Date: 20030319
Docket: IMM-1943-02
Neutral citation: 2003 FCT 324
BETWEEN:
ROSS IAN MACDONALD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of a delegate of the Respondent, made pursuant to paragraph 46.01(1)(e) and subsection 70(5) of theImmigration Act[1], wherein the Minister's delegate determined that the Applicant constitutes a danger to the public in Canada. The decision under review is dated the 10th of March, 2002.
[2] The Applicant urges that the decision under review be quashed. The Respondent urges that this application for judicial review be dismissed.
BACKGROUND
[3] The Applicant is a British citizen, born in Scotland on the 2nd of February, 1981. He arrived in Canada as a landed immigrant on the 9th of September, 1995, in the company of his father and his stepmother. Very shortly after arriving in Canada, the Applicant returned to Scotland where he successfully completed his high-school education. He arrived back in Canada in July of 1997. He enrolled in Fairview College, Alberta in a four-year carpentry course. He apprenticed in carpentry at Peace River, Alberta between 1997 and 1999.
[4] Between late September and early October 1999, the Applicant participated in a series of armed robberies. He attests that, during the commission of the robberies, he was under the influence of illicit drugs. Further, during the course of the armed robberies, he was masked and armed with a firearm, perhaps not loaded, which he brandished.
[5] On the 3rd of May, 2000, the Applicant pled guilty to seven (7) counts of robbery with a firearm. He was sentenced to five (5) years on each count, such sentences to be served concurrently. He apparently will shortly be eligible for release from penitentiary.
[6] On the 10th of April, 2002, an immigration enquiry with respect to the Applicant was held at Stoney Mountain Penitentiary. Following the enquiry, a deportation order issued against the Applicant.
DECISION UNDER REVIEW
[7] The decision of the delegate of the Minister that is under review was based upon extensive documentation, including two sets of submissions on behalf of the Applicant. The Applicant's second set of submissions was provided after sharing, albeit imperfect sharing, of the documentation that would be forwarded to the Minister's delegate for his or her consideration. One of the documents that was before the Minister's delegate was entitled "Request for Minister's Opinion". The following conclusion is drawn in that document:
There is little reason to believe that the subject will face harsh or inhumane treatment upon return to Scotland.[2]
[8] A second document comprised in the package that went to the Minister's delegate, entitled "Danger to the Public Ministerial Opinion Report", under the headings "Part E: - Other Considerations" and "if applicable, list humanitarian and compassionate, public policy or removal risk considerations", reflects only the following cryptic comment:
None
[9] The Minister's delegate expressed the following "opinion" and concurred in a recommendation before her in the following terms:
In forming my opinion, I have considered the Ministerial Opinion Report and the documentary evidence presented by local Immigration officials to support their recommendation that Ross Ian MACDONALD, born February 2, 1981, citizen of Scotland (British), constitutes a danger to the public pursuant to subsection 70(5) and paragraph 46.1(1)(e) of the Immigration Act, as well as the information contained in the Request for Minister's Opinion report dated November 23, 2001 and supporting material. I have also carefully considered the information received from the client/Counsel dated November 2, 2001, including his final submissions dated January 31, 2002, which is addressed in the disclosure page, as well as any and all humanitarian and compassionate considerations that may exist in this case. The information presented by the client/Counsel has failed to persuade me that the recommendation forwarded by local Immigration officials that Ross Ian MACDONALD constitutes a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Ross Ian MACDONALD constitutes a danger to the public in Canada. It is my opinion that the risk that this person represents to Canadian society outweighs the risk that he may face upon return to Scotland.
...
On the basis of information considered by me, I am of the opinion, pursuant to paragraph 46.01(1)(e) of the Immigration Act, that
NAME: Ross Ian MACDONALD DOB: 02 February 1981
constitutes a danger to the public in Canada.[3]
THE ISSUES BEFORE THE COURT
[10] Counsel for the Applicant identified the issues before the Court as mootness, procedural fairness in arriving at the decision under review and reasonableness of the decision under review.
