Federal Court Decisions

Date: 19980224

Docket: IMM-1904-97

BETWEEN:

     KENRICK JOSEPH ASHTON

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CAMPBELL J.

[1]      This is an application for judicial review of an opinion of the Minister of Citizenship and Immigration under s.70(5) of the Immigration Act that Kendrick Joseph Ashton constitutes a danger to the public in Canada.

A. Facts

[2]      Born in England, Mr. Ashton was admitted to Canada at age 11, with his mother, father and three brothers, as a permanent resident on June 23, 1975. His mother is now deceased, but he has various other relatives living in Vancouver, Edmonton and Toronto. Mr. Ashton has lived in Calgary continuously since 1975, has a Grade 12 education, has worked primarily as a framer, is in a current relationship, and has a son by a previous relationship. However, as a result of his deportation from Canada connected with the opinion under review, he is now resident in England awaiting the decision on this application.

[3]      The Applicant's criminal record is as follows:

Date	Offence
May 8, 1981	Possession of stolen property under $200
Nov. 14, 1981	Possession of stolen property under $200 Attempted break & enter with intent 2 counts of break & enter & commit
March 18, 1983	Mischief to private property Breach of probation
Nov. 15, 1983	Theft under $200 Failure to appear
Sept. 4, 1990	Theft under $1000
Jan. 25, 1995	Cultivation of a narcotic (marijuana) Possession of a narcotic for the purposes of trafficking (marijuana)
Feb. 17, 1995	Cultivation of a narcotic (marijuana)

[4]      On or about October 23, 1995 Mr. Ashton received a letter informing him that his case was being reviewed for issuance of a "danger certificate" pursuant to s. 70(5).

[5]      The letter invited Mr. Ashton to forward representations, information or evidence regarding the issue of whether he is a danger to the public and the letter also informed him that the consequence of an opinion being issued pursuant to s.70(5) would be to remove his right of appeal to the Immigration Appeal Division. In response to the letter, Mr. Ashton's lawyer forwarded written submissions and letters of support.

[6]      On January 19, 1996, an opinion was given by a Minister"s delegate on the recommendation of a Reviewing Officer that Mr. Ashton constitutes a danger to the public. In reaching this opinion, the evidence the Minister"s delegate considered was contained in police reports, conviction certificates and criminal record, and the judge"s sentencing remarks on the January 25, 1995 narcotics convictions.

[7]      Mr. Ashton challenged the validity of the "danger certificate" by filing an Application for Leave and for Judicial Review on February 8, 1996. On April 15, 1996, Denault J. stayed a deportation order pending the outcome of the Application for Leave, and leave was granted on May 6, 1996.

[8]      On or about May 29, 1996, Mr. Ashton received a notice from the Immigration Appeal Division that it might not have jurisdiction to hear his appeal, which, but for the s.70(5) opinion, is a right to which he is entitled. The notice invited submissions.

[9]      However, on July 23, 1996, the Federal Court Trial Division quashed the "danger certificate" by way of a consent application, on the basis that the handwritten representations dated October 25, 1995, and October 31, 1995, which had been submitted by Mr. Ashton to the Canada Immigration Centre in Calgary, were not included in the materials considered in reaching the opinion.

[10]      On August 2, 1996, Mr. Ashton received notice that his appeal to the Immigration Appeal Division was dismissed on July 28, 1996 as a result of the existence of the "danger certificate". On August 12, 1996, Mr. Ashton applied to the Immigration Appeal Division to have his appeal re-opened.

[11]      On August 27, 1996, the Minister advised Mr. Ashton's counsel and the Immigration Appeal Division, of an objection to Mr. Ashton re-opening his appeal. The following reasons were stated for the Minister's opposition:

1. There is no jurisdiction to re-open the appeal as there was never an appeal right, by operation of law, due to the Minister's Opinion being filed at the inquiry on 23 February 1996.

2. In light of the Federal Court decision of 23rd July, 1996, the Minister is re-considering the issuance of a danger opinion in this matter. [Emphasis added]

[12]      Subparagraph (2) above is the only notice that Mr. Ashton and his counsel received that the Minister was commencing subsequent "danger to the public" proceedings. Mr. Ashton was never advised directly or through his solicitor that a subsequent danger proceeding was being taken against him nor was he invited to make further submissions. In addition, he was not advised of the consequence of such an opinion being issued.

[13]      On or about August 26, 1996, Mr. Ashton's case was again presented to a different Minister's delegate for an opinion on whether he constituted a danger to the public. The materials provided to the Minister's delegate for his consideration were those that had previously been presented along with the two letters from Mr. Ashton that had previously been excluded. On September 10, 1996, the certificate under review was issued.

[14]      In a letter dated September 13, 1996, Mr. Ashton was informed that he had been declared a danger to the public. He was unable to file an appeal within the 15 day time limit due to his extensive debts to Legal Aid and to his solicitor. On September 26, 1996, the Immigration Appeal Division considered his application and on October 3, 1996, his appeal was initially re-opened. The appeal was subsequently dismissed following a motion by the Minister made in reliance upon the second "danger certificate".

