Judgments

[2000] 1 F.C. 619

IMM-6496-98

Sunil Bhagwandass (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Bhagwandass v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Gibson J.—Calgary, November 22; Ottawa, December 10, 1999.

Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Danger opinion — Impact upon F.C.A. judgment in Williams of S.C.C. decision in Baker v. Canada (Minister of Citizenship and Immigration), — Danger opinion important decision fundamentally affecting future of individual’s life — Duty of fairness not simply minimal — Respondent breached duty of fairness owed to applicant by failing to share summary documents, provide reasonable opportunity to respond to them, and include any such response in material going before respondent’s delegate — Obiter: standard of review herein reasonableness simpliciter.

Administrative law — Judicial review — Danger opinion under Immigration Act, s. 70(5) — Characterization of impact of danger opinion — Duty of fairness on Minister in forming danger opinion not simply minimal — Reasonableness simpliciter standard of review applicable to danger opinion.

The applicant, a citizen of Guyana, arrived in Canada in 1989 at the age of eleven. He was convicted a number of times, as a young offender and as an adult, many of offences which related to drug trafficking. In December 1998, an opinion was formed on behalf of the Minister of Citizenship and Immigration pursuant to subsection 70(5) of the Immigration Act that the applicant constituted a danger to the public in Canada. This was an application for judicial review of that decision. The issues were the impact, if any, that the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 had on Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), the seminal decision on the principles governing judicial review of danger opinions under subsection 70(5) of the Immigration Act, with respect to: the characterization of the impact of the danger opinion; the scope of the duty of fairness on the respondent’s part in the course of forming the danger opinion; and the standard of judicial review applicable to the danger opinion.

Held, the application should be allowed.

The Supreme Court of Canada’s judgment in Baker had a significant impact on the Williams decision. The principles arising from Baker in respect of the characterization of a decision (or opinion) on the individual(s) concerned, the content of the duty of fairness in light of that impact and the applicable standard of review supersede those stated in Williams and now govern.

The impact of Baker on the Williams decision stemmed in large part form Madam Justice L’Heureux-Dubé’s characterization of the impact on the person or persons concerned in respect of the H & C decision under review; a characterization which was markedly different from that of the Federal Court of Appeal as to impact on the person or persons concerned in respect of a danger opinion. Whereas the Federal Court of Appeal found that a danger opinion simply meant that the right to pursue an appeal under paragraph 70(1)(a) was replaced by the right to seek judicial review, which did not strike the Court as a serious effect on the interested person’s rights, Madam Justice L’Heureux-Dubé determined in Baker that the negative H & C decision had the effect of triggering the existing deportation order, subject only to a determination of the place to which the person would be removed. Exactly the same could be said of the danger opinion under review in Williams and of the danger opinion herein. Therefore, the approach taken by the Federal Court of Appeal in Williams was overtaken and the approach adopted by the Motions Judge in Williams (who characterized the danger opinion essentially as a deportation order) was appropriate herein. The danger opinion was an important decision that affected in a fundamental manner the future of an individual’s life or of individuals’ lives.

Given the characterization of the impact applicable notwithstanding Williams, and with reference to Baker, on the facts herein, the duty of fairness was not simply “minimal”. “Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered”: Baker.

The failure on the part of the respondent to share the summary reports with the applicant, and to provide an opportunity to the applicant to respond to them, and to then include any response to those summary documents in the material forwarded to the respondent’s delegate without further analysis on the part of anyone other than the respondent’s delegate, constituted a breach of the duty of fairness owed by the respondent to the applicant on the facts of this matter. The summary documents were not documents like any others on the record; rather they were intended to have and, in the absence of evidence to the contrary, would have had preeminent influence on the decision-maker.

Obiter: based on the analysis in Baker, and having regard to the impact of the danger opinion for the applicant in this matter, the appropriate standard of review on this application for judicial review was reasonableness simpliciter.

