Federal Court Decisions

                                 Date: 19971124

    

                                 Docket: IMM-889-96

B E T W E E N :

     LUIGI PASCALE

                                 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 Act,¹ that the respondent is of the opinion that the applicant constitutes a danger to the public in Canada. The decision is dated the 22nd of February, 1996 and was communicated to the applicant on the 26th of February, 1996.

[2]      The application for leave and for judicial review in this matter indicates that the applicant also seeks judicial review of the removal order made against him. The removal order is not identified with any particularity on the face of the application for leave and for judicial review. In any event, material filed on behalf of the applicant and argument advanced on behalf of the applicant before me did not address judicial review of the removal order. Further, and perhaps more importantly, the Order of this Court granting leave in this matter relates only to the danger opinion.

[3]      The factual background may be briefly summarized as follows. The applicant was born in Italy in March of 1959. He came to Canada at the age of nine. He has not lived elsewhere than in Alberta since that time. The applicant's marriage of ten years, which the applicant described as a "love/hate" relationship, ended in divorce of 1993. His four children by that marriage reside with his former wife.

[4]      The applicant has a rather extensive criminal record dating from 1976. It includes two counts of dangerous driving and a conviction for driving with more than the legal limit of alcohol in his blood. His latest convictions, in 1993 and 1995 respectively, are for assault and sexual assault, both committed against his former wife. On the sexual assault conviction, he received a sentence of 20 months incarceration.

[5]      On the 1st of February, 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. The applicant was provided an opportunity to make submissions. He availed himself of the opportunity. The respondent's material and the applicant's submissions were considered by a Reviewing Officer in the respondent's department of government. The Reviewing Officer recommended that a danger opinion be issued. This recommendation was concurred in by the Director of Case Research and Review, Case Management Branch, in the Minister's department. In the result, the opinion was issued by a delegate of the respondent that the applicant constitutes a danger to the public in Canada,

[6]      In the Williams v Canada (Minister of Citizenship and Immigration),²an appeal

of a 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.          [citations omitted]

[7]      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 be the case appears not 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.

[8]      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.

[9]      On the material that was before the Court in this matter, counsel for the applicant raised a wide range of issues for the consideration of the Court. It was acknowledged before me that many of the issues raised were answered by the Williams decision in a manner binding on me. Further, a number of the issues raised the constitutional validity, applicability or operability of subsection 70(5) of the Act. For those issues, notice was required to be given under section 57 of the Federal Court Act.³ Since no notice was given, it was not open to counsel to pursue those issues before me. In the result, counsel for the applicant limited his argument to four allegedly reviewable errors on behalf of the Minister as follows:

1.      Counsel argued that the applicant was not provided an adequate opportunity to respond to the case against him since the Minister's delegate could be presumed to have relied heavily on the memorandum of advice and the recommendations prepared for her or his consideration, and that memorandum and those recommendations were not shared with an opportunity to respond.

2.      Counsel argued that in relying on the memorandum of advice and recommendations, the Minister's delegate effectively denied the applicant the opportunity to have his submissions considered directly by the decision-maker.

3.      Counsel argued that the memorandum and recommendations reflected a bias or gave rise to a reasonable apprehension of bias against the applicant which could only have adversely affected the applicant's case before the Minister's delegate.

4.      Finally, counsel argued that, on the basis of the totality of the material before the Minister's delegate, the formation of the opinion that the applicant represented a present or future danger to the public in Canada was simply perverse or capricious or made without regard to that totality of material.

[10]      The substance of the Reviewing Officer's comments leading to a recommendation of a danger to the public opinion are in the following terms:

Mr. Pascale is 35 years old. He has been in Canada since the age of 10 years. A submission has been received from Mr. Pascale, and has been taken into consideration when forming my opinion. Mr. Pascale has indicated that much of the information that is being used against him is hearsay and has not been substantiated. This is somewhat correct as actual court documents or records of proceeding have not been provided. Some of the people who have written to the Minster have a personal interest in Mr. Pascale's removal from Canada, and these letters have been given appropriate weight as evidence. On the other hand other people who have written to us in support of his removal from Canada, such as the Canadian Crime Prevention Centre and the Lethbridge City Police have no personal involvement and nothing personal to gain, this has also been given appropriate weight as evidence.

