IMM-682-96
BETWEEN:
HARM NOPPERS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
This is an application for judicial review of, and for an order setting aside, the Minister's opinion pursuant to s-s.70(5) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), that the applicant, Harm Noppers, constitutes a danger to the public in Canada. That opinion, determined by the Minister's delegate, was dated January 10, 1996, and was communicated to the applicant on February 5, 1996.
By way of relief, the applicant seeks an order that the opinion of the Minister be set aside and that a deportation and removal order, directed to the applicant, be suspended, and further, a declaration exempting him from the application of s-s.70(5) of the Act.1 He also seeks a declaration that the Minister or his delegate failed to exercise his discretion properly in issuing the opinion, and that therefore the decision is rescinded and shall have no effect on his appeal before the Appeal Division of the Immigration and Refugee Board (the "Appeal Division").2
The application was heard in Edmonton on March 21, 1997, after which, having heard counsel on behalf of both parties, decision was reserved pending judgment by the Court of Appeal in Williams v. Minister of Citizenship and Immigration.3 At that time, I indicated that should the decision of the Court of Appeal in Williams raise any issues warranting additional argument, further comment would be invited from the parties. In my view, the Williams decision has definitively disposed of certain issues raised in this case and no further submissions are appropriate. Having carefully considered the written submissions and oral argument advanced on behalf of both parties, and in light of jurisprudence in relation to the application of s-s.70(5),4 this application for judicial review is dismissed for the reasons which follow.
FACTS:
The applicant was born on November 9, 1954 in the Netherlands. On July 6, 1974, at the age of 19, he was admitted to Canada as a landed immigrant with his parents and four siblings. The applicant and his family were sponsored by an uncle who was already a resident of Canada. Since that time, the applicant has remained a permanent resident of Canada without becoming a citizen.
In August 1992, the applicant was convicted of two counts of sexual exploitation and one count of sexual interference contrary to sections 153(1)(a) and 151 of the Criminal Code. The convictions stemmed from incidents of sexual impropriety engaged in by the applicant with female foster children residing in his home between September 1990 and June of 1991. Upon conviction for these offences, the applicant was sentenced to cumulative terms of three years and three months incarceration. The applicant has a previous criminal record, which includes a 1986 conviction for assault, for which he received a conditional discharge and was placed on probation for six months, and a 1976 conviction for possession of a narcotic for the purposes of trafficking, for which he was given a suspended sentence and placed on probation for 18 months.
As a result of his criminal convictions, the applicant was made the subject of an inquiry pursuant to s-s.27(1) of the Act. On November 7, 1994, he was found to be person as described under paragraphs s.27(1)(d)(i) and (ii) of the Act and in accord with s-s.32(2) of the Act, an order was issued that he be deported from Canada.
On November 7, 1994, the same day the deportation order was issued, the applicant appealed to the Appeal Division. The hearing of the appeal was originally scheduled for September 12, 1995, but with a change in counsel by the applicant, that hearing was subsequently adjourned to October 5, 1995, and it was later rescheduled for December 4, 1995. On that date, the appeal commenced as scheduled, at which time oral evidence was heard and the decision was then reserved.
Prior to the hearing of the appeal, on July 10, 1995, there came into force Bill C-44, An Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, c. 15 ("Bill C-44). Among the provisions of Bill C-44 relevant to this application was an amendment adding s-s.70(5) to the Immigration Act and providing for its application. That subsection provides, in essence, that a permanent resident who, in the opinion of the Minister, constitutes a danger to the public in Canada, shall not have an appeal to the Appeal Division in relation to a deportation order issued against him.
Prior to the hearing of the applicant's appeal by the Appeal Division, the Immigration Department sought the opinion of the Minister as to whether, pursuant to s-s.70(5) of the Act, the applicant represented a "danger to the public in Canada", and the applicant was so advised by letter dated October 16, 1996.5 In the letter, the evidence to be considered by the Minister was listed, and copies of the listed documents were enclosed for the applicant. The letter invited the applicant to address that evidence by submitting any representations or evidence regarding whether he was a danger to the public and whether there existed sufficient humanitarian and compassionate factors to outweigh any danger he might present. If no submission were made by the applicant within fifteen days of receiving the letter, the applicant was advised, the Minister might issue an opinion based on the evidence before him.
