Date: 19990416
Docket: IMM-5704-98
BETWEEN:
Enter Style of Cause just after [Comment] code
- TITISOR ION
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the opinion of the Minister's delegate that Titisor Ion (a.k.a. Fane Spoitoru, hereinafter the "Applicant") is a danger to the public in Canada, pursuant to subparagraph 46.01(1)e)i) of the Immigration Act1 (the Act).
[2] The Applicant is a citizen of Romania. He arrived in Canada under a false Hungarian passport on April 24, 1996 and declared himself to be a refugee the following week. He surrendered the false passport at the time of his refugee claim.
[3] The Applicant has been convicted, in Romania, of armed robbery in 1988, of armed robbery and conspiracy to commit armed robbery in 1996, and of attempted murder in 1997. The 1996 conviction was overturned on appeal due to a procedural error ("un vice de procédure") and has been sent back for a new trial, while the 1997 conviction for attempted murder is currently under appeal.
[4] As detailed in the judgments of the Romanian Courts, two of these crimes, namely the 1988 armed robbery and the 1997 attempted murder convictions, contained elements of serious violence and resulted in severe injuries to the victims.2
[5] In convicting the Applicant of attempted murder, the Romanian Court found that the gravity of the offence and the social danger he represented were extremely high, due to the fact, among other considerations, that he was a recidivist.
... Le tribunal considérera d'une part le danger social en concret de l'infraction commise par l'accusé - extremement élevé, les circomstances [sic] de temps et lieux de l'accomplissement de l'infraction, et d'autre part les dates qui circonstancie la personne de l'accusé, qui a nié l'accomplissement du crime avec intention, et de l'examen du casier judiciaire trouvée dans le dossier la cause, résulte qu'il est récidiviste.3
Furthermore, in addition to the 3 crimes mentioned above, the Applicant committed 13 other crimes between 1986 and 1987.4
In May of 1996 a conditional departure order was issued and in September 1996 an immigration inquiry was opened but withdrawn on October 1, 1996 as the Minister was considering an extradition request from the Romanian government. According to the Applicant, no extradition proceedings have taken place to date.
On April 3, 1998, he was notified that the Minister was considering issuing a danger opinion against him and was given copies of all the documents submitted to the Minister.
On May 21, 1998 the Minister's delegate issued a danger opinion against him.
The documentary evidence included roughly three hundred newspaper articles, many of which identify the Applicant as an important member of the mafia in Romania.
Since his arrival in Canada, the Applicant has a summary conviction for driving with a blood/alcohol level over .08, but he has no other criminal convictions.
The Applicant submits that the Minister's delegate did not respect the principles of fundamental justice and took into account improper and irrelevant material.
In particular, counsel for the Applicant takes issue with the fact that the quashing of the 1996 conviction was not contained in the notes submitted to the Minister's delegate. However, this does not change the fact that even without the 1996 conviction, there was ample evidence to justify the danger opinion, as demonstrated below. Furthermore, a copy of the appeal decision was contained in the record before the Minister's delegate.5
In addition, counsel for the Applicant claims that the voluminous newspaper clippings placed before the Minister's delegate were sensationalistic, irrelevant and should not have been considered. However, in my opinion, press clippings which discuss the Applicant's past are indeed relevant. It is for the Minister or the Minister's delegate to decide what weight such evidence should be given.6
The case law with regard to a Minister's opinion is quite clear. The Federal Court of Appeal, in Williams,7 8 which dealt with a permanent resident found to be a danger to the public in Canada, under subsection 70(5), stated that in issuing a danger opinion, the Minister is not required to give reasons and the requirements of procedural fairness are minimal.
Further, Williams defined the limited scope of intervention open to the Court when reviewing a danger opinion; more specifically, Strayer J.A., writing for the Court, emphasized the fact that the Court is not invited to sit on appeal and to redetermine findings of fact.
I have pointed out earlier the limited scope of judicial review of such decisions. The Court is not invited to sit on appeal and to redetermine findings of fact. It is not the opinion of the judge which is required as to whether the non-citizen presents a danger to the public.9
At page 677, he reinforces this point:
It may be that a motions judge looking at this material might be of the personal view that the evidence against Williams being a danger was stronger than the evidence for him being a danger but, with respect, that is not the issue. The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material.10
I agree with my colleague Reed J. who accepted the argument, in Chu v. Canada (M.C.I.)11, that where there is evidence going both ways, so long as some of that evidence can support the conclusion that the individual is a danger to the public in Canada, the test in Williams is met.
That is, since the danger to the public decision is one that involves an opinion by the Minister, the Courts' review of the record should only be to ascertain whether there is evidence on the file that could support that decision. Counsel for the respondent notes that, in this case, there is evidence going both ways but since some of that evidence can support a conclusion that the applicant is a danger to the public, in Canada, the test set out in Williams has been met. I accept that submission.12
In the present case, there were several convincing documents submitted to the Minister's delegate showing that the Applicant has been convicted of serious crimes and is considered to be a recidivist by the Romanian Courts. The offences he has been convicted of contain elements of serious violence. Despite the fact that he claims he was only an accomplice in the 1988 armed robbery, the Romanian Court of First Instance of the 2nd District found that he actively participated in a break and enter, where an elderly woman was severely injured when she was struck in the head with a screw driver.13
Copies of all the evidence submitted to the Minister's delegate were provided to the Applicant before the former issued his opinion and the Applicant was given full opportunity to respond.
In my opinion, there was ample evidence before the Minister's delegate for him to decide that the Applicant represented a danger to the public of Canada.
The application for judicial review is dismissed. The Applicant has requested the following question for certification:
It appears that some judges in the Trial division decline to quash danger opinions on the basis of the existence of some evidence on which to base a danger opinion, while other judges, on reviewing the facts, rule some "danger opinions" invalid because they are not "reasonable". These are being applied as different standards. Which approach is correct?
The appropriate standard to be applied in such a case has been fully addressed in Williams. The present case raises only an application of these principles. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 16, 1999.
__________________1 R.S.C. 1985, c. I-2.
2 Decision of the Court of First Instance of the 2nd District, Bucharest (24 October 1988) (5949/1988), Tribunal Record at 22-28; Decision of the Court of Bucharest, 1st Penal Section (2 October 1997), (3181/1992), Tribunal Record at 86-97.
3 Supra note 2 at 92.
4 Supra note 2 at 26.
5 Tribunal Record at 435.
6 See e.g. Ngo v. M.C.I. (17 June 1997), IMM-2257-96 (F.C.T.D.).
8Williams v. Canada (M.C.I.), [1997] 2 F.C. 646 (F.C.A.).
9 Ibid. at 676.
10 Ibid. at 677.
11 (1997), 135 F.T.R. 206 (T.D.).
12 Ibid. at 209.
13 Supra, note 2 at 25-26.