Hinds v. Canada (Citizenship and Immigration), docket IMM-3549-95

                                 IMM-3549-95

BETWEEN:

HAROLD GEORGE HINDS

                                 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 by the Respondent, pursuant to subsection 70(5) of the Immigration Act,¹ that the Respondent is of the opinion that the Applicant constitutes a danger to the public in Canada. The certificate of the Respondent's decision is dated the 12th day of December, 1995 and was communicated to the Applicant on the same day during a recess in the hearing of the Applicant's appeal before the Appeal Division of the Immigration and Refugee Board against a removal order that had earlier been made against him.

     The factual background to this application may be briefly summarized as follows. The Applicant is a citizen of Jamaica. On the 1st day of March, 1996, he was thirty years old. He was landed in Canada with his mother on the 7th of February, 1987. He resides in Canada with his common-law spouse and two children. He has accumulated an adult criminal record consisting of three convictions. In 1988 he was convicted for assault with a weapon for which he received a sentence of one day of incarceration and a $200.00 fine. In 1992 he was convicted for importing a substantial quantity of marijuana and received a sentence of fifteen months imprisonment. His third conviction occurred in September of 1994 and was for assaulting a peace officer. He was fined $750.00. Between his second and third convictions a removal order was issued against him. At the time, he was advised in writing by the Respondent that any further conviction would result in his removal from Canada.

     On the 12th day of November, 1995, he received notice from the Respondent that she was contemplating issuing a danger opinion against him under subsection 70(5) of the Immigration Act. Disclosure of the material that would be considered by the Respondent was made to the Applicant. He was offered an opportunity to make submissions. Submissions were made on his behalf.

     The Applicant had appealed the removal order issued against him to the Appeal Division of the Immigration and Refugee Board. The hearing of his appeal was convened on the 12th day of December, 1995. During the course of the hearing, the Respondent's representative at the hearing advised the Board that no danger opinion would be issued against the Applicant. Substantial agreement was reached between the Respondent's representative and counsel for the Applicant that a stay of the removal would be appropriate. An adjournment of the hearing was declared. During the adjournment, the Applicant was served with the certificate of the Respondent's danger opinion issued against him. In the result, the hearing before the Appeal Division was further adjourned and submissions were invited as to whether the Appeal Division continued to have jurisdiction to consider the appeal before it.

     On the 19th day of December, 1995, the Applicant was arrested with a view to his removal from Canada. Mr. Justice Rouleau of this Court stayed the removal by order dated the 27th day of December, 1995.

     In written material filed and in brief argument before me, counsel for the Applicant argued that the Respondent should be estopped "...from issuing and/or relying on the Certificate", that is to say, the danger opinion, because of the sequence of events that transpired before the Appeal Division of the Immigration and Refugee Board and during the adjournment. In counsel's submission, his reliance on the representations of the Respondent's representative before the IAD was to the detriment of his client. I decline to consider this argument. In my view, it simply is not relevant to this application for judicial review of the Respondent's decision determining the Applicant to be a danger to the public in Canada. Such an argument would be for consideration at another time and on a different application. It is not open for consideration here.

     I was advised by counsel for the Applicant that the Applicant's appeal before the IAD has not been finally disposed of. When and if it is, it will be open to the Applicant to seek judicial review of that decision if the IAD determines the question of jurisdiction against him. On such an application, it might well be open to the Applicant to argue estoppel against the Respondent by virtue of her representative's conduct before the IAD, reliance on that conduct and subsequent service of the danger opinion certificate.

     Apart from the estoppel issue, counsel for the Applicant raised only two issues before me. First, counsel argued that the Respondent's conclusion that the Applicant constitutes a danger to the public in Canada was simply not open to her on the material that was before her. Second, counsel argued that the Respondent failed to provide procedural fairness to the Applicant in the procedure adopted in formulating her opinion.

     The Respondent, through her delegate, had substantial evidence before her for consideration regarding the danger opinion. Among the materials before the Respondent was a "Danger to the Public Ministerial Opinion Report, Section 70(5) of the Immigration Act", dated December 4, 1995 signed by an officer, presumably in the Respondent's Ministry, and concurred in, apparently by the officer's manager, the following day. The officer's recommendation at page 6 of the Opinion Report is in the following terms:

On the basis of the above information and having reconsidered all relevant factors, I recommend that pursuant to Section 70(5) of the Immigration Act, that the Minister's opinion be requested that the above named is a danger to the public.

     Within a portion of the Opinion Report entitled "danger rationale" the following paragraph appears:

As mentioned in counsel's submission, Harold Hinds @ Peter Hinds was next arrested as a result of an undercover police investigation during the months of May and June 1987 of a drug trafficking ring. During the investigation, subject and his brother Trevor Hinds along with two females were allegedly present and "overseeing" a drug transaction by a third male and a subsequent search of a residence rented by Harold Hinds and a female produced evidence of drug paraphernalia. At that time, the female admitted to flushing cocaine down the toilet just at the time of police arrival. Harold Hinds was arrested and charged with Trafficking in Drugs, was ordered to stand trial on this charge and subsequently acquitted as noted by counsel. Although part of the offence took place in a residence rented by the subject, there appears to have been no substantive evidence to physically link him to the offence(s).

