Date: 20010601
Docket: IMM-1309-00
Neutral Citation: 2001 FCT 563
Ottawa, Ontario, this 1st day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
KHALILULLAH HOTAKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. c. I-2 (the "Act") of two decisions of W.A. Sheppit, the delegate of the Minister of Citizenship and Immigration (the "Minister's Delegate"), dated August 26, 1999. In his decisions, the Minister's Delegate decided that the applicant constituted a danger to the public in Canada, pursuant to subsection 70(5) and subsection 53(1) of the Act.
[2] The applicant seeks an order setting aside the above decisions.
Background Facts
[3] The applicant is a citizen of Afghanistan who arrived in Canada in March, 1993. The applicant was found to be a Convention refugee in May, 1995. The applicant applied for permanent residence in December, 1996. This application would later be refused on December 3, 1999.
[4] In December, 1997, the applicant was identified by police as trafficking in heroin. Following an investigation by the Metropolitan Toronto Police Service, the applicant was arrested in May, 1998. The applicant pled guilty to three counts of trafficking in a controlled substance on October 7, 1998, and was sentenced to 6 years and 3 months on each count to be served concurrently. The applicant also has an earlier conviction in 1995 for carrying a concealed weapon. In 1998, the applicant was the subject of a report under paragraph 27(2)(a) of the Immigration Act.
[5] On May 21, 1999, the applicant was served with a notice of the intention to seek the opinion of the Minister pursuant to subsection 70(5) and paragraph 53(1)(d) of the Act, that he was a danger to the public in Canada. The notice recited the evidence that was going to be considered and indicated that the applicant's submissions as to why the Minister should not issue the opinion had to be received by Citizenship and Immigration Canada within 15 days. The applicant did not make any submissions within that time period. On August 26, 1999, the applicant was found to constitute a danger to the public in Canada within the meaning of subsection 70(5) and paragraph 53(1)(d) of the Act.
Issues
[6] 1. Should the applicant have been provided with the documents upon
which the Minister was relying in making the danger determination?
2. Should the applicant have been provided with reasons for the
danger opinion?
3. Were the applicant's Charter rights violated (right to counsel)?
4. Did the applicant have the right to the assistance of an interpreter
for the danger proceedings?
Applicant's Submissions
[7] The applicant submits the standard of review applied in determining whether a danger opinion was correctly formed is that of reasonableness simpliciter.
[8] The applicant submits that the Danger to the Public Ministerial Opinion Report ("Ministerial Opinion Report") and the Requestion for Minister's Opinion were not provided to him at the time he made submissions.
[9] The applicant argues the Ministerial Opinion Report contains contentious material to which the applicant would have responded, in particular the following statements: (1) "it is not credible, in my opinion, to believe that the subject's criminal acts, his involvement in the illegal sales of narcotics, were restricted exclusively to undercover police officers"; (2) that his reaction "was, in my opinion, merely calculating and designed to put himself in the best light possible"; and (3) "in my estimation he has as much, if not even more motivation, than before" to commit crimes for financial gain.
[10] The applicant submits he has not committed any violent offences and has been assessed by the correctional authorities to be a low risk to public safety or to escape from custody.
[11] The applicant offers Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105 at page 1113 to 1114 for the proposition that a tribunal must not "hear evidence in the absence of a party whose conduct is impugned and under scrutiny." Thus, the applicant contends that the Minister's Delegate in this case is bound by Kane, supra. In providing the applicant with materials he did not understand, in a context where he was advised that he would probably not be found to be a danger, and where he could not obtain effective assistance to demonstrate he was not a danger, the applicant submits the respondent excluded him from effective participation in the proceeding.
[12] The applicant submits he has limitations with respect to education, literacy, language skills and access to resources that have put him at a substantial disadvantage in making submissions on the danger issue. The applicant further submits section 30 of the Act for the proposition that persons have a right to counsel and to be advised of that fact, in the context of an immigration inquiry.
[13] Danger proceedings, in the applicant's submission, involve among other things, the filing of substantial documentation and assessment of issues of rehabilitation, risk to re-offend, and the degree of establishment in Canada. The applicant submits that due consideration should be given to the opportunity that a person subject to such proceedings has had to obtain counsel.