A question was certified as to whether there was a breach of the duty of fairness owed to the person against whom a danger opinion was formed pursuant to subsection 70(5) of the Immigration Act if a “Request for Minister’s Opinion” summary report and a “Danger to the Public Ministerial Opinion Report”, or equivalents substantially similar to those at issue in this matter formed part of the materials put before the respondent’s delegate who issued the opinion and those reports have not been shared with the person affected and that person has not been given a reasonable opportunity to respond, or if he or she has, the response was not also put before the respondent’s delegate without further analysis or commentary.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Criminal Code, R.S.C., 1985, c. C-46.

Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(1)(e) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 70(1) (as am. by S.C. 1995, c. 15, s. 13), (2) (as am. idem), (a) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (b) (as am. idem), (5) (as am. by S.C. 1995, c. 15, s. 13), 73(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 83(1) (as am. by S.C. 1992, c. 49, s. 73).

Immigration Regulations, 1978, SOR/78-172.

Young Offenders Act, R.S.C., 1985, c. Y-1.

CASES JUDICIALLY CONSIDERED

APPLIED:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 431 (1996), 139 D.L.R. (4th) 658; 121 F.T.R. 212 (T.D.); Williams v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 457 (1996), 121 F.T.R. 226; 35 Imm. L.R. (2d) 286 (T.D.).

NOT FOLLOWED:

Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); leave to appeal to S.C.C. denied, [1997] 3 S.C.R. xv.

CONSIDERED:

Aparicio v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1658 (T.D.) (QL); Haghighi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1367 (T.D.) (QL).

REFERRED TO:

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).

APPLICATION for judicial review of an opinion formed on behalf of the Minister of Citizenship and Immigration that the applicant constituted a danger to the public in Canada. Application allowed.

APPEARANCES:

Charles R. Darwent for applicant.

William B. Hardstaff for respondent.

SOLICITORS OF RECORD:

Darwent Law Office, Calgary, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.:

INTRODUCTION

[1]        These reasons arise out of an application for judicial review of an opinion formed on behalf of the respondent that the applicant constitutes a danger to the public in Canada. The opinion (the danger opinion) was formed pursuant to subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Immigration Act[1] and is dated December 2, 1998.

[2]        Subsection 70(5) of the Immigration Act reads as follows:

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.

It was not in dispute before me that the applicant is a person described in subsection 70(1) [as am. idem] or paragraph 70(2)(a) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] or (b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act, nor was it in dispute that he is a person against whom a deportation order or conditional deportation order was made and that he was determined by an adjudicator to fall within one of the classes of persons described in paragraphs 70(5)(a) to (c).[2]

BACKGROUND

[3]        The applicant is a citizen of Guyana. He arrived in Canada as a permanent resident, in the company of his father, on December 4, 1989 when he was eleven years of age. His mother and sister remained in Guyana and have never been reunited with the applicant and his father. The applicant’s father remarried in Canada. The second marriage was not stable and the applicant was raised in an atmosphere of uncertainty and turmoil.

[4]        The applicant has accumulated an impressive array of both dispositions under the Young Offenders Act [R.S.C., 1985, c. Y-1] and later, convictions under the Criminal Code [R.S.C., 1985, c. C-46]. On March 19, 1996 he received a youth court disposition of 21 days secure custody for trafficking in cocaine. More recently, he was convicted in adult court on April 4, 1997 of trafficking in cocaine. For this offence he received a term of imprisonment of 15 months. On April 22, 1997 he was convicted of robbery and received a further term of 9 months of imprisonment to be served consecutively to the 15-month sentence that he was then serving. File material indicates that a number of his dispositions and convictions were related to his own drug consumption.

[5]        By letter dated June 18, 1998, an official in the respondent’s ministry gave notice to the applicant that it intended to seek the opinion of the respondent, pursuant to subsection 70(5) of the Immigration Act, that the applicant constituted a danger to the public in Canada. The applicant was provided with the materials then in existence that would be relied on by the respondent in considering whether or not to form the opinion. The applicant was given an opportunity to provide written representations in response supported by any documentary material that he considered relevant. The applicant, through his then counsel, availed himself of the opportunity.

ISSUES

[6]        While the issues of whether or not the respondent erred in law in considering dispositions under the Young Offenders Act in arriving at the opinion here under review and whether that opinion is perverse or capricious were raised in written material filed with the Court on behalf of the applicant, they were not seriously pursued before the Court and I am satisfied that this application for judicial review could not succeed on the basis of those issues.