The applicant responded with written submissions, dated November 1, 1995, which consisted of submissions, supportive of the applicant as being no danger to the public, by counsel for the applicant, his parole officer, a psychologist, and members of his wife's family, as well as progress summaries from the penal institution in which the applicant was held during his incarceration.
On February 5, 1996 Mr. Noppers received a letter advising that it was the Minister's opinion that he constituted a danger to the public in Canada pursuant to s-s.70(5) of the Act. That opinion, determined by the Minister's delegate, was dated January 10, 1996. Further, the applicant was advised, a deportation order having been earlier issued to him, that the issuance of the Minister's opinion removed the applicant's right to appeal from that order to the Appeal Division.
On February 26, 1996, the applicant filed this application for leave and judicial review of the deportation order and of the Minister's decision, and leave was granted by Order dated January 16, 1997. In the meantime, the applicant had filed a motion for an order staying the deportation and removal order pending disposition of the application for leave and judicial review. This application for an interim stay was granted by Mr. Justice Gibson by Order dated March 1, 1996.
ISSUES:
The issues in the present judicial review are characterized in the Applicant's Memorandum of Argument as follows:
| 1. The application of s-s.70(5) of the Immigration Act in the case where the "hearing has commenced". |
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| 2. Unreasonable use of the Minister's discretion in the issuance of the opinion against the applicant that he is considered to be a danger to the public in Canada. |
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During the hearing, counsel for the applicant also raised a third issue, submitting that the Minister erred by improperly considering evidence which was extraneous and highly prejudicial to the applicant when rendering his decision pursuant to s-s.70(5) of the Act.
ANALYSIS:
According to the applicant, the "fundamental issue" in the present judicial review is the interpretation of s-s.70(5) of the Act. That subsection provides as follows:
| 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 a person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be |
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| (a) a member of an inadmissable class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
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| (b) a person described in paragraph 27(1)(a.1); or |
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| (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. |
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The applicant submits that s-s.70(5) has no application in the case at bar. It is urged that the language of s-s.70(5) suggests that where the Minister issues an opinion, all pending appeals to the Appeal Division are removed, but it is submitted, s-s.70(5) is not applicable to this case where the "hearing" of the applicant's appeal had already commenced, and in fact, been completed, except for the board's decision, at the time the Minister's opinion was issued. Put simply, the applicant submits that where, as in the present case, his appeal hearing has been completed, even though not disposed of by the Appeal Division, before the Minister has issued an order, the appeal is not extinguished, and therefore the Minister is without jurisdiction to issue the order.
Counsel for the applicant apparently based this argument on his interpretation of the language of s-s.13(4) of the transitional provisions of Bill C-44, which provided:
| 13. (4) Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5). |
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According to the applicant, s-s.13(4) is to be interpreted so that s-s.70(5) applies where an "appeal has been made on or before the coming into force" of the subsection, that is, on July 10, 1995, but the hearing of the appeal has not commenced before the Minister's decision. It does not, it is urged, require that the "hearing" have commenced before the coming into force of s-s.70(5). In this manner, the applicant suggests the "and" in the first sentence of transitional provision 13(4) is disjunctive; such that the "coming into force" of s-s.70(5) only qualifies when an appeal is filed; it has no bearing on whether a hearing has been commenced.
In the present case, the applicant filed his appeal on November 7, 1994, prior to the coming into force of s-s.70(5). While the hearing was adjourned twice, and did not commence until after this date, on December 4, 1995, that hearing had commenced and concluded, except for the board's decision, before the Minister's opinion. In these circumstances, the applicant submits, the Minister was without authority to issue an opinion pursuant to s-s.70(5), that the applicant constitutes a "danger to the public in Canada".
At the hearing of this matter, counsel for the applicant sought to distinguish the present case from the decision of Tsang v. Minister of Citizenship and Immigration,6 relied upon by the respondent. According to the applicant, Tsang is simply not applicable to the case at bar, in that language of the provision at issue in that case, s-s.77(3.01) of the Act, is "remarkably different" from that in s-s.70(5).
