A-855-96
(IMM-3320-95)
CORAM: STRAYER J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
" and "
JEFFREY HUGH WILLIAMS
Respondent
HEARD at Toronto, Ontario, on Thursday, March 20, 1997
JUDGMENT delivered at Ottawa, Ontario on Friday, April 11, 1997
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: ROBERTSON J.A.
McDONALD J.A.
A-855-96
(IMM-3320-95)
CORAM: STRAYER J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
" and "
JEFFREY HUGH WILLIAMS
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
This is an appeal from an order of the Trial Division of October 29, 1996. In it the motions judge set aside a decision made on behalf of the Minister of Citizenship and Immigration under subsection 70(5) of the Immigration Act, on November 10, 1995, to the effect that the Minister was of the opinion that the applicant constituted a danger to the public in Canada. The learned motions judge set the decision aside on the basis that the Minister was, in the circumstances, obliged by principles of fundamental justice1 and of the common law to provide reasons for her decision. The motions judge declined to find that subsection 70(5) itself is invalid as inconsistent with section 7 of the Canadian Charter of Rights and Freedoms on the grounds advanced by the applicant: namely that it is too vague and that it does not specifically require reasons to be given. On this appeal the appellant seeks a reversal of the motions judge's finding that the Minister violated principles of fundamental justice and the common law, while the respondent not only seeks to uphold her opinion but also contends that she should have held subsection 70(5) to be contrary to section 7 of the Charter for vagueness and a lack of requirement of reasons.
Facts
The respondent was born in Jamaica in 1966, entered Canada in 1976 and has had the status of a permanent resident since that time. He has never acquired Canadian citizenship. Between May, 1984 and September, 1989, he was convicted of five offences, including the criminal offence of assault and four offences involving trafficking in narcotics contrary to the Narcotics Control Act. On one of these charges, for possession of cocaine for purposes of trafficking, he was sentenced in February, 1992 to four years imprisonment. On that occasion a trial judge of the Ontario Court (General Division) said this of the respondent:
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In 1989, he was convicted on four charges of trafficking, firstly being in May of 1982 [sic], charges resulting in 6 months incarceration and 3 years probation. He was convicted in August of 1989 of trafficking in a narcotic and given 6 months and again in August of 1989 trafficking in a narcotic, and in 1989, in September, failing to comply with a recognizance. The offence date in the offences with which I dealt was the 24th of September 1989. It is apparent from that that he must have been scarcely out of custody in connection with the 1989 narcotics offences when he committed the present offence. |
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The accused appears to be a deliberate and determined narcotic trafficker, and, in my view, the sentence should reflect that fact by way of specific and general deterrence. There will be a sentence of 4 years imprisonment.2 |
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The Immigration Act contains, or contained at the relevant times, the following provisions:
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4.(1) A Canadian citizen and a permanent resident have a right to come into Canada except where, in the case of a permanent resident, it is established that that person is a person described in subsection 27(1). |
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27.(1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who |
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(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of |
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(i) more than six months has been imposed, or |
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(ii) five years or more may be imposed. |
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the immigration officer . . . shall forward a written report to the Deputy Minister . . . |
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A person alleged to fall within these provisions in subsection 27(1) may be the subject of an inquiry by an adjudicator under section 32 which provides:
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32.(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections 44(1) and 46(3), make a deportation order against that person. (Emphasis added). |
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On June 27, 1994 an adjudicator determined that the respondent was such a person and ordered his deportation as he was required to do.
As I understand it, it is not in dispute that the respondent is a permanent resident but not a citizen, that he committed the offences referred to the adjudicator for inquiry and that he was correctly found to be a person described in paragraph 27(1)(d) in respect of whom, according to subsection 32(2), the adjudicator was obliged to issue a deportation order.
The respondent appealed that decision to the Immigration Appeal Division of the Immigration and Refugee Board pursuant to subsection 70(1) which provides as follows:
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70.(1) Subject to subsection (4), where a removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Board on either or both of the following grounds: |
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(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
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Before his appeal could be heard he was notified by letter of the Department of Citizenship and Immigration dated October 2, 1995 that the Minister would be considering whether to issue an opinion under subsection 70(5) that the respondent was a danger to the public in Canada. Subsection 70(5) provides as follows.
