Singh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 795

Date: 20030626

Docket: IMM-667-02

Citation: 2003 FCT 795

Toronto, Ontario, June 26^th, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                                                                 GURPREET SINGH

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Gurpreet Singh (the "Applicant") seeks judicial review of a decision of Claudette Deschênes, Minister's delegate, Director General, Case Management (the "Minister's delegate"), dated February 10, 2002, in which the Minister certified an opinion that the Applicant constituted a danger to the public of Canada pursuant to sections 53(1) and 70(5) of the former Immigration Act, R.S.C. 1985, c. I-2, (the "former Act ").

FACTS

[2]                 The Applicant, a citizen of India, became a permanent resident of Canada on November 27, 1993. He was thirteen years old at that time. He and his mother were sponsored by their father who had been granted Convention refugee status in Canada.

[3]                 On December 28, 1998, the Applicant and three friends drove to another friend's house, intoxicated. The Applicant took a handgun from the car and accidentally shot his friend and killed him. He claimed that the handgun did not belong to him, but to another occupant of the vehicle. He claimed that he did not intend to shoot the deceased, that he did not know the gun was loaded and that it went off accidentally. At the time of the crime, the Applicant was 18-years old and he did not have a criminal record.

[4]                 The Applicant pleaded guilty to manslaughter and was convicted of this offence, pursuant to section 234 of the Criminal Code, R.S.C. 1985, c. C- 46, on September 1, 2000. He was sentenced to 32 months imprisonment, taking into account 20 months he had spent in pre-trial custody. Pursuant to section 236 (a) of the Criminal Code, the minimum punishment for this offence is four years and the maximum punishment is imprisonment for life.

[5]                 In the reasons for sentence, Justice David Watt of the Ontario Superior Court of Justice referred to the incident, as an "...insoluble equation: alcohol, plus youthful naiveté, plus handguns equals death."

[6]                 On November 20, 2000, the Respondent sent the Applicant a "Notice of intention to seek the opinion of the Minister" that the Applicant was a danger to the public of Canada pursuant to subsections 70(5) and 53(1) of the former Act. Attached to this notice was the Applicant's "criminal narrative report" pursuant to section 27(1) of the former Act, his "correctional plan" from Correctional Service Canada and a transcript of the proceedings at the Applicant's plea and sentencing, before the Ontario Superior Court of Justice on September 1, 2000.

[7]                 The Applicant, through counsel, made submissions on January 11, 2001, opposing the request for a danger opinion. The Applicant was issued a deportation order on May 15, 2001. He filed an appeal against the deportation order to the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") the same day.

[8]                 On August 13, 2001, Immigration disclosed a "Ministerial Opinion Report" and "Request for Minister's Opinion" and gave the Applicant a chance to respond. On September 12, 2001, Applicant's counsel sent rebuttal submissions in response to the above reports.

[9]                 The Applicant's appeal to the IAD was heard on January 22, 2002. The case concluded that day and the decision was reserved.

[10]            On February 10, 2002 the Minister's delegate issued her opinion that pursuant to subsections 53(1) and 70(5) of the former Act, the Applicant constituted a danger to the public in Canada. On February 20, 2002, the Minister's delegate sent the Applicant reasons for her decision. The danger opinion was issued prior to the IAD's decision, therefore section 70(5) of the former Act curtailed the Applicant's right to appeal and the appeal was dismissed due to lack of jurisdiction.

[11]            The Applicant did not file a personal affidavit in this proceeding and instead provided an affidavit from an assistant in the Applicant's counsel's law office, attesting that due to the Ontario Public Service Employees' Union strike, counsel had difficulties reaching the Applicant who was, at that time, incarcerated at Bath Institution, near Kingston, Ontario.

ISSUES:

1.          Is this application moot? If it is, should the court exercise its discretion to hear and decide the case?

2.          If this decision is to be decided, did the Minister's delegate err in certifying that the Applicant constituted a danger to the public of Canada pursuant to subsections 53(1) and 70(5) of the former Act?