Mr. Pascale's family are terrified of him. Several letters have been received from members of his family explaining the circumstances that leads [sic] them to believe that he will continue to abuse his family. These letters have been highlighted for

ease of reference. The Canadian Crime Prevention Centre has written to us asking that we take responsibility for the deportation of Mr. Pascale who has threatened the rights of others - the right to personal safety.

Mr. Pascale has written several letters to dispute the information presented against him. He states he is a responsible individual as responsibility means to pay the price for one's wrong doings and 'people break the law of the Country, and pay by going to jail'. This sort of statement indicates that he feels justified in any actions as long as he pays the price by going to jail. The likelihood of recidivism in this case is considered to be high. When reading his letters it is clear that he accepts no responsibility for his actions, he denies any wrongdoing and places the blame on his ex-wife and her family.

After careful consideration of all the information presented, and taking into consideration the humanitarian and compassionate considerations presented I feel that removal action is warranted. Mr. Pascale's lack of regard for the criminal justice system, and his recent actions towards his wife leads [sic] me to believe that the safety of the public, and in particular his family, is in danger should he be allowed to remain in Canada.

[11]      I will assume that the respondent's delegate relied heavily on the foregoing report and recommendation, concurred in as it was by a manager, in forming her or his 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. At the same time, I am conscious of the position enunciated by Strayer J. 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 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. I assume, in the absence of evidence to the contrary, that she or he had regard to the totality of it.

[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 Reviewing Officer was reasonable, did not misrepresent the material that was before the Reviewing Officer, did not disclose bias or a basis for a reasonable apprehension thereof, although other of the material on which the summary was based might have been said to demonstrate bias.⁴

[13]      The respondent's delegate made no reviewable error in failing to seek out further material to support the applicant's position. I agree with the following position enunciated by Mr. Justice MacKay in Bavi v. The Minister of Citizenship and Immigration⁵:

I am satisfied that, in light of his convictions and sentences, it was the applicant who bore the burden of demonstrating to the Minister that he was not a danger to the public in Canada, and it was not the responsibility of the Minister to seek evidence in support of the applicant's submissions. The decision that his submissions did not establish that he was not a danger to the public in Canada appears reasonable in the circumstances.

[14]      I am satisfied that the same could be said here. Further, I am satisfied that the applicant's submissions were reasonably represented to the Minister's delegate in the Reviewing Officer's report and recommendation.

[15]      That is not to say that it would not have been preferable to share the Reviewing Officer's summary report and recommendations with 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. 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.

[16]      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 report 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 greatly 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 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 led, or at least contributed, to their criminal life style in Canada. Fairness might be said to weigh in favour of their knowing the basis on which the respondent's delegate in part acted.

[17]      In summary then, against the test for judicial reviews of 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.

[18]      This application was heard before me at Calgary, Alberta on the 22nd of April, 1997. Issues identified in the applicant's Memorandum of Fact and Law that were dealt with by the Federal Court of Appeal in Williams⁶, 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 to appeal the Williams decision has been dismissed without reasons. Counsel have since been contacted through the Registry in Calgary and are in agreement that no purpose would be served in reconvening. Thus, I have treated this matter as closed and finalized these reasons.

[19]      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

Ottawa, Ontario

November 24 , 1997

__________________

     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).

     ³      R.S.C. 1985, c. F-7

     ⁴      For example, the following appears in a narrative/recommendation supporting a subsection 27 (1)of the Immigration Act report:
Return to Italy would mean he [the Applicant] would have to learn a whole new system and how to beat it.

     ⁵      Court File IMM-2859-95, January 9, 1996, (F.C.T.D.), unreported

     ⁶      Supra, note 2.