| Date: 20001130 |
| Dockets: IMM-1250-00 and IMM-1251-00 |
| BETWEEN: |
| JESUS ESTEBEN CRISTOBAL |
| Applicant |
| AND: |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondent |
| REASONS FOR ORDER |
| ROULEAU, J. |
[1] These applications are for judicial review of two decisions of the Minister's delegate pursuant to subsections 70(5) (IMM-1251-00) and 53(1) (IMM-1250-00) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), dated February 21, 2000, in which the Minister's delegate determined that the applicant constitutes a danger to the public in Canada.
[2] The applicant was born on November 1, 1957, in Guatemala. He entered Canada on August 9, 1993, and made a claim for refugee status on September 3, 1993. He was found to be a Convention refugee by the Convention Refugee Determination Division of the Immigration and Refugee Board on April 18, 1995.
[3] On January 25, 1998, the applicant was arrested for possession of cocaine. He was released on bail to await his trial. On November 18, 1998, the applicant was convicted of one count of possession of cocaine, and received a suspended sentence and 18 months' probation.
[4] On February 3, 1998, while on bail with respect to the first offence, the applicant was arrested for possession of cocaine for the purpose of trafficking. 42 "rocks" of cocaine were in the Applicant's possession at the time. He was released on bail to await his trial. On October 27, 1999, he was convicted of one count of possession of cocaine for the purpose of trafficking and received a sentence of three months in jail followed by one year probation.
[5] On May 7, 1998, while on bail with respect to the first and second offences, the applicant was arrested for two counts of trafficking cocaine, one count of possession of cocaine for the purposes of trafficking and one count of a breach of an undertaking. Five "rocks" of cocaine were in the applicant's possession at the time. On November 9, 1998, having plead guilty, the applicant was convicted of two counts of trafficking in cocaine and was sentenced to three months' jail for each count.
[6] On November 16, 1999, the Manager of CIC Vancouver-Enforcement notified the applicant of the intention to seek the opinion of the Minister, pursuant to subsections 70(5) and 53(1) of the Act, that the applicant is a danger to the public in Canada. The notice explained the consequences to the applicant of such a finding. Attached to the notification were copies of the material the Minister would consider in forming the opinion. The notification also indicated that the Minister could refer to the applicant's refugee claim material and to country information documents available at the Immigration and Refugee Board Documentation Centres. The applicant was also invited to make any representations or arguments and to submit relevant documentary evidence. The applicant was advised that the Minister would assess the threat he poses to the public in Canada and the possibility of risk to the applicant if he were returned to Guatemala.
[7] The applicant attempted to obtain a copy of his refugee file prior to making his submissions, but he was unable to do so.
[8] The applicant also requested that the Minister provide him with a copy of the "Request for Minister's Opinion" summary report and the "Danger to the Public Ministerial Opinion Report" document that were drafted by the Minister's functionaries. These documents were not provided to the applicant.
[9] On February 21, 2000, the Minister's Delegate decided that, in his opinion, the applicant constitutes a danger to the public in Canada, pursuant to subsections 70(5) and 53(1) of the Act.
[10] The questions before me are whether the Minister was obliged by the duty of fairness to provide written reasons for the opinion and, if so, whether written reasons were provided; whether the opinion was reasonably open to the Minister in light of the evidence; whether the Minister was obliged by the duty of fairness to provide the applicant with an opportunity to respond to the "Request for Minister's Opinion" and "Danger to the Public Ministerial Opinion Report" documents prior to making an opinion; whether the Minister was obliged by the duty of fairness to provide the applicant with copies of his refugee claim files; and whether subsection 53(1) of the Act contravenes section 7 of the Charter and, if so, whether it is justifiable under section 1.
[11] The applicant submits that the Minister's opinion is unreasonable and on its face perverse. The applicant took full responsibility for his actions and pleaded guilty for the offences for which he was charged. He has expressed his remorse and has not re-offended since his arrest in May 1998. He has been in Canada for seven and a half years and was selling street drugs for only a relatively brief period. He has otherwise been law abiding. The mere fact of a conviction is not sufficient to base a finding that someone is dangerous.