3.          What is the appropriate order?

1.          Submissions on Mootness

[12]            Pursuant to my written direction on April 11, 2003, the Applicant and Respondent provided written submissions on the issue of mootness, in light of the decisions of the Federal Court, Trial Division in Macdonald v. Canada (Minister of Citizenship and Immigration), 2003 FCT 324, [2003] F.C.J. No. 446 (T.D.)(QL), judgment released on March 19, 2003 and Bouttavong v. Canada (Minister of Citizenship and Immigration), 2003 FCT 362, [2003] F.C.J. No. 511 (T.D.)(QL), judgment released on March 27, 2003.

[13]            The Applicant argues that pursuant to the two-step analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the matter between the parties is not moot. In the alternative, the Applicant submits that if the Court finds the issues to be moot, this is a case where the Court should employ its discretion to decide the application because the outcome still has relevance to the Applicant.

[14]            In this case, the Applicant submits that he continues to have a tangible and concrete dispute in issue. The Applicant says that his case is distinguishable on the facts from Bouttavong, supra, and MacDonald, supra, because his reasons for desiring that the Minister's decision be quashed have nothing to do with what was there at issue. In those cases, applicants were trying to preserve rights related to the appeal of deportation orders and the initiation of refugee claims when the coming into force of IRPA made those outcomes impossible. In Bouttavong, supra, and MacDonald, supra, there was no value in rendering judgment, as the issues were merely academic.

[15]            Applicant's counsel has submitted that the Applicant is somewhat disadvantaged by this issue being brought up at this stage, after the hearing, and has requested that, to the extent that certain facts must be raised that are not filed by way of affidavit, that the Court accept them.    If the issue had been raised earlier, the Applicant could have filed an affidavit concerning the reasons why he still has a stake in this judicial review proceeding.

[16]            The Applicant is currently in India, as he was deported at some point in the time period after starting this judicial review. The Applicant submits that according to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), he retains the right to apply for a temporary resident permit pursuant to section 24 of that Act. The Applicant's entire nuclear family reside in Canada and he came to Canada when he was thirteen years old.    Therefore, the Applicant says he has much to gain from a positive determination in this judicial review application. Section 24 of IRPA states:

[17]            One of the factors that will be considered, submits the Applicant, in an application for a temporary resident permit is the chance of an applicant's recidivism. The existence of a public danger opinion against the Applicant indicates that the Minister believes he is a "present and future danger" to the public of Canada. This will have a serious adverse effect on the Applicant's future application for a temporary resident permit. The Applicant argues that quashing such a decision, if it was improperly or unfairly made, will to some extent undue the such adverse effect, as the Court's comments on the fairness or reasonableness (or lack thereof) of the danger opinion would be significantly probative and relevant to his future success or failure in making a temporary resident permit application.

[18]            The Applicant relies on the case of O.N. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 322 (T.D.)(QL), where the court found the judicial review of a negative Post-Determination Refugee Claimants in Canada ("PDRCC") decision to be moot because the PDRCC process no longer existed under IRPA and in any event, the applicant was eligible to apply for protection under the Pre-Removal Risk Assessment ("PRRA") process under IRPA. Nonetheless, the court decided to hear the matter, recognizing that to the extent that the impugned decision remained unreviewed, it was possible that it might influence a future immigration officer. If the decision was allowed to stand, there would be at least the potential for " collateral [negative] consequences to the applicant"( para. 32 of O.N., supra, brackets in original).

[19]            The Applicant further submits that the issue that he has raised concerning the application of a reverse onus affects not only his case, but many others as well.

[20]            The Applicant also argues that the objective of judicial economy would not be served by dismissing this application for mootness, as this case has already been fully argued before the Court.

[21]            The Respondent submits that this matter is moot as the concept of finding an applicant to be a danger to the public in Canada has been replaced by the concept of serious criminality found in section 36(1) of IRPA.

[22]            The Respondent says that O.N., supra, has been overtaken by Justice Gibson's decision in MacDonald, supra, where the Court concluded that when the likelihood of success in a subsequent matter under the former Act is very remote, the matter is moot, whether or not a danger opinion exists. The Respondent argues that in MacDonald, supra, Justice Gibson did not follow his earlier decision in O.N., supra.