[14] The applicant refers to section 14 of the Charter of Rights and Freedoms to support his argument that a party in any proceeding has the right to the assistance of an interpreter. The applicant also refers to subsection 2(g) of the Canadian Bill of Rights for the proposition that no law of Canada shall be construed or applied so as to deprive a person of the right to assistance of an interpreter in any proceedings in which he is involved before a tribunal, if he does not understand the language in which such proceedings are conducted.
Respondent's Submissions
[15] The respondent addressed the following issues raised by the applicant:
Obligation to provide the applicant with documents upon which the Minister will rely in making the danger determination before the decision is made.
The respondent offers Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, where the Supreme Court acknowledged that the principle underlying the duty of fairness is the opportunity to meaningfully participate in the process. In the instant case, the respondent contends the procedure followed is not unlike the one followed in Baker, supra, which was described at paragraph 30 as:
The procedure in this case consisted of a written application with supporting documentation, which was summarized by the junior officer (Lorenz), with a recommendation being made by that officer. The summary, recommendation, and material was then considered by the senior officer (Caden), who made the decision.
[16] This procedure, in the respondent's submission, was found to satisfy the requirements of the participatory rights required by the duty of fairness, even though the summary document had not been disclosed to the appellant in Baker, supra. The respondent submits this procedure was followed and accepted by the Federal Court of Appeal in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592, where a subsection 53(1) danger opinion was the decision under review.
[17] The respondent cites Jan v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 165 (F.C.T.D.) to demonstrate that this Court has recently reviewed the law in this area and concluded that summary documents need not be provided to an applicant in the context of a danger determination.
[18] Are Reasons Required for a Danger Opinion?
The respondent submits that reasons are not required. Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.) and Baker, supra were about refusals of inland applications for landing based on humanitarian and compassionate (H & C) grounds pursuant to subsection 114(2) of the Act and not about danger opinions. The respondent further submits that nothing in the reasoning of Haghighi, supra suggests that the principles in Baker, supra were applicable to discretionary decisions.
[19] The respondent offers the decision of Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.), where it was held that there was no duty on the Minister to provide reasons. In Williams, supra, the Federal Court of Appeal went so far as to state at pages 672 to 673 that the basic tenets of our legal system "have never imposed a duty on tribunals to give reasons where a statute has not specifically so provided."
[20] Although in Baker, supra the Supreme Court recognized at paragraph 43 that "in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision," the respondent submits that the circumstances surrounding a danger opinion are different from a H & C decision. Therefore, the respondent argues a danger opinion requires a lesser degree of procedural fairness and that it does not trigger a duty to provide reasons.
[21] Reasons Have Been Provided
In the alternative, the respondent submits that the Request for Minister's Opinion, taken together with the Ministerial Opinion Report fulfill the requirement to provide reasons.
[22] Standard of Review
The respondent submits that whether a person constitutes a "danger to the public in Canada" is a question of fact. The respondent argues that the terms "danger to the public in Canada" are simple and ordinary terms, which have not
acquired a special or technical meaning. The respondent offers the following from page 668 of Williams, supra:
. . . the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender . . . whose presence in Canada creates an unacceptable risk to the public.
[23] Therefore, considering the lack of complexity or special technical meaning of the term "danger to the public in Canada", the respondent submits that patent unreasonableness is the appropriate standard of review. The respondent offers Powell v. Canada (Minister of Human Resources Development) (2000), 258 N.R. 123 (F.C.A.); Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 and Stadnyk v. Canada (Employment and Immigration Commission) (2000), 257 N.R. 385 (F.C.A.) where it was held that the standard is patent unreasonableness with respect to judicial review of findings of fact.
[24] The respondent submits the Minister's opinion is not patently unreasonable and that there is sufficient evidence to ground a finding that the applicant is a danger to the public.
[25] Opportunity to Retain Counsel
The respondent argues the applicant spoke to an inmate who, upon review of the applicant's papers, suggested that he retain an immigration lawyer. The applicant then sought legal advice and contacted duty counsel and subsequently applied for legal aid. The applicant chose not to follow through with legal aid based on further advice from his criminal lawyer. He discussed the danger opinion with a parole officer and had an opportunity to seek guidance from his mentor, Mr. Jaluluddin, with whom he spoke on a weekly basis.
[26] The respondent submits the Minister's duty (under section 30 of the Act) is limited to informing an applicant that he has the right to retain a lawyer and then giving him a reasonable opportunity to obtain such counsel at his own expense. The respondent further submits the applicant has provided no indication as to what further submissions he would have made through counsel, which may have altered the Minister's decision.