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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 the 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 inadmissible 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.3 |
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The letter listed the following documents which would be provided to the Minister for consideration and which were attached to the letter.
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" Immigrant Visa and Record of Landing |
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" Report under Section 27 of the Immigration Act |
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" Narrative Report Pursuant to Act 27(1) |
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" Police Summary of Information |
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" Warrant of Committal upon Conviction |
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" Documents received from solicitor to Appeals officer |
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The letter went on to say that the effect of such an opinion being issued would be to remove the respondent's right of appeal under subsection 70(1). The letter invited the respondent to make any representations regarding the question of whether he was a danger to the public and whether there would be sufficient humanitarian and compassionate factors to outweigh any danger he might present. In reply the respondent's solicitor sent an eleven page letter of submission on both topics. Among other things she referred the Minister to a psychological report which the Minister already had, a copy of which had been provided again by the Department to the respondent. This report expressed a fairly positive opinion on Mr. Williams' "progress" since incarceration. Subsequently an Immigration Officer considered all this material and submitted it to the delegate of the Minister with a report recommending that the opinion be certified that the respondent Williams constituted a danger to the public in Canada. On November 10, 1995 the delegate of the Minister signed such an opinion, thus precluding the continuation of the appeal before the Appeal Division. Williams obtained leave to commence a judicial review of the Minister's opinion which was subsequently quashed by the decision of the Trial Division under appeal.
As noted above the learned motions judge found that there had been a denial of fundamental justice, natural justice and fairness because the Minister did not give any reasons for her opinion. She based her conclusion on the following propositions: the consequences for the individual from such an opinion are "substantial"; the decision-making process gives no assurance that the ultimate decision-maker considers the applicant's submissions directly; it is not clear what reasoning led to the applicant being found to be a present or future danger to the public; and as there were no reasons given, a reviewing court on judicial review cannot determine whether the Minister is applying "consistent and lawful criteria". She then proceeded to certify the following questions.
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1. Does subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 engage interests effecting liberty and/or security of the person pursuant to section 7 of the Charter of Rights and Freedoms? |
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2. If yes, is subsection 70(5) inconsistent with the requirements of fundamental justice and of no force or effect as it is unconstitutionally vague and/or does not provide for the rendering of reasons for a determination that a person constitutes a danger to the public in Canada? |
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| 3. Is the exercise of discretion by the Minister of Citizenship and Immigration to issue an opinion that a person constitutes a danger to the public in Canada pursuant to subsection 70(5), in the context of the procedure being used for that determination, inconsistent with the requirements of fundamental justice and section 7 of the Charter where no reasons are provided for the opinion? |
| 4. 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? |
As the first three questions all involve the constitutional validity or applicability of subsection 70(5) of the Immigration Act, a notice of constitutional question was served by the respondent on the attorneys-general.
The issues involved are quite important. The question of whether the Minister is required to give reasons for her opinion issued pursuant to subsection 70(5) has been the subject of conflicting decisions in the Trial Division, some judges holding that reasons are required4 and others holding that they are not.5
Analysis
Before attempting to answer the certified questions, it would be useful to begin with some consideration of the effect of the Minister's opinion under subsection 70(5) and the role of the Court in reviewing that opinion.
Effect of the Minister's Opinion
The motions judge describes the consequences of the Minister's opinion as follows:
The individual will be uprooted from family and returned to a country where he has not lived for over 20 years, and from which he came when only 9 years old.
In other words, she treats the Minister's opinion as a deportation order. With respect it seems to me that such a characterization of the effects of that opinion greatly exaggerates its importance and thus distorts any analysis of the requirements of fundamental justice in the circumstances.
Why does Williams face deportation to Jamaica? Primarily it is because it is the public policy of Canada, as expressed by our elected Members of Parliament, that non-citizens who commit crimes of a certain seriousness shall be deported. As the Supreme Court has stated in Chiarelli,6 an analogous case:
However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.