B. Decision under review

[15]      The decision under review is the opinion of the Minister"s delegate which reads as follows:

On the basis of the information considered by me, I am of the opinion, pursuant to subsection 70(5) of the Immigration Act that ASHTON, Kendrick Joseph; born July 18, 1964 constitutes a danger to the public in Canada.

[16]      No reasons were given for the opinion expressed. However, the Review Officer who made the request for the opinion on August 26, 1996, provided the following views:

DANGER PROFILE

1) 25 January 1995 convicted of cultivation of narcotics, sentenced to 9 months imprisonment.

2) 25 January 1995 convicted of possession of a narcotic for the purpose of trafficking, sentenced to 9 months imprisonment.

3) 17 February 1995 convicted of cultivation of a narcotic sentenced to 21 months imprisonment consecutive to sentence serving.

REMOVAL RISK CONSIDERATIONS

There are no removal risk considerations in this case.

REVIEWING OFFICER"S COMMENTS AND RECOMMENDATION

A "danger to the public" certificate which was issued pursuant to sub-section 70(5) of the Immigration Act on January 19, 1996 was set aside by the Federal Court in a decision dated July 23, 1996. The rationale for this Federal Court decision was that a submission forwarded to local Immigration officials by Mr. Ashton (in response to the notification letter from local Immigration officials) was not considered by the Minister"s delegate.

This submission has now been received and considered. Mr. Ashton has indicated that he wishes to remain in Canada largely based on his period of residency in this country and the presence of relatives (including a son by a former marriage). He claims that he will be taking various courses to rid himself of his drug dependency. He blames his misconduct on his addiction. A letter has also been received from Mr. Ashton"s ex-spouse indicating that she supports his presence in Canada.

I have carefully reviewed this submission and the material previously sent to the Minister"s delegate for consideration. I find that, despite the material contained in these two letters, there are insufficient humanitarian and compassionate considerations present to outweigh the danger to the public aspect of this case. Mr. Ashton has a criminal record spanning 14 years with a recent predilection for the cultivation of narcotics. He has not learned from his contacts with law officials that he should not engage in violations of the Narcotic Control Act. The cultivation and possession of narcotics are offences which are viewed as serious deviations from normal societal practices and encourage violations of the law by others. There is not sufficient evidence to support a position that he will not return to this lifestyle choice.

I concur with the request that the Minister form an opinion that this person constitutes a danger to the public pursuant to sub-section 70(5) of the Immigration Act.

NOTE: You will find attached the entire previous submission along with the two letters which form the submission from Mr. Ashton.

C. Procedural fairness

[17]      Mr. Ashton argues that the Minister"s delegate failed to observe a principle of procedural fairness in rendering the August 26, 1996 "danger" opinion because of the failure to give proper formal notice.

[18]      The Minister argues that it was proper to consider Mr. Ashton's case without recommencing the whole process and that the administrative procedure followed was consistent with the one set out in the guidelines. Furthermore, the letter of August 27, 1996 which indicated that the Minister was "re-considering the issuance of a danger opinion in this matter" was argued as being sufficient notice to Mr. Ashton that his case would be re-assessed and that he was not precluded from making further submissions.

[19]      The principle authority for judicial review of a s.70(5) opinion is Strayer J.A."s decision in Williams v. The Minister of Citizenship and Immigration.¹ In Williams at 109 Strayer J.A. finds that the issuance of a danger opinion is appropriate "only after the requirements of fairness are met through enabling the party affected to make submissions". I am not satisfied that the Minister in the present case discharged the duty of fairness owed to Mr. Ashton by providing him with clear and unambiguous notice that further danger proceedings were being taken against him and that he could provide further submissions in his own defence.

[20]      Even though this procedural fairness error is enough upon which to set the opinion aside, I accept the argument of Mr. Ashton"s counsel, Mr. Wong, that other grounds cited by him need to be considered since it might very well be that my analysis will assist the Minister in reaching any further opinions or decisions in Mr. Ashton"s case.

D. Legal review standards for a s.70(5) opinion

[21]      Mr. Ashton argues that the Minister's opinion is unreasonable because his offences did not involve violence, the documentary evidence supports the point that he is not a danger to the public, and in particular, the institutional reports indicate that his behaviour and personality are not suggestive that he will constitute a future danger to the public. Therefore, the question is, what standard does the opinion have to meet?

[22]      In Williams, at 107, 108 Strayer J.A. offers some views about the nature of analysis that the Minister might undertake in reaching an opinion and, in so doing, sets the legal test:

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 case [August 16, 1996, IMM-107-96 (F.C.T.D.) at 11 (unreported)] 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. [Emphasis added]

[23]      Thus, an opinion reached under s.70(5) that a person is a "danger to the public" must meet the legal test that the "danger" the person presents is "present or future danger to the public". This is, therefore, a standard that the decision is required to meet.

