Date: 19980703
Docket: IMM-3009-97
BETWEEN:
LLOYD CHARLES CLARKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] In this application for judicial review the applicant seeks an order to set aside a decision made by the Minister's delegate, that he was of the opinion pursuant to s-s. 70(5) of the Immigration Act that the applicant constitutes a danger to the public in Canada. That decision was signed August 21, 1996.
[2] Counsel for the parties were heard in Toronto on June 23, 1998. At the conclusion of the hearing I ordered that the application be allowed and a written order subsequently issued confirming that and setting aside the questioned decision of the Minister's delegate. These are reasons for that decision.
[3] In his application for leave and for judicial review, which was not filed until July 18, 1997, the applicant requested an extension of time within which to make application. Leave was granted and the matter set down to be heard on June 23. In an earlier application by the applicant for a stay of execution of a removal order, I summarized the background in relation to this matter thus:
| [3] The applicant is a native of Jamaica who came to Canada in 1976. He has here remained as a permanent resident. Since 1984 he has been convicted on a number of occasions for offences concerning narcotics. Most recently he was convicted in February 1996, in regard to offences committed in 1994, involving trafficking in narcotics. Upon conviction he was sentenced in the Ontario Court (General Division) to "Imprisonment for 2 years less 1 day concurrent on each count [of two]. Probation for 3 years on statutory terms with reporting as required by P.O.". |
| [4] While incarcerated in Maplehurst Correctional Centre, on May 3, 1996 he was the subject of a report, following an inquiry by an adjudicator under the Act. In the result he was reported, pursuant to s. 27 of the Act, that he is a permanent resident described in paragraph 27(1)(d)(i), that is, a person convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. With that report the adjudicator apparently also issued to the applicant a deportation order. ... |
| [5] By letter of June 25, 1996, apparently received by the applicant on July 16, 1996, while he was still held at Maplehurst, Mr. Clarke was notified of the intention to seek the opinion of the Minister pursuant to s-ss. 70(5) and 46.01(1)(e)(iv) of the Act that "you are a danger to the public in Canada". Counsel on behalf of the applicant responded to that notice by letter of July 30, 1996, with written submissions to be considered by the Minister, with the request that she should not render a decision declaring the applicant to be a danger to the public. By decision of the Minister's delegate, dated August 21, 1996, it was determined that the Minister's opinion, pursuant to ... the Act, is that the applicant constitutes a danger to the public in Canada. |
| [6] By a Notice to Report dated and acknowledged by the applicant on June 10, 1997, the applicant was directed to report to a named Probation and Parole Officer within 2 working days of his release from Maplehurst, in accord with the probation order of February 27, 1996 by the Ontario Court, sentencing him to probation for 3 years. |
| [7] He may thereafter have been released from Maplehurst and then taken into custody under the Immigration Act. In any event, on September 4, 1997, an adjudicator acting under the Act ordered that the applicant be released from detention subject to terms including that he report as directed in writing for the making of removal arrangements and removal. |
| [8] Upon his release from detention in September 1997, he reported to his probation officer and, in accord with the terms of his probation order, he has reported to his probation officer once per month as directed by the probation officer. |
[4] On May 4th, 1998, I granted a stay of removal of the applicant, following my colleague Rothstein J. in Cuskic v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 232, on the ground that removal of the applicant from Canada in contravention of an outstanding probation order made by the Ontario Court would violate paragraph 50(1)(a) of the Act.
[5] When this application for judicial review came on for hearing on June 23, the affidavit of the applicant in support of his application set out that he had made an extensive submission, at the invitation of the Minister, before the Minister's opinion was made, which submission was not acknowledged and did not appear to have been taken into account when the Minister's delegate formed his opinion.
