Sam v. Canada (Minister of Citizenship and Immigration), docket IMM-3163-96

Date: 19971128

Docket: IMM-3163-96

BETWEEN:

     SEAN LANCELOT SAM,

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

     REASONS FOR ORDER

REED, J.:

[1]      The applicant seeks an order setting aside a decision made by the respondent Minister pursuant to subsection 70(5) of the Immigration Act. That decision found the applicant to be a danger to the public.

[2]      Many of the arguments that counsel for the applicant planned to make have now been settled by Williams v. Minister of Citizenship and Immigration, [1997] 2 F.C. 646 (F.C.A.) (leave to appeal denied October 16, 1997, S.C.C. file no. 26059). Counsel sought, however, to distinguish that decision from the present case on four grounds.

[3]      The first is that the decision by the Minister's delegate in this case is perverse because the only psychiatric assessment on the file is that presented by the applicant and it has been ignored by the Minister's delegate in making his (her) decision. A comparison is made to section 755 of the Criminal Code as it read prior to August 1, 1997. Subsection 755(1) required that two psychiatric reports be obtained with respect to an allegation that an individual is a dangerous offender. It is argued that although subsection 755(1) was found in the Criminal Code, and the consequence of a decision that an individual is a dangerous offender is indefinite imprisonment, some guidance should be taken from those legislative provisions as to the relevance of psychiatric evidence for the purposes of subsection 70(5). It is argued that in the absence of any contrary psychiatric evidence, the psychiatrist's evidence that has been submitted should had been given considerable weight, and it was not.

[4]      I am of the view that this contention is answered in Williams. At pages 661-2, the Court held that a subsection 70(5) decision does not have severe consequences for the individual concerned: he loses his right to appeal to the Appeal Division of the Immigration and Refugee Board but obtains, in its place, a right of judicial review by this Court of the decision made by the Minister. At page 664, the Federal Court of Appeal in Williams noted that a psychologist's report favourable to the applicant had been filed. And at page 669:

. . . 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. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges.

[5]      Counsel for the applicant argues that the comments quoted above refer to the argument that the legislative provision, subsection 70(5), was too vague and therefore unconstitutional. While the comments are found in the content of an analysis of the vagueness argument, their substance equally pertains to the argument that counsel is now making.

[6]      In addition, it must be noted that section 755 has now been repealed. Psychiatric assessments are no longer statutorily required. This appears to be a response to a Federal/Provincial task force that recommended the repeal.¹ While advocating that the Court should have the most complete information available, the task force disapproved of the mandatory nature of the provision requiting psychiatric assessments. That report contained the following explanation, at page 14:

One of the major issues in any discussion of high risk offenders is the ability to predict such behaviour. The ability of psychiatry to predict violence has been challenged for many years. The literature is replete with claims and counterclaims ...

[7]      Counsel for the applicant's second argument is that this case differs from Williams because there is serious doubt that the decision-maker considered all the evidence before him (her). Counsel notes that the preambular wording to the opinion states, "On the basis of information considered by me ...". It is argued that the decision-maker is not asserting that the decision was made after consideration of all the evidence, and that an inference therefore arises that all the evidence was not considered by the decision-maker.

[8]      I am of the view that this aspect of the subsection 70(5) decision-making process was also dealt with in Williams. I quote from the Trial Division decision [1997] 1 F.C. 431 at 449:

In the present case, I am unable to even ascertain who the final decision-maker was. A scrawled signature appears on the decision over the title "delegate of the Minister". Yet it is the decision of that person that is under review. I note that the applicant assumed in his application that it was the first level immigration officer (Ms. Stock) who had made the final decision. This does not appear to be the case.

... the decision appears to be made on the basis of a recommendation in a document prepared by what I will call the first level immigration officer, a document which the applicant never sees. The recommendation is then approved by that officer's manager. The decision, however, is made by a third official, the Minister's delegate. There is no way of knowing whether the ultimate decision-maker actually considers the applicant's submission directly. There is no way of knowing whether the decision-maker considers any of the material on the file other than the recommendation prepared by the first level official.

