Date: 20001024
Docket: IMM-417-00
BETWEEN:
GERON ATWELL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant seeks judicial review of the decision, dated October 6, 1999, made by William Sheppit (the "Minister's delegate"), in which it was determined that the applicant constitutes a danger to the Canadian public, pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 [hereinafter the "Act"]. Leave to commence this application for judicial review was granted on June 19, 2000.
Background
[2] The applicant, Geron Atwell, is a 26 year old citizen of Trinidad. He was landed in Canada at the age of 17.
[3] On April 12, 1999, the applicant was convicted of importing a controlled substance, viz., cocaine, and sentenced to 30 months. He had tried to smuggle 800 grams of cocaine into Canada on his return from a trip to Trinidad in July 1997. He had hidden the drugs in his shoes. A deportation order was issued against the applicant based on this conviction.
[4] On July 12, 1998, the applicant was charged with assault causing bodily harm and taking a motor vehicle without the owner's consent. These charges stemmed from an incident involving the applicant's girlfriend. The applicant and his girlfriend were arguing while she was driving her father's car. The applicant had been drinking heavily at a wedding reception earlier that evening. He began hitting and punching his girlfriend. She stopped the car, they switched places, and continued the argument. The applicant also continued to hit his girlfriend; she became scared, jumped out of the car while it was moving, and sustained further injuries.
[5] The applicant was convicted on July 20, 1998 and received a suspended sentence and 18 months probation.
[6] The applicant was advised by letter, dated July 28, 1999, that Citizenship and Immigration Canada ("CIC") intended to request a danger opinion from the Minister. The letter indicated that the following material would be provided to the Minister: Immigrant Visa and Record of Landing; Warrant of Committal, dated April 12, 1999; 27 Report #N904396673; Criminal Narrative Report; CSC Intake Assessment; CSC Preliminary Assessment Report; CSC Correctional Plan; CSC Community Assessment; CSC Assessment for Decision. The letter states that copies of this material were attached. The applicant was also invited to make written submissions.
[7] The danger opinion was issued on October 6, 1999, and the applicant was removed from Canada on February 15, 2000.
Applicant's Position
[8] The applicant, relying on Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 [hereinafter Baker], contends that reasons are required for a decision made pursuant to subsection 70(5) of the Act. CIC has indicated to the Federal Court Registry, in a letter dated February 7, 2000, that no reasons were given for the decision (Applicant's Application Record, p. 12 ).
[9] The applicant also contends that there was a violation of the duty of procedural fairness in that two documents, the Request for Minister's Opinion and the Danger to the Public Ministerial Opinion Report, were not disclosed to him prior to the decision being made.
Respondent's Position
[10] The respondent maintains that no reasons are required because of the Federal Court of Appeal's decision in Williams v. Canada (M.C.I.), [1997] 2 F.C. 646 (F.C.A.) [hereinafter Williams], but that if reasons are required, the Ministerial reports constitute the reasons in a subsection 70(5) decision. Non-disclosure of the reports, according to the respondent, does not constitute a breach of procedural fairness if the reports are not based on extrinsic evidence or false information, neither of which is contended by the applicant.
Discussion
[11] Subsection 70(5) of the Immigration Act provides 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
(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 mposed.
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| 70(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_:
a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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[12] The main issue to be determined in this application for judicial review is whether reasons are required in a subsection 70(5) decision.
[13] In Ip v. Canada (M.C.I.) (2000), 4 Imm. L.R. (3d) 77 (F.C.T.D.) [hereinafter Ip], Mr. Justice Dubé reviewed Madam Justice L'Heureux-Dubé's decision in Baker, in particular the reasoning at paragraph 43, and held, at paragraphs 25-27:
| I agree with the applicant that written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act. This is clearly a case where a decision has enormous significance for the individual and is extremely critical to his future. The applicant will leave behind a wife and a child in Canada and face presumably hostile Chinese authorities from whom he fled to become a refugee here. Under these specific circumstances there was an obligation upon the Minister's delegate to explain why his decision, based solely on one crime, seems to have totally ignored the present day evidence which suggests that the applicant is no longer a danger to the public. |
| In Suresh v. Canada (M.C.I.), [footnote omitted] a very recent decision of the Federal Court of Appeal, counsel for the Minister did not dispute the proposition that written reasons are required. However, the parties disagreed on the adequacy of the reasons provided by the Minister (a memorandum prepared by departmental analyst Gauthier). Addressing that very issue, the Court stated that "the adequacy of these reasons is a matter which can be properly raised on a judicial review application to the extent that those reasons do not reflect consideration of relevant factors." |
| In the case at bar, there are no written reasons from the Minister or her delegate. Counsel for the Minister argued that no written reasons are necessary in this case pursuant to the Baker decision as "a Danger Opinion does not violate the Charter and is not a decision with significant consequences for the person with respect to whom the opinion is issued." Alternatively, he argued that if there is a duty to provide reasons, which the Minister expressly denies, then the "Request for the Minister's Opinion" meets the requirements set out in Baker. |
[14] Dubé J. characterized the Request for the Minister's Opinion as a "flimsy report" and did not accept it as reasons. Consequently, the danger opinion was quashed on the ground of failure to give adequate reasons.