[24]      In the above passage, Strayer J.A. finds that in reaching this standard the Minister is only required to express an "opinion" as opposed to some high form of decision. He also recognizes that opinions reached under s.70(5) are an outcome of the process of evaluating evidence produced in a particular case together with the decision maker"s own understanding of the world as he or she perceives it. In the following passage at 104 he also recognizes, however, that even for such a subjective analysis and outcome authorized by law, an opinion can be set aside on judicial review when certain decision making quality standards are not met:

...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 [See e.g., A.G. of Canada v. Purcell [1996] 1 F.C. 644 at 661 (F.C.A.)] such subjective decisions cannot be judicially reviewed except on grounds such as the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations [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]. 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 [See e.g., Baker v. M.E.I., November 29, 1996, A-441-95 (F.C.A.), (unreported)]. [Emphasis added]

[25]      The standards are further commented upon at 111 as follows:

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. [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.)]. 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....[Emphasis added]

E. The Minister"s standards in formulating an opinion under s.70(5)

[26]      To ensure that an opinion reached under s.70(5) is fair, appropriate and of sufficient quality to withstand a challenge on judicial review, the Minister has established guidelines for producing the opinion. The procedure as I understand it is for a Review Officer to investigate a particular case according to detailed guidelines, and then to produce a recommendation for consideration by a Minister"s delegate who is authorized to render an opinion under s.70(5). This procedure was followed in this case.

[27]      To determine whether a reviewable error has been made in reaching the opinion, I think the best approach to follow is to consider the facts of the case according to the guidelines. The guidelines in their entirety are as follows:

C-44 Implementation

APPENDIX D

DANGER TO THE PUBLIC

The profile described below should be considered by officers when determining whether or not to apply for the Minister"s opinion under sections A70(5), (6) & 77(3.01).

1. PROFILE

Persons who as a result of their actions, have caused or might reasonably be expected to have caused death or serious physical or psychological harm to persons and/or significant damage to property. For example, this would normally apply to persons whose offences include violence, narcotics trafficking, sexual abuse, or the use of weapons.

2. NOTE

Officers seeking a danger to the public finding for persons involved in organized crime (19(1)(c.2)), for persons found to be refugees or for visa holders seeking admission at ports of entry, should contact Case Management branch for individual case assistance.

3. CONSIDERATIONS

It cannot be emphasized too strongly that it is not simply the commission of an offence that brings into play "danger to the public" processing. Careful consideration must be given to a number of factors:

" The Nature of the Offence - offences considered dangerous to the public would normally involve violence, weapons, drugs, sexual offences;

" The Circumstances of the Offence - this would allow for consideration of what led up to the offence or the severity of the incident;

" The Sentence - the sentence of the judge in the court case would assist in deciding on the severity of the incident;

" Recidivism - multiple offences would be given greater weight than single offences;

" Humanitarian and Compassionate considerations - any circumstances advanced will be weighed against the factors above.

Making a recommendation will require an analysis of the actions of the person, both as reflected in the commission of the current offence and as shown in past activities. If, either singularly or cumulatively these activities indicate that the person is described in the profile of "danger to the public", a request for the Minister"s opinion, as authorized in A70(5), (6) and 77(3.01), should be initiated.

It is incumbent upon officers to carefully gather and analyze the documentation acquired in support of their recommendation (refer to section 8.1 Procedure for obtaining Minister"s opinion in A70(5) cases, (iii), for suggestions), with particular reference to documentation that reflects the sentence imposed by the courts, the nature and the circumstances surrounding the crime(s).

Normally, the officer"s recommendation should not be at odds with the court"s disposition of the offence (for example, where the court imposed a fine with little or

no incarceration time). This aspect is important so that it does not appear that the courts and the department have completely different viewpoints as to whether or not the person is a danger to society. However, it should be kept in mind that the conviction registered against the individual and the resulting sentence do not always accurately reflect the circumstances surrounding the offence(s) (eg., plea bargaining).

It may be that, based on the nature of the offence and the associated circumstances, a single conviction will be sufficient to conclude that a recommendation to the Minister be made. That being said, recidivism is an important factor for consideration in any danger to the public request. The person"s record should reflect a continuing abuse of the law with the cumulative effect of making the person a "danger to the public".

Attachment 1 to this appendix is an example of the report, IMM S367, which is to be completed when seeking the Minister"s opinion. Detailed completion instructions are also provided. IMM S367 will be available through the ALF system as of July 4, 1995.

Officers should not hesitate to contact Case Management Branch, NHQ, for guidance on any case.

