Federal Court Decisions

Date: 19971124

Docket: IMM-1616-96

BETWEEN:

     OVENDO URIAH DAVIS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.

[1]      These reasons arise out of an application for judicial review of a decision reached on behalf of the respondent, pursuant to subsection 70(5) of the Immigration Act¹, that the respondent is of the opinion that the applicant constitutes a danger to the public in Canada. The decision is dated the 18th of April, 1996.

[2]      The factual background to this application may be briefly summarized as follows. The applicant was born in Jamaica in March of 1971. In June of 1988, he came to Canada as a landed immigrant in the company of his mother. He has resided in Canada since his arrival. The applicant is married to a Canadian citizen. At the time of the hearing before me, he and his wife had one child.

[3]      The applicant's criminal record is not extensive. He was convicted in March of 1992 of making harassing telephone calls. He received a sentence of one day of incarceration and one year of probation. On the 7th of March, 1994, on the basis of a guilty plea, he was convicted of trafficking in "crack" cocaine. He received a 42 month sentence. On the basis of this conviction, he was ordered deported from Canada.

[4]      By letter dated the 4th of January, 1996, the applicant was notified that the respondent was contemplating issuing an opinion that the applicant constitutes a danger to the public in Canada. Extensive documentation was provided to the applicant on which the Minister proposed to rely in determining whether or not to issue an opinion. The applicant was provided an opportunity to make submissions. He availed himself of this opportunity through his counsel.

[5]      The respondent's material and the submissions on behalf of the applicant were the subject of a report by an officer in the respondent's department of government entitled "Criminal Backlog Review Ministerial Opinion Report - Danger to the Public Subsection 70(5)". That officer concluded the report in the following terms:

Based on the information contained in all of the reports completed by the Correctional Services Canada (CSC) staff and the Parole Board, I am not convinced that subject is not a danger to the public in Canada. The information contained in those reports lead [sic] me to believe that the subject has an anger problem and may be violent.

........

Although subject has only one narcotic-related conviction, I strongly believe that he is a danger to the public in Canada at this time. I do not believe he should be given the opportunity to re-offend again in Canada.

........

ON THE BASIS OF THE ABOVE INFORMATION, SUPPORTED BY THE ATTACHMENTS, I RECOMMEND THAT THE MINISTER'S OPINION BE REQUESTED THAT THE ABOVE NAMED IS A "DANGER TO THE PUBLIC" WITH REFERENCE TO SECTION 70 OF THE IMMIGRATION ACT.

[6]      In the same document, a manager concurred with the officer's recommendation and added the following comment:

- any comments regarding "charges" which have not resulted in prosecution and conviction are irrelevant in assessing danger to the public

I can only speculate that the manager's comment reflects upon a paragraph in the report indicating that police were of the opinion that the applicant had been involved in the drug trade and the lifestyle that accompanies it for far longer than his conviction history indicates. They apparently expressed the view that he was a "major player" and could return to drug related criminal activities upon release. This opinion is juxtaposed in the report with an acknowledgement that the sentencing judge remarked that the applicant was a "...reasonably minor player" in the drug trade.

[7]      Before me, counsel for the applicant argued that the opinion that the applicant constitutes a danger to the public in Canada should be set aside on the grounds that it was based primarily on a report that demonstrated bias, or a basis for a reasonable apprehension of bias, on the face of the summary provided of the totality of the material that was before the respondent's delegate, that the decision was perverse in that the totality of the material before the respondent's delegate manifestly required a different result, and that the applicant had not been accorded fairness in that the officer's report, along with the manager's concurrence had not been shared with the applicant and he had not been provided an opportunity to respond to it.

[8]      In Williams v Canada (Minister of Citizenship and Immigration),² an appeal of the decision of the Trial Division on judicial review of a ministerial danger to the public opinion, Mr. Justice Strayer wrote:

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, 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. 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.

[underlining added by me for emphasis; citations omitted]

[9]      The words "such as" in the foregoing quotation would tend to indicate that the grounds of review thereafter enumerated are not exclusive. That this might not be the case appears to have been Justice Strayer's intent since, later in his reasons he wrote:

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.

