Pereira v. Canada (Citizenship and Immigration), docket IMM-1395-96

     IMM-1395-96

BETWEEN:

     JOSE EDUARDO PEREIRA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for the judicial review of the decision of the Minister of Citizenship and Immigration or his Delegate (hereinafter, the "Minister"), rendered at Ottawa, Ontario, on February 28, 1996, pursuant to section 70(5) of the Immigration Act, in which the Minister determined that the applicant constituted a danger to the Canadian public.

     The applicant requests a writ of certiorari to quash the decision of the Minister, or in the alternative, the applicant requests a Direction from the Court that the Minister rescinds the opinion rendered and re-review the applicant's eligibility to remain in Canada based upon humanitarian, compassionate, and equitable grounds, or in the further alternative, the applicant requests a writ of mandamus directing the Minister not to execute the Deportation Order issued against the applicant on April 9, 1996 by D. Benning, an Adjudicator with the Immigration and Refugee Board, pursuant to subsection 32(2) of the Immigration Act, pending the final outcome of their hearing.

THE FACTS

     The applicant was born in Portugal on September 21, 1962. He came to Canada at the age of 11 as a landed immigrant on July 7, 1974, along with his mother, two sisters, and two brothers. His late father had immigrated to Canada previously, in the 1950s, and travelled back and forth to Portugal until the family settled in Canada in 1974. The applicants two sisters and one of his brothers are Canadian citizens. The applicant has never applied for Canadian citizenship.

     The applicant left school while in the tenth grade, and commenced work at Cotain Plastic Products Ltd. as a packer in 1978. He then worked as a machine operator on the assembly of products, was promoted to foreman, and then further promoted to shift supervisor, his present position, about four years ago. The Plant Manager at Cotain Plastic Products Ltd. deposes that the applicant is a reliable, skilled and competent worker, with an excellent record with the company in the applicant's seventeen years of employment there. The applicant's gross annual salary there is about $45,000.

     The applicant and his wife, Aldina Pacheco, were married in a civil service in 1988. On May 14, 1990, their son, Thomas, was born. The couple was then married in a religious service. The marriage began to break down, and the couple separated in September 1991. The couple's divorce became final in 1994.

     According to the affidavits of support from the applicant's ex-wife and his family, during the period of the couple's separation, the applicant paid monthly support payments to Ms. Pacheco. The applicant had access to his son on weekends, and has maintained a very close relationship with his son. The applicant's family maintains a close relationship with Ms. Pacheco.

     In 1993, the applicant attacked Ms. Pacheco on two occasions. As a result of these attacks, the applicant was convicted, on February 8, 1995, of sexual assault with a weapon, the administration of a drug for the purpose of having sexual intercourse, and of sexual assault. He received a sentence of one year less one day on each charge, to be served concurrently, and three years of probation. It is on the basis of these crimes that the applicant was found to be a permanent resident described in subparagraph 27(1)(d)(ii) of the Immigration Act, namely:

The applicant was sent to a provincial reformatory in Brampton to serve his two-year sentence (the applicant had an additional conviction for the use of a firearm to commit an indictable offence, arising out of the same events, for which he was sentenced to one year, to be served consecutively). He applied for parole, and was released after serving less than nine months in custody. A condition of parole was that the applicant attends psychiatric counselling with Dr. Ben Aron.

     Dr. Ben-Aron's psychiatric report concerning the applicant indicates that the assaults were the result of an isolated disturbance in the applicant's life, wherein the applicant had refused to accept that his marriage with Ms. Pacheco was over. Dr. Ben-Aron could discern no major mental illness in the applicant, and the prognosis was that the applicant does not represent any a priori risk for further aggressive acting out behaviour.

     In December, 1995, the applicant received a letter from the Minister informing him that he was being considered as a danger to the public. The applicant missed the fifteen-day deadline for responding to the letter, possibly due to ineffective relations between the applicant and his then-counsel. The applicant has since retained new (the present) counsel. The applicant was determined to be a danger to the public on February 28, 1996. The applicant was conducted to an inquiry on April 9, 1996, during which he was ordered deported from Canada on the basis of being a danger to the public. This Court stayed the applicant's removal on June 4, 1996, pending the outcome of this judicial review.