4. OFFENCES

The following list of offences, while neither exhaustive nor determinative, is provided to assist officers in determining whether the actions of the person in the commission of these crimes are such that s/he constitutes a danger to the public of Canada. These are the types of offences involving violence, narcotics, trafficking, sexual abuse, and use of weapons, that would normally lead to the conclusion that a person is a danger, depending upon the nature and the circumstances of the offence, the sentence imposed and the issue of recidivism. The list is not exhaustive, i.e., there may be other offences that may lead to a determination that a person is a danger to the public, based on the profile above.

The list is also not determinative, i.e., a person who has committed an offence appearing on the list may not necessarily be a danger to the public, depending on the nature and circumstances of the offence, the sentence imposed, the issue or recidivism and humanitarian and companionate factors.

4.1 An offence under any of the following provisions of the Criminal Code

(a) section 76 (hijacking);

(b) section 77 (endangering safety of aircraft or airport);

(c) subsection 78.1(1) (seizing control of ship or fixed platform);

(d) subsection 81(1) (using explosives);

(e) section 85 (use of firearm during commission of offence);

(f) section 87 (possession of a weapon);

(g) section 151 (sexual interference);

(h) section 152 (invitation to sexual touching);

(i) section 220 (causing death, criminal negligence);

(j) subsection 235(1) (murder);

(k) section 236 (manslaughter);

(l) section 239 (attempt to commit murder);

(m) section 244 (causing bodily harm with intent);

(n) section 246 (overcoming resistance);

(o) subsections 249(3) & (4) (dangerous operation of a motor vehicle causing bodily harm, death);

(p) subsections 255(2) & (3) (impaired driving causing bodily harm, death);

(q) section 267 (assault with a weapon or causing bodily harm);

(r) section 268 (aggravated assault);

(s) section 269 (unlawfully causing bodily harm);

(t) section 271 (sexual assault);

(u) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);

(v) section 273 (aggravated sexual assault);

(w) sections 279 & 279.1 (kidnapping, hostage taking);

(x) section 344 (robbery);

(y) section 346 (extortion);

(z) section 348 (breaking and entering);

(aa) subsection 430(2) (mischief, danger to life);

(bb) section 433 (arson - disregard for human life);

(cc) section 434 (arson);

(dd) subsection 463(a) & (b) (attempts, accessories);

(ee) paragraph 465(1)(a) (conspiracy to commit murder).

4.2 An offence under any of the following provisions of the Narcotic Control Act

(a) section 4 (trafficking);

(b) section 5 (importing and exporting).

4.3 An offence under any of the following provisions of the Food and Drugs Act

(a) section 39 (trafficking in controlled drug);

(d) section 48 (trafficking in restricted drug).

F. Application of the standards to Mr. Ashton"s case.

     1. The nature and circumstances of the offence

[28]      Mr. Ashton"s criminal record is cited above, but to understand the weight to be placed on the offences which he committed, the guidelines properly call for them to be considered in the context in which they occurred. Important contextual evidence before the Minister"s delegate came from Mr. Ashton"s own letter of explanation dated October 25, 1995, which was written in response to the notice he received that a danger opinion was under consideration. The letter, the veracity and accuracy of which is not challenged anywhere in the record, reads in part as follows:

I just received your letter of Intention and I have to respond by asking you to reconsider. I am not a danger to the Canadian public, most of my crimes were committed as a teenager, and my most recent crime was committed as a result of my weakness for Marijuana and I would like a chance to explain them to you.

I have been in Canada 20 years and most of my 12 charges were committed in 1983. I was 17 and I guess it was my rebellion time. I was not a bad kid. I got caught up in the wrong crowd, staying out all night drinking. My mon got annoyed and kicked me out of the house because I did not want to go to school. I thought I knew it all. I stayed at a friend"s house for a while but his parents would not have it. This all happened after I stole some pillars and got one day and 2 years probation. This was the beginning of a destructive future. In March 1983 I was still out of the house and had no where to stay. I begged my mom to take me back. It was cold and I was hungry. Where my mom lived there were condos [illegible] broke into a house and stayed there. That"s how I ended up with the mischief and the breach of probation. After a while on remand centre I spent 30 days in Calgary Correctional for that crime I was released and still had no where to go. My mom would not take me back. I was wandering from friends house to empty condo sneaking into my moms house at night to get something to eat when she went to work. The next thing I knew I was doing B & Es. I got caught for all the B & E charges on 14/10/83 as you can see in the previous criminal history report. Just before that I was caught shoplifting a jacket and was released on a form 9. The days I was to appear in court I was in custody at Highward Camp. I was released and later charged with theft Order and fail to appear that"s why I only got one day because it was the Crown"s fault I was not in court. This explains my 1983 crimes they were at a time when I was young. I had no job skills. I could not get welfare, I tried, and I could only survive by stealing. I really did not want to. I was 17 years old in an adult prison but I really did not have any other choice. I hope you understand. This takes care of the 8 - 1983 charges and one 1981 charge. I was very stupid and young.