The respondent submits that s-s.70(5) is entirely applicable to the case at bar. According to the respondent, the language of s-s.13(4) of the Amending Act is clear: s-s.70(5) applies where at the time s-s.70(5) came into force on July 10, 1995: (i) an appeal has been made, and (ii) a hearing has not commenced. Given that the applicant's appeal was filed before this date, on November 7, 1994, and that his hearing did not commence until December 4, 1995, after s-s.70(5) came into force, the respondent submits the two criteria have clearly been met in the present case. In support of this interpretation, the respondent relies on Tsang v. M.E.I..
According to the respondent, the facts in the case at bar are similar to those in Tsang. In this case, the applicant's hearing before the Appeal Division had not commenced when s-s.70(5) came into force, but rather began some five months later. In Tsang, Mr. Justice Dubé was called upon to interpret s-s.15(3) of the transitional provisions of Bill C-44. This provision, which the respondent submits, contains wording similar to that in s- s.13(4), provides as follows:
| 15. (3) Subsection 77(3.01) of the Act, as enacted by subsection (2), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under subsection 82.1 of the Act with respect to the matter that was the subject of the decision made under subsection 77(1). |
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The respondent submits that in Tsang, as in the case at bar, while the appeal was filed before July 10, 1995, when s-s. 77(3.01), and s-s.70(5), came into force, the actual hearing did not begin until 15 days after that date. As in the case at bar, so in Tsang, the applicant's appeal to the Appeal Division filed before July 10, 1995, was heard after that date, but was not determined by the Appeal Division when the Minister's "danger to the public" opinion was rendered. Interpreting s-s.15(3), Mr. Justice Dubé, whose decision was upheld by the Court of Appeal, stated as follows:
| In the instant case, the appeal was filed on October 1, 1993, before the coming into force of the said subsection (July 10, 1995). The hearing commenced on July 25, 1995, fifteen days after the coming into force of the subsection. Thus, the hearing was not commenced when the subsection came into force. Therefore, the Minister was entitled to file his opinion at the time he did. The language of the French text supports that interpretation. |
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| Consequently, I find that the Minister did not err in law in issuing his opinion against Peter Tsang after the hearing and before the decision of the Appeal Division. |
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In Tsang Dubé J. held that there was no ambiguity in the English text of s-s.15(3). He held that it clearly applied to exclude appeals under s-s.77(3.01) only where the appeal hearing had been commenced before July 10, 1995. This interpretation, Dubé J. held, was supported by the French version of the provision. That decision was upheld by the Court of Appeal in Tsang,7 in which Mr. Justice Marceau, writing for the Court, stated as follows:
| With respect, I do not accept that there is ambiguity in the English version of the provision... It seems to me that the second interpretation suggested gives no effect to the fact that the subject of the sentence is "subsection 77(3.01) of the Act", not "the appeal" and particularly presupposes the insertion of the words "before the filing of the Minister's opinion" after the phrase "the hearing has not been commenced." Such a reading, to me, is not open to the interpreter. |
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| In any event, even if there were an ambiguity in the English version. the French version of the provision is not at all ambiguous and indicates beyond question that the first interpretation of the English version corresponds with the intent of Parliament. As the motions judge said, the principles of statutory construction would then require the ambiguity in the English text to be resolved so as to conform with the non-ambiguous French text. No secondary principle of statutory construction would come into play. |
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| I will add, finally, that there is nothing in the Act which restricts the time-frame within which the Minister may exercise his or her power to reach an opinion that an individual is a danger to the public. There are obvious policy grounds for maintaining as much latitude in that process as possible in order to provide the maximum protection to the Canadian public. The intent of Parliament in that respect to me is perfectly clear. |
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The decision in Tsang has been applied by this Court to s-s.13(4) of Bill C-44,8 the transitional provision for the application of s-s.70(5). In Casiano v. Canada (M.C.I),9 Mr. Justice Dubé stated as follows:
| Subsection 75 [the correct reference would appear to be s-s. 70(5)] of the Act enacted July 10, 1995 provides that no appeal to the Immigration Appeal Division may be made by a permanent resident against whom a deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada. The transitional provision set out in s. 13(4) of ... S.C. 1995, c. 15 stipulates as follows: [s-s.13(4) is then quoted] |
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| In Tsang et al. v. M.C.I, IMM-2585-95 (F.C.T.D.), I had the occasion to consider the provision and came to the conclusion that the Minister was entitled to file his opinion at the time he did. In the instant case the appeal of the applicant was filed on January 25, 1994, before the coming into force of the said subsection on July 10, 1995. The hearing of the appeal was not commenced when that subsection came into force. Therefore the Minister was entitled to file his opinion at the time he did on February 8, 1996. |