[23]            The Respondent argues that whether or not the danger opinion is quashed the Applicant's chances of returning to Canada, either under a temporary resident permit or by applying for permanent residence pursuant to humanitarian and compassionate considerations from abroad is remote and highly speculative, given that he is defined as a "serious criminal" for the purpose of IRPA.

[24]            Finally, the Respondent argues that it would be inappropriate to certify a question as the determination regarding mootness is only applicable to the transitional period following the repeal of the former Act and the coming into force of IRPA and danger opinion decisions are very fact specific.

Finding on Mootness

[25]            The standard approach respecting the issue of mootness is that set out by the Supreme Court of Canada in Borowski, supra. In that case, Justice Sopinka wrote at page 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

[26]            In my opinion, the tangible and concrete dispute which gave rise to this application for judicial review has disappeared. The coming into force of new legislation means that the decision under review, a certified opinion that the Applicant is a danger to the public of Canada, is no longer provided for in IRPA. In Bouttavong, supra, at paras. 31-32, Justice O'Keefe held that IRPA made no provision for finding a person to be a danger to the public in Canada and that this concept had been replaced by the concept of serious criminality found in section 36(1) of IRPA.

[27]            The second branch of the analysis set out in Borowski, supra, involves a decision as to whether this court should exercise its discretion to hear and decide the judicial review, despite it being moot. The Supreme Court of Canada identified certain factors to consider when determining whether a case that is moot should still be heard: (1) the continued existence of an adversarial relationship between the parties, (2) whether hearing and deciding the case justified the expenditure of judicial resources, and (3) in the absence of a live controversy, would a decision of the court intrude on the function of the legislature.

[28]            First, the Supreme Court found that an adversarial context was needed to ensure that the issues were well and fully argued by parties who have a stake in the outcome. At page 359, Justice Sopinka stated:

It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context.

[Emphasis added]

[29]            The fact that a moot decision may have "collateral consequences" for an applicant was analysed in the immigration context in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.). There, Justice Rothstein (as he then was) stated at paragraph 14:

In this case, a decision very damaging to the applicant is now part of the applicant's record for immigration purposes. That decision could have an adverse effect on the applicant in any further proceedings he may wish to bring under Canada's immigration laws... It is quite conceivable that this decision could have a bearing on the success of the applicant's application. In these circumstances, a decision decided by reference to the wrong standard of proof and without affording the applicant procedural fairness, could potentially prejudice the applicant in the future.

[30]            Further, in O.N., supra, Justice Gibson relied on the Ramoutar decision in exercising his discretion to decide a judicial review application of a decision of the Respondent that was otherwise moot. Despite the fact that IRPA no longer provided for the decision under review, the court held that to the extent that the decision remained unreviewed, it could influence the applicant's future immigration applications and potentially have negative, collateral consequences for the applicant.

[31]            The Respondent submits that MacDonald, supra, has overruled O.N., supra. This is not correct, in my opinion.    The two cases are distinguishable and can quite properly coexist. In my view, Justice Gibson recognized this and described the differences between the two: see MacDonald, supra, paras 19-22. Justice Gibson held in MacDonald, supra, that there would be minimal negative collateral consequences for the applicant which would flow from not dealing with the substance of the application. In comparison to O.N. , supra, it was on the opposite end of a spectrum of adverse effects which would "almost inevitably follow" from not dealing with the impugned decision on its merits.

[32]            In the present case, the Applicant claims that serious collateral consequences will flow from the Minister's delegate's decision. Here, Applicant's counsel refers to the Applicant's intention to apply for a temporary resident permit pursuant to section 24 of IRPA, so that he may visit his nuclear family in Canada. The Applicant was deported from Canada, at some point, after commencing this application for judicial review. He would have to obtain such a permit in order to be allowed entry back into Canada. The continued existence of a the certified danger opinion would severely affect his chance of ever returning to Canada.

[33]            The Respondent does not take issue with the fact that the above factual evidence was not filed by affidavit. The Respondent only points out that the Applicant's chances of returning to Canada under a temporary resident permit are remote and speculative due to the fact that he would now be defined as a "serious criminal" under IRPA.

[34]            In my view, the Applicant has raised a reasonable possibility that the outcome of this judicial review proceeding will continue to have important collateral consequences for him, relative to any future application he may make with the Respondent. This indicates that the "adversarial relationship" between the parties remains and will continue in the future.