I refrain from commenting on the propriety of relying, in a "danger rationale", on circumstances surrounding events that led to a charge against the Applicant on which he was acquitted. It is sufficient to note that: 1) this was one of only three paragraphs constituting the "danger rationale" in the report, and given the acquittal and the limited context in which it appears, it can only be regarded as highly prejudicial; and 2) it is prefaced as if the material had been introduced in submissions of counsel for the Applicant; in fact, counsel for the Applicant commented on the events recorded to rebut negative comments in material put forward by the Respondent's officials for the Respondent's consideration. In that material, according to counsel's submission, it is indicated that the Applicant's brother "took the rap for him". Counsel points out that, in fact, the Applicant's brother was found guilty by a competent Court whereas the Applicant was acquitted; any basis to suggest that the Applicant's brother "took the rap for him" was unlikely to be substantial.

     In the same opinion report, the following two sentences appear:

Included in counsel's submission are statements referring to psychiatric assessments done by a doctor Davis, unfortunately no assessment were included with the submissions. I will be contacting counsel to determine whether they were not included as an oversight and if so will be forwarded by fax at our earliest convenience.

Those sentences were struck out but legible. A marginal note is added in the following terms:

Assessments were included with submissions.

In commenting on submissions made on behalf of the Applicant, the officer, by reference to the psychiatric assessment and counselling suggests that they "...may be self-serving". Without any analysis to support this phrase, I conclude, that it can only be regarded as idle speculation.

     The material that went before the Minister's delegate included another document entitled "Criminal Backlog Review Ministerial Opinion Danger to the Public Subsections 70(5) & 70(6) of the Immigration Act." It is signed by an officer indicating concurrence with the recommendation in the document earlier referred to. The form also indicates that a "chief" concurs. The officer states:

It is interesting to note that the person who conducted Mr. Hind's [sic] psychological assessment is a Sports Psychologist. I'm unclear how that specialty relates to his ability to assess danger to the public as per the Immigration Act.

The officer apparently overlooked the facts that the author of the assessment, according to his CV which was included with his assessment, has been a clinical psychologist in private practice from 1973 to the date of his assessment, that is to say November 15, 1995, some twenty-two years, has had substantial community-based experience unrelated to sports psychology and has published extensively in areas of psychological study other than sports psychology.

     I have dwelt at some length on the advice provided to the Respondent's delegate on the issue of whether a danger to the public opinion was warranted because I am satisfied that it was not of high quality. I assume that the memoranda of advice will have been heavily relied upon by the Respondent's delegate in determining whether or not to form an opinion that the Applicant constitutes a danger to the public. I reach this conclusion on two bases: first, I conclude that all of the effort required to prepare the memoranda would not have been undertaken if they were not to be relied upon; second, given the volume of material on this file and on equivalent files, I conclude that it is highly likely, albeit highly inappropriate, that the Respondent's delegate relies heavily on the advice she or he receives because there simply might not be enough hours in the day for the Respondent's delegate to review all of the material, in detail, her or himself.

     The question of whether such memoranda of advice constitute "extrinsic evidence" relied on by the Respondent's delegate and therefore should have been shared with the Applicant and his counsel who then should have been given an opportunity to respond before any decision was taken, was not argued before me.² I will not, therefore, comment further on the issue.

     In the absence of reasons for the Respondent's decision that the Applicant constitutes a danger to the public in Canada, and no reasons were provided, it is impossible to satisfy concerns that the Respondent's delegate may have relied heavily on less than high quality advice in reaching the decision here under review.

     In Bahadori v. Canada (M.C.I.),³ Mr. Justice Wetston wrote:

Whether a person constitutes a danger to the public is fact dependent. Do the facts support the finding that that person indeed constitutes a danger to the public in Canada? It is not simply a question of whether the opinion is subjective or objective. It is more a question of whether the facts support a finding that, in law, that person constitutes a danger to the public in Canada.

It is the Court's opinion that what is essential under this section is a determination of whether the facts support the finding that Mr. Bahadori poses a present or future danger to the public in Canada.

[underlining added by me for emphasis]

     In Thompson v. Canada (M.C.I),⁴ after citing the above quotation from Bahadori, I concluded in the following terms:

There is no question that by virtue of the very serious crime he committed, the applicant was quite properly subject to deportation; however, being found to constitute a danger to the public in Canada, combined with the conviction, has further implications; it removes a right of appeal to the Appeal Division of the Immigration and Refugee Board. For this to follow, in addition to the conviction, there must be evidence of present or future danger.

On the evidence that was before the Respondent in this matter it may well have been open to the Respondent or her delegate to conclude, on a careful weighing of that evidence, that the Applicant constitutes a present or future danger to the public in Canada. But the analysis in the advice going forward to the Respondent or her delegate was simply too flawed, I conclude, to support such a decision, and there simply is no basis whatsoever on which to conclude that an adequate analysis and weighing of the evidence was conducted by the Respondent's delegate herself or himself.