[7]        The more substantial issues arise out of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration),[3] a decision that post-dates the danger opinion and the filing of written material on this application for judicial review. In particular, the Baker-related issues are the following:

the impact, if any, that the Baker decision has on Williams v. Canada (Minister of Citizenship and Immigration),[4] the seminal decision on the principles governing judicial review of danger opinions under subsection 70(5) of the Immigration Act, with respect to

(a) the characterization of the impact of the danger opinion;

(b) the scope of the duty of fairness on the respondent in the course of forming the danger opinion; and

(c) the standard of judicial review applicable to the danger opinion.

THE WILLIAMS DECISION

[8]        In Williams, Mr. Justice Strayer, writing for the Court, found that the Motions Judge [[1997] 1 F.C. 431 [1997] 1 F.C. 457 (T.D.)] whose decision was there under appeal characterized the respondent’s danger opinion, essentially as a deportation order. He found this to be an overstatement of the impact of the danger opinion. At paragraph 12 [pages 661-662], he wrote:

What then did the respondent lose through the Minister forming the opinion that he is a danger to the public in Canada? He lost the right to pursue an appeal under paragraph 70(1)(a) on any question of law or fact or mixed question of law and fact. In place of this he was given the right to seek a judicial review which would be fully as effective in respect of any questions of law but might not provide as complete a review of findings of fact…. In any event, the substitution of judicial review for a right of appeal, by virtue of the Minister forming his opinion, does not strike me as a serious effect on his rights.

[9]        In paragraph 17 [pages 663-664] of Williams, the Court wrote:

It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) “where the Minister is of the opinion” (underlining added), not “where a judge is of the opinion” that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is “established” or “determined” that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether “the Minister is of the opinion” (underlining added) that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, such subjective decisions cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations. Further, when confronted with the record which was, according to undisputed evidence, before the decision maker, and there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith in having regard to that material. [Footnotes omitted.]

[10]      At paragraph 20 [page 665], the Court wrote:

Firstly, for the reasons set out above I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister’s humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay.

[11]      In paragraph 36 [pages 671-672], the Court wrote:

It then remains to consider … whether the failure of subsection 70(5) to require the Minister to render reasons “for a determination if the person constitutes a danger to the public in Canada” is a denial of fundamental justice rendering the subsection invalid for that reason. It is of course accepted that the procedural requirements of fundamental justice vary with the context in which they are invoked. This is why it is important, as I noted earlier, to understand the true significance of the Minister’s opinion. It is not an order of deportation. It applies to persons already under lawful order of deportation and, as complained of here, may lead to the substitution of one form of discretionary relief for another or the substitution of a discretionary stay of deportation for a statutory one. [Underlining added; footnote omitted.]

[12]      The Court went on to confirm in paragraph 38 [page 672] “that it is usually, if not always, preferable that both courts and tribunals give reasons for their decisions.” This aspect of the Court’s reasons appears to have been specifically endorsed by Madam Justice L’Heureux-Dubé in paragraph 39 [pages 845-846] of her reasons for the majority in Baker. The Court concluded that subsection 70(5) of the Immigration Act was not invalid for not requiring the provision of reasons. By reason of what it describes as the “real consequences” of a danger opinion, as described above, the Court concluded “the requirements of fundamental justice are not very profound.” It continued in paragraph 47 [page 676]:

… I do not consider that there is any infringement of fundamental justice involved in the failure to give reasons in this case or in similar cases.

[13]      Finally, on the question of “natural justice” and “fairness”, the Court concluded in paragraph 49 [page 678]:

I believe it is fair to assume that the requirements of “natural justice” are subsumed under the general category of “fairness”, particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. In my view, as expressed above, the consequence of this decision is not an order of deportation but rather the withdrawal of a discretionary power to exempt Williams from lawful deportation, such discretion instead being limited thereafter to exercise by the Minister. It also substitutes the possibility of a discretionary stay for an automatic statutory stay. The decision making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met.

