 2008 FC 1069 at paragraph
13:
…the Minister bears the
burden of showing that the Applicant is a danger to the public. To reverse that
onus and require an applicant to satisfy the delegate that he or she is not a
continuing danger to the public has been held to be an error. Such was the
situation in Kim v. Canada (Minister of Citizenship & Immigration) (1997),
127 F.T.R. 181 (Fed. T.D.), where the
delegate's final recommendation read: "the information provided does not
satisfy me that this type of violent behaviour will not occur again."
[33]
This
onus of proof does not shift to the applicant simply because the CBSA officer
improperly included information which could not be sourced in the section 44
report submitted for the danger opinion. The breach of procedural fairness and
the attempt to reverse the onus to the applicant to defend against the
allegations substantiating the danger opinion was an error of law requiring
judicial intervention.
[34]
As
such, I would allow the application for judicial review.
[35]
The
applicant has sought $7,500 for costs primarily because the respondent did not
disclose the additional medical evidence. I am not persuaded that the facts of
this case amount to “special reasons” as required by Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22.
[36]
The
application for judicial review is therefore allowed.
[37]
The
parties shall have one week from the date of this decision to submit any
proposed serious question of general importance for my consideration for
certification and three days will be allowed for any response.
“John
A. O’Keefe”
Ottawa, Ontario
July
14, 2011
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, RSC 2001, c 27
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72.(1) Judicial review by the Federal Court
with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Criminal Code, RS 1985, c C-46
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253.(1) Every one commits an offence who
operates a motor vehicle or vessel or operates or assists in the operation of
an aircraft or of railway equipment or has the care or control of a motor
vehicle, vessel, aircraft or railway equipment, whether it is in motion or
not,
(a) while the
person’s ability to operate the vehicle, vessel, aircraft or railway
equipment is impaired by alcohol or a drug; or
(b) having
consumed alcohol in such a quantity that the concentration in the person’s
blood exceeds eighty milligrams of alcohol in one hundred millilitres of
blood.
255.(1) Every one who commits an offence
under section 253 or 254 is guilty of an indictable offence or an offence
punishable on summary conviction and is liable,
(2) Everyone
who commits an offence under paragraph 253(1)(a) and causes bodily harm to
another person as a result is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years.
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253.(1)
Commet une infraction quiconque conduit un véhicule à moteur, un bateau, un
aéronef ou du matériel ferroviaire, ou aide à conduire un aéronef ou du
matériel ferroviaire, ou a la garde ou le contrôle d’un véhicule à moteur,
d’un bateau, d’un aéronef ou de matériel ferroviaire, que ceux-ci soient en
mouvement ou non, dans les cas suivants :
a)
lorsque sa capacité de conduire ce véhicule, ce bateau, cet aéronef ou ce
matériel ferroviaire est affaiblie par l’effet de l’alcool ou d’une drogue;
b)
lorsqu’il a consommé une quantité d’alcool telle que son alcoolémie dépasse
quatre-vingts milligrammes d’alcool par cent millilitres de sang.
255.(1)
Quiconque commet une infraction prévue à l’article 253 ou 254 est coupable
d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire ou par mise en accusation et est passible :
(2)
Quiconque commet une infraction prévue à l’alinéa 253(1)a) et cause ainsi des
lésions corporelles à une autre personne est coupable d’un acte criminel
passible d’un emprisonnement maximal de dix ans.
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ENF 28
Ministerial Opinions on Danger to the Public and to the Security of Canada
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1. What this
chapter is about
The purpose of
this chapter is to define the policies and procedures with respect to
ministerial danger opinion reports.
This chapter
aims to provide functional guidance and direction to officers, managers and
others at Citizenship and Immigration Canada (CIC) and the Canada Border
Services Agency (CBSA) who
are involved
in the decision-making process and the issuance of danger opinions.
7.5.
Documentation
All
documentation must be releasable to the person concerned and to the person’s
counsel.
When possible,
certified copies should be made by the issuing authority of the original
document.
Criminal
documentation which must be provided with the danger opinion submission
include:
• an A44
report highlights (IMM 5051B or IMM 5084B), which documents the person’s
criminal and personal history (employment, family, community involvement,
associations, etc.) in Canada;
• police
occurrence or observance reports linking the person to criminal activity
and/or known associates, if releasable;
• pre-sentence
reports or the judge’s sentencing remarks, which should determine that the level
of risk is consistent with the officer’s recommendation;
• Probation
and Parole Services and Correctional Services Canada documentation addressing
rehabilitation issues;
• Correctional
Services Canada reports that include information about
the crime;
• the RCMP
Summary of Police Information (C-480) must be obtained by forwarding the
person’s
fingerprints to the RCMP. After an RCMP Summary of Police Information is
obtained,
conviction certificates for each conviction are not required;
• for an
A115(2)(a) case, the person’s Personal Information Form (PIF) and/or the RPD reasons,
whenever available, should be included;
• police
occurrence reports, which are often voluminous and do not necessarily reflect
what was established in court;
• the elements
of proof with regard to outstanding charges can only be used as secondary evidence
to warrant a danger opinion; and
• charges that
have been withdrawn or stayed and absolute or conditional discharges are not
to be included
and must be blocked out unless they indicate a pattern of negative behaviour,
namely,
conditional discharge for trafficking followed by a conviction for
trafficking. Officers will make a note to file, and legibly sign and date the
documents.
Supplemental
documentation required:
• all
evidence, whether it be positive or negative;
• evidence
which demonstrates the person’s lifestyle and values;
• evidence of
rehabilitation, which must be considered before seeking a Minister’s opinion;
and
• information
concerning the person’s behaviour during immigration proceedings.