[12] The applicant further alleges that the Minister did not take into account humanitarian and compassionate considerations. He believes he faces a serious risk if he were to be returned to Guatemala for the same reasons that the Immigration and Refugee Board determined that he was a Convention Refugee. He has also been diagnosed as being HIV positive. It is vital to his ability to stay healthy and fight the virus that he stay in Canada where he is able to lead a healthier lifestyle and continue to be provided with antiretroviral medication which have controlled the virus to date.
[13] The applicant contends that the Minister should have provided written reasons for his opinion. In the case of Tewelde v. Canada (Minister of Citizenship and Immigration), April 28, 2000, IMM-2335-98, the respondent conceded that reasons were required when an opinion was rendered pursuant to subsection 53(1) of the Act. In Ip v. Canada (Minister of Citizenship and Immigration), February 3, 2000, IMM-787-98, Dubé, J., while referring to Baker, supra, indicated that "written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act".
[14] The applicant submits that the duty of fairness commands that the Minister provide him with the "Request for Minister's Opinion" summary report and "Danger to the Public Ministerial Opinion Report" so that he might have a reasonable opportunity to respond to those documents.
[15] The applicant further submits that the Minister should have provided him with his refugee claim material or allowed him an opportunity to seek an alternative way to obtain that material prior to considering his submissions.
[16] The applicant believes that subsection 53(1) of the Act infringes section 7 of the Canadian Charter of Rights and Freedom and cannot be justified under section 1. The procedure followed under subsection 53(1) does not accord with the Minister's duty of procedural fairness and hence offends the principles of fundamental justice. The applicant was not provided with an oral hearing, nor was he provided with all of or an adequate opportunity to obtain the material that was before the Minister. Subsection 53(1) contains no criteria which direct the Minister as to the kind, levels and probability of future harm that must be present before the issuance of a danger opinion is appropriate. Nor does the subsection require that the Minister show that the individual is a menace to the public in Canada or provide reasons for the opinion. The means to achieve the objective of protection of the Canadian public then may be arbitrary, unfair and based on irrational considerations. The overly broad manner in which the subsection is drafted does not mitigate against drawing the conclusion that it is justified under section 1 of the Charter.
[17] In the present case, the following decisions of this Court: Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (Trial Division) and Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 (F.C.A.), have, in my view, superseded the Federal Court of Appeal's teachings in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, in order to conform to the Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[18] I am satisfied that the application should be granted.
[19] As I recently wrote in Edouard Bakchiev v. M.C.I., IMM-4923-99, generally speaking, the procedure which is now followed in cases of this nature is that an applicant is issued a notice of intention to seek the opinion of the Minister that he is a danger to the public. The applicant is then provided with certain documents which will be submitted to the Minister and given an opportunity to make submissions. Thereafter, a report containing a recommendation is prepared by reviewing officers and sent to the Minister for a decision. The essence of the complaint of applicants in this situation is that they are never provided with an opportunity to make submissions or comments with respect to the reports that are sent to the Minister, prior to the Minister actually making a decision. Accordingly, it is not unless or until an applicant seeks leave for judicial review that they are provided an opportunity to make submissions on the reports which forms the basis of the Minister's decision.
[20] Here, the applicant maintains that he has never seen or been served with the Request for Ministerial Opinion Report or the Danger to the Public Ministerial Opinion Report. This, it is argued, constitutes a breach of the duty of fairness which requires that he be provided with the two reports and given an opportunity to respond prior to the Minister making her decision.
[21] The respondent indicates that with respect to the Minister's opinion pursuant to subsection 53(1) of the Act, reasons are required and the Request for Ministerial Opinion constitutes those reasons. It is submitted that the Minister's delegate fulfilled his duty to provide the applicant with a meaningful opportunity to present his case fully, even though the Ministerial Opinion Report and the Request for Minister's Opinion were not disclosed to him. Those two documents, it is argued, merely summarize the documents that were disclosed to the applicant and upon which the Minister's delegate might rely in arriving at his or her opinion.