It is not disputed that Williams is such a person. Had he not appealed the deportation order issued by the adjudicator, he would have been subject to immediate deportation. As was said in Chiarelli7 there was no constitutional obligation on Parliament to provide any kind of an appeal or discretionary relief. It follows that any right of appeal conferred by Parliament can be qualified or abolished. In fact an appeal has been generally available on the terms set out in subsection 70(1). It will be noted from the quotation above of that subsection that the grounds of appeal include, in paragraph 70(1)(a), any question of law or fact or mixed law and fact and, in 70(1)(b), a discretionary ground whereby the Board may determine that:
. . . having regard to all the circumstances of the case, the person should not be removed from Canada.
Appeals by permanent residents on these grounds were generally permitted until the amendment adopted in 19958 which added subsection 70(5) previously quoted. It is common ground that this subsection requires that the Minister both be satisfied under paragraph 70(5)(c) that a person has been convicted of a particularly serious offence, not just any offence referred to in paragraph 27(1)(d), and that she form the opinion that such person constitutes a danger to the public in Canada. There was no dispute that the Minister properly found Williams to be a person described in paragraph 70(5)(c).
The new subsection 70(5) was adopted after Williams had filed his appeal with the Appeal Division but before his appeal had been heard. The effect of the Minister's opinion was to prevent the appeal being heard. However, a transitional provision in the 1995 legislation provides that where the Minister gives notice of an opinion of dangerousness of a person before his appeal is heard, the appeal cannot proceed but such person has a right to file an application for a judicial review of the deportation order within fifteen days of being so notified.9 Although entitled to do so the respondent did not file such an application in this case.
What then did the respondent lose through the Minister forming the opinion that he is a danger to the public in Canada? He lost the right to pursue an appeal under paragraph 70(1)(a) on any question of law or fact or mixed question of law and fact. In place of this he was given the right to seek a judicial review which would be fully as effective in respect of any questions of law but might not provide as complete a review of findings of fact. This he did not do nor is it suggested that the respondent really has an unrequited desire to argue that the adjudicator erred in fact or law with respect to issuing the deportation order. In any event, the substitution of judicial review for a right of appeal, by virtue of the Minister forming his opinion, does not strike me as a serious effect on his rights.
What Williams mainly complains of, as far as I can ascertain, is that as a result of the Minister's action he has lost the opportunity to have the Appeal Division consider under paragraph 70(1)(b) whether "having regard to all the circumstances" he should not be removed from Canada. Counsel was unable to suggest to us any consideration that the Board could make under paragraph (b) which would not equally be available through the exercise of the Minister's discretion under subsection 114(2) to relieve Williams of deportation on humanitarian and compassionate grounds. Such a review is always available before deportation and in fact the process employed here specifically requested Williams to make any submissions relevant to humanitarian and compassionate grounds to the Minister at the same time as making submissions on whether he represented a danger to the public in Canada. This his counsel did at some length.
Williams' counsel also complains that, once the right of appeal was terminated, he lost the statutory stay of deportation to which he was previously entitled under paragraph 49(1)(b) of the Act. Such stays arise automatically when an appeal is filed with the Appeal Division and can last for several years pending the final disposition of the appeal. In place of this the respondent was put in the position, once the Minister's opinion issued, of having to launch judicial review proceedings against the deportation order and then having to convince a judge that the deportation order should be stayed pending determination of the judicial review. Again it is hard to see this transformation as an invasion of the respondent's fundamental rights, howsoever inconvenient it may be to him and his counsel. In most other systems of appeals, stays are discretionary and not automatic.
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. I therefore find it difficult to characterize the Minister's opinion as the causa causans of the respondent's deportation. It is not even possible to say that the Minister's opinion is a causa sine qua non because it cannot be assumed that in its absence the Appeal Division would have found some error of fact not discernible through judicial review or would have exercised under paragraph (b) a discretion more favourable to the respondent than that exercised by the Minister in considering humanitarian and compassionate grounds.