[15] At this point, it should be noted that while the respondent Minister did not dispute in Suresh v. Canada (M.C.I.), [2000] F.C.J. No. 5 (Q.L.) (A-415-99, January 18, 2000) the proposition that reasons were required, the Federal Court of Appeal simply went along with this concession and did not explicitly rule that reasons are required in the issuance of all such danger opinions. Moreover, Suresh dealt with a paragraph 53(1)(b) decision, a decision that a Convention refugee poses a danger to the public in Canada.
[16] In Gonzalez v. Canada (M.C.I.) (IMM-2333-99 and IMM-2334-99, May 23, 2000) [hereinafter Gonzalez], Mr. Justice Campbell applied L'Heureux-Dubé J.'s reasoning in Baker and held that the importance of subsections 70(5) and 53(1) opinions are as "profound" as that of a humanitarian and compassionate decision and thus, reasons are required. Campbell J. went on to find that the Request for the Minister's Opinion report constituted reasons.
[17] The issue of the content of the duty of fairness owed by the Minister in forming a subsection 70(5) danger opinion was considered in Qazi v. Canada (M.C.I.), [2000] F.C.J. No. 1222 (Q.L.) (IMM-5317-99, July 26, 2000) [hereinafter Qazi]. Hugessen J. held that there was a breach of the duty of fairness because two reports, on which the Minister relied, were not disclosed to the applicant. However, Hugessen J. specifically declined to make a finding on the question of reasons and whether these reports amounted to reasons.
[18] On the other hand, in Tewelde v. Canada (M.C.I.) (2000), 5 Imm. L.R. (3d) 86 (F.C.T.D.) [hereinafter Tewelde], Mr. Justice Muldoon held, at paragraphs 24-25, that reasons are not required for subsection 70(5) opinions:
| The applicant's position that the duty of fairness requires reasons for both danger opinions is grounded on the judgment of Madam Justice L'Heureux-Dubé in Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, (No. 25823, July 9, 1999) (S.C.C.). In them, L'Heureux-Dubé J. confirms that a decision's importance for, or impact on, an applicant is a significant factor in determining the level of procedural fairness appropriate to the particular decision-making process. As the respondent submits, however, this point was not lost on Mr. Justice Strayer in Williams, supra where he concluded that reasons are not required in the case of a subsection 70(5) danger opinion. Strayer J. writes [at paragraph 12]: |
| What then did the respondent lose through the Minister forming the opinion that he is a danger to the public in Canada? He lost the right to pursue an appeal under paragraph 70(1)(a) on any question of law or fact or mixed question of law and fact. In place of this he was given the right to seek a judicial review which would be fully as effective in respect of any questions of law but not might provide as complete a review of findings of fact. This he did not do nor is it suggested that the respondent really has an unrequited desire to argue that the adjudicator erred in fact or law with respect to issuing the deportation order. In any event, the substitution of judicial review for a right of appeal, by virtue of the Minister forming his opinion, does not strike me as a serious effect on his rights. |
| Another reason to distinguish Madam Justice L'Heureux-Dubé's treatment of subsection 114(2) decisions, at least from that of subsection 70(5) opinions, is that the latter require a balancing of an individual's circumstances with the right of Canadians to circumscribe the amount of danger that they are willing to tolerate. As such, the nature of the opinions and the process followed in reaching them result in a tribunal with a much stronger administrative character than that which makes subsection 114(2) decisions. The decision in Baker, to the limited degree that the applicant relies on it, therefore, cannot be seen as having overruled Mr. Justice Strayer's cogent analysis. Reasons, therefore, continue not to be required for subsection 70(5) opinions. That they may be for other decisions, such as the ones made under paragraph 53(1)(d) of the Act (a fact which the respondent concedes), is irrelevant. As for whether an oral hearing is required, this Court finds that the relevant factors, including the impact of the delegate's subsection 70(5) opinion on the applicant, do not necessitate that one be convened. |