THE BAKER DECISION

[14]      In Baker, the Supreme Court of Canada was not dealing with a “danger opinion” case but rather with a rejection by an immigration officer of an application by Ms. Baker for landing from within Canada on the basis of humanitarian and compassionate considerations. Like Mr. Williams, Ms. Baker was the subject of a deportation order. Also as in Williams, the decision-maker in Ms. Baker’s case was provided with notes made by an immigration officer and no reasons were provided for the decision under review. In paragraph 5 [page 826] of her reasons, Madam Justice L’Heureux-Dubé assumed that the notes made by the immigration officer were not only before the decision-maker but “were used by [the decision-maker] when making his decision.”

[15]      As in the case of the reasons in Williams, Madam Justice L’Heureux-Dubé reflected on the impact of the humanitarian and compassionate grounds decision that was before the Court in Baker. She wrote at paragraph 15 [page 834]:

… while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals’ lives.

[16]      With great respect, Madam Justice L’Heureux-Dubé may have overstated the impact of a positive H & C decision. As I read the Immigration Act and Regulations [Immigration Regulations, 1978, SOR/78-172], a positive H & C decision of the nature under review in Baker entitles the beneficiary to apply for landing from within Canada, not necessarily to “stay” in Canada. If I am right in this, a positive H & C decision is rather similar in character to a decision not to issue a danger opinion. Such a “negative” decision does not entitle the person affected to stay in Canada but rather keeps alive his or her right to apply to the Appeal Division of the Immigration and Refugee Board for relief from the impact of a removal order or, put another way, to apply for relief that could allow him or her to stay in Canada.

[17]      Madam Justice L’Heureux-Dubé noted that, as with officers who form danger opinions on behalf of the respondent, immigration officers who make H & C decisions are provided with guidelines.

[18]      Madam Justice L’Heureux-Dubé also examined at some length the issue of the duty of procedural fairness. She noted at paragraph 21 [page 837]:

The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, … “the concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: …. [Citations omitted.]

She continued in paragraphs 22 and 23 [pages 837-838]:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances.

In paragraphs 23 to 28 [pages 838-841], Madam Justice L’Heureux-Dubé identified a non-exhaustive list of five factors as follows:

— the nature of the decision being made and the process followed in making it;

— the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”;

— the importance of the decision to the individual or individuals affected;

— the legitimate expectations of the person challenging the decision; and

— the choices of procedure made by the decision-making agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the decision-maker has an expertise in determining what procedures are appropriate in the circumstances.

Madam Justice L’Heureux-Dubé concluded in paragraph 28 [page 841]:

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[19]      On the issue of “participatory rights” in the context of the duty of fairness, and more particularly, the failure on the facts before the Court to accord an oral hearing, Madam Justice L’Heureux-Dubé wrote at paragraph 30 [page 842]:

At the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.

[20]      Madam Justice L’Heureux-Dubé concluded that an oral hearing is not a general requirement for H & C decisions. She wrote in paragraphs 31 and 32 [pages 842-843]:

Several of the factors described above [the five factors enumerated above in these reasons] enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances. First, an H& C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court—Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result—the claimant and his or her close family members—and this leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.

Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, [Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238] …, that the duty of fairness owed in these circumstances is simply “minimal”. Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

[21]      Madam Justice L’Heureux-Dubé then went on to consider whether there is a requirement for reasons and noted the advantages flowing from written reasons, by reference to Williams and other cases. She noted that concerns expressed regarding a requirement for written reasons can be accommodated by ensuring that any such requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient. She concluded in paragraphs 43 and 44 [page 848]:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. … The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, … militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

In my view, however, the reasons requirement was fulfilled in this case, since the appellant was provided with the notes of [the immigration officer]. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. [Emphasis added.]

[22]      Madam Justice L’Heureux-Dubé concluded [at paragraph 51, page 852] that the legislation and regulations governing H & C decisions “delegate considerable discretion to the Minister”. She emphasized that the language of the scheme “signals an intention to leave considerable choice to the Minister on the question of whether to grant an H& C application”. The Federal Court of Appeal, in Williams, reached the same conclusion with respect to the formation of danger opinions, which in its view, may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose and the use of irrelevant considerations. Unlike the Federal Court of Appeal, however, Madam Justice L’Heureux-Dubé expressed at paragraph 53 [pages 853-854] a broader view as to the reviewability of discretionary decisions:

… these doctrines incorporate two central ideas—that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law… in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms …. [Citations omitted.]