In short, Mr. Williams faces deportation because as a non-citizen he has committed serious crimes in this country. It is not suggested that he had other than fair trials leading up to his convictions; that his deportation order was wrong in law or in fact; or that he lacked the opportunity to express his views on all the material submitted to the Minister (other than the "Ministerial Opinion Report" summarizing that material for the Minister's delegate which was not given to the respondent at the time but which was produced for the purpose of judicial scrutiny in the judicial review).
Reviewability of the Minister's Opinion
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,10 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.11 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.12
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. I am unable to see how any of this material can be said to be irrelevant to the formation of the Minister's opinion nor has it been suggested that other irrelevant considerations were taken into account on behalf of the Minister in forming the opinion on her behalf. 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.
With these considerations in mind I now turn to the four questions certified.
Question 1
1. Does subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 engage interests affecting liberty and/or security of the person pursuant to section 7 of the Charter of Rights and Freedoms?
Firstly, for the reasons set out above I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister's humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay.
Secondly, even accepting the motion judge's premise that it is the Minister's opinion which causes the removal of Williams, I am not persuaded that this engages a "liberty" or "security of the person" interest under section 7 of the Charter.
It is necessary to distinguish this case from those such as Singh13 in which three of the six judges held section 7 to be engaged in the disposition of a refugee claim. Fundamental to that opinion was the consideration that refugee claimants potentially face removal to countries where, they allege, they would be in danger of death or imprisonment. In the present case, there is no suggestion that Williams cannot return safely to Jamaica even though he would prefer not to. He has none of the "rights" under the Refugee Convention, as implemented by the Immigration Act, on which three of the judges of the Supreme Court based their conclusion that section 7 interests were affected and three others based their conclusion that paragraph 2(e) of the Canadian Bill of Rights was engaged.
The jurisprudence of this Court on this subject has not been entirely consistent. There is one line of authority14 in which it has been clearly held that deportation is not a deprivation of liberty and therefore section 7 is not engaged. There have been some views to the contrary. When Chiarelli was before this Court15 the judges all found there to be a potential deprivation of liberty in the deportation of a permanent resident, although the Supreme Court16 in reversing the decision on other grounds found it unnecessary to address this issue. In Nguyen17 Marceau J.A. at one point stated that a declaration that a person is ineligible to make a refugee claim does not in itself affect life, liberty or security of the person. He later says that when this declaration is combined with the requirement that non-citizens who commit serious crimes be deported, the overall scheme concerns the "deprivation of liberty". It is not clear to what extent this observation depends on the person in question being a refugee claimant who would, by definition, be able to assert a potential danger to himself in returning home.18 It also appears that such findings were unnecessary as the Court found there to be no breach of fundamental justice.
Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order?
Counsel for the respondent has invoked pronouncements of the Supreme Court in cases having little to do with immigration in order to assert a broader interpretation for "liberty" and "security of the person". He cited Wilson J.A. in Morgentaler v. A.G. of Canada19 to the effect that liberty interests include a general guarantee of "personal autonomy over important decisions intimately affecting . . . private lives". Suffice it to say that the four judges who concurred in the result declined to consider the application of "liberty" in this context and based their decision on "security of the person". It was clear that their conclusion that section 7 was engaged was directly related to the very intrusive character of abortion availability and the fact that criminal sanctions were potentially involved. Two judges found no violation of section 7. Counsel cited to us another invocation of "personal autonomy" as an aspect of "liberty", in the case of B. et al v. Children's Aid Society of Metropolitan Toronto et al20 in which four judges of the Supreme Court considered that the protection of "liberty" in section 7 gave parents the right to refuse medical treatment for their children. It may be noted that four other judges declined to give "liberty" that scope and one judge considered it unnecessary to decide the matter as he found no violation of section 7 requirements of fundamental justice.
On the basis of the jurisprudence to date, then, I am unable to conclude that "liberty" includes the right of personal choice for permanent residents to stay in this country where, as the Supreme Court said in Chiarelli:21
[t]hey have all deliberately violated an essential condition under which they were permitted to remain in Canada.
Accordingly I would answer question 1 in the negative.
Question 2
2. If yes, is subsection 70(5) inconsistent with the requirements of fundamental justice and of no force or effect as it is unconstitutionally vague and/or does not provide for the rendering of reasons for a determination that a person constitutes a danger to the public in Canada?