[6] The certified record, filed on behalf of the Minister at the direction of the Court, includes documents relating to the applicant and to the decision that he constitutes a danger to the public. It includes a letter to the applicant dated June 25, 1996, that was acknowledged on his behalf to have been received with supporting documents on July 16, 1996, which letter alerted him to the prospect that the Minister might consider an opinion that he constituted a danger to the public in Canada. The letter specifically states:
| Before the Minister forms this opinion, you may make such written representations or arguments as you deem necessary and submit any documentary evidence you believe relevant. Please note, however, that all such material must be submitted in one of Canada's official languages. Any such representations, arguments or evidence will be considered by the Minister but must be received by C.I.C. at the address noted above on or before the expiration of 15 days from the receipt of this letter. Your evidence, argument or other representation should address whether or not your are a danger to the public, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedom are threatened by removal from Canada. ... |
[7] The certified record also includes a form relating to Danger to the Public, Ministerial Opinion Report, completed on 7/8/96, which counsel agreed was to be read as August 7, 1996, which form includes the sentence: "At time of writing, no submissions have been received from subject/counsel for subject".
[8] The certified record does not contain any reference to submissions received by the Minister's department from or on behalf of the applicant.
[9] The applicant's record does contain as exhibit "A" to the affidavit of the applicant the submissions made in response to the Minister's invitation. Those consist of a four-page letter dated July 30, 1996, addressed to the Minister from then counsel for the applicant. Appended to that letter were a certificate from the Jamaica Constabulary, a letter confirming the applicant's employment with a firm in Mississauga, information on a narcotics anonymous program offered by the Ministry of the Solicitor General and Correctional Services of Ontario which the applicant claims to have completed, a human relations certificate issued in his name, and a letter from his sister. The applicant's affidavit also appends as an exhibit a copy of an order for his release from detention, made by an adjudicator under the Immigration Act, releasing the applicant from detention in September 1997, after he had been held following determination of the Minister's opinion.
[10] Among other things the submissions, particularly of his sister and of his counsel dealt with his responsibilities as the father, a widower, to his three teenage children and to his mother, relationships apparently unknown to or denied without evidence in materials that were before the Minister's delegate.
[11] I assume that counsel for the applicant met his responsibilities to his client and forwarded the submissions included in and with his letter of July 30, 1996. There is no record before me of those submissions having been received and indeed, as earlier noted, one person who completed a form on August 7, 1996, indicated that no submissions had then been received. As noted the certified record filed with the Court on behalf of the Minister's delegate includes no copy of those submissions and the formal request for the Minister's opinion, signed on August 19th and August 20th, includes the statement "No submission has been received from Mr. Clarke".
[12] Nevertheless, in the respondent's memorandum of argument the facts as set out in the applicant's affidavit in relation to submissions made on his behalf are accepted and in paragraph 3 of those submissions, the respondent denies that the applicant's submissions were ignored and indeed it is argued that they were not ignored.
[13] On the record before me I infer that the submissions on behalf of the applicant were sent in response to the invitation offered to him. I infer that they were received, if not before August 7th, then before the decision was made on August 21st. There is no affidavit evidence offered on behalf of the respondent. In the circumstances I can only conclude that the statement in the request for the Minister's opinion, while it may have reflected the knowledge of those who signed the form on August 19 and 20, did not reflect the fact that submissions dated July 30th were sent on behalf of the applicant by his then counsel, and absent evidence to the contrary, I infer those submissions were received.
[14] In the circumstances I conclude that submissions were made, but they were not considered by the Minister's delegate. That violates a principle of fairness which warrants setting aside the decision of the Minister's delegate in this case.
[15] In Williams v. Canada (Minister of Citizenship and Immigration) (1997), 212 N.R. 63, in speaking of the process established under the Act for considering a Minister's danger opinion under s-s. 70(5) Mr. Justice Strayer said in part:
| ".... it is important to remember the conditions for the issue for such an opinion: the commission of offences by a non-citizen, an order for his deportation issued in accordance with the laws of Parliament and due process, the requirement that his offences be of a particularly serious nature carrying possible sentences of ten years or more, and then the confirming of the Minister's opinion only after the requirements of fairness are met through enabling the party affected to make submissions. |
[16] I infer from the record, in the absence of evidence to the contrary, that the requirement for procedural fairness was here not met. Thus the order issued allowing the application and setting aside the opinion in question.
W. Andrew MacKay
Judge
Ottawa, Ontario
July 3, 1998