[23]      Madam Justice L’Heureux-Dubé adopted a “pragmatic and functional” approach to the question of standard of review. More specifically, she considered and balanced the following four factors based on the facts that were before the Court:

— the absence of a privative clause contained in the Immigration Act , although the right to judicial review is constrained at the first level by a requirement for leave and at the second level by a requirement for certification of a serious question of general importance;

— the expertise of the decision-maker, namely, the respondent or her delegate;

— the purpose of the provision under which the decision is made as well as the Act as a whole; and

— the nature of the problem in question, especially whether it relates to a determination of law or fact.

Against these factors, and adopting a “pragmatic and functional” approach, Madam Justice L’Heureux-Dubé determined that the standard of review of H & C decisions is “reasonableness simpliciter”, as opposed to “patent unreasonableness”.

ANALYSIS

[24]      I conclude that the Baker decision has a significant impact on the Williams decision. Specifically, I find that the principles arising from Baker in respect of the characterization of the impact of a decision (or opinion) on the individual(s) concerned, the content of the duty of fairness in light of that impact and the applicable standard of review supersede those stated in Williams such that they now govern. I will deal with each of these impacts in turn.

(a)       Characterization of the Impact of Danger Opinions

[25]      The impact of Baker on the Williams decision stems, in my view at least, in large part from Madam Justice L’Heureux-Dubé’s characterization of the impact on the person or persons concerned of the H & C decision under review; a characterization which is markedly different from that of the Federal Court of Appeal in respect of the impact on the person or persons concerned of a danger opinion. As noted above, in Williams, the Federal Court of Appeal disagreed with the characterization of the impact of a danger opinion issued under subsection 70(5) of the Immigration Act adopted by the Motions Judge in that matter. The Motions Judge characterized the impact as, in substance, that of a deportation order. At paragraph 9 [page 660], the Federal Court of Appeal wrote:

With respect it seems to me that such a characterization of the effects of that opinion greatly exaggerates its importance and thus distorts any analysis of the requirements of fundamental justice in the circumstances.

In the quotations from Williams earlier in these reasons, it is evident that the Federal Court of Appeal characterized a danger opinion under subsection 70(5) of the Immigration Act by reference only to its direct legal impact. It found, among other things, that subsection 70(5) has the effect of substituting for an appeal to the discretion of the Appeal Division of the Immigration and Refugee Board “in all the circumstances of the case”, a determination by the respondent with a right to judicial review, subject to leave, thereby vesting the discretionary determination in the respondent rather than the Appeal Division. This finding might be argued to ignore the “mid-course option” open to the Appeal Division under subsection 73(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act. Under that subsection, the Appeal Division may not only allow or dismiss an appeal, it may stay execution of a removal order “having regard to all the circumstances” or on “compassionate or humanitarian considerations”. No such “mid-course option” is available to the respondent in determining whether or not to issue a danger opinion. Nor is such an option open to this Court on judicial review of a danger opinion. Thus, flexibility is lost by substituting the respondent’s discretion for that of the Appeal Division. The Federal Court of Appeal further found that the danger opinion process substitutes a discretionary judicial stay of deportation for the certainty of a statutory stay.[5]

[26]      Madam Justice L’Heureux-Dubé appears to have adopted a less strict approach in characterizing the impact of H & C decisions, an approach which is closer to that adopted by the Motions Judge in Williams. As noted above, in Baker, Ms. Baker was subject to a deportation order as was Mr. Williams in the Williams case and as is the applicant here. Madam Justice L’Heureux-Dubé determined that the negative H & C decision in Baker had the effect of triggering the existing deportation order, subject only to a determination of the place to which Ms. Baker would be removed. Exactly the same can be said of the danger opinion under review in Williams and of the danger opinion here under review.

