Date: 20001117
Docket: IMM-4923-99
BETWEEN:
EDOUARD BAKCHIEV
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of two decisions of the Minister's delegate pursuant to subsections 70(5) and 53(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), dated September 2, 1999, in which it was determined that the applicant constitutes a danger to the public in Canada.
[2] The applicant was born on June 4, 1955, in Kizliar, Dagestan, in the former Soviet Union, and is a citizen of Dagestan. He entered Canada on April 10, 1992 and made a claim for refugee status. He was found to be a Convention Refugee and obtained permanent residence in Canada on May 21, 1993.
[3] Before coming to Canada, the applicant was convicted of armed robbery as well as illegal possession and storage of firearms and illegal storage of drugs in the Russian Federation for which he received 8 and 10 year sentences. He was released on parole on March 22, 1991. Mr. Bakchiev did not mention these criminal convictions when completing his Personal Information Form (PIF) in support of his refugee claim.
[4] After becoming a permanent resident, the applicant was charged with two counts of assault in Montreal and Vancouver respectively. He was advised by letter dated April 6, 1999, that a notice of intention to seek the opinion of the Minister that he is a danger to the public in Canada had been issued. Attached to the letter was a copy of the materials that the Minister would consider in forming her opinion. A copy of the police report concerning the circumstances of the applicant's charge of assault in Montreal was attached in the submissions to the Minister.
[5] Counsel for the applicant objected to the inclusion of any information relating to the two outstanding criminal charges in Canada and produced a copy of a psychologist report. The Minister's delegate replied that the information would be submitted anyway, as this information goes to the issue of likelihood to re-offend and that the weight of the evidence had to be given by the decision-maker. She also indicated that there were several discrepancies in the psychologist report and the documentation provided by the Russian authorities.
[6] On July 9, 1999, the main immigration investigator completed a Danger to the Public Ministerial Opinion Report regarding the applicant. On August 24, 1999, a reviewing officer and a senior analyst of Case Review Case Management Branch reviewed the submissions to the Minister in the Request for Minister's opinion. In their report to the Minister's delegate, they outlined the danger profile of the applicant noting his two convictions in the Russian Federation as well as his two outstanding criminal charges in Canada for assault. The report considered removal risk considerations, given the applicant's successful claim for Convention refugee status based on persecution due to his ethnicity and religion as a Jew in Dagestan, a predominantly Muslim state.
[7] On September 2, 1999, the Minister's delegate issued the opinion that the applicant constitutes a danger to the public pursuant to the Act.
[8] The applicant now seeks judicial review of that decision on the grounds that the minister's delegate breached the duty of fairness by considering criminal charges that have not been disposed of by the courts. In addition, Mr. Bakchiev submits that he was entitled to receive a copy of the Reports considered by the Minister's delegate, and should have been provided with an opportunity to make representations with respect to those Reports prior to the decision being made.
[9] The respondent submits that although the criminal charges in Canada have not been proven in a court of law, the evidence of the criminal charges, as well as the circumstances surrounding them, are relevant to the Minister's consideration in forming an opinion as to whether the applicant is a danger to the public. He submits that the real issue is what weight the decision-maker accorded to the criminal charges, and that questions of weight of evidence are not properly the subject of judicial review. Furthermore, the applicant had the opportunity to address the issue of the criminal charges to the Minister's delegate and there has therefore, not been any denial of procedural fairness or breach of natural justice.