[22] However, it has been my experience that often times these reports lack objectivity and fail to give proper weight to the evidence presented by the applicants. It is usually evident that, had they been made available to the applicants before the decision was made, the reports would certainly have been the subject of the applicants' comments. The fact that many cases are granted on judicial review because of the inadequacy of these reports which constitute the reasons for decision is evidence enough. A valuable and practical aspect of this duty to give applicants an opportunity to comment on the reports does not seem to have been previously mentioned by my colleagues but appears to me to be of utmost importance. When asked to decide on a motion for leave for judicial review of the Minister's opinion, a judge might not have before him the reports that constitute the reasons for decision. It is therefore likely that he or she will not be able to properly assess the respective positions of the parties and the risk of injustice is increased. Requiring that the reports be disclosed before the decision is made puts those concerns to rest.
[23] Furthermore, such an open and transparent procedure is more in keeping with the jurisprudence surrounding the duty of fairness owed by an administrative decision-maker. I believe it is fairly clear that this Court's jurisprudence now supports the requirement that the reports on which the Minister's delegate bases his opinion be given to the person who is the object of the opinion in order to give him or her the opportunity to make further submissions. In Haghighi v. Canada (Minister of Citizenchip and Immigration), [2000] 1 F.C. 854, the Federal Court of Appeal held that the duty of fairness requires that inland applicants for human and compassionate landing under subsection 114(2) of the Act be fully informed of the content of the risk assessment report made by a Post-Claims Determination Officer, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant (see paragraph 37 of the decision). Although the procedural vehicle used in Haghighi is different from the one used in the present case, I believe the same principles should be applied here.
[24] The Supreme Court of Canada decision in Baker v. Canada (M.C.I.) (1999), 174 D.L.R. (4th) 193, provides clear guidelines concerning the content of the duty of fairness in administrative decision-making. L'Heureux-Dubé, J. stated at pp. 211-12 as follows:
| Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. |
. . .
| . . . The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. . . |
| A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. . . The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness. |
[25] Here, there is no question that the issuance of a Minister's opinion has a profound significance to the person who is the subject of the opinion, since the Minister can then remove a person to a country in which the individual has a well-founded fear of persecution. Furthermore, there is no right of appeal from the decision; at best, an applicant may be able to obtain judicial review but only if leave is first granted. In Qazi v. Minister of Citizenship and Immigration (July 26, 2000, IMM-5317-99), Hugessen, J. made the following comments in this regard:
| I think that now, in the light of Baker and the very clear message that the Supreme Court has sent to us as to the nature of the duty of fairness in decisions which were previously thought to be wholly discretionary and have no fairness content at all or very minimal, fairness content, it is quite clear that we must view the danger opinion as being one which has serious consequences for the person who is the subject of it. It removes from that person a statutory right of appeal, open-ended, to a body which is independent, autonomous and quasi-judicial. If it replaces that right at all, it is by a right to apply for leave to seek judicial review on limited grounds and a right to apply for a wholly discretionary executive remedy under humanitarian and compassionate considerations. |
[26] Given the consequences of the decision and the limited right to review of that decision, it would seem more in keeping with the principles of fairness and natural justice if an applicant was provided with the opportunity to make submissions on the reports on which the Minister's delegate bases his or her opinion. The fact that inferences may be drawn from the summary and the applicant is not given an opportunity to refute them is contrary to the principle of natural justice. In my view, if the duty of fairness is to have any meaningful content in these types of cases, applicants should be provided with the Request for Ministerial Opinion Report and the Danger to the Public Ministerial Opinion Report and given an opportunity to make submissions on those crucial documents which in fact, form the basis of the Minister's decision, prior to any decision being made.
[27] There is no evidence that the applicant has notified the relevant Attorney Generals of his intention to seek a declaration of unconstitutionality of subsection 53(1) of the Act. In any event, he does not ask for such a declaration of unconstitutionality. This plea is dismissed summarily.
[28] The applications for judicial review are allowed.
JUDGE
OTTAWA, Ontario
November 30, 2000