[27]      Against the approach to characterization of impact adopted by the Supreme Court of Canada in Baker, I can only conclude that the approach taken by the Federal Court of Appeal in Williams is overtaken and the approach adopted by the Motions Judge in Williams is appropriate to this matter. The characterization of the impact of a danger opinion under subsection 70(5) of the Immigration Act is then, and I paraphrase the words of Madam Justice L’Heureux-Dubé in paragraph 15 [page 834] of Baker, the following. It is an opinion that, while in law providing only for a variation of the statutory scheme as it applies to a permanent resident who has fallen more or less dramatically afoul of the standard of conduct expected of persons in Canada, is nonetheless in substance an opinion that, in cases like this one, determines whether a person who has been in Canada all of his youthful and adult life but does not have citizenship can stay in the country or will be required to leave. It is an opinion that requires a person to leave Canada where he or she has become established, if he or she can indeed be said to be established anywhere. To paraphrase the words of Madam Justice L’Heureux-Dubé at paragraph 15 [page 834] of Baker, it is an important decision that affects in a fundamental manner the future of an individual’s life or of individuals’ lives.

(b)       The Duty of Fairness

[28]      Given the characterization of the impact that I have concluded is applicable notwithstanding Williams, and with reference to the non-exhaustive list of factors affecting the content of the duty of fairness that are described by Madam Justice L’Heureux-Dubé, I reach the conclusion that, on the facts of this matter, the duty of fairness is not simply “minimal”. This is the conclusion reached by Madam Justice L’Heureux-Dubé on the facts before the Supreme Court in Baker. I quote her words again for ease of reference [paragraph 32, page 843]:

Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

[29]      As in Baker, no reasons were provided for the opinion or decision here under review. Also as in Baker, the material before the Court discloses that the respondent’s delegate had before him “notes” in the form of two documents: first, a “Request for Minister’s Opinion” form comprising a summary “Danger Profile” and “Removal Risk Considerations”, and including “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 respondent’s case management branch; and second, a “Danger to the Public Ministerial Opinion Report”. 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 regard 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. Arguably at least, and indeed counsel for the applicant did so argue before me, these documents do not present a balanced summary.

[30]      On the facts in Baker, Madam Justice L’Heureux-Dubé concluded that the opportunity that was accorded to Ms. Baker to produce full and complete written documentation in relation to all aspects of her application for an H & C review satisfied the degree of participatory rights required by the duty of fairness in that case. Madam Justice L’Heureux-Dubé did not address the failure to share the summary document, the immigration officer’s notes that were before the decision-maker, nor did she address the failure to provide Ms. Baker and her children with the opportunity to reflect on the fairness of those notes and to provide written representations in response thereto. Unlike in Baker, there was no allegation before me in this matter that the summary documents, or “notes”, that went before the respondent’s delegate gave rise to a reasonable apprehension of bias. Nevertheless, the balance or “spin” that the summary documents in this matter put on the totality of the documentation on which they were based might well have provided the applicant with a basis for further submissions.[6]

[31]      I quote again, for ease of reference, Madam Justice L’Heureux-Dubé’s conclusion that the notes of the immigration officer in that matter were, in effect, reasons for decision [at paragraph 44, page 848]:

In my view, however, the reasons requirement was fulfilled in this case, since the appellant was provided with the notes of [the immigration officer]. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.

[32]      I am satisfied that the foregoing indicates the importance attached by the Supreme Court of Canada to, in that case, the immigration officer’s notes. Without adopting, for the purposes of this element of my analysis, the characterization of the notes or summary reports as reasons, I am satisfied that the same importance attaches here to the two summary reports that were before the decision-maker, the respondent’s delegate. I take this position because of the prominence of the summary documents on the file of material that went to the respondent’s delegate and, more importantly, because of their very nature: a purported “summary” of all or the most relevant elements of the totality of the material. I will return to this point shortly.

[33]      By analogy to the reasoning in Baker, I am satisfied that the failure on the part of the respondent to share the summary reports with the applicant, and to provide an opportunity to the applicant to respond to them, and to then include any response to those summary documents in the material forwarded to the respondent’s delegate without further analysis on the part of anyone other than the respondent’s delegate himself or herself, constituted a breach of the duty of fairness owed by the respondent to the applicant on the facts of this matter. I reach this conclusion by reason of a particular concern, consistent with the analysis in Baker, for the ultimate importance to the applicant of the outcome of the “danger review”.