[27] Necessity of an Interpreter
Section 14 of the Charter is not, in the respondent's submission, applicable to the facts in the instant case. The respondent submits it is not to be construed broadly enough to extend to a danger opinion and that the applicant does not have a right to an interpreter.
[28] In R. v. Tran, [1994] 2 S.C.R. 951, the Supreme Court discussed the common law concerning section 14 of the Charter and focussed on such right in the confines of a formal courtroom hearing before a judge. Tran, supra was applied narrowly in R. v. Dennie (1997), 31 O.T.C. 211 (Ont. Gen. Div.), where it was held that section 14 did not extend to the right to an interpreter to interlocutory steps, but only to the "proceeding" itself. The Court held "proceeding" in Dennie to be limited to what occurs in the court-room, so that previous interlocutory steps did not attract a right to an interpreter.
[29] Notwithstanding the above, the respondent submits the material in the tribunal record evidences that the applicant has a functional ability in English. Specifically, the applicant has been in Canada since 1993; the applicant's criminal counsel advised the Court during his guilty plea hearing that he did not require a translator as he "was fine in English"; has taken English as a Second Language classes; is studying math, English and computers; and he has held a job as a taxi driver in Toronto.
Relevant Statutory Provisions
[30] The relevant provisions of the Immigration Act state:
| 27(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); |
27(2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_: a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c); |
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| 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless . . . (d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. |
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_: . . . d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada. |
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| 70(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); (b) a person described in paragraph 27(1)(a.1); or (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
70(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_: a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada. |
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[31] Section 14 of the Canadian Charter of Rights and Freedoms states:
| 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. |
14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète. |
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[32] Subsection 2(g) of the Canadian Bill of Rights states:
| 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to . . . (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted. |
2. Toute loi du Canada, à moins qu'une loi du Parlement du Canada ne déclare expressément qu'elle s'appliquera nonobstant la Déclaration canadienne des droits, doit s'interpréter et s'appliquer de manière à ne pas supprimer, restreindre ou enfreindre l'un quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni à en autoriser la suppression, la diminution ou la transgression, et en particulier, nulle loi du Canada ne doit s'interpréter ni s'appliquer comme . . . g) privant une personne du droit à l'assistance d'un interprète dans des procédures où elle est mise en cause ou est partie ou témoin, devant une cour, une commission, un office, un conseil ou autre tribunal, si elle ne comprend ou ne parle pas la langue dans laquelle se déroulent ces procédures. |
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Analysis and Decision
[33] Issue 1
Should the applicant have been provided with the documents upon
which the Minister was relying in making the danger determination?
The applicant argued that a breach of the duty of procedural fairness occurred because he was not provided with all of the documents upon which the Minister was relying in making the danger opinion. The applicant did not see the request for Minister's opinion, the U.S. Department of State Country Report nor the Ministerial Opinion Report prior to making his submissions to the Minister in relation to the danger opinion.
[34] The applicant argued that he should have had an opportunity to reply to these reports and that his reply should have been sent to the Minister's Delegate prior to the decisions being made.
[35] I am in agreement with the applicant's position. The decision to declare that the applicant is a danger to the public in Canada has very far reaching, important and profound consequences for the applicant. For this reason alone, it is most important that the applicant have an opportunity to address all of the submissions made to the Minister's delegate. Since the reports were not released to the applicant before the danger opinions were made, he was denied the opportunity to respond to any concerns raised by them. This was a breach of the duty of fairness.
[36] Justice Gibson of this Court reached the same conclusion in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (F.C.T.D.), which decision was upheld by the Federal Court of Appeal in Bhagwandass v. Canada (Minister of Citizenship and Immigration) (March 7, 2001), Docket A-850-99 (F.C.A.).
[37] The applicant's application is allowed. The two decisions of the respondent that the applicant constitutes a danger to the public in Canada made pursuant to subsection 70(5) and subsection 53(1) of the Act are set aside.
[38] Because of my ruling in relation to the undisclosed documents, I need not rule on the other issues raised by the applicant.
[39] Neither party raised a serious question of general importance for my consideration.
ORDER
[40] IT IS ORDERED that the applicant's application is allowed, the two decisions of the respondent that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) and subsection 53(1) of the Act are set aside.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 1, 2001