In 1990 I was working for Hemlock Builders. I had not worked in a month my car was stolen and wrecked. I spent all my money on a new car and insurance. I had to get back to work. I had not a dime and my car was empty. I asked everyone I knew to lend me some money, no one had any. I know it was wrong but I took the law into my own hands, proceeded [illegible]

Every thing to the police told them why I did it. I paid back the $20. to the Esso also I paid a $800. fine. At the time I had a 2 year old son and I needed to get back to work. My boss was patient with me keeping my job for a month. I was a good worker and a victim of circumstance. I worked for Hemlock until 1994.

In 94 I was arrested for growing Marijuana. After my mom died in 93 my life started taking a turn for the worse. I had ended a 10 year relationship with Cyndie Rawlins and I turned to drugs. I smoked " oz a day and I could not support my habit so I started growing. I had a small crop of 27 plants it was mostly for personal use and not worth $22,000.00 as the police stated. I had lost track of reality. All I cared about was drugs. I got 9 month for that, while out on bail I was getting some stuff from my friends house. I was not living there. I still lived in Abbeydale. The police saw my truck on the lawn, asked me what I was doing, they told me they were looking for my brother, proceeded into the house and found an unknown amount of snips of Marijuana plants. There was no hydroponic operation, I got charged. My lawyer said the Judge would not believe my story and I should cut the best deal possible. This is how I ended up here. If I knew I would get deported I would never have done this crime. I am very sorry and ask for a chance. I am no danger to the public. I ask for one chance. I have never been forewarned and I learned my lesson....I got into trouble at a young age when I knew no better as far as survival and my growing marijuana and dealing with drugs and death, and losing a relationship. I know now there are support groups I can get to if I am ever to need. I don"t need to turn to drugs. I realize that my family is all I have and without them I am nothing. I am no threat to Canada or the public. I love this Country.

     2. The sentence

[29]      The transcript of the sentencing hearing reads as follows:

Excerpt of Proceedings taken at Trial, Court of Queen"s Bench of Alberta

26th January, 1995 / The Honourable Mr. Justice Lomas

Mr. Ashton, you have pled guilty to cultivation of cannabis marihuana [sic] which is an offence under Section 6(1) of the Narcotic Control Act and carries a maximum penalty of seven years imprisonment. You have also pled guilty to possession of cannabis marihuana [sic] for the purpose of trafficking which is an offence under Section 4(2) of the Narcotic Control Act and carries a maximum penalty under the Code of imprisonment for life.

The maximum penalties cover the entire ambit of narcotics. They are not limited to marihuana [sic]. Therefore, the courts look at the type of narcotic involved in the operation, along with all the other factors, in determining what is a fit sentence. Fortunately for you, marihuana [sic] is one of the lesser drugs and carries a lesser sentence than heavier drugs such as cocaine, heroin, opium, et cetera, and I am sure that you are well aware of those factors.

However, the Court of Appeal of Alberta has directed the courts of this province that the offences to which you have pled guilty, cultivation and possession for the purpose of trafficking, each require a period of incarceration.

Your cultivation operation, in my opinion, as indicated by the Crown counsel, appears to have been a very sophisticated system,. While the value of the plants found by the police on their search of your premises is estimated at some $23,000, I am advised that three to four crops per year could be grown with the operation that you were conducting.

The size and sophistication of the operation is definitely an aggravating factor in your sentence. The quantity of cannabis shake and of any cannabis marihuana [sic] seized by the police is not great. I presume that they were as a result of part of the refining process of your cultivation operation, although that is not in evidence. In any event, the scales and other paraphernalia were also present.

You have pled guilty today. It appears to be a timely guilty plea and you are entitled to a reduction of sentence as a result of that guilty plea. You have a criminal record, but it is unrelated being convictions for property offences and mischief. There are no prior drug convictions on your record. Therefore, the record is not a material factor in your sentencing.

I note that you have a Grade 12 education. You have been gainfully employed in the framing industry; and upon your release from goal, you intend to continue in that industry. I also note that you are supporting a six-year-old child and that you are at risk of losing the residence by inability to make mortgage payments while you are incarcerated. Whether or not that actually happens is pure conjecture at this point.

In any event, taking together all of the factors I have mentioned, I accept the recommendations of crown counsel and your counsel and sentence you to nine months in gaol on each of the two charges to which you have pled guilty. The sentences will run concurrently.

     3. Recidivism

[30]      In addition to Mr. Ashton"s own statements on this issue as quoted above, the following sources of information produced evidence on this consideration:

1. Letter from Cindy Rawlins, Mr. Ashton"s ex-common law wife included for consideration November 9, 1995:

To whom it may concern, Ken and I have been together for 14 yrs. After his mother"s death she put the burden of "take care of 3 brothers on him" The amount of pressure changed him and his life style. Shortly after we split up. Together we have a 6 yr son. Bronson worships his dad dearly. Ken and Bronson do quality time on the weekends or anytime he wants to which is very important to Bronson - as Ken gives Bronson high moralistic values - though contradicting to his offences. He is a very good father which my family can attest too. Racial identity is also needed by Bronson as he spends his remaining leisure time with a Caucasian family - Grandma, 2 aunts, 3 cousins. (my mother) (sisters) (their children).