[10] I am satisfied that the Minister's delegate erred by taking into account the outstanding criminal charges against the applicant. It is clear from the evidence that the policies issued to guide the Minister in forming an opinion indicate that criminal charges not yet proven should not be used for that purpose. Furthermore, the question was recently considered by this Court in Bertold v. Canada, [1999] F.C.J. No. 1492, wherein the applicant sought judicial review of a decision by the Appeal Division of the Immigration and Refugee Board (the IAD), which held that a deportation order issued against him was valid. In arriving at its decision, the IAD had considered outstanding criminal charges against the applicant from another jurisdiction. The IAD held that the charges were not evidence of guilt, but were nevertheless admissible and that the weight assigned to the documents would be reflective of the fact that they were charges, not convictions. Upon judicial review, this Court concluded that reference to the outstanding charges was not admissible. Muldoon, J. stated as follows:
| In Kumar [Kumar v. Canada (MEI) (A-1533-83; 29 November 1984)], the Federal Court of Appeal held that the existence of outstanding charges ought not to have played any part in the IAD's decision, on a section 70 appeal, as to whether to grant an extension to a stay being sought by the applicant. The IAD, in that case, had assured the applicant that such charges would not be considered; however, mention of the charges made its way into the IAD's decision and the Federal Court of Appeal could not state with confidence that the charges played no rôle in the IAD's decision. |
| In the IAD decision in Melo [Melo v. Canada (MCI), (1997) 39 Imm. L.R. (2d) 1], the presiding member stated that Kumar is binding and interpreted it to mean that outstanding charges may never be considered, except for the purpose of determining whether to postpone IAD hearings if the charges appear to be nearing resolution. |
| In a slightly different context, Reed J. held in Kessler v. Canada (MCI) (1998), 153 F.T.R. 240 (T.D.) that outstanding criminal charges could properly be considered by an immigration officer who refused to grant the applicant permission to apply for landing from within Canada on humanitarian and compassionate grounds. The outstanding charges in this case related to fraud and tax evasion in the United States. This Kessler decision ought probably to be reconsidered in light of Baker v. Canada (MCI) S.C.C. 25823, July 9, 1999. |
| In Dee [Canada (Secretary of State) v. Dee (1995), 90 F.T.R. 113 (T.D.)], Pinard J. limited the Federal Court of Appeal decision in Kumar to its facts: the IAD had said it would not take the charges into account, but then it went ahead and did so, or at least appeared to have done so. In Dee, the Crown sought judicial review on the ground that the IAD erred by failing to take into account the claimant's outstanding civil and criminal charges. The Court dismissed the judicial review, noting that the IAD did, in fact, take into account the outstanding charges faced by Mr. Dee in the Philippines. |
| Doubt has been cast on the validity and soundness of the proposition for which Kumar is often cited. [...] |
| In the instant case, the IAD emphasized that the evidence of outstanding charges is not evidence of guilt, but simply evidence of other proceedings involving the applicant. The IAD concluded, |
| The weight which will be accorded to the evidence of charges outstanding in Germany will be reflective of the fact that these are charges and not convictions. (Reasons for decision, p. 6) |
| The IAD's decision is not founded on the existence of the outstanding charges against the applicant; in the context of "all the circumstances" as mandated in a section 70 appeal, these charges were relevant, but were accorded what appears to be very little weight. Since the charges are, at most, some prosecutor's allegations, one wonders what precisely is the weight they import, if any? Unresolved they cannot impugn the applicant's character or credibility. Reference to such charges was inadmissible. |
[11] In the present case, the Applicant specifically objected to the consideration of the outstanding charges against him. In one of her replies, the main immigration investigator stated:
| The procedures I am following in seeking a Danger Opinion under sections 53(1)(a) and 70(5) of the Immigration Act are outlined in various policy papers that have been received since these provisions came into effect, including the partial Policy and Procedures information dated February 1998 you provided with your letter. I am also guided by advice and consultation with the Minister's delegate on the issue of evidence concerning charges that have not been disposed of by a court. The Minister's delegate has advised us that it is his view that charges and their circumstances can be included in a request for a Danger Opinion if there is no disposition in the courts. These kinds of circumstances go to the issue of likelihood to reoffend. (Applicant's record, p. 77) |
[12] This comment is not in keeping with existing policy nor the jurisprudence of this Court. It must be emphasized that unresolved criminal charges are, until proven otherwise, nothing more than mere allegations against an accused. They are not indicative of guilt and obviously therefore, are not indicative of a propensity to re-offend either, until they have been proven beyond a reasonable doubt by the Crown in a court of law. Accordingly, they are inadmissible in the determination of whether an applicant constitutes a danger to the public.
[13] For these reasons, I am satisfied that the Minister's delegate made an error in law by considering the outstanding criminal charges against the applicant and the application for judicial review should be granted on this ground alone. However, I wish to comment as well on certain procedural aspects of this matter which, in my view, are problematic.
[14] Generally speaking, the procedure which is now followed in cases of this nature is that an applicant is issued a notice of intention to seek the opinion of the Minister that he is a danger to the public. The applicant is then provided with certain documents which will be submitted to the Minister and given an opportunity to make submissions. Thereafter, a report containing a recommendation is prepared by reviewing officers and sent to the Minister for a decision. The essence of the complaint of applicants in this situation is that they are never provided with an opportunity to make submissions or comments with respect to the reports that are sent to the Minister, prior to the Minister actually making a decision. Accordingly, it is not unless or until an applicant seeks leave for judicial review that they are provided an opportunity to make submissions on the reports which forms the basis of the Minister's decision.
