Date: 19980421
Docket: IMM-859-96
BETWEEN:
LLOYD BALDWIN REYNOLDS
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] The applicant seeks judicial review of the decision of Bill Sheppit, a delegate of the Minister of Citizenship and Immigration (the "delegate"), dated July 14, 1996, wherein the delegate formed an opinion, pursuant to subsection 70(5) of the Immigration Act that the applicant is a danger to the public in Canada.
[2] On 29 June 1990, at the age of seventeen, the applicant immigrated to Canada from Jamaica, with his father. He was landed on 7 December 1991. The applicant had little contact with his mother, now deceased, and was raised in Jamaica by his paternal grandparents, who have since immigrated to, and gained status in, the United Kingdom. He has no close relatives remaining in Jamaica.
[3] At the time of the delegate's decision, the applicant was the married father of one child, and the sole-supporter of his family. He was gainfully employed at a Kitchener-area firm, Performance Assembly, and had a very supportive reference from his employer.
[4] The applicant has been convicted of three drug-related offences, as indicated in the record before the delegate. The first offence, possession with intent to traffic, arose from the applicant being arrested, on 23 October 1992, with a number of associates in a dwelling where a small quantity of narcotics was discovered. As none of those arrested would admit to ownership of the drugs, all were charged on that day. The second offence, trafficking, concerned an episode where the applicant was about to sell 1/2 an ounce of crack cocaine to an undercover officer, on 15 November 1993, but the transaction was not completed. The final offence, trafficking, occurred on 19 January 1994, as a result of the applicant selling two one-gram rocks of crack cocaine for $20 each to an undercover officer.
[5] The applicant was not arrested or charged with the later two offences until 24 March 1994. He immediately plead guilty to the charges and was sentenced, on 20 June 1994 to two terms of nine months, to be served concurrently, with a recommendation that he be placed in the correctional institution's temporary absence programme (TAP), plus an additional two years of parole. The record indicates that he was paroled early, and that he complied fully with all the terms of both his bail and parole. He was not convicted for the first offence until September 1995, for which he was sentenced to an additional term of three months, ordered to be served subject to the TAP.
[6] Subsequent to the applicant's having been sentenced concerning the two trafficking offences, the respondent issued a "Section 27 Report" alleging that the applicant was a person described in subparagraph 27(1)(d)(i) of the Act, namely a person for whom a term of imprisonment of more than six months had been imposed. On 30 September 1994, an Adjudicator issued a deportation order pursuant to subsection 32(2) of the Act after finding the respondent to be a person for whom a term of imprisonment of more than six months had been imposed.
[7] The applicant appealed the deportation order on 19 October 1994. However, subject to new provisions of the Act, brought into force on 10 July 1995 by Bill C-44, the Minister issued a notice to the applicant, dated 25 October 1995, that the Minister would be considering whether to issue an opinion that the applicant was a danger to the public. On 14 February 1996, after submissions to the Minister's delegate were made by the applicant's counsel, the delegate issued an opinion, under subsection 70(5) of the Act, that the applicant was a danger to the public. Accordingly, under subsection 70(5) of the Act, the applicant's appeal was dismissed.
[8] At issue in this dispute is whether the delegate correctly and fairly concluded that the applicant is a danger to the public in Canada.
[9] The applicant has made a series of arguments concerning the procedural impropriety of the 1995 legislative amendments, under Bill C-44, which authorised the delegate to form an opinion that the applicant was a danger to the public in Canada at that time, depriving him of an appeal of the Minister's deportation order made 30 September 1994. It is submitted that the effect of the amendments was to breach the applicant's rights under section 7 of the Charter of Rights and Freedoms, and violated his common law right to be heard before the Appeal Division concerning the deportation order.
[10] In my opinion, these issues have been fully canvassed by the Court of Appeal in: Williams v. M.E.I. (1997), 212 N.R. 63 (F.C.A.), 147 D.L.R. (4th) 93. In that case, it was determined that subsection 70(5) did not violate section 7 of the Charter. It was also determined that there was no "right" to an appeal of a deportation order under the Act, and that the Bill C-44 amendments did not result in a denial of natural justice, as the process contemplated by the amendments is subjective and discretionary.
[11] As such, the delegate's opinion as to whether an applicant is a danger to the public in Canada is subject only to review on the grounds that a delegate acted in bad faith, erred in law or failed to consider relevant factors (or considered irrelevant factors) in forming his opinion: Williams, supra at DLR 104 & 111. Moreover, absent evidence to the contrary, the Court must assume that a decision-maker acted in good faith in having regard to the material on the record: Williams, supra; Davis v. M.C.I. (IMM-1616-96, 24 November 1997, F.C.T.D.); Nguyen v. M.C.I. (IMM-2483-96, 20 August 1997, F.C.T.D.). There is no evidence that the delegate was not acting in good faith. Accordingly, the only question that remains is whether the delegate had sufficient evidence before him upon which to base his opinion that the applicant was a danger to the public in Canada.