As my answer to question 1 is in the negative I need not, strictly speaking, answer questions 2 and 3. However, in case I should be incorrect with respect to my conclusion that section 7 is not engaged, I will answer these questions. As the words "of no force or effect" adopt the language of section 52 of the Constitution Act, 1982 I understand this to be primarily a question of whether subsection 70(5) is valid.
While it is clear that undue vagueness could violate the requirements of fundamental justice, I agree with the learned motions judge that subsection 70(5) does not display such vagueness.
It has been said by the Supreme Court in the Nova Scotia Pharmaceutical Society case22 that a law is unconstitutionally vague "if it so lacks in precision as not to give sufficient guidance for legal debate". In the context of judicial review of a ministerial decision as to whether she "is of the opinion that a person constitutes a danger to the public in Canada" the question must be: does this phraseology give sufficient direction to the Minister so that both she and the Court can determine whether she is exercising the power for the purposes intended by Parliament? In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven " indeed it cannot be proven " that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible reoffender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case23 that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court.
I am therefore satisfied that the expression "danger to the public in Canada" sufficiently directs the Minister to the question which he or she needs to consider, and adequately permits a reviewing court to determine whether he or she has had regard to relevant considerations.
I believe that Gonthier J. writing for the Supreme Court in Nova Scotia Pharmaceutical Society24 issued a salutary warning to the courts in this respect:
One must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interests and individual rights. A measure of generality also sometimes allows for greater respect for fundamental rights, since circumstances that would not justify the invalidation of a more precise enactment may be accommodated through the application of a more general one.
It is particularly notable that in that case the Court rejected the argument that the indictable offence of conspiring "to prevent or lessen, unduly, competition" was unconstitutionally vague.
One must be particularly careful in a case such as the present of treating the Minister's decision as a kind of lettre de cachet, an arbitrary order issued by a despotic official ordering the random imprisonment or exile of otherwise innocent citizens. Again it is important to remember the conditions for the issue of such an opinion: the commission of offences by a non-citizen, an order for his deportation issued in accordance with the laws of Parliament and due process, the requirement that his offences be of a particularly serious nature carrying possible sentences of 10 years or more, and then the confirming of the Minister's opinion only after the requirements of fairness are met through enabling the party affected to make submissions.
Counsel for the respondent referred us to some inapposite jurisprudence on the subject of vagueness, in particular the Morales case25 in which the Supreme Court of Canada considered the validity of conditions in section 515 of the Criminal Code concerning refusal of bail. In that case the Court found that a limitation tied to the "public interest" was too vague, although the issue was dealt with in relation to paragraph 11(e) of the Charter and not section 7. It must be observed that this case involved the validity of detention of people prior to trial, a matter of more compelling concern. Further it is important to note that the Court upheld a provision permitting detention where it is necessary
. . . for the protection or safety of the public having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice.
as provided in paragraph 515(10)(b). It will be noted that the section did not define safety of the public but only gave certain examples of relevant considerations following the word "including". Further, Lamer C.J.C. confirmed that
. . . exact predictability of future dangerousness is not constitutionally mandated.26
In my view this reasoning applies equally to the present case and one cannot demand such precise criteria in subsection 70(5) as to ensure that it can be applied with absolute predictability of result.
I should mention briefly the guidelines issued by the Department for the guidance of officers in recommending that a minister's opinion be issued under subsection 70(5).27 It was argued that the guidelines do not adequately define and limit the grounds for a finding that a person constitutes a public danger. I would first observe, as did the learned motions judge, that the guidelines are not law, are not binding, and they do not purport to be exhaustive.28 Indeed if they did purport to be exhaustive the Minister could not so fetter her discretion. I see nothing in the Guidelines that is irrelevant to the proper formation of an opinion under subsection 70(5) (other than, perhaps, humanitarian considerations to which the respondent cannot take exception) but they can in no way be seen as a definition of the totality of the considerations of which the Minister could properly take account.
I am therefore satisfied that subsection 70(5) is not unconstitutionally vague and section 7 is not infringed for that reason.
