Date: 19980925
Docket: IMM-5012-97
OTTAWA, ONTARIO, THE 25th DAY OF SEPTEMBER 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
NICOLAS BARLETTA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Judge
Certified true translation
Peter Douglas
Date: 19980925
Docket: IMM-5012-97
Between:
NICOLAS BARLETTA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
1 This is an application for judicial review of the decision of the respondent (the Minister) dated June 23, 1997, that the applicant was a danger to Canadian society under subsection 70(5) of the Immigration Act (the Act).
1. Facts
2 The applicant was born in Liège, Belgium, of Italian parents, and on May 11, 1968, at age 11, became a permanent resident of Canada. He was eligible for Canadian citizenship in 1973 but did not take advantage of his eligibility. Since 1985, he has been living in a de facto union with his wife, a Canadian, by whom he had a child in 1994.
3 On June 5, 1985, the applicant was convicted of possession of restricted weapons. On July 31, 1990, he was convicted of uttering threats. On January 13, 1992, he was convicted of aggravated assault on two strangers. On September 20, 1995, he was sentenced to thirty months' imprisonment and fined for possession of cocaine for the purpose of trafficking. (Cash in the amount of $52,000 was also found in the applicant's car at that time.)
4 On September 30, 1996, the applicant's parole was suspended for communicating with a former inmate, when one of the conditions of his release prohibited him from doing so.
2. Test
5 In M.C.I. v. Williams,[1]Mr. Justice Strayer of the Federal Court of Appeal set out the test for judicial review of a Minister's opinion that a person constitutes a danger to the public in Canada. He differentiated between the roles of the motions judge and the Minister in the following terms, at p. 677:. . . 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.
(Emphasis added.)
6 Strayer J. also defined the meaning of the expression "danger to the public", at p. 668:. . . 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 re-offender 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.
7 The applicant has to show that the Minister acted in bad faith or had regard to irrelevant factors or evidence, or disregarded to the material before her, and thus, that the Minister erred in deciding that his presence in Canada creates an unacceptable risk to the public.
3. Applicant's submissions
8 Counsel for the applicant gave a very able account of his client's and his client's family's background in Canada, and of the favourable opinions about the applicant that had been expressed by various representatives of the Department up to March 19, 1997. In particular, counsel referred to the report filed by Sylvie Boutin, an investigator employed by the Department, assessing the dangerousness of the applicant; in the report, she concludes that he does not constitute a danger to Canadian society. From the time he was incarcerated at the Federal Training Centre to serve his sentence of 30 months' imprisonment, starting on September 20, 1995, until his parole was suspended on September 29, 1996, the applicant was never regarded by the prison authorities as a public danger or a person connected with organized crime.
9 However, the reviewing officer, Denise Bédard, recommended to the Minister's delegate that the Minister form the opinion that the applicant constitutes a danger to the public. This recommendation was endorsed by Linda Hill, Acting Director, and W.A. Shappit, the Minister's delegate and Director General. Under the heading "Danger Profile", after reciting the applicant's various convictions, Ms. Bédard refers specifically to his parole violation in the following terms:
[TRANSLATION] - the special report dated 23/10/96 from the Federal Training Centre indicates "in the case we are currently concerned with, what appeared initially to be a mundane breach of conditions became an opportunity for us to learn from various sources that the authorities responsible for investigating organized crime are interested in our client. This information naturally alerted our attention, and although it was not prima facie substantiated, our reaction was to treat the matter very seriously.
10 According to counsel, the trigger for the Minister's unfavourable opinion was the applicant's parole violation when he met with a person who had a criminal record. The applicant admitted in his own affidavit that on September 25, 1996, while he was at Le Portage golf club on the outskirts of Repentigny, he met with someone by the name of Michael Bookanan, an inmate at the Federal Training Centre at the same time as him. He claims that it was a chance meeting as he was finishing the first nine with two other golfers.
11 Yet on April 9, 1997, his then-counsel gave a completely different explanation. He alleged that a Mr. Chagnon, like the applicant a member of the club, organized a foursome that included Mr. Bookanan. When one of the players cancelled at the last minute, Mr. Chagnon invited the applicant. The applicant admits that he should have withdrawn when he found out that Bookanan was there, but showed poor judgment by golfing with him.
4. Favourable special report
12 In a special report dated October 23, 1996, the Correctional Service of Canada recommended that the applicant's suspension be cancelled and noted that [TRANSLATION] "we believe that the risk is still acceptable to the community". However, as mentioned supra in her subsequent recommendation, the reviewing officer pointed out that, even so, the special report aroused the interest of the authorities responsible for investigating organized crime. Counsel for the applicant submits that this kind of unsubstantiated interest is an insufficient basis for proof of dangerousness and that the Minister's opinion is therefore completely unreasonable. According to him, the Minister was blinded by the police interest, which led her to make a perverse finding.
5. Analysis and conclusion
13 It must be recalled at the outset that, in the absence of evidence to the contrary, the Court has to assume that the decision-maker acted in good faith, having regard to the material before her.[2] In any event, the applicant did not question the Minister's good faith. He challenges her opinion on the ground that she weighed the evidence in the record improperly.
14 The record contains some evidence that is in the applicant's favour and other evidence that goes against him. It is for the Minister to consider all the material before her and to exercise her discretion reasonably. It must be remembered that the applicant has, after all, been convicted of possession of restricted weapons, uttering threats, aggravated assault and possession of narcotics for the purpose of trafficking. He was also found to be in breach of a condition of his parole. Last, there is the prison authorities' report of October 23, 1996, regarding the police concern that he might be involved in the organized crime rings in Montréal.
15 It must also be kept in mind that one of the applicant's convictions was for possession of cocaine for the purpose of trafficking. Central to the passage from Williams quoted above is the statement by Strayer J. "that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society". In Mesbergh Bernar Smith,[3]which involved a Minister's opinion based on possession of and traffic in cocaine, my colleague Mr. Justice Muldoon uttered the colourful and entirely fitting phrase: "cocaine is not aspirin".
16 Furthermore, the reports prepared by various officials in the stages preceding the Minister's opinion are not binding on the Minister and do not constitute her reasons. On the contrary, the Minister had no hand in any of these reports. It is her duty to consider all the evidence that is brought to her attention. No reasons were given for her opinion and there is no legal duty to give reasons.
17 Last, the considerations that justify the issuance of a danger opinion by the Minister are not the same as the considerations that serve as the basis for a decision on parole. This is what my colleague Mr. Justice McKeown said in this regard in Jian Lin,[4]at p. 3: As pointed out by counsel for the respondent, this is a judicial review of the record before the Minister and obviously the Adjudicator's decision was subsequent to the Minister's decision and cannot be considered. However, I will note that there is a great difference between deciding whether a person can be released on terms and conditions for a limited time until the person is removed from the country and deciding whether he is a danger to the public when the alternative is that the person is free to proceed in the community without any terms, restraints or limitation on their freedom.
18 In the result, this application for judicial review cannot be allowed. In my view, this case turns on its own particular facts and there is no question of general importance to be certified.
OTTAWA, Ontario
September 25, 1998
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5012-97
STYLE OF CAUSE: NICOLAS BARLETTA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 9, 1998
REASONS FOR ORDER OF DUBÉ J.
DATED SEPTEMBER 25, 1998
APPEARANCES:
DANIEL PAQUIN FOR THE APPLICANT
CLAUDE PROVENCHER FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, FOR THE APPLICANT
PAQUIN, JOBIN & BRISSON
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA