Federal Court Decisions

Date: 19971124

Docket: IMM-4733-96

BETWEEN:

     CARLOS FERNANDO JARRETT

                                             Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                             Respondent

     REASONS FOR ORDER

GIBSON J.:

[1]      These reasons arise out of an application for judicial review of a decision reached on behalf of the respondent, pursuant to subsection 70 (5) of the Immigration Act,¹ that the respondent is of the opinion that the applicant constitutes a danger to the public in Canada. The decision is dated the 18th of November, 1996 and was communicated to the applicant on the 2nd of December, 1996.

[2]      The application for leave and for judicial review in this matter indicates that the applicant also seeks judicial review of the removal order made against him. The removal order is not identified with any particularity on the face of the application for leave and for judicial review. In any event, material filed on behalf of the applicant and argument advanced on behalf of the applicant before me did not address judicial review of the removal order. Further, and perhaps

more importantly, the Order of this Court granting leave in this matter related only to the danger opinion.

[3]      The factual background may be briefly summarized as follows. The applicant is a citizen of Jamaica. He arrived in Canada on the 29th of June, 1978 at the age of three and in the company of his mother and two brothers. He has been a permanent resident of Canada since that time. He now has no knowledge of any relatives in Jamaica. By contrast, his mother lives in Toronto and his father, brother and twin step-sisters live in Calgary. He has one daughter who lives with her mother in Calgary. The applicant, until he was removed from Canada, visited his daughter on a weekly basis.

[4]      The applicant has an extensive criminal record as a youth. It includes convictions for break and enters, for assault, for aggravated assault and for assault with a weapon. As an adult, he has one conviction, that being for manslaughter. On that conviction, he was sentenced to 18 months imprisonment.

[5]      On or about the 10th of June, 1996, the applicant was notified that the respondent was contemplating issuing an opinion that the applicant constitutes a danger to the public in Canada. Documentation was provided to the applicant on which the Minister proposed to rely. The applicant was invited to respond. He did so both personally and through his counsel. In September, 1996 the applicant and his counsel were notified of additional information on which the respondent proposed to rely. No submissions were made by the applicant or on his behalf in response to this additional information.

[6]      The respondent's opinion which is the subject of this judicial review application was issued by a delegate on behalf of the respondent on the 18th of November, 1996.

[7]      On the 2nd of December, 1996, the same day that the respondent's opinion was communicated to the applicant, the applicant was ordered deported.

[8]      In the Williams v Canada (Minister of Citizenship and Immigration),² an appeal of a decision of the Trial Division on judicial review of a ministerial danger to the public opinion, Mr. Justice Strayer wrote:

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.      [citations omitted]

    

[9]      The words "such as" in the foregoing quotation would tend to indicate that the grounds of review thereafter enumerated are not exclusive. That this might not be the case appears to have been Justice Strayer's intent since, later in his reasons, he wrote:

The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material.

[10]      In the latter quotation, I take the reference to "... on the basis of irrelevant criteria or evidence, or without regard to the material," to be the equivalent of " ...upon the basis of irrelevant considerations" in the earlier quotation. Further I take the lack of a reference to error of law as a ground of review in the second quotation simply to be based on the facts that were before Mr. Justice Strayer which demonstrated no error of law.

[11]      On the material that was before the Court in this matter, counsel for the applicant raised a wide range of issues for the consideration of the Court. It was acknowledged before me that many of the issues raised were answered by the Williams decision in a manner binding on me. Further, issues were raised that involved the constitutional validity, applicability or operability of subsection 70 (5) of the Act. For those issues, notice was required to be given under section 57 of the Federal Court Act.³ Since no notice was given, it was not open to counsel to pursue those issues before me. In the result, counsel for the applicant limited his argument to five allegedly reviewable errors on behalf of the Minister, as follows:

1.      Whether the respondent failed to take into consideration all of the relevant material;

2.      Whether the respondent fettered her discretion in such a manner as to result in a loss of jurisdiction;

3.      Whether the respondent's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her;

4.      Whether the respondent based the decision under review on extrinsic evidence not shared with the applicant and to which the applicant was given no opportunity to reply; and

5.      Whether the process by which the respondent's decision was arrived at in this matter gave rise to a reasonable apprehension of bias.

[12]      In the first quotation from Williams above, Mr. Justice Strayer made it clear that, in the absence of evidence to the contrary, a Court must assume in a matter such as this that the decision-maker acted in good faith in having regard to the material that constituted the record before him or her. Here, the certified record included the applicant's submissions and those of his counsel on his behalf. There is no evidence before me that would lead me to conclude that the decision-maker acted other than in good faith in having regard to the totality of that record, including the submissions by and on behalf of the applicant. In the result, I find no merit in the first argument advanced on behalf of the applicant.

[13]      Similarly, I find no merit in the argument regarding fettering of discretion. In the "Danger to the Public Ministerial Opinion Report" that formed part of the record, under the heading "Danger Rationale", the following appears:

Subject falls within the criminal ranking set down by the Minister as a priority one Test Case.

[14]      Neither counsel before me could explain the meaning of this reference but counsel for the applicant argued that I should infer that it fettered the respondent's discretion. I draw no such inference. The record indicates that the material constituting the record was fully considered and analyzed. A recommendation was made by an officer in the respondent's ministry. Her manager queried the recommendation and requested further material. That material was acquired and, in the result, the manager concurred in the officer's recommendation. A reviewing officer at departmental headquarters concurred with the regional recommendation. The Director, case review, also concurred. Finally, a delegate on behalf of the respondent reached the decision. There is no evidence in the record to indicate that any of those involved in the decision-making process fettered their judgment by inappropriate reliance on the statement that the applicant fell within "...the criminal ranking set down by the Minister as a priority one Test Case."

[15]      Similarly, I can find no basis to conclude that the decision under review was based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the record. Once again, in Williams, Mr. Justice Strayer wrote:

...I fail to see how the result can be regarded as perverse: that is I do not see how it can be said that it was not open to the Minister's delegate to form the opinion based on Williams' convictions, their nature and frequency, and the comments of the sentencing Judge, that he represented a danger to the Canadian public.

[16]      On the facts of this matter, I conclude that it was open to the respondent to form the opinion that the applicant constitutes a danger to the public on the basis of the applicant's convictions, their nature and frequency, and the comments of correctional officials, notwithstanding the submissions by and on behalf of the applicant.

[17]      Counsel for the applicant argued that the "Danger to the Public Ministerial Opinion Report", or at least the recommendations contained in that report and the Manager's comments also contained in the report, constituted extrinsic evidence relied on by the respondent and therefore should have been shared with the applicant and his counsel who then should have been given an opportunity to respond before any decision was taken.4 That such a report, or parts thereof, might constitute extrinsic evidence was raised by me, but not decided, in Hinds v. The Minister of Citizenship and Immigration5. To the extent that such reports constitute summaries of the record that goes before the respondent or her delegate, I conclude that they are not "extrinsic evidence". To the extent that the Danger to the Public Ministerial Opinion Report in this matter concluded with recommendations, in one case forming part of the printed form and in the second case adding nothing of real substance, I once again conclude that those recommendations were not "extrinsic evidence" required, by reason of the duty of fairness, to be shared with an opportunity to respond.

[18]      Finally, I turn to the last issue raised on behalf of the applicant, that of reasonable apprehension of bias. The record in this matter contains a paragraph 27 (1) (d) "Narrative/Recommendation" prepared by one Tammy McKnight. The document is dated the 4th of March, 1996, prior to the initiation of the "danger to the public" process in respect of the applicant. The document concludes:

It is the opinion of the writer that Mr. Jarrett [the applicant] poses a danger to the public and that a Danger Certificate should be sought in this case.

[19]      The same Tammy McKnight prepared the "Danger to the Public Ministerial Report" and recommended that a danger opinion be issued against the applicant. Counsel for the applicant argued that, in the circumstances, bias was demonstrated, or at least could reasonably be apprehended, since officer McKnight had concluded that a danger opinion should be sought against the applicant well before an examination of whether such an opinion should be sought was commenced and, perhaps more importantly, before the applicant and his counsel had had an opportunity to make representations on the question. Once again, I conclude that this argument cannot succeed. It would certainly have been preferable that an officer who had not demonstrated a predisposition prepare the "Danger to the Public Ministerial Opinion Report". But that report was not determinative in this matter. Officer McKnight was not the decision-maker on behalf of the respondent. Officer McKnight's recommendation passed through three further sets of hands and was concurred in each case, before the matter reached the respondent's delegate, the decision-maker. Once again, to paraphrase the words of Mr. Justice Strayer in Williams, this Court must assume that the decision-maker acted in good faith in having regard to the totality of the material presented to her or him, in the absence of evidence to the contrary. Here, there was no evidence to the contrary. The recommendation of officer McKnight was only one small element of the record that was before the decision-maker. There is simply no basis to conclude that the decision-maker was himself or herself biased, nor was there any evidence on which to base a reasonable apprehension of bias on the part of the decision-maker.

[20]      On the basis of the foregoing analysis, this application for judicial review will be dismissed.

[21]      This application was heard before me at Calgary, Alberta on the 10th of June, 1997. Issues identified in the applicant's Memorandum of Fact and Law that were dealt with by the Federal Court of Appeal in Williams6, were not argued before me but, because it was then generally known that leave would be sought to appeal the Williams decision to the Supreme Court of Canada, counsel for the applicant requested that the hearing be adjourned to await the outcome of any such application. I acceded to that request. As noted earlier, an application to appeal the Williams decision has been dismissed without reasons. Counsel have since been contacted through the Registry in Calgary and are in agreement that no purpose would be served in reconvening. Thus, I have treated this matter as closed and finalized these reasons.

[22]      If counsel for either party wishes to propose a question for certification, it should be submitted to the Registry in Calgary within seven days of the date of these reasons. At that time, I will consider any such submissions and issue my Order.

__________________________

Judge

Ottawa, Ontario

November 24, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      [1997] 2 F.C. 646 (C.A.), leave to appeal to the Supreme Court of Canada dismissed (without      reasons) 16 October 1997, [1997] S.C.C.A. No. 332 (QL)

     ³      R.S.C. 1985, c. F-7

     ⁴      See Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.)

     ⁵      IMM-3549-95, 27 November, 1996 (F.C.T.D.), (unreported)

     ⁶      supra, note 2