Date: 20010221
Docket No.: IMM-1203-00
Neutral Citation: 2001 FCT 98
OTTAWA, ONTARIO, THIS 21stDAY OF FEBRUARY, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LINCOLN LEONLEY SADDLER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Lincoln Leonley Saddler, hereinafter the applicant, has brought an application for a judicial review of a decision of a delegate of the Minister of Citizenship and Immigration, hereinafter the Delegate, dated February 4, 2000, wherein it was determined that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv)of the Immigration Act, R.S.C. 1985, c. I-2.
FACTS
[1] The applicant is a 46 year old citizen of Jamaica born in St. Mary, Jamaica, on May 14,1953. The applicant arrived in Canada on January 22, 1974 and has remained here since that time.
[1] On December 7, 1999, the applicant received a notice from Citizenship and Immigration Canada indicating that an opinion was being sought of the Minister pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act to declare him a danger to the public in Canada.
[1] On February 1, 2000, the Delegate rendered the decision that the applicant does constitute a danger to the public in Canada.
[1] On February 24, 2000, the applicant was notified of the Delegate's decision.
[1] On March 9, 2000, counsel for the applicant filed an application for leave and for judicial review of the Delegate's decision.
[1] On March 13, 2000, counsel for the applicant requested that the Delegate provide a copy of the applicant's file including all the documentation upon which the Delegate based his decision.
[1] On March 2l, 2000, counsel for the applicant received the requested documentation.
[1] The applicant was not provided with the Request for Minister's Opinion and the Danger to the Public Ministerial Opinion Report.
ISSUES
[1] Whether the Delegate violated the principles of procedural fairness by failing to disclose to the applicant all the documentation upon which he based his decision to declare the applicant a danger to the public in Canada.
ANALYSIS
[1] Counsel for the applicant submits that the law with respect to the level of fairness and extent of disclosure which must be provided by the Delegate to a person subject to a danger opinion is best stated in the case of Bhagwandass1.
[1] In Bhagwandass, no reasons were provided for the decision stating that the applicant is a danger to the public in Canada. Further, in Bhagwandass as in the case before us, the Delegate had before him notes in the form of two documents which were not disclosed. Firstly, a Request for Minister's Opinion form comprising of a summary "Danger Profile" and "Removal Risk Considerations", which included "Reviewing Officer's Comments and Recommendation" reflecting not merely the Reviewing Officer's Recommendation but the concurrence of a Senior Case Review Analyst in the Minister's Case Management Branch. Secondly, a Danger to the Public Ministerial Opinion Report.
[1] As in the present case, neither of these documents had been disclosed to Mr. Bhagwandass prior to the rendering of the Delegate's decision.
[1] In Bhagwandass, Gibson J. held that the Minister's Delegate failed to provide the applicant with the level of procedural fairness required by law. Although the applicant was provided with notice that Citizenship and Immigration Canada was seeking the opinion of the Minister that he is a danger to the public in Canada, he was not provided with the "Request for Minister's Opinion", nor was he provided with the "Danger to the Public Ministerial Opinion Report".
[1] While the applicant in this case was afforded an opportunity to provide submissions and documentation in regard to everything else that went before the Delegate, the two aforementioned documents were not shared with the applicant and he was not provided with an opportunity to respond to them.
[1] In Bhagwandass, Gibson J. analyzed the impact of the non-disclosure of such documents on the procedural fairness of the process and stated:
| These documents taken together appear to attempt to summarize the totality, of the material on which the applicant was advised that the respondent proposed to rely in determining whether or not to form a danger opinion, and the applicant's response to that material. While the applicant was afforded an opportunity to provide submissions and documentation in reward to everything else that went before the respondent's delegate, the two "summary" documents were not shared with the applicant and he was not provided with an opportunity to respond to them. |
| (...) |
| Given the impact on him of the danger opinion here under review, the respondent failed to accord to the applicant participatory rights to which he was entitled by failing to provide him with an opportunity to review and, if he so chose, to respond to the summary reports and if he had responded, to put that response before the respondent's delegate.2 |
[1] Since Bhagwandass, this Court has addressed the issue on several occasions. Two approaches have evolved, one supportive of the reasoning in Bhagwandass, the other not. Hugessen J. in Qazi states the approach I favour and adopt:
| The case is very similar in fact indistinguishable from the decision of Mr. Justice Gibson in Bhagwandass v. Canada. In that case, he decided that the previous jurisprudence of this Court and particularly the decision of the Court of Appeal in Williams v. Canada had been overtaken by the decision of the Supreme Court of Canada in Baker v. Canada and that there was a fairness requirement laid upon the Minister in reaching the decision that a person constituted a danger to the people of Canada; he held that that fairness requirement imposed on the Minister the duty of revealing to the applicant the documents which in that case were similar to the ones I have just described. Bhagwandass has been followed or quoted with approval on at least two occasions in this Court, both very recent in Andino and Gonzalez. It is also been implicitly criticized or not followed in two other decisions: Siavashi and Tewlde. |
| (...) |
| I think that now, in the light of Baker and of the very clear message that the Supreme Court has sent to us as to the nature of the duty of fairness in decisions which were previously thought to be wholly discretionary and have no fairness content at all or very minimal, fairness content, it is quite clear that we must view the danger opinion as being one which has serious consequences for the person who is the subject of it. It removes from that person a statutory right of appeal, open-ended, to a body which is independent, autonomous and quasi-judicial. If it replaces that right at all, it is by a right to apply for leave to seek judicial review on limited grounds and a right to apply for a wholly discretionary executive remedy under humanitarian and compassionate considerations. |
| (...) |
| Put shortly, I think the duty of fairness in this case required the Minister to reveal to the applicant the content both of the field report and of the headquarter's report.3 |
[1] I accept the reasoning of Hugessen J. and I come to the conclusion that the duty of fairness in this case required the disclosure to the applicant the aforementioned reports.
[1] Having reviewed the material before the Court and hearing counsel for the parties, I find that given the facts of the present case and taking into account the Baker decision, the applicant should have been provided with the Request for Minister's Opinion and the Danger to the Public Ministerial Opinion Report, on which the Delegate based his decision.
[1] In my view, this case is similar to that of Bhagwandass. I find that the applicant was denied the level of procedural fairness required by law.
[1] For these reasons the judicial review is allowed, the opinion of the respondent that the applicant constitutes a danger to the public in Canada made under subsection 70(5) of the Immigration Act will be set aside, and the matter will be returned to the respondent for redetermination.
[1] Pursuant to s.83(1) of the Immigration Act, I certify the following serious question of general importance:
| Is there an obligation to disclose and share the "Request for Minister's opinion" form and/or "Danger to the Public Ministerial Opinion Report" with the applicant and give him an opportunity to respond before the Minister's delegate makes his decision under subsection70(5) and subparagraph 46.01(1)(e) of the Immigration Act, R.S.C. 1985 c. I-2? |
ORDER
THIS COURT ORDERS that:
| 1. The opinion of the respondent that the applicant constitutes a danger to the public in Canada made under subsection 70(5) of the Immigration Act is set aside, and the matter is returned to the respondent for redetermination by a different delegate of the Minister of Citizenship and Immigration. |
Judge
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1 Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.).
2 Ibid.
3 Qazi v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1222, IMM-5317-99.