Since our split up, Ken was paying support of $200.00 per month which helped me quite a lot. My take home pay is $840.00, I would pay the following rent $475.00, day care $150.00, bus fare $40.00, phone $35.00 which leaves me $330.00 to feed and dress Bronson and myself. Without Ken"s support I don"t know what I would do. My family has been very close to Ken for the 14 yrs that we"ve known him and his family. They are all willing to assist him in any way they can as they are his family.

The fact that he will no longer be involved in illegal activity when he is released, will insure in [sic] of again being a family, which always was very important to us, until his mother"s death, when things changed. My mother guaranties as soon as he is released, he will have a job working for her in her cleaning company. Ken is a very caring and loving human being that has a heart of gold. Bronson needs his father in his life and all the love he gives him is very important.

Calgary has been our home for over 20 yrs. I Cyndie cannot uproot our family out of the country to be together with Ken, because I have established a full time job that I like. I depend on it financially. Both our families are here and we need their love and support, not from afar.

2. Correctional Services of Canada report dated October 19, 1995:

PROGRAM PERFORMANCE REPORT *FINAL*

CHEMICAL DEPENDENCY AWARENESS PROGRAM

Assignment Status: Successful Completion

Start date: 1995/10/05

End date: 1995/10/18

Program Supervisor"s Assessment

Mr. Ashton was identified as a low intensity need for programming by the CLAI. He scored low on the DAST, and none on both the ADS and PRD tests. He has now presently completed the CDAP as referred by his Case Mgmt. Team.

By itself the CDAP meets the requirements needed by Mr. Ashton.

Under the supervision of the Coordinator of Substance Abuse Programming all nine sessions of this program were presented by the Peer Counselors, who have been trained by AADAC in the presentation of Substance Abuse Programs.

The program consisted of 30 hours of instruction in alcohol and drug education. Including the following areas. The process of dependency, an introduction to ACOA, personal defense mechanisms, emotional maturity and ways to grow emotionally, hurdles to sobriety and how to deal with them, resources both institutional and community, and finally 2 sessions on relapse prevention.

This 2 week program is designed to stimulate the individuals to think in a more realistic manner regarding their use of alcohol/drugs, and provides them with an opportunity to come to a clearer understanding of the extent of their personal chemical abuse/dependency. They are provided with an opportunity to take a look at personal factors which led them into usage, and are made aware of the need to find alternative ways to cope with their emotions. They are encouraged to develop the inner resources required to cope comfortable with a drug free life-style, and are made aware of the dangers of relapse, and some of the indicators of this process. They are also given some practice at handling high risk situations, by looking at making their own relapse prevention plan.

IMPACT OF PROGRAM

As this is an educational program we only are looking for the retention of knowledge through programming. We have identified that Mr. Ashton did show improvement through the use of pre/post testing.

Mr. Ashton scored a 65% on the pre test and completed the program with a 85% and increase of 20%. This indicates to us that Mr. Ashton participated and gained some knowledge on the topics covered in the program. It must be remembered that the CDAP is not a treatment style program.

RECOMMENDATIONS FOR FUTURE TREATMENT

Mr. Ashton"s referral to OSAPP has been cancelled as he does not meet the course criteria. He is not seen as a moderate to high intensity need for treatment. He has also been referred for the Relapse prevention program by his CMT. [sic] don"t see a real need for relapse but will course load anyway.

3. Correctional Service of Canada Detention Review Pre-Screening report dated September

1995:

DETENTION REVIEW PRE-SCREENING

Completing Operational Unit: Drumheller Institution

Section 129(2)(a)(ii):

There are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person(s) prior Warrant Expiry Date.

NO

...

Section 129(2)(b):

There are reasonable grounds to believe that the offender is likely to commit a serious drug offence prior to Warrant Expiry Date.

NO

Ashton is now not eligible for release on Day Parole. He has, therefore, withdrawn his application.

Mr. Ashton is aware of his right to have an assistant at his hearing if a hearing is required. His common-law wife will likely attend the hearing on his behalf. Mr. Ashton would like to have his hearing conducted in English.

Mr. Ashton was rated as a Minimum Security inmate at the time of Penitentiary Placement.

UNDERSTANDING OF ATTITUDE TOWARDS OFFENDING

Mr. Ashton indicates that he is aware that his involvement in drug use and dealing was wrong. He states that he should not have tried to make quick money in this way. Mr. Ashton indicates that he is aware of the adverse effects of drug use on society and is not proud of his involvement in such activity.