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In the case at bar, because the hearing of the applicant's appeal had not commenced prior to July 10, 1995, when s-s.70(5) came into force, the Minister was entitled to issue his opinion, as he did on January 10, 1996. Once the danger opinion was rendered, the Appeal Division was relieved of its jurisdiction to dispose of the appeal. As stated by Strayer J.A. in Williams,10 once the Minister gives notice of his decision pursuant to s-s.70(5), the discretion of the Appeal Division is supplanted and replaced by the discretion of the Minister:
| The effect then of the Minister forming and giving notification of her opinion under subsection 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of his discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under paragraph 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. ... |
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Accordingly, I conclude that the Minister was entitled to issue an opinion regarding the applicant pursuant to s-s.70(5), and in so doing committed no reviewable error of law. On this basis, the applicant's first argument is dismissed.
The second argument advanced by the applicant is that the Minister failed to exercise his discretion in a proper manner and breached the principles of natural justice. The applicant bases this argument on three grounds.
First, the applicant contends that the Minister breached the principles of natural justice by failing to provide reasons for his decision to issue an opinion against the applicant.
Second, the applicant submits that the Minister erred by failing to consider the "totality" of the evidence which, it is urged, overwhelmingly indicated that the applicant was rehabilitated and presented no danger of re-offending, and he therefore posed no danger to the community that would necessitate his removal from Canada.
At the hearing, counsel for the applicant raised a third argument, that the Minister erred and violated the rules of natural justice by considering extraneous and highly prejudicial material in reaching his decision pursuant to s-s.70(5). More specifically, counsel for the applicant pointed to a police report, which was before the Minister, which he alleges refers to other incidents of criminal behaviour regarding which the applicant was not convicted. According to the applicant, these materials improperly became part of the record, and should not have been considered by the Minister. I note, however, that at the hearing both counsel were in agreement that there was no discrepancy between the materials which were before the Minister and those provided to the applicant. Accordingly, as this evidence was also provided to the applicant, this argument does not raise issues regarding improper consideration of "extrinsic evidence" such as those addressed in Kim v. Canada (Minister of Citizenship and Immigration)11 and Shah v. Canada (Minister of Citizenship and Immigration).12
The issue as to whether the lack of reasons for a Minister's decision under s-s.70(5) constitutes a denial of fundamental justice was dealt with by the Court of Appeal in Williams, supra. Writing for the Court in that case, Strayer J.A. concluded that it did not, and stated as follows:
| We are frequently told that the principles of fundamental justice are to be found in the basic tenets of our legal system. In my view those basic tenets have never imposed a duty on tribunals to give reasons where a statute has not specifically so provided. This is particularly the case where the decision in question is essentially discretionary. We have been referred to no authoritative jurisprudence relevant to the particular issues here which seriously questions these principles. |
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| What has been recognized is that where a discretionary tribunal decision is either, on its face, perverse, or where there is evidence of facts being before the tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, the decision should be set aside for one of the established grounds for judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc. In such cases the tribunal decision is set aside not because of a lack of reasons per se but because in the absence of reasons it is not possible to overcome the inference of perversity or error derived from the result or the surrounding circumstances of the decision. ... |
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| I am at a loss to know why courts can as a matter of law render decisions without reasons but may insist that tribunals cannot, as a matter of law do so. A rationale for this proposition, ... is that without reasons being given by a decision-maker, a court on judicial review cannot tell if that decision is correct. With respect, it seems to me that this approach is based on the premise that decisions by tribunals and officials are presumptively wrong unless they can be proven correct. But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision-maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision-maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement.13 |
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[footnotes omitted]
On the basis of the decision in Williams, I reject the applicant's argument that by failing to provide reasons, the Minister failed to exercise his discretion in a proper manner and contrary to the principles of natural justice.