     The applicant had no previous criminal record, and has had no criminal convictions since those arising from the assaults against his ex-wife in 1993. He has no alcohol or drug problems. At the time of the filing of this application, the applicant was still attending psychiatric therapy with Dr. Aron, having seen the therapist nine times since release from custody in October, 1995. The applicant was out on bail for nine months prior to his convictions and sentencing, indicating that the further risk posed to the public by the applicant was minimal. The applicant's parole order indicates that, according to the applicant's stated plan, there was little risk that the applicant would re-offend.

     The applicant has no close family left in Portugal, save for some distant cousins. The rest of the family is in Canada, and one member is in Brazil. The applicant's sister deposes that she, her mother, sister, and brother are distressed and appalled at the thought of the applicant's deportation to Portugal, and that the mother is in a state of near collapse.

     The applicant has been in a common-law relationship with another woman since his release from prison, and is living with this woman and her three children. There is no apparent fear of the applicant on this woman's part.

THE ISSUES

     Did the Minister err in law in forming the opinion that the applicant is a danger to the public in Canada, pursuant to subsection 70(5) of the Immigration Act?

     Are the psychiatric report, the parole report, and other evidence presented on behalf of the applicant, inadmissible before this Court because such evidence was not before the Minister, whose decision is the subject of this judicial review?

DISCUSSION

Error in law

     The applicant submits that, according to the "plain meaning" rule of statutory interpretation, the Minister ought to have interpreted the word "public" to mean "the community in general," the meaning ascribed to it by the Oxford Dictionary. Although the applicant committed abhorrent crimes against his wife, the applicant submits that it is unreasonable and patently wrong to interpret these crimes as a danger to the community in general. The Review Officer in his "Request for Minister's Opinion" assessed the danger that the applicant posed vis-a-vis a particular type of individual in a particular situation, (i.e., vis-a-vis a woman who was the applicant's wife and who had a child by him, in a situation of marital breakdown), and not the danger the applicant posed vis-a-vis the public.

     Analysis: Assessing the Minister's decision dated February 26, 1996 according to the plain meaning rule of statutory interpretation, the Minister erred in determining that the applicant is a danger to the public. The Minister stated no reasons for the conclusion that the community in general would be placed at risk by the applicant's continuing residence in Canada.

     There is no evidence of whether the immigration officer put his mind to the question of whether the applicant poses a danger to the public per se, as required by the statutory provision. Both the "Narrative Report Pursuant to A27(1) of August, 1995, and the "Request for Minister's Opinion" of February 15, 1996 and approved by the Minister on February 29, 1996, make reference to the offences that the applicant was convicted of as being abhorrent to the Canadian public. The only evidence of consideration of the danger that may be posed to the public is contained in the latter report, which concludes that no evidence had been forwarded that given a similar situation, the applicant would not re-offend in a similar manner. The relevant question is thus whether a "similar situation" -- which, given the applicant's criminal record that was before the Minister, would mean the applicant being in a torpid marital breakdown situation with a woman who had a child by him -- is a concept which would sufficiently envelope the meaning of the public, which is the community in general. On this basis alone, it does not seem that the Minister sufficiently turned his mind to the question of whether the applicant constituted a danger to the "public." Rather, the opinion seems to be more oriented towards a very specific type of situation.

     There is evidence in the applicant's psychiatric report and his parole decision that indicates that there is little (if any) risk of re-offence. Therefore, a critical issue in this case is whether the psychiatric and parole reports are properly before this Court.

     The law: It is trite law that on judicial review, the Court should not take into account evidence which was not before the original decision-maker.

     The "Notice of Intention" letter sent to the applicant on November 24, 1995, informing him that a Minister's opinion was being sought, stated that the Minister may consider the following documents: the narrative report pursuant to A27(1), the police information sheet of circumstances of charge, the immigrant visa and record of landing, the copy of the probation order on file, and the CPIC report. From the time that the applicant received this letter, until the applicant was notified of the Minister's decision on April 9, 1996, the applicant did not file any submissions or request a time extension to file submissions.