[11] At hearing, the issue of mootness was first dealt with. I determined that the application was moot and the particular circumstances underlying the application did not warrant its consideration, notwithstanding that it was moot. In the result, the issues of procedural fairness and reasonableness were not considered.
ANALYSIS
[12] In Borowski v. Canada (Attorney General of Canada)[4], Justice Sopinka, for the Court, wrote at page 353:
The approach in recent cases [to mootness] involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[13] Before me, counsel for the Respondent urged that, in light of the coming into force of the Immigration and Refugee Protection Act[5] which resulted in the elimination of danger opinions of the nature here under review, no "live controversy" continues between the Applicant and the Respondent with respect to the decision under review because, whether or not the Applicant was properly found to be a danger to the public in Canada is no longer relevant, particularly in light of the deportation order outstanding against him. I adopt the submissions on behalf of the Respondent in this regard. But that is not the end of the matter. I return to the second element of what Justice Sopinka described as the "two-step analysis", that is, the question of whether or not the circumstances of this matter warrant considering this application for judicial review on its merits, notwithstanding its mootness.
[14] In Ramoutar v. Canada (Minister of Employment and Immigration)[6], Justice Rothstein wrote at page 377:
In this case, a decision very damaging to the applicant is now part of the applicant's record for immigration purposes. That decision could have an adverse effect on the applicant in any further proceedings he may wish to bring under Canada's immigration laws.
[15] Justice Rothstein continued at page 378:
Even if the case were moot, I would exercise my discretion to decide it. The adversarial relationship between the parties continues. There are collateral consequences to the applicant if the decision appealed from is allowed to stand. And this is not a case in which a decision by this Court could reasonably be considered to be an intrusion into the functions of the legislative branch of government.
[16] Counsel for the Applicant urged that the decision here under review constituted "...a decision very damaging to the Applicant". That it is now part of the Applicant's record for immigration purposes was not in dispute. Counsel for the Applicant further urged that the decision could have an "adverse effect" on the Applicant in further proceedings under Canada's immigration laws. In this regard, he referred to the possibility of a humanitarian and compassionate application by the Applicant for landing from within Canada and to detention reviews, assuming that, after his release from Stoney Mountain Penitentiary, he would be detained by immigration authorities pending deportation. Counsel urged that an "adversarial relationship" continued to exist between the parties and that "collateral consequences" adverse to the Applicant would flow if the decision under review were allowed to stand.
[17] Counsel for the Respondent referred me to the following passage extracted from paragraph [29] of the reasons in Bhagwandass v. Canada (Minister of Citizenship and Immigration)[7]:
Although it would be possible for Mr. Bhagwandass, if the danger opinion were rendered, to make a further application under subsection 114(2) asking for specific relief from deportation or removal, it is difficult to imagine how a subsection 114(2) decision could reasonably be expected to be favourable if the same considerations did not deter the rendering of the danger opinion.
Counsel for the Respondent urged that precisely the same could be said on the facts of this matter in regard to an application for landing from within Canada on humanitarian and compassionate grounds under the provisions of the Immigration and Refugee Protection Act. Counsel further urged that any impact of the danger opinion on potential detention reviews was at best highly speculative, and in any event was likely be minimal given the Applicant's criminal record in Canada and the reality that deportation to Scotland would not be difficult to arrange on short notice.
[18] Neither counsel suggested that a determination to hear this application for judicial review could reasonably be considered to be an intrusion into the functions of the legislative branch of government.
[19] I preferred the position of the Respondent and determined not to hear this application for judicial review. In this regard, my conclusion is at odds with the conclusion I adopted in Nikolayeva v. Canada (Minister of Citizenship and Immigration)[8], where I determined to deal with the substance of an application for judicial review notwithstanding my conclusion that it was moot in light of the enactment and coming into force of the Immigration and Refugee Protection Act.