     In Northwestern Utilities Ltd. et al. v. Edmonton,⁵ Mr. Justice Estey, writing for a seven member bench of the Supreme Court, wrote at pages 705 and 706:

The law reports are replete with cases affirming the desirability if not the legal obligation at common law of giving reasons for decisions (vide Gill Lumber Chipman (1973) Ltd. v. United Brotherhood of Carpenters and Joiners of America Local 2142, per Hughes C.J.N.B. at p. 47; MacDonald v. The Queen, per Laskin C.J.C. at p. 262). This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed. This is not to say, however, that absent a requirement by statute or regulation a disposition by an administrative tribunal would be reviewable solely by reason of a failure to disclose its reasons for such disposition.6

[underlining added by me for emphasis]

Mr. Justice Estey cites the advantages afforded where reasons are given. He then goes on, however, in a conditional voice, to state the position that, absent a statutory or regulatory provision, a decision such as that here before me, would not be reviewable solely by reason of a failure to provide reasons. If Northwestern is to be interpreted as standing for this proposition, then it should be noted that I have not relied solely on the failure to provide reasons. Rather, I have concluded that the Respondent or her delegate relied upon flawed analysis and advice without providing that analysis and advice to the Respondent and affording him an opportunity to respond to it and failed to provide reasons that might satisfy the Respondent or a reviewing Court that an adequate analysis and weighing of the evidence was conducted by the Respondent or by her delegate.⁷

     In Williams v. Canada (M.C.I.),⁸ Madame Justice Reed concluded in the following terms:

The circumstances of this case are such that the principles of fundamental justice, natural justice and fairness are not met unless the applicant is given reasons for the decision that has been made. This follows from a number of considerations. In the first place the consequences for the individuals are substantial. Secondly, the decision making-process (through three levels of immigration officials) gives no assurances that the ultimate decision-maker, in fact, considers the applicant's submissions directly. Thirdly, reading the Guidelines that have been issued, and the evidence of the Applicant's offences that formed the basis for the decision, it is not clear what reasoning led to this applicant being found to be a present and future danger to the public. Fourthly, in the absence of even brief reasons, a reviewing Court on judicial review cannot determine whether the decision-makers (the delegates of the Minister) are applying consistent and lawful criteria in making decisions that an individual is a danger to the public in Canada.

I am not saying that in all cases where judicial review is the only type of "appeal" possible that reasons must be given. In most cases reasons are given . All that is being said, in this case, is that given the nature of the applicant's interest and the nature of the multi-level procedure adopted and given the opaqueness to review that exists in the absence of reasons, fundamental justice, natural justice and fairness require that reasons be given.

     I am in complete agreement with the conclusion of Madame Justice Reed. On the facts before me, fundamental justice, natural justice and fairness required that the Respondent give reasons for her decision that the Applicant constitutes a present and future danger to the public in Canada. For the foregoing reasons based on questions this application for judicial review will be allowed.

     Following discussion with counsel at the close of the hearing of this matter, the following questions based on questions certified by me in Thompson (supra) and by Madame Justice Reed in Williams (supra) will be certified:

1.      Does the phrase "danger to the public in Canada", as it appears in subsection 70(5) of the Immigrant Act, imply a concept of "present or future danger" that must be satisfied?

2.      Is subsection 70(5) inconsistent with the requirements of fundamental justice as it does not provide for the rendering of reasons for a determination that a person constitutes a danger to the public in Canada?

3.      Does the failure to provide reasons for a determination under subsection 70(5) that a person constitutes a danger to the public in Canada, in the context of the procedure being used, breach the requirements of natural justice or procedural fairness?

     I will not certify questions certified by Madame Justice Reed that reflect Charter and other constitutional issues as those issues were not argued before me.

             _______________________________

                 Judge

Ottawa, Ontario

November 27, 1996

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      See Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.)

     ³      25 April, 1995, IMM-4931-94 (unreported)(F.C.T.D.)

     ⁴      16 August, 1996, IMM-107-96 (unreported) (F.C.T.D.)

     ⁵      [1979] 1 S.C.R. 684">[1979] 1 S.C.R. 684 (not cited before me)

     ⁶      The cases cited by Mr. Justice Estey are reported at (1973), 7 N.B.R. (2d) 41 (N.B.S.C.A.D.) and (1976), 29 C.C.C. (2d) 257.

     ⁷      Northwestern Utilities Ltd. et al. v. Edmonton, is but one in a group of cases which, although not argued before me, I am aware of and which bear on reasons in respect of decisions of administrative tribunals. [1984] 2 S.C.R. 476">Vide: Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; S.E.P.Q.A. v. Canada (C.H.R.C.) [1989] 2 S.C.R. 879; Lever v. Canada (Human Rights Commission)(23 November 1988) A-947-87, (F.C.A.); and Mercier v. Canada (Human Rights Commission)(22 March 1994) A-1095-91, (F.C.A.). On the facts of this case, I am of the view that those cases are not determinative of the issues before me.

     ⁸      18 October, 1996, Court File IMM-3320-95 (unreported)(F.C.T.D.)