[9]      The Court of Appeal, at page 664, held that the reviewing Court must assume that the decision-maker acted in good faith in making a decision on the basis of the record:

There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion such subjective decisions cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations. Further, when confronted with the record which was, according to undisputed evidence, before the decision-maker, and there is no evidence to the contrary, the Court must assume that the decision-maker acted in good faith in having regard to that material. [footnote omitted]

[10]      Counsel for the applicant's third argument is that the decision under review is perverse because there is simply insufficient evidence on the record to support a finding of present or future danger. The jurisprudence establishes that there must be evidence that supports a opinion that the individual is a present or future danger: Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 9 (F.C.T.D.), approved Williams (F.C.A.) supra at 669 and followed in Ibraham v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 40 (F.C.T.D.); Bahadori v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 662 (QL). The seriousness of the offence that has been committed does not usually, alone, support such a conclusion. The date as of which present danger is to be assessed, is upon release from incarceration.

[11]      Emphasis is placed by counsel for the applicant on the analysis by Mr. Justice Gibson in Nguyen v. Minister of Citizenship and Immigration (IMM-2483-96, August 20, 1997). Counsel notes that in the present case: the offences that the applicant committed all occurred within a short time frame (one week); they arose out of a series of interrelated events; the applicant had no previous criminal record; he has had no further charges or convictions; he was given concurrent sentences for the six offences, of a length (two years minus a day) that would allow him to serve them in a provincial institution, rather than a federal penitentiary; there were many letters, plus the psychiatrist's report, sent to the immigration officers to support the position that the applicant was not a danger to the public; there was evidence that the applicant had successfully completed some rehabilitation and life skills training programs.

[12]      A careful review of the file leads me to the conclusion that counsel for the applicant's position, concerning the paucity of evidence that can support a conclusion of present or future danger, is correct. The documents placed on the file from which the respondent's conclusion was drawn are six in number: (1) his immigrant visa and record of landing; (2) the report under section 27 that the applicant had been convicted of the offences identified therein; (3) the subsection 27(1) Highlights Report; (4) a newspaper article from the Winnipeg Free Press; (5) the conviction certificate; (6) the judge's comments on sentencing. I ignore the newspaper article, as I hope the Minister's delegate did. Anyone who has had any involvement with the press knows how unreliable such articles can be. The article is highly prejudicial to the applicant since it allegedly recounts the event, from the victims point of view. The only documents that in any way might possibly be said to relate to present or future danger are the subsection 27(1) Highlights Report and the judge's comments on sentencing.

[13]      The Highlights Report describes the offences; they were brutal and violent. One of the offences with which the applicant was charged, but of which he was acquitted (threatening his victim with a firearm), is included in this Report as a conviction. This error is carried through into both the subsection 70(5) Ministerial Opinion Report ("Opinion Report") and the Request for Minister's Opinion - A 70(5) Report ("Request Report").

[14]      The subsection 27(1) Highlights Report states that the Courts have taken a serious stand in the applicant's case. This conclusion is based on the judge's comments on sentencing. Those comments, however, are equivocal with respect to the risk the applicant poses as a potential re-offender. The judge describes the offences of which the applicant was convicted. The judge notes that the applicant "subjected his victim to a tyranny almost amounting to slavery" but then qualified that with "admittedly for a very brief period of time". He indicated that "the offences were motivated largely by greed and were planned and deliberate". The judge also stated, however, that the accused was a young person of 25 who had no previous criminal record and that "there was nothing in [his] background which could indicate any propensity to living a life of crime".

[15]      While the judge noted that the crimes were crimes of criminal sophistication, he also referred to the pre-sentence report. He quoted that report as stating that while the applicant had not had an ideal life, he had certainly had "a life with his family that could give no indication as to why he would have embarked upon this particularly crazy activity". The judge noted that the applicant showed no remorse and maintained his innocence notwithstanding the findings of the jury. The judge concluded that as a first offender, the applicant was entitled to leniency. He concluded by saying that the applicant was "a man of intelligence and it is expected that the incarceration which I am about to impose will be a stern lesson to him".

[16]      It is difficult to find in these comments material to support a conclusion that the applicant, at the end of his incarceration, will be a danger to society. The only factors that could support that conclusion is that the crimes of which the applicant was convicted (assault, forceable confinement, living off the avails, possession of a weapon, uttering threats) were ones involving violence and brutality, and, that at the end of the trial, he showed no remorse and continued to maintain his innocence. Is this enough to support the conclusion reached, particularly in the light of the judge's comments that reflect an expectation, or at least a hope, that the sentence he imposed would lead to a change in the applicant's behaviour? I am not convinced that the evidence is sufficient, but there are other difficulties with the decision that are also relevant to its review.