[34]      As noted earlier in these reasons, the Federal Court of Appeal in paragraph 17 [page 664] of Williams wrote:

…when confronted with the record which was, according to undisputed evidence, before the decision maker, and there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith in having regard to that material.

I accept fully the foregoing principle. That being said, I cannot conclude that the summary documents that were before the respondent’s delegate in this matter were prepared for no purpose whatever. According to the record before the Court, they appeared at the top of the package of material that went before the respondent’s delegate. I can only assume that they were prepared to ease the burden of the massive amount of paper that must go before the delegate in the full range of matters such as this. I conclude that they were not documents like any others on the record; rather they were intended to have and, in the absence of evidence to the contrary, would have had preeminent influence on the decision-maker. I am satisfied that this conclusion is consistent with Madam Justice L’Heureux-Dubé’s conclusion that the immigration officer’s notes that went before the decision-maker in Baker were, in the absence of any other reasons, the reasons for the decision. By analogy, the summary documents in this matter, in the absence of any other reasons, presumably produced by the respondent’s delegate at the time of her or his own review, must be taken to be the respondent’s delegate’s reasons for forming the opinion that the applicant constitutes a danger to the public in Canada.

[35]      In summary then, against the guidance provided by Baker, I am satisfied that the respondent breached the duty of fairness owed to the applicant on the facts of this matter by failing to share the summary documents, provide a reasonable opportunity to respond to them, and include any such response in the material that went before the respondent’s delegate.

(c)        Standard of Review

[36]      Given my conclusion on the issue of procedural fairness, I need not go further. I will, nonetheless, comment briefly on the “standard of review” in matters such as this.

[37]      Based on the analysis in Baker, and having regard to the impact of the danger opinion for the applicant in this matter, I conclude that the appropriate standard of review on this application for judicial review is reasonableness simpliciter. I am satisfied that the conclusion reflected in paragraph 17 [page 664] of the Williams decision that a subjective decision such as a danger opinion under subsection 70(5) of the Immigration Act “cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations” is overtaken by the Baker decision. I am also satisfied that the danger opinion here under review, albeit a subjective decision, can be set aside on judicial review if, on the facts of the matter, the decision is unreasonable or if the appropriate content of the duty of fairness was not provided.

CONCLUSIONS

[38]      A danger opinion issued under subsection 70(5) of the Immigration Act is an important decision that affects in a fundamental manner the future of an individual’s life or of individuals’ lives.

[39]      The applicant in this matter is an individual who has spent all of his youth and early adulthood in Canada and who can perhaps appropriately be described as a product of his unfortunate environment in Canada rather than of the environment of his early life in Guyana. Given the impact on him of the danger opinion here under review, the respondent failed to fulfil the duty of fairness owed by her to the applicant. In particular, 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.

[40]      While I am not called upon to decide the standard of review on an application for judicial review such as this, I nonetheless conclude that it is reasonableness simpliciter.

[41]      In the result, this application for judicial review will be 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.

CERTIFICATION OF A QUESTION OR QUESTIONS

[42]      To my knowledge, the analysis of the implications for the Williams decision of the relatively recent decision of the Supreme Court of Canada in Baker that I have here conducted has not been previously carried out. I am satisfied that it raises a serious question of general importance. Counsel for the applicant recommended the following questions for certification:

In light of the decision of the Supreme court of Canada in Baker v. M. C. I. (1999) File No. 25823, is the standard on judicial review of a decision of the Minister’s delegate under s. 70(5) of the Immigration Act now “reasonableness simpliciter” as opposed to whether or not the decision was reasonably open to the decision maker as per Williams v. M.C.I. [1997] 2 F.C. 646

Does an Immigration Officer in submitting materials to the Minister’s delegate for consideration on an application for certification as a Danger to the Public in Canada under section 70(5) of the Immigration Act, breach the duty of fairness owed to the applicant when he submits a summary of the materials for consideration (“Ministerial Opinion Report”) and that summary is not disclosed to the person concerned and the person concerned is given no opportunity to respond to it?