It then remains to consider the other aspect of question 2, namely whether the failure of subsection 70(5) to require the Minister to render reasons "for a determination if the person constitutes a danger to the public in Canada" is a denial of fundamental justice rendering the subsection invalid for that reason. It is of course accepted that the procedural requirements of fundamental justice vary with the context in which they are invoked.29 This is why it is important, as I noted earlier, to understand the true significance of the Minister's opinion. It is not an order of deportation. It applies to persons already under lawful order of deportation and, as complained of here, may lead to the substitution of one form of discretionary relief for another or the substitution of a discretionary stay of deportation for a statutory one.
It should first be observed that question 2 may go beyond the issue properly raised by this case. Subsection 70(5) does not authorize the Minister to make a "determination": instead it authorizes the Minister to form an "opinion" that a person constitutes a danger to the public in Canada. I must interpret the question as being limited to the terminology of the Act.
I would first confirm, as have many courts over the years, that it is usually, if not always, preferable that both courts and tribunals give reasons for their decisions. There are many advantages in issuing reasons: they enable the parties to know why they have won or lost, a very important consideration; the articulation of reasons imposes a discipline upon a court or tribunal when it is obliged to justify the result; and they undoubtedly assist a court later in disposing of an appeal or exercising powers of judicial review.
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.30 This is particularly the case where the decision in question is essentially discretionary.31 We have been referred to no authoritative jurisprudence relevant to the particular issues here which seriously questions these principles.
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, a court may have to set aside the decision 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.32 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. With respect I believe that it is this situation to which Estey J. referred when he said in the Northwestern Utilities case that:
This is not to say, however, that absent the 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. (Emphasis added).
The only case referred to by counsel for the respondent and by the learned motions judge which seems on its face to depart from this principle is the House of Lords decision in Doody.33 That case involved the failure of the Home Secretary to give reasons to a life prisoner as to why, in the exercise of his discretionary powers, he had set the minimum period of imprisonment prior to parole eligibility at a length different from that recommended by the judiciary. The House of Lords, with little explanation for its departure from longstanding jurisprudence, held that in the circumstances fairness required that the prisoner be given the reasons for the decision of the Home Secretary. The rationale appears to have been that as such a decision is subject to judicial review the prisoner would have no means of knowing whether "the decision-making process has gone astray" unless he is given the reasons for that decision.34 I think it must first be observed that this was a case involving incarceration, the Home Secretary in effect determining how long those sentenced to life imprisonment should in fact remain in prison. Further, this decision arose in a system lacking any written constitution or constitutional guarantees of fundamental rights and liberties. In the absence of such constitutional tools, the English judiciary has tended to stretch the traditional bounds of judicial review under the common law in a manner which is not necessarily pertinent to our administrative law. In short I do not find this to be convincing evidence of "the basic tenets of our legal system".
I have some difficulty with the notion that a decision without reasons is invalid on the sole ground that it may be difficult to review by an appeal court or a court exercising judicial review powers. Recognizing once again that reasons are highly desirable it is quite possible for a tribunal, or a judge for that matter, to render a proper decision without reasons. Experience shows us that this happens in the courts every day. Why should it be otherwise with tribunals? This is particularly true where tribunals are exercising largely discretionary powers, such as the Minister under subsection 70(5) where he or she is not required to apply existing legal principles to specific conclusions of fact as does a court or many tribunals.
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, as enunciated in the Doody case and by the motions judge in this case, 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.
Therefore the principles of fundamental justice as guaranteed by section 7 of the Charter do not require that reasons be given. Question 2 may be broad enough, however, to cover the requirements of fundamental justice provided for in paragraph 2(e) of the Canadian Bill of Rights. Assuming without deciding that the interests protected by paragraph 2(e) are broader than those protected by section 7, I am still satisfied that the requirements of fundamental justice are no broader. For the same reason then I find no conflict with paragraph 2(e). Moreover, paragraph 2(e) only requires a "fair hearing" and I doubt that an absence of reasons for a decision necessarily affects the "hearing".
