Krneta v. Canada (Minister of Citizenship and Immigration), docket IMM-5893-99

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Date: 20001120

Docket: IMM-5893-99

BETWEEN:

DRAGAN KRNETA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

DAWSON J.

[1] On this application the Court is again required to consider whether the failure to provide the applicant with two documents, a Danger to the Public Ministerial Opinion Report ("Ministerial Opinion Report") and a Request for Ministers [sic] Opinion breaches the duty of fairness owed by the Minister when forming a danger opinion pursuant to the provisions of paragraph 53(1)(d) and subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 as amended ("Act"). Those provisions are as follows:

53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless

...

(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.

...

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 imposed.

53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou don't la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_:

...

d) elle relève, 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 que, selon le ministre, elle constitue un danger pour le public au Canada.

...

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.

THE FACTS

[2] Mr. Krneta, the applicant, is a 45 year old citizen of Yugoslavia who was admitted to Canada in 1993, subsequently determined to be a Convention refugee, and on February 27, 1996 was granted status as a permanent resident in Canada.

[3] On November 30, 1998, Mr. Krneta was convicted on four counts of possession of a scheduled substance for the purpose of trafficking, and three counts of trafficking in a scheduled substance. He was sentenced to a total of four years and six months imprisonment on each count, the sentences to be served concurrently.

[4] As a result of those convictions, Mr. Krneta was the subject of a report made pursuant to paragraph 27(1)(d) of the Act. He was subsequently served with a Notice of Intention to Seek the Opinion of the Minister ("Notice") pursuant to subsection 70(5) and paragraph 53(1)(d) of the Act. The Notice advised Mr. Krneta that he could make written representations and submit documentary evidence within 15 days of receipt of the Notice. Mr. Krneta did so, submitting written representations dated October 8, 1999.

[5] On October 26, 1999, a Ministerial Opinion Report was completed which discussed the "danger rationale" and which recommended that Mr. Krneta be declared a danger to the public in Canada. This document was five pages long with attachments which included the submissions made by Mr. Krneta, the sentencing judge's remarks, and the correction plan report prepared by Correctional Services.

[6] On November 10, 1999, a Request for Minister's Opinion form was completed. This request contained a five page summary of Mr. Krneta's case. This document, with the materials referred to therein, together with the Ministerial Opinion Report, with attachments, were provided to the Minister's delegate in support of the request that he conclude that Mr. Krneta is a danger to the public. On November 12, 1999, the Minister's delegate formed the opinion that Mr. Krneta constituted a danger to the public in Canada pursuant to both subsection 70(5) and paragraph 53(1)(d) of the Act.

THE ISSUE

[7] While the applicant raised a number of issues with respect to the decision of the Minister's delegate, in my view, one issue is determinative of the application and that is the issue respecting the obligation, if any, to provide the applicant with copies of the Ministerial Opinion Report and the Request for Minister's Opinion report.

ANALYSIS

[8] Counsel for the applicant referred me to the following decisions of this Court: Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.); Gonzalez v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 33 (T.D.); Andino v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1023, IMM-2208-99 (June 27, 2000) (T.D.) and Qazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1222, IMM-5317-99 (July 26, 2000) (T.D.).

[9] In those cases, this Court has held, with respect to danger opinions issued pursuant to both subsections 70(5) and 53(1) of the Act, that by failing to share with the subject of the danger opinion documents of the type at issue here, and to provide a reasonable opportunity to respond to them, the Minister breached the applicable duty of fairness.

[10] Counsel for the applicant also relied upon the decision of the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854, A-587-99 (June 12, 2000) (F.C.A.) where the Court considered the content of the duty of fairness and the obligation to share a negative risk assessment in the context of a request for consideration on humanitarian and compassionate grounds.

[11] Counsel for the Minister referred me to the decisions of this Court in Jan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1474, IMM-5756-99, IMM-5757-99 (September 15, 2000) (T.D.) and Siavashi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1132, IMM-1942-99 (July 12, 2000) (T.D.) where this Court has held there is no obligation to share documents of the type at issue here. In those cases, the Court was influenced by consideration of the fact that the documents constituted reasons for the decision. It was, the Court noted, anomalous to provide reasons to the parties for comment prior to the issuance of a decision. The Court was also concerned that if documents of the type at issue here must be forwarded to the applicant it followed that the applicant would then be permitted to make further submissions and this would give rise to a further summary and a never-ending series of summaries and responses.

[12] Questions of general importance have been certified in almost all of the cases referred to above, but the issue has not yet been considered by the Court of Appeal.

[13] In considering this issue, I look first to the consequences to Mr. Krneta of the issuance of the danger opinions.

[14] A danger opinion issued under paragraph 53(1)(d) of the Act allows the Minister to remove Mr. Krneta, who has been found to be a Convention refugee, from Canada to the country against which his claim of persecution was established. The consequence of the danger opinion issued under subsection 70(5) of the Act is to cause Mr. Krneta to lose his right of appeal before the Immigration Appeal Division against a deportation order.

[15] The consequences to Mr. Krneta of the issuance of these opinions are therefore important, and affect him in a fundamental manner. It follows, I believe, from the significance of the consequences of the decision to Mr. Krneta that the duty of fairness required the Minister to disclose to Mr. Krneta the content of both documents at issue here so as to afford Mr. Krneta a meaningful opportunity to respond to that information and to present his case fully.

[16] As to the concern that it is anomalous for reasons to be provided in advance of the making of a decision, the summary reports are only to be taken to constitute reasons for the decision by inference if the recommendation contained therein is accepted. The fact that subsequently this inference is drawn should not, in my respectful opinion, diminish or negate the content of the duty of fairness otherwise required. It is anomalous, I find, that the failure to give reasons, which of necessity leads to the drawing of the inference that the summaries constitute the reasons, could be used to justify the failure in the first place to provide summary documents to the applicant.

[17] As for the logistical concern that there may be a never ending series of summaries and responses, that concern could, I believe, be addressed in a number of ways, one of which would simply be to not summarize any reply submission provided by the applicant.

[18] In the result, I conclude that the application for judicial review will be allowed and the decision of the Minister's delegate dated November 12, 1999 be set aside and the matter remitted to the Minister for redetermination.

[19] Counsel for Mr. Krneta suggested certification of a number of questions. In view of the fact that one issue is determinative of this application, the only question that I certify is as follows:

Does the Minister breach the duty of fairness owed to the person against whom a danger to the public in Canada opinion is reached pursuant to subsection 70(5) and paragraph 53(1)(d) of the Act if a "Request for Minister's Opinion" summary report and a "Danger to the Public Ministerial Opinion Report", or equivalents substantially similar to those at issue in this matter, form part of the materials put before the Minister's delegate who issues the opinion and those reports have not been shared with the person affected and that person has not been given a reasonable opportunity to respond to the reports?

"Eleanor R. Dawson"

Judge

Ottawa, Ontario

November 20, 2000

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Krneta v. Canada (Minister of Citizenship and Immigration), docket IMM-5893-99

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