Mr. Ashton indicates that he has not used drug [sic] while in the institution although drugs were readily available. Mr. Ashton feels that this period of incarceration has opened his eyes to the serious consequences of his actions. He is aware that these actions have placed him in an undesirable position in regard to his immigration status in Canada and states that he does not want to exacerbate the situation through further drug use.

SUMMARY OF CURRENT INSTITUTIONAL PERFORMANCE

OVERVIEW OF CORRECTIONAL PLAN

Mr. Ashton"s criminogenic factors were determined to be:

1. Values and Attitudes

2. Cognitive Skills

3. Education/upgrading

It was determined, at the time of correctional planning, that Mr. Ashton did not require cognitive skills programming as his thinking patterns were not generally of a criminal nature and that he was fully aware that his actions were wrong.

As Mr. Ashton"s offences involved drugs, he was referred to OSAPP, CDAP, and Relapse Prevention as a reminder of the serious effects of drug use and dealing on individuals and society as a whole.

EDUCATION/EMPLOYMENT

Mr. Ashton has, apparently, completed a grade twelve level of education. His CAAT results indicate that his vocabulary and reading comprehension skills are above a grade twelve level however his spelling, number operations and language are at a grade eight level. Mr. Ashton indicates that he may look into upgrading in the future, but initially upon release he will try to find work in construction as a framer. Mr. Ashton indicates that he had worked for the past seven years as a framer and at the time of his arrest, was working for Hemlock Builders. Mr. Ashton is not sure that this company would be willing to hire him again in view of his offences, however, he feels that, with his experience, he should be able to find some work in the community.

While in the institution,, Mr. Ashton has been steadily employed in the kitchen.

FAMILY AND SUPPORT SYSTEMS

Mr. Ashton names as his major source of support his common-law wife, Alicia Pastuk. In a CA completed on 95-05-09, Ms. Pastuk is described as an excellent and independent young woman who has a positive view of Mr. Ashton and is optimistic about their future.

Mr. Ashton has a five year old son from a previous relationship. He indicates that he has an amiable relationship with his former common-law wife and has ongoing contact with his son.

HEALTH/LEGAL STATUS

Mr. Ashton indicates no health concerns.

A CPIC indicates no outstanding warrants in Mr. Ashton"s case.

The Immigration Department has ordered that Mr. Ashton be detained under Section 105 of the Immigration Act. If Mr. Ashton is released on Full Parole, he will be transported to the Remand Centre where Immigration officers will determine his future.

DISCIPLINE/SECURITY

Mr. Ashton has not been a security or disciplinary concern on the unit. He is cooperative with staff and avoids confrontations with inmates.

TRANSFER/CONDITION RELEASE

Mr. Ashton has not been involved in transfer or conditional releases at this time.

PROGRAM PARTICIPATION/TREATMENT

Mr. Ashton has not yet been involved in programming due to the relatively short time that he has been in Drumheller Institution. He is on the waiting list for CDAP, Relapse Prevention, and OSAPP.

PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT

A psychological assessment completed during the reception process notes that Mr. Ashton may have some grief issues related to his previous relationship and his mother"s death to work on. Feelings of insecurity were noted and it was suggested that Mr. Ashton work on his assertiveness.

While in Drumheller, Mr. Ashton was not deemed to be a priority candidate for psychological assessment or treatment.

4. Corrections Services of Canada Progress Appraisal and Recommendation dated September

1995:

PROGRESS SUMMARY APPRAISAL AND RECOMMENDATION

Completing Operational Unit: Drumheller Institution

STATEMENT REGARDING RISK

Mr. Ashton"s offences do not fall within Schedule I of the CCRA.

Mr. Ashton is serving his sentence for offences which are included in Schedule II of the CCRA. There are, however, no reasons to conclude that he is likely to become involved in serious drug offending prior to his WED if granted early release. Mr. Ashton has expressed an awareness of the serious nature of drug offending and the desire to avoid similar behaviour in the future. He has avoided drug use in the institution and has served his time in a cooperative and productive manner.

According to the GSIR, Mr. Ashton falls within the category of offender in which two out of every three will not commit an indictable offence after release. (+1)

OVERALL ASSESSMENT

ASSESSMENT OF FACTORS TO DETERMINE IF THERE ARE REASONABLE GROUNDS TO CONCLUDE THAT THE OFFENDER, IF RELEASED, IS LIKELY TO COMMIT AN OFFENCE INVOLVING VIOLENCE BEFORE EXPIRY OF SENTENCE

(A) There are no indications of behaviour that would demonstrate a potential for Mr. Ashton to commit an offence involving violence. His past criminal history is relatively minor consisting mainly of property offences for which he received short sentences. There are no indications of family violence. In fact, the psychological assessment at reception indicates that he chooses partners who can fend for him and that he often acts apologetic and overly accommodating with others. Although Mr. Ashton admits that he used drugs in the past, it does not appear that this use resulted in violent behaviour.