[17]      Counsel's fourth argument is that both the subsection 70(5) Opinion Report and the Request Report relied upon suppositions and evidence not put to the applicant, and upon which he had no opportunity to comment. In addition, it is argued that the reports were prepared in a biased way, which was very prejudicial to the applicant. These allegations are supported by a review of the file.

[18]      In both the Opinion Report and the Request Report, the writers question whether the applicant and his mother's application for landing is genuine. This is based on the speculation that the applicant's mother may not really be the daughter of the person who sponsored her as being such. This speculation arises out of the fact that the sponsor, Pearl Spence, wrote a letter of support on behalf of the applicant and did not say she was his grandmother. The applicant was never told about the speculation that his mother's and his application for landing might not be genuine. He was given no opportunity to respond to this speculation, yet it appears as a relevant consideration in both the Opinion Report and the Request Report.

[19]      Another piece of evidence about which the applicant was not given notice and an opportunity to answer, is a statement in the Opinion Report that: "we do have calls from one of the victim's relatives advising the victim had to relocate out of fear". This information was never conveyed to the applicant. His counsel asserts, categorically, that his client has had no communication with the victim.

[20]      In both the Opinion and Request reports, the numerous letters sent in support of the applicant are discounted for three reasons: they are all from close family and friends; all have the same theme; none of them, except one, makes any reference to the offences the applicant committed. (The one letter that does mention this blames the victim.)

[21]      The immigration officials who wrote the Opinion Report and the Request Report connect the alleged absence of any reference to the offences committed by the applicant to comments made by the judge at trial. Those comments refer to witnesses who gave evidence on the applicant's behalf at trial:

As Mr. Bowering pointed out, the accused is a person who was admired by his peers. They came forward to give evidence to support the defence, which the jury rightly rejected. It is a matter of deep concern to me that these witnesses, who gave evidence in support of the accused's defence, were directed by the accused and indeed admired the accused.

[22]      There is no evidence that the individuals who wrote the support letters for subsection 70(5) purposes had been witnesses at the trial. Also some of the letters contain references, at least obliquely, to the incident that got the applicant into trouble. They do not reflect a belief that he was innocent. A letter from Rosemary Marks, a friend of five and a half years, states:

Through Sean's trial I was there to witness the whole thing. Since the beginning of him being at Headingly Institute, and even before that, he has a couple of real important goals that he intends to reach, ...

... I do believe that Sean Lancelot Sam, is not a danger to Society, and that he should be able to be given a chance to rehabilitate and to succeed at everything that he is about to accomplish. He has been a role model inmate, completed programs with success. He was working at the Red River College grounds. These accomplishments should show how hard he wants to work to get to his goal. If he is not granted a second chance to life, then I will believe that there is no fair chance to rehabilitate, and that's not right. If Sean is granted permission to stay, then as a Canadian citizen I will be proud in believing that there is fairness in rehabilitating and the justice system.

     (underlining added)

[23]      A letter from the applicant's mother states:

Sean is a good person who has made a mistake ... As a mother I am pleading that you find it in your heart to give him a second chance to prove himself."

     (underlining added)

[24]      A letter from P. Spence who has known the applicant all his life states:

I personally do not think Sean is any danger to society, however, I do think Sean needs support to continue the positive trend he's taking in his life."

[25]      The fact that the letters have a common theme, that is, that the applicant is not a danger to society, is not surprising. It is this allegation that the applicant is attempting to rebut. That he would ask his friends and relatives to write letters on his behalf is also not surprising.

[26]      The Opinion Report refers to a Life Skills Evaluation document that was issued after the applicant completed a course of that name. The Opinion Report states that the evaluation document refers to the applicant's problems as - "(1) user (2) fast and easy money and (3) lack of empathy for victims". The evaluation document, however, states:

Sean's values and beliefs have changed from being a (1) user -(2) fast and easy money (3) lack of empathy for victims. He has returned to basic and traditional values of family, being productive etc.

     (underlining added)

[27]      Prior to the Court of Appeal decision in Williams, in the absence of reasons, flaws in these summary reports were held to be grounds for setting the decision aside. See, for example, Hinds v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 31. Since the Williams decision, however, some decisions of this Court have followed the reasoning that, absent a perverse decision, good faith must be assumed on the part of the decision-maker. Thus, even if there are flaws in one or other of the reports, providing there is some evidence to support the conclusion reached by the Minister's delegate on the file, the decision should not be set aside.