As question 2 raises the general issue as to whether subsection 70(5) is invalid for not requiring the giving of reasons, I would therefore answer that part of the question in the negative as well.
Question 3
3. Is the exercise of discretion by the Minister of Citizenship and Immigration to issue an opinion that a person constitutes a danger to the public in Canada pursuant to subsection 70(5), in the context of the procedure being used for that determination, inconsistent with the requirements of fundamental justice and section 7 of the Charter where no reasons are provided for the opinion?
As I understand this question, it raises the constitutionality of the Minister's actual opinion here because given without reasons, even assuming subsection 70(5) to be valid. In other words whereas question 2 raises an issue under section 52 of the Constitution Act, 1982, this question raises an issue under section 24 of that Act.
As this question is more related to the actual exercise, rather than the grant, of the discretion it is even more pertinent to have regard to my observations at the beginning as to the effect of the Minister's decision. That is, as the real consequence for the respondent is simply to remove from the Appeal Division of the Immigration and Refugee Board the exercise of a discretion to exempt him from a valid deportation order and leave that discretion with the Minister, as well as to substitute a judicial stay for a statutory stay, the requirements of fundamental justice are not very profound. For the reasons which I have given in answer to question 2, I do not consider that there is any infringement of fundamental justice involved in the failure to give reasons in this case or in similar cases. Even accepting the principle adverted to in Doody and seemingly accepted by the motions judge that an absence of reasons may preclude effective judicial review, that is not the situation in the present case. I have pointed out earlier the limited scope of judicial review of such decisions. The Court is not invited to sit on appeal and to redetermine findings of fact. It is not the opinion of the judge which is required as to whether the non-citizen presents a danger to the public. In this case we know from the affidavit filed on behalf of the Minister before the motions judge35 that the Minister's delegate who made the decision had the following before him or her:
. . . the Applicant's criminal record, the Applicant's counsel's submissions, family in Canada, participation in reintegration courses at Joyceville Penitentiary, the Certificate of Achievement, and the psychologist's report in the Applicant's favour.
The Court also had those documents as well as the report initially submitted to the Minister's delegate but not to the respondent. It is not suggested that any of those documents are completely irrelevant to the considerations pertinent to a finding of dangerousness. Those documents contained the whole of the respondent's submissions, made after a perusal of the documents being put before the Minister's delegate, so that anything to be said by Williams' counsel in his favour was before the delegate. It may be that a motions judge looking at this material might be of the personal view that the evidence against Williams being a danger was stronger than the evidence for him being a danger but, with respect, that is not the issue. The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material. There is simply no evidence that any of these things occurred and I fail to see how the result can be regarded as perverse: that is I do not see how it can be said that it was not open to the Minister's delegate to form the opinion based on Williams' convictions, their nature and frequency, and the comments of the sentencing judge, that he represented a danger to the Canadian public. Nor is there any basis for saying, by comparing the results to the basic undisputed facts, that the Minister must have employed some unlawful criteria. Had any of these problems been demonstrable from the material there might have been a case for saying that the Court was bound to set aside the opinion because without reasons to counteract the negative evidence the Court must find it to be unlawful. But no such problem has been demonstrated and that should be the end of the matter for a reviewing court.
I would therefore answer question 3 in the negative.
Question 4
| 4. 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 believe it is fair to assume that the requirements of "natural justice" are subsumed under the general category of "fairness", particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. In my view, as expressed above, the consequence of this decision is not an order of deportation but rather the withdrawal of a discretionary power to exempt Williams from lawful deportation, such discretion instead being limited thereafter to exercise by the Minister. It also substitutes the possibility of a discretionary stay for an automatic statutory stay. The decision-making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met.
Question 4 must therefore be answered in the negative.
Disposition
The appeal should therefore be allowed, the order of the Trial Division dated October 29, 1996 be set aside, and all four certified questions be answered in the negative.
J.A.
I agree
J.T. Robertson J.A.
I agree
F.J. McDonald J.A.