[35]            The second rationale described in Borowski, supra, is that of judicial economy, in the sense of rationing judicial resources. Here, the case was fully argued, without the issue of mootness being raised by either party, and prior to release of the decisions of Bouttavong, supra, and MacDonald, supra. As recognized in Borowksi, supra, the fact that a case has been fully argued is not, by itself, enough to justify hearing a moot application. However, in contrast to Borowksi, supra, this is a case where the decision will have "practical side effects on the rights" of the Applicant, "notwithstanding that it will not have the effect of determining the controversy which gave rise to the action" (Borowski, supra, page 360 and 364).

[36]            The third and final rationale from Borowski, supra, is that the Court must remain aware of its role as the adjudicative branch in the Canadian political system. As stated in Borowski, supra, at page 362, "Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch".

[37]            The reason for finding mootness in this case occurred due to a transitional issue, related to the coming into force of IRPA. Such circumstances will not endure for a long time period. Therefore, the concern that determining a moot issue would set an unnecessary precedent is contained. Determining this case will not intrude into the legislative branch of government.

[38]            I conclude that the Applicant's application for judicial review is moot, however, I will exercise my discretion to hear and decide this judicial review application.

2.          Error in law in certifying Danger Opinion

[39]            In my opinion, the danger opinion reached was based on an error in law, in that the Minister's delegate did not address the present or future danger posed by the Applicant to the Canadian public. The reasons for the decision do not reflect that the Minister's delegate turned her mind to the likelihood of recidivism of the Applicant. The Applicant's low possibility of re-offending was addressed in his correctional plan as well as his counsel's submissions, both of which were before the Minister's delegate.

[40]            It is apparent from the reasons for this decision, which incorporate by reference the "Request for Minister's Opinion" and the "Ministerial Opinion Report", that the Minister's delegate did not consider or analyse the present and future danger the Applicant posed to the public in Canada. There was a great deal on the record before the Minister's delegate regarding the likelihood of the recidivism, particularly the Millhaven Assessment Unit's correctional plan and assessment of the Applicant, the letters of support from his family, community and former employer and the circumstances of the crime itself, which indicated a reckless and careless accident, for which the Applicant had shown remorse.

[41]            In Thompson v. v. Canada (Minister of Citizenship and Immigration.)(1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.), Justice Gibson stated at paragraph 19:

..in order for the respondent to form an opinion pursuant to subsection 70(5), the fact of a conviction alone is an insufficient basis: the circumstances of each case must, over and above the conviction, indicate a danger to the public. By this, I do not wish to be taken as indicating that there is no instance where a danger opinion pursuant to subsection 70(5) could be properly issued where a person has only one conviction; I simply find that there must be circumstances in the case additional to a single conviction that indicate a danger to the public...

After citing with approval the case of Bahadori v. Canada (Minister of Citizenship and Immigration.) (1995), 95 F.T.R. 75, Justice Gibson continued at paragraph 20:

...I view the [Bahadori] decision as indicative of the meaning to be ascribed to "danger to the public", that is, that there be a "present and future danger" to the public, a concept consistent with a conclusion that the facts of any particular case must disclose more than a single conviction in the past to support a danger opinion.

[42]            The Federal Court of Appeal decision of Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) upon which the Respondent relies, addressed the definition of "public danger". It should be noted that Williams, supra, was questioned in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in relation to its holding that the duty of fairness does not require reasons in the situation of a danger opinion. However, the portion dealing with the definition of "public danger" remains good law. At paragraph 29 of Williams, supra, Strayer J.A. stated the following:

...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 re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable"because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. 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...

[Emphasis added]

[43]            My disposition in this case is in line with the reasoning of Williams, supra. I am not concluding that a particular piece of evidence should have been weighed more heavily than another, but simply that there must be some indication in the decision-maker's reasons (here comprising of the actual opinion itself and the two recommendation reports relied on by the Minister's Delegate) that the present and future danger to the public posed by the Applicant was in fact analyzed.

[44]            I have not dealt with the Applicant's arguments regarding reverse onus, bias and inadequacy of reasons. Briefly, I find that there is no basis to find that the Minister's delegate placed a reverse onus on the Applicant. I do not believe that this case rises to the level of a reasonable apprehension of bias or that the decision-maker was partial in making her decision, and these arguments cannot succeed.