[15] Here, the applicant maintains that he has never seen or been served with any of the first 69 pages of the Respondent's Tribunal Record, the Request for Ministerial Opinion Report or the Danger to the Public Ministerial Opinion Report. This, it is argued, constitutes a breach of the duty of fairness which requires that he be provided with the two reports and given an opportunity to respond prior to the Minister making her decision.
[16] The respondent indicates that with respect to the Minister's opinion pursuant to subsection 53(1) of the Act, reasons are required and the Request for Ministerial Opinion constitutes those reasons. It is submitted that the Minister's delegate fulfilled his duty to provide the applicant with a meaningful opportunity to present his case fully, even though the Ministerial Opinion Report and the Request for Minister's Opinion were not disclosed to him. Those two documents, it is argued, merely summarize the documents that were disclosed to the applicant and upon which the Minister's delegate might rely in arriving at his or her opinion.
[17] However, it has been my experience that often times these reports lack objectivity and fail to give proper weight to the evidence presented by the applicants. It is usually evident that, had they been made available to the applicants before the decision was made, the reports would certainly have been the subject of the applicants' comments. The fact that many cases are granted on judicial review because of the inadequacy of these reports which constitute the reasons for decision is evidence enough. A valuable and practical aspect of this duty to give applicants an opportunity to comment on the reports does not seem to have been previously mentioned by my colleagues but appears to me to be of utmost importance. When asked to decide on a motion for leave for judicial review of the Minister's opinion, a judge might not have before him the reports that constitute the reasons for decision. It is therefore likely that he or she will not be able to properly assess the respective positions of the parties and the risk of injustice is increased. Requiring that the reports be disclosed before the decision is made puts those concerns to rest.
[18] Furthermore, such an open and transparent procedure is more in keeping with the jurisprudence surrounding the duty of fairness owed by an administrative decision-maker. I believe it is fairly clear that this Court's jurisprudence now supports the requirement that the reports on which the Minister's delegate bases his opinion be given to the person who is the object of the opinion in order to give him or her the opportunity to make further submissions. In Haghighi v. Canada (Minister of Citizenchip and Immigration), [2000] 1 F.C. 854, the Federal Court of Appeal held that the duty of fairness requires that inland applicants for human and compassionate landing under subsection 114(2) of the Act be fully informed of the content of the risk assessment report made by a Post-Claims Determination Officer, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant (see paragraph 37 of the decision). Although the procedural vehicle used in Haghighi is different from the one used in the present case, I believe the same principles should be applied here.
[19] The Supreme Court of Canada decision in Baker v. Canada (M.C.I.) (1999), 174 D.L.R. (4th) 193, provides clear guidelines concerning the content of the duty of fairness in administrative decision-making. L'Heureux-Dube, J. stated at pp. 211-12 as follows:
| Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. |
. . .
| . . . The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. . . |
| A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. . . The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness. |
[20] Here, there is no question that the issuance of a Minister's opinion has a profound significance to the person who is the subject of the opinion, since the Minister can then remove a person to a country in which the individual has a well-founded fear of persecution. Furthermore, there is no right of appeal from the decision; at best, an applicant may be able to obtain judicial review but only if leave is first granted. In Qazi v. Minister of Citizenship and Immigration (July 26, 2000, IMM-5317-99), Hugessen, J. made the following comments in this regard:
| I think that now, in the light of Baker and the very clear message that the Supreme Court has sent to us as to the nature of the duty of fairness in decisions which were previously thought to be wholly discretionary and have no fairness content at all or very minimal, fairness content, it is quite clear that we must view the danger opinion as being one which has serious consequences for the person who is the subject of it. It removes from that person a statutory right of appeal, open-ended, to a body which is independent, autonomous and quasi-judicial. If it replaces that right at all, it is by a right to apply for leave to seek judicial review on limited grounds and a right to apply for a wholly discretionary executive remedy under humanitarian and compassionate considerations. |
[21] Given the consequences of the decision and the limited right to review of that decision, it would seem more in keeping with the principles of fairness and natural justice if an applicant was provided with the opportunity to make submissions on the reports on which the Minister's delegate bases his or her opinion. In my view, if the duty of fairness is to have any meaningful content in these types of cases, applicants should be provided with the Request for Ministerial Opinion Report and the Danger to the Public Ministerial Opinion Report and given an opportunity to make submissions on those crucial documents which in fact, form the basis of the Minister's decision, prior to any decision being made.
[22] For all of these reasons, the judicial review application is allowed and the two decisions of the Minister's delegate dated September 2, 1999, are set aside.
JUDGE
OTTAWA, Ontario
November 17, 2000
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