FEDERAL COURT OF APPEAL
Court No. A-855-96
(IMM-3320-95)
B E T W E E N:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
-- and --
JEFFREY HUGH WILLIAMS
Respondent
-- REASONS FOR JUDGMENT --
__________________
1 It is not entirely clear whether the motions judge was applying the fundamental justice requirement of section 7 of the Charter, or paragraph 2(e) of the Canadian Bill of Rights, or both.
2 Appeal book, page 141.
3 Adopted by S.C. 1995, c.15, s.13.
4 See e.g. the present case, Clarke v. M.C.I., November 28, 1996, Imm-2962-95; Ibraham v. M.C.I., November 29, 1996, IMM-766-96; Hinds v. M.C.E., November 27, 1996, IMM-3549-95; Calabrese v. M.C.I., December 20, 1996, IMM-1136-96.
5 See e.g. Gervasoni v. M.C.I., (1996) 110 F.T.R. 297; Canales v. M.C.I. (1996) 114 F.T.R. 281; Lindo v. M.C.I., August 29, 1996, IMM-264-96.
6 [1992] 1 S.C.R. 711 at 734.
7 Ibid at 734, 742.
8 Supra note 3.
9 Ibid.
10 See e.g., A.G. of Canada v. Purcell [1996] 1 F.C. 644 at 661 (F.C.A.).
11 See e.g., Purcell, ibid; Shah v. M.E.I. (1994) 170 N.R. 238 at 240 (F.C.A.); Wade and Forsyth, Administrative Law (7th ed. 1994) at 443.
12 See e.g., Baker v. M.E.I., November 29, 1996, A-441-95 (F.C.A.), (unreported).
13 [1985] 1 S.C.R. 178.
14 Hoang v. M.E.I. (1990) 13 Imm. L.R.(2nd) 35 at 41; Canepa v. M.E.I. [1992] 3 F.C. 270 at 277; Barrera v. M.E.I. [1993] 2 F.C. 3 at 16.
15 [1992] F.C. 299 at 318-19, 323 (C.A.).
16 Supra note 6.
17 (1993) 18 Imm. L.R.(2d) 165 at 171, 172, 174.
18 Marceau J.A. does say in a footnote
. . . it seems to me, with respect, that forcibly deporting an individual against his will has the necessary effect of interfering with his liberty . . . .
19 (1988) 62 C.R.(3d) 1.
20 (1995) 122 D.L.R.(4th) 1.
21 Supra note 6 at 734.
22 [1992] 2 S.C.R. 606 at 643.
23 August 16, 1996, IMM-107-96 (F.C.T.D.) at 11 (unreported).
24 Supra note 22 at 642.
25 (1992) 17 C.R.(4th) 74.
26 Ibid at 99, relying on an earlier decision in R. v. Lyons [1987] 2 S.C.R. 309.
27 Appeal book, pages 305-07.
28 Ibid, page 231.
29 See e.g. Chiarelli supra note 6 at 743.
30 See e.g. Re Northwestern Utilities Ltd. et al and City of Edmonton (1978) 89 D.L.R.(3d) 161 at 175-6 (S.C.C.); Public Service Board of New South Wales v. Osmond (1986) 159 C.L.R. 656 at 662-3, and Commonwealth jurisprudence referred to therein (H.C. of Austr.); R. v. Home Secretary, Exp. Doody [1994] 1 A.C. 531 at 564 (H. of L.); Bidulka et al v.Treasury Board [1987] 3 F.C. 630 at 643 (F.C.A.); Canadian Human Rights Commission v. Canada (1995) 192 N.R. 125 at 128 (F.C.A.).
31 Shah v. M.E.I. (1994) 170 N.R. 238 at 239 (F.C.A.).
32 See e.g., Canadian Human Rights Commission v. Canada, supra note 22 at 128-30; R. v. Civil Service Appeal Board, xp. Cunningham [1991] 4 All E.R. 310 (C.A.).
33 Supra note 30. The other English case referred to by counsel and cited by the motions judge, Cunningham, supra note 31, involved a decision which was on its face perverse in the small amount of compensation awarded for loss of employment compared to what, according to the evidence, other tribunals had awarded in analogous cases. It therefore required explanation by reasons or otherwise.
34 Ibid at 565.
35 Appeal book, pages 68-9.
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