[45]            As for the submission that the reasons are inadequate, the reasons are deficient in the sense that they indicate the error in law which occurred in this case. The reasons incorporate by reference and adopt the reasoning in the "Request for Minister's Opinion" and the "Ministerial Opinion Report". As stated in the Minister's Opinion:

I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Gurpreet Singh constitutes a danger to the public in Canada. It is my opinion that the risk that this person represents to Canadian society outweighs the risk that he may face upon return to India.

[46]            The "Request for Minister's Opinion" dealt with the risk to the Applicant if returned to India but does not address, in any analytical way, the issue of the likelihood of the Applicant's recidivism and present or future danger to the Canadian public. This opinion only contains a summary of the Applicant's submissions. The "Ministerial Opinion Report" is more of standard form with blanks filled in and does not contain any analysis of present or future danger.

[47]            In my opinion, the Minister's delegate's failed to consider a relevant component of the term "danger to the public", that is, the present and future danger which the Applicant poses to Canadian society and for that reason this judicial review will be allowed.

3.          Appropriate Order.

[48]            Sections 350(1) and (2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR—) state as follows:

[49]            The wording of section 350(2) is clear. "Determination" refers to the decision of the administrative decision-maker, as this is the meaning ascribed to "determination" in section 350(1) and also throughout subsections 350(3)-(6).

[50]            Section 350(2) of IRPR states that if a decision referred to in section 350(1), that is, a decision that would be referred back for determination by the Federal Court in accordance with the provisions of IRPA, was made pursuant to section 70(5) of the former Act and IRPA makes no provision for such decision, then no determination shall be made.

[51]            Pursuant to section 350(2), redetermination of a decision under section 70(5) of the former Act cannot be done pursuant to IRPA, as the "decision or act" at issue, that is, the decision to certify a danger opinion, no longer exists under IRPA. Therefore, an order requiring that the Minister redetermine the danger opinion cannot issue.

[52]            The powers of the Federal Court, Trial Division upon application for judicial review are set out in section 18.1(3) of the Federal Court Act, R.S.C. 1985, c. F-7:

[53]            Section 18.1(3)(b) provides this Court with the power, relative to a decision of a federal board, commission or other tribunal, to i) declare it invalid or unlawful, ii) quash it, set it aside or set it aside and refer the decision back for determination in accordance with such directions as the court considers appropriate, or iii) prohibit or restrain it. The power to simply quash or set aside a decision is clearly permitted by section 18.1(3)(b).

[54]            In Do v. Canada (Minister of Citizenship and Immigration) (2002), 226 F.T.R. 28, judgement delivered on November 7, 2002 after the coming into force of IRPA and the IRPR, Justice Beaudry, in dealing with a judicial review of a danger opinion made under the former Act, held that the application should be allowed and in view of section 350(2) of the IRPR, the decision was to be quashed only. The matter was not sent back for determination. A similar decision was reached in O.N., supra, where the decision under review was simply set aside. The court did not refer the matter back for redetermination, as the quashed decision no longer existed under IRPA.

[55]            In this case, for the reasons outlined above, the decision of the Minister's delegate, dated February 10, 2002, shall be quashed. There is no question for certification arising.

                                                  ORDER

This application for judicial review is allowed and the decision of the Minister's delegate, dated February 10, 2002, is quashed. No question is certified.                      

       "E. Heneghan"

                                                                                                      J.F.C.C.                       

FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              IMM-667-02

STYLE OF CAUSE:             GURPREET SINGH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        FEBRUARY 26, 2003

REASONS FOR ORDER

AND ORDER BY:                              HENEGHAN J.

DATED:                                                 JUNE 26, 2003

APPEARANCES:                                 Ms. Chantal Desloges

For the Applicant

Mr. John Loncar

For the Respondent

SOLICITORS OF RECORD:           Green & Spiegel

Toronto, Ontario

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 20030626

                         Docket: IMM-667-02

BETWEEN:

GURPREET SINGH

                                          Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                       Respondent

REASONS FOR ORDER   

AND ORDER