IMM-705-96
B E T W E E N:
ROLSTON RICARDO MOFFATT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision reached on behalf of the Respondent, pursuant to subsection 70(5) of the Immigration Act,1 (the "Act") that the Respondent is of the opinion that the Applicant constitutes a danger to the public in Canada. The decision is dated the 23rd of January, 1996.
The factual background may be briefly summarized as follows. The Applicant was born in Jamaica in August, 1972. He arrived in Canada in 1988. On the 12th of December, 1992, he was arrested and charged with attempted murder. He was apparently released from detention and spent the greater part of the time between then and the 10th of January, 1995 when he was convicted of attempted murder, in the community. While under charge and in the community, he was convicted of possession of property obtained by crime under $1,000.00 and, on another occasion, of assault and failure to comply with a recognizance.
By letter dated the 4th of December, 1995, the Applicant was notified that the Respondent was considering forming the opinion, pursuant to subsection 70(5) of the Act, that the Applicant represents a danger to the public in Canada. The Applicant was given an opportunity to make submissions to the Respondent. The Applicant failed to do so before a delegate on behalf of the Respondent, on the 23rd of January, 1996, formed the opinion that the Applicant constitutes a danger to the public in Canada. At that time, no removal order had been made against the Applicant.
In light of the decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Williams2 only three issues were argued before me. Counsel for the Applicant urged that the Respondent erred in law by failing to give consideration to whether the Applicant constitutes a "present or future danger" and by ignoring material before her that would reasonably have led to a conclusion that the Applicant does not constitute a "present or future danger", based her decision on an erroneous finding of fact made in a perverse or capricious manner and failed to have regard to the totality of the material that was before her.
The tribunal record discloses that the Respondent's delegate had before him a "Request for Minister's Opinion" document and a "Danger to the Public Ministerial Opinion Report" in which an officer in the Respondent's Ministry, a Manager, a Review Officer and the Director, Case Research and Review, Case Management Branch all recommended that a danger opinion be issued. I agree with the submission of counsel for the Applicant that those documents represent less than satisfactorily balanced presentations of the totality of the material that was before the Respondent's delegate for consideration in reaching his opinion. In Williams, Mr. Justice Strayer wrote:
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It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of the opinion ...", not "where a judge is of the opinion ..." that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" that he is such a danger. 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, where 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. |
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[underlining added by me for emphasis] |
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If I were able to conclude that the Respondent's delegate relied solely on the material prepared for his consideration by officials in the Respondent's Ministry, I would conclude that the Respondent erred in a reviewable manner in forming the opinion reached on her behalf. But I cannot reach that conclusion. By reference to the last sentence of the quotation from Williams above, I am here confronted with a record that was, according to undisputed evidence, before the Respondent's delegate. In the absence of evidence to the contrary, I must assume that the Minister's delegate acted in good faith in having regard to that material. I take this to imply, "... in having regard to the totality of that material". There was no evidence before me that the Respondent's delegate did not have regard to the totality of the material that was before him. In the result then, I must assume that, despite the inadequate material prepared for his use, the Respondent's delegate himself had regard to the totality of material, including all of the material tending to show that the Applicant does not represent a present or future danger to the public in Canada. That material included two pre-sentence reports dated almost a year apart and both based on rather extensive community consultation wherein the reporting officers concluded that the applicant was a suitable candidate for "community supervision". The material favourable to the Applicant also included a series of glowing character references for the Applicant coming from the community. On the other side of the equation, it is clearly evident that the material favourable to the Applicant did not significantly influence the sentencing judge. He sentenced the Applicant to ten years imprisonment.
On the basis of the totality of the material that was before the Respondent's delegate, while another person might well have reached a different opinion, I conclude that it was reasonably open to the Respondent's delegate to form the opinion that the Applicant constitutes a present or future danger to the public in Canada.
Once again, by reference to the quotation above from Williams, I cannot conclude that the subjective decision here arrived at involved the decision-maker acting in bad faith or erring in law or acting on the basis of irrelevant considerations. Further, no breach of procedural fairness was argued before me.
In the result, this application for judicial review will be dismissed.
Counsel for the Applicant recommended certification of the following three questions:
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1) Is the Minister's opinion that a person constitutes a danger to the public tainted and thereby reversible when that opinion is partly formed on the basis that the person concerned accepts no responsibility for the crime for which the person was convicted and continues to exercise his legal rights of appeal pursuant to the Criminal Code, appealing the conviction and sentence and continuing to assert his innocence? |
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2) Is it in accordance with principles of fundamental justice for the Minister, presently aware that the person concerned has appealed his conviction and sentence and which appeal has not been disposed of, to form an opinion before the disposition of the appeal and before the Parole Board has assessed the likelihood or otherwise of recidivism, that the person constitutes a danger to the public on the basis of the commission of a violent offence which is currently under appeal and for which the individual concerned accepts no responsibility? |
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3) Is it in accordance with principles of fundamental justice for the Minister, in his or her opinion, to pronounce a person as a danger to the public not having weighed the positive circumstances of the alleged offender as against the negative aspects, and to restrict his or her opinion solely to the negative aspects? |
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Counsel for the Respondent objects to the certification of each of the three questions. She urges that the first question is not a question of general importance and is very specific to the facts of this case. With respect to the second question, she submits that the issue that is the subject of the question was not raised in material filed on behalf of the Applicant nor was it argued at the hearing and therefore it is not an appropriate question for certification. With respect to the third question, counsel urges that it has already been answered by the Federal Court of Appeal in the Williams decision, supra, particularly in light of the fact that there was no evidence before me that the Respondent's delegate ignored or did not take into account the totality of the evidence that was before him.
I agree with the submissions of counsel for the Respondent with respect to the third question. I also agree with the submissions of counsel for the Respondent with respect to the second question. While the concerns expressed in that question were argued before me, they were not argued as constituting a failure to comply with the principles of fundamental justice. Rather, they were argued as evidencing that the Respondent's delegate based his decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the totality of the material that was before him. That being said, I cannot agree with the submission on behalf of the Respondent that the first question posed is not a question of general importance. In the result, I will certify the first proposed question only.
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Judge
Ottawa, Ontario
July 21, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-705-96
STYLE OF CAUSE: ROLSTON RICARDO MOFFATT
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JULY 15, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: JULY 17, 1997
APPEARANCES:
Mr. Munyonzwe Hamalengwa
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Munyonzwe HAmalengwa
Barrister and Solicitor
2 Sheppard Avenue East
North York, Ontario
M2N 5Y7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-705-96
Between:
ROLSTON RICARDO MOFFATT
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 April 11, 1997, Court Files A-855-96 and IMM-3320-95 (unreported) (F.C.A.)
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