Documentation
which should not be included:
• statements
which are speculative in nature;
• information
which cannot be sourced;
• information
which was not disclosed to the person by CIC;
• media
accounts concerning the person and the offences committed—since the accuracy
of these accounts may be questionable; and
• information
relating to charges under the Youth Criminal Justice Act that have been
withdrawn or
stayed. Absolute or conditional discharges must be blocked out (refer to
section 7.8 below).
7.6.
Procedural fairness
The
decision-making process for a Minister’s opinion must adhere to the
principles of procedural fairness. The person concerned must be fully
informed of the case and be given a reasonable opportunity to respond to any
information the decision-maker will use to arrive at a decision.
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1.
Objet du chapitre
Le
présent chapitre vise à définir les politiques et les procédures concernant
les avis de
danger
émis par le ministre. Il vise également à fournir des directives
fonctionnelles aux agents, gestionnaires et autres membres du personnel de
Citoyenneté et Immigration Canada (CIC) et de l’Agence des services frontaliers
du Canada (ASFC) qui participent à la prise de décisions
et
à l’émission des avis de danger.
7.5.
Documentation
On
doit pouvoir transmettre tous les documents à la personne en cause ou à son
conseil.
Dans
le mesure du possible, il faut obtenir des copies certifiées du document
original de
l'autorité
émettrice.
Documents
devant être présentés avec la demande d’avis de danger :
•
les grandes lignes du rapport rédigé en vertu du L44 (IMM 5051B ou IMM 5084B)
qui
documentent
les antécédents personnels et criminels d'une personne (emploi,
famille,
engagement communautaire, associations, etc.) au Canada;
•
le constat ou le rapport d'observation des autorités policières qui
établissent des liens
entre
l’intéressé et des partenaires connus, s'il est possible de divulguer ces
documents;
•
des rapports présentenciels ou les remarques du juge au moment du prononcé de
la
sentence
qui devraient permettre de déterminer que la recommandation de l'agent est
pertinente en fonction du niveau de risque;
•
les documents des Services de probation et de libération conditionnelle et de
Service
correctionnel
Canada, qui traitent des questions de réadaptation;
•
les rapports des Services correctionnels Canada qui incluent des
renseignements
sur
le crime;
•
pour obtenir le Sommaire des renseignements judiciaires de la GRC (C-480), il
faut
envoyer
les empreintes digitales de la personne à la GRC. Si on dispose du Sommaire
des renseignements judiciaires de la GRC, on n'a pas besoin du certificat de
déclaration de culpabilité pour chacune des condamnations;
•
pour tout cas visé au L115(2)a), il faut inclure le Formulaire de
renseignements personnels (FRP) de la personne et (ou) les motifs de la SPR,
s'ils sont accessibles;
•
les constats de police, qui sont souvent volumineux, mais ne reflètent pas
toujours ce
qui
a été établi au tribunal;
•
les éléments de preuve liés à des accusations en instance peuvent être
employés
uniquement
comme preuves secondaires pour justifier un avis de danger;
•
les accusations suspendues ou retirées, et les libérations absolues ou
conditionnelles
peuvent
être employées seulement si elles sont liées à une série d’accusations
semblables,
p. ex. libération conditionnelle suivi par une condamnation pour trafic
des
stupéfiants. Les agents doivent signer de façon lisible, donner la date et
inscrire
une
remarque au dossier.
Documents
supplémentaires requis :
•
toutes les preuves, qu'elles soient positives ou négatives;
•
des preuves qui permettent de mieux connaître les valeurs et le style de vie
de la
personne;
•
des preuves de la réadaptation, aspect dont il faut tenir compte avant de
demander
l'avis
du ministre;
•
des renseignements concernant le comportement de la personne au cours des
procédures
d'immigration.
Documents
ne devant pas être joints à la demande :
•
les énoncés de nature hypothétique;
•
les renseignements pour lesquels on ne dispose pas de la source;
•
les renseignements qui n'ont pas été divulgués à la personne par CIC;
•
les témoignages des médias concernant la personne et les infractions
commises,
puisqu'on
peut remettre en question l'exactitude de ces témoignages;
•
les renseignements concernant les accusations déposées en vertu de la Loi sur
le système de justice pénale pour les adolescents qui ont été retirées ou suspendues,
de même que les absolutions inconditionnelles ou sous condition (voir la
section 7.8 ci-dessous).
7.6.
Équité de la procedure
Dans
le cas où le ministre émet un avis, le processus de décision doit respecter
les
principes
de l'équité de la procédure. La personne en cause doit connaître en détail
l'accusation
à laquelle il répond et doit avoir la possibilité de réagir à tout
renseignement
sur
lequel le décideur s'appuiera pour prendre une décision.
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California Vehicle Code
23153. (a)
It is unlawful for any person, while under the influence of any alcoholic
beverage or drug, or under the combined influence of any alcoholic beverage and
drug, to drive a vehicle and concurrently do any act forbidden by law, or
neglect any duty imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the driver.
(b) It is
unlawful for any person, while having 0.08 percent or more, by weight, of
alcohol in his or her blood to drive a vehicle and concurrently do any act
forbidden by law, or neglect any duty imposed by law in driving the vehicle,
which act or neglect proximately causes bodily injury to any person other than
the driver.
In any
prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her blood at
the time of driving the vehicle if the person had 0.08 percent or more, by
weight, of alcohol in his or her blood at the time of the performance of a
chemical test within three hours after driving.
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