[20] I am satisfied that both in Nikolayeva and in this matter, the particular facts are determinative. In Nikolayeva, it was conceded on behalf of the Respondent that the Applicant would be entitled to a pre-removal risk assessment under the Immigration and Refugee Protection Act, following my disposition of the application for judicial review, and that the considerations to be taken into account in a pre-removal risk assessment would be essentially the same as those that were under review before me. In the result, I concluded that the decision there under review was indeed "...very damaging to the Applicant" as part of her record for immigration purposes and that it would, if allowed to stand, almost inevitably have an "adverse effect" in further proceedings that would inevitably follow under Canada's immigration laws. In the result, serious "collateral consequences" would flow if the substance of the application for judicial review were not dealt with.
[21] I am satisfied that the fact situation in Nikolayeva could be regarded as at one end of a spectrum of damage, adverse effect and negative collateral consequences.
[22] By contrast, I am satisfied that the facts underlying this matter put it at very close to the opposite end of the same spectrum, that is to say, that the damage flowing from leaving the decision under review unreviewed as to substance, the resultant adverse effects and the negative collateral consequences would be minimal. I reach that conclusion for the following reasons:
first, whatever might happen if the decision here under review were dealt with in substance, the Applicant's criminal record in Canada would remain. That criminal record is, and would remain, highly prejudicial to the Applicant;
second, there would appear to be no evidence that the Applicant has established himself in Canada. To the contrary, he has spent the greater part of his time in Canada in a prison environment where it has been impossible for him to establish himself in Canada;
third, the Applicant has no dependents in Canada and he has relatives both here in Canada and in Scotland; and
finally, removal to Scotland could surely not be said to involve any serious risk to the Applicant and the possibilities for his reintegration into the Scottish community cannot be considered to be much more remote that the possibilities for his successful reintegration from prison into the Canadian community.
[23] In the circumstances, I conclude that, if he were to seek to remain in Canada on humanitarian and compassionate grounds, the likelihood of his success, whether or not the danger opinion continues to exist, is very remote. Similarly, I agree with counsel for the Respondent that the impact of the danger opinion on any detention reviews that he might undergo in Canada is speculative at best. Once again, given the Applicant's criminal record in Canada, the impact is also likely to be minimal, assuming that he will not spend more than a few days in detention following his release from Stoney Mountain Penitentiary.
CONCLUSION
[24] In the result, I determined not to consider the substance of this application for judicial review. The judicial review will be dismissed as moot.
CERTIFICATION OF A QUESTION
[25] At the close of the hearing of this application for judicial review, I advised counsel of the result and consulted them regarding certification of a question. Counsel for the Respondent recommended against certification of a question. Counsel for the Applicant hesitated and asked for time to consider the issue of certification of a question. I declined to allow time. I am satisfied that, while from the point of view of the Applicant, there is certainly a serious question arising on this application for judicial review, it cannot be consider to be a question of general importance.
[26] The determination regarding mootness is only applicable to the transition period following repeal of the Immigration Act and the coming into force of the Immigration and Refugee Protection Act. That transition period has now continued for in excess of eight (8) months. It will continue for some time longer but certainly not indefinitely. Given my conclusion that matters such as this and Nikolayeva are, essentially fact driven, I am satisfied that it would be inappropriate to certify a question.
[27] No question will be certified.
________________________________
J. F.C.C.
Ottawa, Ontario
March 19, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1943-02
STYLE OF CAUSE: ROSS IAN MACDONALD v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: MARCH 11, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Odaro Omonuwa FOR APPLICANT
Sharlene Telles-Landgon FOR RESPONDENT
SOLICITORS OF RECORD:
Odaro Omonuwa
Barristers and Solicitors
Winnipeg, Manitoba FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Winnipeg, Manitoba FOR RESPONDENT
[1] R.S.C. 1985, c. I-2.
[2] Applicant's Application Record, page 000019.
[3] Applicant's Application Record, page 00012 and 13.
[4] [1989] 1 S.C.R. 342.
[5] S.C. 2001, c. 27.
[6] [1993] 3 F.C. 370 (T.D.).
[7] [2001] 3 F.C. 3 (F.C.A.).
[8] [2003] FCT 246; also cited as: O.N. v. Canada, [2003] F.C.J. No. 322 (QL).