[19] In deciding whether reasons are required in the issuance of a danger opinion, the nature and significance of that decision must first be considered. In Williams, at paragraph 15, Mr. Justice Strayer held:
| The effect then of the Minister forming and giving notification of her opinion under subsection 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of her discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under paragraph 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. I therefore find it difficult to characterize the Minister's opinion as the causa causans of the respondent's deportation. It is not even possible to say that the Minister's opinion is the causa sine qua non because it cannot be assumed that in its absence the Appeal Division would have found some error of fact not discernible through judicial review or would have exercised under paragraph (b) a discretion more favourable to the respondent than that exercised by the Minister in considering humanitarian and compassionate grounds. |
[20] Strayer J.A. further held that a danger opinion is not equivalent to a deportation order: it applies to persons who are already under a lawful deportation order. This is significant, according to Strayer J.A., because the procedural requirements of fundamental justice vary with the context in which they are invoked.
[21] With regard to the specific issue of whether reasons are required, Strayer J.A. held at paragraphs 42-43:
| I have some difficulty with the notion that a decision without reasons is invalid on the sole ground that it may be difficult to review by an appeal court or a court exercising judicial review powers. Recognizing once again that reasons are highly desirable it is quite possible for a tribunal, or a judge for that matter, to render a proper decision without reasons. Experience shows us that this happens in courts every day. Why should it be otherwise with tribunals? This is particularly true where tribunals are exercising largely discretionary powers, such as the Minister under subsection 70(5) where he or she is not required to apply existing legal principles to specific conclusions of fact as does a court or many tribunals. |
| I am at a loss to know why courts can as a matter of law render decisions without reasons but may insist that tribunals cannot, as a matter of law do so. A rationale for this proposition, as enunciated in the Doody case and by the Motions Judge in this case, is that without reasons being given by a decision maker, a court on judicial review cannot tell if that decision is correct. With respect, it seems to me that this approach is based on the premise that decisions by tribunals and officials are presumptively wrong unless they can be proven to be correct. But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement. |
[22] The applicant relies on the decision in Baker for his argument that reasons are now required and that the Federal Court of Appeal's decision in Williams has been overtaken. I cannot agree with that contention. The decision in Baker dealt with issues of bias and the best interests of an applicant's Canadian born children in the context of a subsection 114(2) humanitarian and compassionate decision. Nothing in Baker states that Strayer J.A.'s decision in Williams must now be disregarded. Indeed, anything in Baker beyond bias and the best interests of Canadian born children vis-à-vis an H & C decision is obiter dicta and, as such, is not binding on this Court. I agree with Mr. Justice Muldoon's statement in Tewelde that Baker cannot be seen as having overruled Mr. Justice Strayer's cogent analysis in Williams. Furthermore, leave to appeal the Federal Court of Appeal's decision in Williams to the Supreme Court of Canada was denied: [1997] S.C.C.A. No. 332 (Q.L.) (S.C.C. File No. 26059). Accordingly, reasons are not required for a subsection 70(5) danger opinion.
[23] The second issue to be decided is whether the respondent was required to disclose the Ministerial reports to the applicant.