In my opinion, the argument of the applicant that the Minister erred in exercising his discretion by failing to consider the totality of the evidence which, it is urged, "overwhelmingly indicated" that the applicant was rehabilitated, was also addressed by the Court of Appeal in Williams. In that case, in discussing the latitude available to the Court to review the discretionary decision of the Minister pursuant to s-s.70(5), Strayer J.A. stated:
| 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, 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. ... |
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| In the present case we know what material was submitted to the decision-maker. That material included matters both favourable and unfavourable to the respondent, including the submissions of his own counsel and a psychologist's report in his favour. ... The Court is not being asked to affirm the correctness of the Minister's opinion but only to determine whether there is any lawful basis for its review.14 |
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As in Williams, unless the applicant is able to establish that the Minister has erred in law, acted in bad faith or relied on irrelevant considerations, his decision pursuant to s-s.70(5), that the applicant constitutes a danger to the public in Canada is simply not open to judicial review. In this case, there is no basis in evidence, in my view, to suggest that the Minister's decision, in the exercise of his discretion, was patently perverse, exceeded his jurisdiction or was made in bad faith.
Conclusion
In these circumstances, in reliance upon the decisions of the Court of Appeal in Tsang and in Williams, the application by the applicant Noppers, to set aside the Minister's opinion pursuant to s-s.70(5), is dismissed. In effect this terminates the interim stay, earlier granted, of action to execute the deportation or removal order against the applicant.
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JUDGE
OTTAWA, Ontario
September 9, 1997
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1. Applicant's "Application for Leave and Judicial Review", dated February 26, 1996
2. "Applicant's Memorandum of Argument" dated April 18, 1996.
3. [1997] 1 F.C. 457 (T.D.), appeal allowed, (1997) 212 N.R. 63, 147 D.L.R. (4th) 93 (F.C.A.). (Hereinafter "Williams").
4. See Williams, supra note 3; Tsang v. Canada (Minister of Employment and Immigration), (February 11, 1997), A-179-96 (F.C.A.) [1997] F.C.J. No. 151, upholding the Trial Division's decision in (1996), 107 F.T.R. 214, (hereinafter "Tsang"); Pratt v. Canada (Minister of Citizenship and Immigration), (April 30, 1997) IMM-3160-95 (T.D.) [1997] F.C.J. No. 522; Luksicek v. Canada (Minister of Citizenship and Immigration) (April 30, 1997) IMM-3160-95, IMM-3528-95 (T.D.) [1997] F.C.J. No. 523; and Gonsalves v. Canada (Minister of Citizenship and Immigration) (May 9, 1997) IMM-1992-96 (T.D.), [1997] F.C.J. No. 588.
5. The letter was, in fact, improperly dated October 16, 1996. It was received by counsel for the applicant on October 23, 1995, so that the year appearing in the date of the letter was in error.
6. Supra, note 4.
7. Supra, Note 4, (F.C.A.) paras. 12-14 of F.C.J. No. 151.
8. See Pratt, supra, note 4; Luksicek, supra, note 4; Gonsalves, supra, note 4; and Canada (Minister of Employment and Immigration) v. Davis [1997] F.C.J. No. 769.
9. IMM-746-96 (September 20, 1996), [1996] F.C.J. No. 1199, paras. 8, 9.
10. 212 N.R. at 70-71 (F.C.A.).
11. (March 5, 1997), IMM-154-96 (T.D.), [1997] F.C.J. No. 255.
12. (1994), 170 N.R.238 (F.C.A.).
13. 212 N.R. at 76-77 (F.C.A.).
14. 212 N.R. at 71 (F.C.A.).
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