     This Court should be bound to considering only the above-listed evidence that was before the Minister. However, it is odd that, although the Minister sought out the above evidence which was prejudicial to the applicant's case, the Minister also did not seek out evidence that was favourable to the applicant's case, especially such evidence that was already referred to in the evidence before the Minister. The most important piece of evidence in this regard is the psychiatrist's report specifically referred to in the probation report, which report required the following condition to be fulfilled by the applicant:

Another crucial piece of evidence related to the documents before the Minister and relevant to the applicant's criminality was that contained in the decision of the Parole Board dated October 13, 1995, regarding the low risk of recidivism.

     The applicant was given the opportunity to make submissions (admittedly, there were some problems with the duties performed by the counsel that the applicant had retained at the time, which were brought before me during the hearing) and forfeited that opportunity. Procedural fairness was thus apparently accorded to the applicant. Nevertheless, it is troublesome that the above two pieces of evidence, crucial to the applicant's case, were not made part of the record before the Minister as a matter of course.

CONCLUSION

     The basis of the applicant's deportation order was a danger to the public determination by the Minister. The danger to the public determination deprived the applicant of his, right, as a permanent resident, to appeal the deportation order before the Immigration Appeal Division of the Immigration and Refugee Board. Had the applicant been able to appeal the deportation order to the Immigration Appeal Division, it is likely that the order would have been quashed. Justification for quashing the order likely would have been found in a psychiatric report written pursuant to the applicant's probation, the applicant's parole order, and evidence from the applicant's family and employer. All of this evidence likely would have been sufficient to support the submission that the applicant's violent, criminal activity was restricted to an isolated period in his life, and that the risk of a repetition of similar behaviour was very low.

     A danger to the public determination does not allow for an oral hearing. Although the applicant was given notice of the pending Minister's decision, the applicant made no written submissions prior to the Minister's danger to the public determination (due to circumstances beyond the applicant's control, involving his then-lawyer). Such notice normally satisfies the requirements of procedural fairness.

     The Minister's determination was based on several official documents, including police and immigration reports, and the applicant's probation order. Not included in the record before the Minister were psychiatric reports referred to in the probation order, and the decision of the Parole Board. These latter two documents are crucial to the question of whether the applicant is a danger to the public or not, as they provide evidence as to the unlikelihood of recidivism. Normally, these documents would be considered inadmissible in an application for judicial review, because they were not part of the record before the Minister. However, this is a situation where this important, relevant evidence was easily accessible to the decision maker(s). Considering the serious consequences of a negative decision, this evidence should have been enquired after.

     It is troubling that the psychiatric report and the Parole Board decision were not before the Minister when the danger to the public determination was made. The issue, in terms of natural justice or procedural fairness, is whether these relevant documents ought to have been before the Minister. These documents ought to have been before the Minister, regardless of whether the applicant made submissions or not. On this basis alone, I believe that the applicant's case ought to be sent back to the Minister for re-determination in light of, at a minimum, the evidence contained in those two documents.

     There are reviewable errors in the Minister's determination which are enough to justify referring the matter back to the Minister for re-determination. The Minister erred by giving an improper interpretation to the word "public" in making the determination. The Minister also erred in the interpretation of "danger," in that the Minister's comments refer to the "abhorrent" nature of the crimes of this first-time offender, and not to the danger posed.

     Accordingly, I hereby order that the Minister rescind the opinion rendered, and that this matter is referred back to the Minister for re-determination in light of the evidence which has been brought before me, and which ought to have been before the Minister in the first place. In addition, I order that a writ of mandamus be issued, directing the Minister not to execute the Deportation Order issued against the applicant on April 9, 1996 by D. Benning, an Adjudicator with the Immigration and Refugee Board, pending the outcome of the re-determination.

     Both counsel were to discuss and forward question(s) for certification, but to date have not done so and two delays granted for the purpose have now passed. Accordingly, I do not propose to advance any questions for certification.

OTTAWA

     B. Cullen

February 24, 1997.

     J.F.C.C.