In the latter quotation, I take the reference to "... on the basis of irrelevant criteria or evidence, or without regard to the material, " to be the equivalent of "... upon the basis of irrelevant considerations" in the earlier quotation. Further, I take the lack of a reference to error of law as a ground of review in the second quotation to simply be based on the facts that were before Mr. Justice Strayer which demonstrated no error of law.

[10]      In the first quotation from Williams, above, I have emphasized Justice Strayer's position that, in the absence of evidence to the contrary, and I was not referred to any contrary evidence here, the Court must assume that the decision-maker acted in good faith in having regard to the totality of the material presented to her or him. I presume that the respondent's delegate had all of the relevant material before her or him, not just the memorandum and recommendation from an officer in the respondent's department. I assume, in the absence of evidence to the contrary, that she or he had regard to the totality of that material.

[11]      I will assume for the purpose of these reasons that the respondent's delegate relied heavily on the report and recommendation, concurred in as it was by a manager, informing the delegate of the officer's and manager's opinion. I can think of no other reason why the report and opinion would have been prepared but to limit the degree to which it would be necessary for the respondent's delegate to review in detail the totality of the material presented.

[12]      While I might have summarized the material differently, or reached a different recommendation, that of course, is not the test. I am satisfied that the summary provided by the officer was reasonable, did not disclose bias or a basis for a reasonable apprehension of bias, and did not misrepresent the material that was before the officer and later, the respondent's delegate. The manager's cautionary comments represented a useful and balancing addition to the memorandum.

[13]      While I am satisfied that it would have been preferable to provide a copy of the report and recommendation together with the manager's commentary and concurrence to the applicant and to provide the applicant with an opportunity to comment thereon with those comments to be submitted directly to the respondent's delegate for her or his consideration, I cannot conclude that the failure to do so represents a reviewable error.

[14]      Once again, in Williams, Mr. Justice Strayer wrote:

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.

[15]      I am satisfied that, particularly where reasons for the decision of the respondent's delegate are not provided, the same could be said with respect to provision to the applicant of the summary and recommendations on which the respondent's delegate is likely to place great weight. Sharing of that document would have the great advantage of increasing confidence in the efficacy of the process. By so doing, and by providing a reasonable opportunity to respond to the document, the range of applications for judicial review arising from danger to the public opinions is likely to be reduced. It is difficult to conceive of arguments against sharing other than the additional time that would be added to the process. Against the time factor must be weighed the reality that persons such as the applicant herein have often been in Canada for by far the greater part of their lives, are to a very real extent a product of their environment in Canada and will suffer substantial hardship by reason of their removal from Canada to an environment where they have little if any support resources and opportunities for employment and will therefore, at least arguably, represent a substantially greater risk of harm by turning in their new environment to the very kinds of influences and activities that lead, or at least contributed, to their criminal life-style in Canada. Fairness must be said to weigh in favour of their knowing the basis on which the respondent's delegate in part acted.

[16]      In summary then, against the test for judicial reviews for matters such as this that is enunciated in Williams, I find no reviewable error that would justify this Court's intervention in this matter. In the result, this application for judicial review will be dismissed.

[17]      This application was heard before me at Calgary, Alberta, on the 22nd of April, 1997. Issues dealt with by the Federal Court of Appeal in Williams in a manner that is binding on me were not argued before me but, because it was then generally known that leave would be sought to appeal the Williams decision to the Supreme Court of Canada, counsel for the applicant requested that the hearing be adjourned to await the outcome of any such application. I acceded to that request. As noted earlier, an application for leave to appeal the Williams decision has been dismissed without reasons. Counsel for both the applicant and the respondent herein have since been contacted through the registry in Calgary and are in agreement that no purpose would be served in reconvening on this matter. Thus, I have treated this matter as closed and finalized these reasons.

[18]      If counsel for either party wishes to propose a question for certification, it should be submitted to the registry in Calgary within seven days of the date of these reasons. At that time, I will consider any such submissions and issue my order.

                             ___________________________

                                 Judge

November 24 , 1997

Ottawa, Ontario

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      [1997] 2 F.C. 646 (C.A.), leave to appeal to the Supreme Court of Canada dismissed (without reasons), 16 October, 1997, [1997] S.C.C.A. No. 332 (QL).