[12] The jurisprudence establishes that there must be some evidence that supports an opinion that an individual is a present and continuing danger: Sam v. M.C.I. (IMM-3163-96, 28 November 1997, F.C.T.D.) at para. 10; Thompson v. M.C.I. (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.) appv'd in Williams, supra at (N.R.) 669 & fllw'd in Ibraham v. M.C.I. (1996), 37 Imm. L.R. (2d) 40 (F.C.T.D.). Further, the seriousness of the offence(s) committed usually cannot support such a finding in the absence of some other evidence.: Sam, supra. Other factors which can be used to determine whether an individual is a present and continuing danger include: the circumstances of the offence, the sentence(s) imposed, recidivism, and humanitarian and compassionate considerations: Ashton v. M.C.I. (IMM-1904-07, 24 February 1998, F.C.T.D.).
[13] In this case, the record before the delegate did not include pre-sentence reports, the court's sentencing remarks, police reports, or any victim impact statements. There was also absolutely no evidence of violence conducted by the applicant in the record. The Criminal Backlog Review Report is brief, and appears to rely heavily upon the earlier-compiled Section 27 Report for the conclusion that the applicant has been convicted of "serious" offences involving cocaine.
[14] The author of the Section 27 Report appears to have speculated that because the sentences for the two trafficking offences were for nine months, and the applicant had no prior criminal record, the circumstances relating to his committing the offences must have been adjudged "serious" by the Court in sentencing. There is no evidence to support this supposition.
[15] It may be that the report's author was merely attempting to determine whether the applicant had committed a "serious" offence from the standpoint of a subsection 27(1) review (i.e. that any offence for which the sentence is over the statutory standard of six months is "serious"). However, in formation of an opinion under subsection 70(5), the Minister's delegate must inquire into whether the individual so convicted is actually a present or continuing danger to the public in Canada. Having been assessed a sentence of greater than six months is not, in and of itself, determinative of whether an individual represents a present and continuing danger to the public in Canada. The delegate appears to have determined that, as the applicant was sentenced to two concurrent terms of nine months, and, drawing from the Section 27 Report, such sentences are only given out for "serious" offences, he must be guilty of serious offences and therefore is a danger to the public in Canada.
[16] As indicated above, there was no evidence on the record indicating why the Court imposed the sentence that it did, or whether it would have adjudged the applicant's offences "serious." Moreover, both the author of the Section 27 Report and the delegate seem to have completely ignored the available evidence that, while the applicant's sentences were for nine months, in imposing them the Court recommended that the applicant be released immediately under the TAP. Further, the evidence that the applicant had fully complied with both his bail and parole requirements seems to have been ignored.
[17] In my opinion, the evidence reveals that the offences committed by the applicant took place over a short period of time, were committed in relatively minor circumstances, and did not continue after he was first convicted. Further, the uncontradicted evidence is that, almost immediately after he was first sentenced, the applicant removed himself from the "bad company" he had been keeping, found a steady job, and properly took up the task of supporting his new family.
[18] Finally, the applicant has filed additional affidavit evidence with this Court that raises facts not before the delegate at the time he made his decision. The respondent argues that I should not have regard to the fact that the applicant is now the sole-supporter of two children (rather than the one child who was born prior to the delegate's decision), and has continued to be gainfully employed, but now with a higher paying job, until the date of this hearing. It is submitted that these facts were not properly before the delegate when he formed his opinion, and thus cannot be relied upon in judicial review: Lemiecha v. M.E.I. (1993), 72 F.T.R. 49 at 51 (T.D.). Accordingly, I shall ignore this evidence, as well as the evidence contained within the applicant's affidavit that he was informed, one day after his arrest for the two trafficking charges, that if he did not immediately plead guilty to these two charges, he would not be released in time for his wedding, which was scheduled for the following day.
[19] In summary, there was simply insufficient evidence upon which the delegate could have formed the opinion that the applicant was a present or continuing danger to the public in Canada. As such, he erred in law by forming an opinion that was perverse and capricious, and unsupported by the evidence before him: Ashton, supra; Sam, supra; Nguyen, supra; Holmes v. M.C.I. (IMM-1899-96, 8 December 1997, F.C.T.D.).
[20] Accordingly, the decision of the respondent's delegate that, in his opinion, the applicant constitutes a danger to the public in Canada shall be set aside, and the matter returned to another delegate to form his or her opinion in accordance with these reasons.
[21] The parties did not propose a question for certification.
OTTAWA, ONTARIO B. Cullen
April 21, 1998. J.F.C.C.