[24] In the case at bar, the Certified Tribunal Record contains a Danger to the Public Ministerial Opinion Report (Certified Tribunal Record, pages 16-18, with documents attached; there is no report in the record titled Request for the Minister's Opinion). The report is really more akin to a form, rather than any kind of summary or analysis. Part F, Recommendations, reads as follows,
| ON THE BASIS OF THE ABOVE INFORMATION AND HAVING CONSIDERED ALL RELEVANT FACTORS, I RECOMMEND THAT PURSUANT TO |
53(1)
| OF THE IMMIGRATION ACT, THAT THE MINISTER'S OPINION BE REQUESTED THAT THE ABOVE NAMED IS A DANGER TO THE PUBLIC. |
[25] In Bahrami v. Canada (M.C.I.) (1999), 168 F.T.R. 190 (T.D.), Sharlow J. held, at paragraph 46:
| The facts stated in the two reports are merely summaries of material in the record, and with the single exception referred to above, are reasonably accurate. In terms of fairness and fundamental justice, it is not critical that the applicant was not given the opportunity to review those reports, or was not afforded an interview. What is critical is that the applicant had the opportunity to review and make a submission about the documents on which those reports were based. |
[26] The opposite view has been taken by Hugessen J. in Qazi. In that case, the Court held that the failure of the respondent Minister to provide the applicant with an immigration officer's field report and a summary "headquarters" report constituted a breach of the duty of fairness.
[27] In Bhagwandass v. Canada (M.C.I.), [2000] 1 F.C. 619 (T.D.) [hereinafter Bhagwandass], Mr. Justice Gibson relied heavily on L'Heureux-Dubé J.'s analysis in Baker to conclude that the duty of fairness owed by the Minister in making danger opinion decisions is not minimal. Gibson J. held that the Federal Court of Appeal's decision in Williams, as well as other jurisprudence of this Court, had been overtaken by the Supreme Court decision in Baker. He concluded that it was a breach of the duty of fairness not to disclose to the deportee the Ministerial reports and provide the deportee with the opportunity to respond.
[28] Mr. Justice Gibson's decision in Bhagwandass has been quoted with approval or followed, in Andino v. Canada (M.C.I.), [2000] F.C.J. No. 1023 (Q.L.) (IMM-2208-99, June 27, 2000) and Gonzalez, supra; it has been implicitly criticized, or not followed, in Tewelde, supra, and Siavashi v. Canada (M.C.I.), [2000] F.C.J. No. 1132 (Q.L.) (IMM-1942-99, July 12, 2000). Bhagwandass is now before the Federal Court of Appeal (A-850-99).
[29] As I stated above, I am of the opinion that Baker has not overtaken Williams, and that the Federal Court of Appeal's decision continues to govern subsection 70(5) danger opinion judicial reviews. Therefore, I cannot agree with Gibson J.'s analysis and application of L'Heureux-Dubé J.'s reasoning in Baker, a case dealing with an H & C application, to cases dealing with danger opinions. Danger opinions are not analogous to H & C decisions; the two have totally different significance and contexts.
[30] I am satisfied the relevant jurisprudence suggests that Ministerial reports need not be disclosed to an applicant when they are based on information and materials known to the applicant, and when he has had an opportunity to respond to them: see Canada (M.C.I.) v. Davis (1997), 132 F.T.R. 176 (T.D.); Jarrett v. Canada (M.C.I.) (1997), 139 F.T.R. 31 (T.D.); Bayani v. Canada (M.C.I.) (1998), 156 F.T.R. 119 (T.D.); Helm v. Canada (M.C.I.), [1998] F.C.J. No. 1940 (Q.L.) (IMM-4668-97, December 16, 1998); and Bahrami v. Canada (M.C.I.), supra.
[31] In my opinion, the line of jurisprudence which holds that disclosure is required only when the reports contain information or materials not known to the applicant is reasonable. In the instant application, the Danger to the Public Ministerial Opinion Report does not contain any information which was not already known to the applicant. Moreover, the applicant was provided with copies of this report's attached documents and was also given an opportunity to make written submissions. The applicant does not attack the contents of this report in terms of alleged mistakes, inaccuracies, or mischaracterizations.
[32] For the foregoing reasons, this application for judicial review is dismissed.
[33] The following questions, submitted by counsel for the applicant, will be certified, pursuant to subsection 83(1) of the Immigration Act, as questions of general importance:
| Are reasons required for a danger determination under subsection 70(5), and if so, are there reasons in this case? |
| Does the DANGER TO THE PUBLIC MINISTERIAL OPINION REPORT have to be disclosed to the subject of a danger opinion under subsection 70(5) before a decision is made? |
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
October 24, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-417-00
| STYLE OF CAUSE: GERON ATWELL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 15, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: OCTOBER 24, 2000
APPEARANCES:
Mr. Michael Crane FOR APPLICANT
Mr. Ian Hicks FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT
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