(B) The psychological assessment notes Mr. Ashton"s feelings of inferiority and his lack of assertiveness. Mr. Ashton appears, however, to have been assertive within the institution in regard to saying "No" to drug use and in avoiding situations that could result in disruptive situations. Mr. Ashton appears to be looking forward to resuming his relationship with his common-law wife and the CA indicates that the feelings are mutual. He is adamant in stating that he wants to build a stable life with Ms. Pastuk - a life which does not include drug use.

Mr. Ashton will be transported to the remand Centre if released on Full Parole where arrangements will be made with the Immigration Department re. his access to the community. Mr. Ashton has been in Canada since the age of eleven, but indicates that he is aware that he will be deported if the Immigration Minister decides that he is a danger to this country. Mr. Ashton appears to be accepting the situation calmly. He states that he is fully aware that any illegal behaviour, especially involving violence, will only make the situation worse.

(C) There are no psychological reports which indicate the presence of serious psychological problems which might lead to violent behaviour.

There are no indicators in Mr. Ashton"s previous or present behaviour of a likelihood for violent behaviour prior to his WED. There do not appear to be grounds to refuse to direct his release on Full Parole at his PED.

It is not felt by the CMT that a Residency condition is necessary in this case. Mr. Ashton has lived a generally pro-social life in the past and has the resources to do so in the future. Mr. Ashton is aware that he will be required to face an Immigration

inquiry to attempt to justify his remaining in Canada. He indicates that he does not want to be involved and any [sic] hint of criminal activity which might weigh negatively on the Immigration Minister"s decision.

Although programming in regard to building self esteem and assertiveness may be beneficial to Mr. Ashton, it is not being recommended as an additional condition. Mr. Ashton appears to be aware of the steps that he must take to avoid prison in the future.

G. Does the opinion in this case meet the review standards?

     1. Does the opinion meet the test?

[31]      The evidence taken as a whole strongly supports Mr. Ashton"s submission that, at the time the danger opinion was rendered, he was not a danger to the public and would not be in the future. I find, therefore, that the test has not been met.

     2. Is the opinion made in reviewable error?

[32]      As cited above, the decision under review is the opinion which reads as follows:

On the basis of the information considered by me, I am of the opinion, pursuant to subsection 70(5) of the Immigration Act that ASHTON, Kendrick Joseph; born July 18, 1964 constitutes a danger to the public in Canada.

[33]      The question is whether the failure to meet the test amounts to a reviewable error. In this respect, I find that the Minister"s decision is so profoundly unresponsive to the evidence, it is on its face perverse. In addition, I am of the opinion that the evidence manifestly requires a different result. As there are no reasons to explain the rationale for how it was reached, I set the opinion aside under s.18.1 (4)(d) as it is based on an erroneous finding of fact made in a capricious manner and without regard to the evidence.

[34]      Although the Reviewing Officer"s recommendation does not constitute reasons for the opinion, it requires comment nevertheless. As quoted above, the Reviewing Officer"s recommendation is as follows:

Mr. Ashton has a criminal record spanning 14 years with a recent predilection for the cultivation of narcotics. He has not learned from his contacts with law officials that he should not engage in violations of the Narcotic Control Act. The cultivation and possession of narcotics are offences which are viewed as serious deviations from normal societal practices and encourage violations of the law by others. There is not sufficient evidence to support a position that he will not return to this lifestyle choice.

[35]      In my opinion, this is a remarkably unfair interpretation of the evidence. Mr. Ashton"s criminal record does span 14 years, but there is an apparent failure to recognize that it began as a youth living in very difficult circumstances, and apart from one minor property offence, finished with the narcotics offences. The implication that Mr. Ashton is a chronic offender simply cannot be supported on the evidence.

[36]      On the evidence, the primary cause for Mr. Ashton"s narcotics offences is his past drug addiction. Understood in the full context of the evidence, the reason for the criminality can be easily understood. Seen in this informed and realistic light, the evidence that the addiction has been treated successfully allows the reasonable conclusion to drawn that the criminality will cease.

[37]      Given this fair reading of the evidence, the Reviewing Officer"s opinion that Mr. Ashton "has not learned from his contacts with law officials that he should not engage in violations of the Narcotic Control Act" is without regard for the evidence.

[38]      The finding that "there is not sufficient evidence to support a position that he will not return to this lifestyle choice" is not a fair conclusion. First, in the application of the standards, an opinion on the possibility that Mr. Ashton will re-offend should be based on the evidence, not suspicion and speculation. All the evidence supports the conclusion that Mr. Ashton will not re-offend. What more can Mr. Ashton do than he has already done to prove his good intentions and reformation? It is impossible for him to prove the negative that he will not re-offend, except by proving the positive that he has dealt with his drug addition. Failure to put weight on this evidence I find is not only most unfair, but is simply capricious as it is based in some extraneous consideration certainly not part of the record.

     J.F.C.C.

OTTAWA, ONTARIO

__________________

¹      (1997), 147 D.L.R. (4th) 93 (F.C.A.)