Date: 20001005
Docket: A-149-99
CORAM: ISSAC, J.A.
LÉTOURNEAU, J.A.
McDONALD, J.A.
BETWEEN:
DAWOD NOORI SAID
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario on Tuesday, October 3, 2000
Judgment delivered at Toronto, Ontario
on Thursday, October 5, 2000
| REASONS FOR JUDGMENT BY: McDONALD J.A. |
| IN CONCURRENCE: ISAAC J.A. |
| IN CONCURRENCE: LÉTOURNEAU J.A. |
Date: 20001005
Docket: A-149-99
CORAM: ISSAC, J.A.
LÉTOURNEAU, J.A.
McDONALD, J.A.
BETWEEN:
DAWOD NOORI SAID
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.
[1] This is an appeal from a decision of the Trial Division, dated February 24, 1999. In dismissing the application, the reviewing Judge certified the following two questions:
| 1) In a judicial review of a decision of the Minister of Citizenship and Immigration under paragraph 53(1)(d) of the Immigration Act, that the applicant constitutes a danger to the public in Canada, does the Court have jurisdiction to determine the constitutional validity of paragraph 53(1)(d)? |
| 2) Does the determination by the Minister under paragraph 53(1)(d) of the Immigration Act ("Act") that a Convention refugee is a danger to the public in Canada that includes an assessment of the risk of returning the Convention refugee to the country from which he sought refuge and a balancing of the danger to the public in Canada against the risk to the Convention refugee conform to the requirements of fundamental justice under section 7 of the Charter of Rights and Freedoms. |
[2] Before answering these questions, a brief review of the facts is necessary to understand the issues.
[3] The appellant is a citizen of Afghanistan. He left Afghanistan in 1983. In the same year, he was declared a Convention refugee by the United Nations High Commissioner for Refugees in Italy. He came to Canada in 1986 as a permanent resident.
[4] In 1988, the appellant became addicted to heroin. In 1992, he was found guilty on five counts of trafficking heroin and sentenced to five years' imprisonment. The charges stemmed from 5 transactions which took place between the appellant and a police informant between February and May 1991. The street value of heroin was estimated at $312,000.00.
[5] In 1993, a deportation order was issued as a result of the above convictions. Subsequently, the appellant was found by the Minister to constitute a danger to the public in Canada under paragraph 53(1)(d) of the Act. On February 15, 1996, opinions were issued that the appellant was a danger to the public.
[6] The Ministerial Opinion Report concluded that the appellant would not be at risk upon his return to Afghanistan, and that the risk to Canadian society outweighed any risk that he might face upon such a return.
[7] The appellant spent almost two years in immigration detention after his release in February 1996 because he refused to apply for Afghan travel documentation. When the Minister finally obtained travel documents from Afghanistan, the appellant was advised of his removal date. He applied for and obtained a stay of his removal pending disposition of the judicial review application.
[8] As far as the first question is concerned, this issue has already been decided in the affirmative by this Court in Gwala v. Canada, [1999] 3 C.A. 404.
[9] On the second question, I agree with the reasons given by the reviewing Judge and would answer the question in the affirmative. I also agree with the reviewing Judge that in the circumstances of this case, where the appellant has delayed his removal by his own failure to co-operate, there is no requirement that the Minister provide a periodic, new risk assessment.
[10] In addition, the appellant has not submitted any new evidence with respect to the change of circumstances which allegedly occurred in 1996. Nor has he established how this change would affect him personally. It is true that, in 1998, he wrote to the Minister seeking a deferral of the removal order until an adequate risk assessment was made. However, in that correspondence, he made no assertion of a change in country conditions nor did he provide any new evidence which would require a new risk assessment or which would show that the one done was not adequate. In these circumstances, no further assessments were warranted.
[11] Despite his criminality, the appellant also had the option of making a humanitarian and compassionate application in which he could have raised the issue of a change of circumstances since the previous risk assessment. This is an option which has not been exercised, notwithstanding the fact that the alleged change occurred in 1996.
[12] I would allow the appeal in part, set aside the decision of the reviewing judge with respect to the first certified question and refer the matter back to the Trial Division for a determination of the constitutional validity of paragraph 53(1)(d) of the Immigration Act. In all other respects, I would dismiss the appeal. I would make no order as to costs.
"F.J. McDonald"
J.A.
"I agree
Julius A. Isaac J.A."
"I agree
Gilles Létourneau J.A."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: DAWOD NOORI SAID |
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: TUESDAY, OCTOBER 3, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: McDONALD J.A. |
| IN CONCURRENCE: ISAAC J.A. |
| IN CONCURRENCE: LÉTOURNEAU J.A. |
| DATED: THURSDAY, OCTOBER 5, 2000 |
APPEARANCES BY: Mr. Ron Poulton
For the Appellant
Ms. Sally Thomas
For the Respondent
| SOLICITORS OF RECORD: JACKMAN, WALDMAN & ASSOCIATES |
Barristers & Solicitors
281 Eglinton Avenue East
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 20001005
Docket: A-149-99
BETWEEN:
DAWOD NOORI SAID
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
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