[28]      I dealt with the respondent's position, in this regard, in Chu v. Minister of Citizenship and Immigration (IMM-1180-96, August 1, 1997):

Counsel for the respondent argues that the fact that the Opinion Report does not separately address the two elements relevant for a danger decision is not important because that report is not the Minister's decision. She points out that one does not know whether the Minister's delegate agreed with the report or disagreed with it. She notes that one cannot assume from the report that it was relied upon or played any role in the decision that was made by the Minister's delegate. Counsel for the respondent argued that the test the Court must apply on review, is set out in the Williams case, supra, at p. 79:

... whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material.

That is, since the danger to the public decision is one that involves an opinion by the Minister, the Courts' review of the record should only be to ascertain whether there is evidence on the file that could support that decision. Counsel for the respondent notes that, in this case, there is evidence going both ways but since some of that evidence can support a conclusion that the applicant is a danger to the public, in Canada, the test set out in Williams has been met. I accept that submission.

[29]      In Nguyen v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1090; IMM-2483-96, Mr. Justice Gibson referred to the statement in Williams that "the Court must assume that the decision maker acted in good faith in having regard to that material". He stated that this was a reference to the "totality of that material". Accordingly, he did not consider it appropriate to assume that the Minister's delegate had only considered the Request Report. At the same time, after reviewing all the material on the file he determined the decision to have been perverse. There was insufficient evidence to establish a risk of re-offending.

[30]      Since rendering the decision in Chu, supra, it has come to my attention that Mr. Justice McKeown in Ngo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 854; IMM-2257-96; IMM-2258-96, has indicated that an erroneous report by an official of the Minister that materially mischaracterizes the evidence would be grounds for setting aside the decision by the Minister's delegate. He stated that officials are entitled to choose the documents relied on, and to interpret and summarize the evidence so long as the reports are substantially correct.

[31]      That statement may be merely an alternate way of approaching the analysis, not different from the approach taken by Gibson J. That is, in order to find a material mischaracterization, or that a report is substantially incorrect, one has to find a decision that was made by the Minister's delegate that is not supported by the evidence. At the same time, Mr. Justice Gibson in Pascale v. Minister of Citizenship and Immigration (IMM-889-96, November 24, 1997) and in Davis v. Minister of Citizenship and Immigration

(IMM-1616-96, November 24, 1997) has described the function of these reports. In the Davis decision, at pages 5 - 6, the following passages are found:

[10] ... I have emphasized Justice Strayer's position that, in the absence of evidence to the contrary, and I was not referred to any contrary evidence here, the Court must assume that the decision-maker acted in good faith in having regard to the totality of the material presented to her or him. I presume that the respondent's delegate had all of the relevant material before her or him, not just the memorandum and recommendation from an officer in the respondent's department. I assume, in the absence of evidence to the contrary, that she or he had regard to the totality of that material.

[11] I will assume for the purpose of these reasons that the respondent's delegate relied heavily on the report and recommendation, concurred in as it was by a manager, informing the delegate of the officer's and manager's opinion. I can think of no other reason why the report and opinion would have been prepared but to limit the degree to which it would be necessary for the respondent's delegate to review in detail the totality of the material presented.

[12] While I might have summarized the material differently, or reached a different recommendation, that of course, is not the test. I am satisfied that the summary provided by the officer was reasonable, did not disclose bias or a basis for a reasonable apprehension of bias, and did not misrepresent the material that was before the officer and later, the respondent's delegate. ...

     (underlining added)

I prefer the approach taken in these cases to that expressed earlier in Chu.

[32]      In any event, in the present case, the cumulative effect of the difficulties that are evident from the facts described above, require that the decision be set aside. The evidence to support a conclusion of present or future danger is problematic. The summary report contains inaccuracies. Evidence was included as relevant to the decision that had not been disclosed to the applicant and upon which he had no opportunity to comment. An order will therefore issue setting the decision in question aside.

    

                                 Judge

OTTAWA, ONTARIO

November 28, 1997

__________________

     ¹      Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders, Strategies for Managing High-Risk Offenders (January 1995) (Report to FPT Ministers responsible for Justice).