Counsel for the applicant advises that counsel for the respondent agrees to certification of the first question but has indicated that he is not convinced that there is a second serious question in light of paragraph 16 of the reasons in Williams and the fact that leave to appeal was refused by the Supreme Court in that case.

[43]      Paragraph 16 [page 663] of the reasons in Williams, not quoted earlier in these reasons, reads as follows:

In short, Mr. Williams faces deportation because as a non-citizen he has committed serious crimes in this country. It is not suggested that he had other than fair trials leading up to his convictions; that his deportation order was wrong in law or in fact; or that he lacked the opportunity to express his views on all the material submitted to the Minister (other than the “Ministerial Opinion Report” summarizing that material for the Minister’s delegate which was not given to the respondent at the time but which was produced for the purpose of judicial scrutiny in the judicial review).

[44]      In order to justify certification, a question must not only be serious and of general importance,[7] it must also be determinative of an appeal.[8] As noted earlier in these reasons, my conclusion regarding the applicable standard of review is not central to my decision herein. Thus, an answer to the first proposed question would not be determinative of an appeal. No form of the first proposed question will be certified.

[45]      I reach a different conclusion regarding the second question. I am satisfied that its substance is not only “serious” and of “general importance”, but also that an answer to it would be determinative on an appeal in this matter. In the result, a variation on the second proposed question, in the following form, will be certified:

Does the respondent breach the duty of fairness owed to the person against whom a danger to the public in Canada opinion is reached pursuant to subsection 70(5) of the Immigration Act if a “Request For Minister’s Opinion” summary report and a “Danger To The Public Ministerial Opinion Report”, or equivalents substantially similar to those at issue in this matter, form part of the materials put before the respondent’s delegate who issues the opinion and those reports have not been shared with the person affected and that person has not been given a reasonable opportunity to respond, or if he or she has, the response is not also put before the respondent’s delegate without further analysis or commentary?

COSTS

[46]      There will be no order as to costs.

APPENDIX

(See note 5)

…there are conflicting decisions in the Trial Division as to whether the Minister’s danger opinion, in and of itself, ends the statutory stay. In Solis v. Canada (Minister of Citizenship and Immigration) ([1997] 2 F.C. 693 (T.D.)), Justice Gibson concluded that the statutory stay remained in effect, notwithstanding the issue of the Minister’s danger opinion, until the Immigration Appeal Division had disposed of the appeal from the deportation order. In Pratt v. Canada (Minister of Citizenship and Immigration) ((1997), 130 F.T.R. 137, at paras. 49-55), and in The Minister of Citizenship and Immigration v. Condello, ([1998] 3 F.C. 575 (T.D.)), Justice MacKay concluded that the Minister’s danger opinion under subsection 70(5) “effectively removed” (ibid. , at para. 55) the statutory stay under paragraph 49(1)(b), even though the appeal before the Immigration Appeal Division was still pending. In Darabanitei v. The Minister of Citizenship and Immigration (an unreported order in (25 July 1997), No. IMM-2524-97 (F.C.T.D.), my former colleague Justice Wetston reached the same conclusion.

In Pratt, Justice MacKay relied on the following statement of the Court of Appeal in The Minister of Citizenship and Immigration v. Williams ([1997] 2 F.C. 646 (C.A.), at para. 15):

The effect then of the Minister forming and giving notification of her opinion under s. 70(5) is to substitute a right of judicial review for a right to appeal of the deportation order, a substitution of the exercise by the Minister of his discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under s. 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay.

The reasons for decision in Solis were issued the day prior to the hearing in Williams. There is no indication that either Solis or the specific issue raised in that case were directly considered by the Court of Appeal in Williams. Pratt and Condello were, as noted earlier, decided after Williams. There was no appeal nor certification of a serious question in Solis, Pratt, Condello and Darabanitei.

The thoughtful analysis of Justice MacKay in Pratt and Condello was based on dicta in Williams. However, it is fair to say that the Court of Appeal has not specifically and directly addressed whether the statutory stay survives the Minister’s danger opinion while the Immigration Appeal Division has yet to dismiss the appeal from the deportation order for lack of jurisdiction. In my view, the applicant has raised a serious issue on the basis of the conflicting decisions in the Trial Division.

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