Date: 20030423
Docket: IMM-1882-02
Neutral citation: 2003 FCT 476
BETWEEN:
DINH TIEN LA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
LEMIEUX J.:
BACKGROUND
[1] Dinh Tien La (the "applicant") is a citizen of Vietnam and a permanent resident of Canada since November 18, 1994, after he, his wife and two children were recognized as Convention refugees as part of Canada's participation in the Vietnamese Refugee Resettlement Program.
[2] In this judicial review application, the applicant seeks to set aside two opinions issued on March 28, 2002, by the Minister of Citizenship and Immigration's delegate.
[3] The first opinion was made pursuant to subsection 70(6) of the Immigration Act (the "Act"). She was of the opinion the applicant had breached the terms of a stay of a deportation order made on November 24, 1999, by the Immigration Appeal Division ("IAD") and the applicant constituted a danger to the public in Canada. The applicant had been ordered deported because he had been convicted in March 1997 of possessing cocaine for the purpose of trafficking for which he was sentenced to a three-month conditional sentence to be served in the community. The effect of the Minister's delegate's opinion was to dissolve the four-year stay of deportation ordered by the IAD.
[4] The second opinion rendered by the Minister's delegate was pursuant to paragraph 53(1)(d) of the Act. The Minister's delegate was of the opinion the applicant was a danger to the public. The effect of this second opinion was to enable the removal of the applicant to Vietnam, a country he fled because of his fear of persecution.
[5] The record before the Minister's delegate reveals that the basis upon which she formulated her opinions was because of the applicant's criminality and likelihood of recidivism. In 1995, he had been convicted of possession of cocaine (not for the purpose of trafficking) and sentenced to one year probation. As noted, on March 10, 1997, he was convicted of possession of a narcotic for the purpose of trafficking. On October 22, 2001, he was convicted of producing marijuana in Vancouver and was sentenced to six months in jail.
[6] In the material before the Minister's delegate, reference was also made to two outstanding charges laid against the applicant by the Metro Toronto Police. One charge was for the production of marijuana and the other charge was for possession of marijuana for the purpose of trafficking.
[7] In the Ministerial Opinion Report dated January 10, 2002, under the heading Danger Rationale, the following is written:
Mr. La, a citizen of Vietnam was granted landing as a CR1 on 18 November 1994. Since his arrival in Canada this individual has come to the adverse contact with the Vancouver City Police and the Metro Toronto Police beginning in 1995 and spanning into the present day.
[8] In that same Ministerial Opinion Report, under Recidivism, the following is written:
La has been convicted of 2 drug related offences and currently has a warrant for his arrest in Toronto Ontario outstanding for a 3rd drug offence. La was arrested for his first criminal offence just 1 year from his arrival in Canada. His criminal behaviour proceeds to the present day. La was granted a stay on his deportation order on several terms including to keep the peace and be of good behaviour. La demonstrated a lack of regard for this order by engaging in criminal drug dealing behaviour therefore establishing recidivism with regard to criminal behaviour. [emphasis mine]
[9] There were several attachments to the Ministerial Opinion Report including item 22 which are confidential instructions for Crown counsel, Ontario. On examination of that material at pages 134 through 153 of the certified tribunal record, one finds extensive material on the Toronto charges including the synopsis itself, a search warrant to 28 Kenpark Avenue, Brampton, Ontario, said to be a residence owned by the applicant as well as the backup for the request for the search warrant.
[10] The request for Minister's opinion dated February 13, 2002, under Danger Profile mentions the two B.C. convictions but not the charge in Ontario. However, it notes submissions made by counsel for the applicant about the Ontario charges which read:
Further, while the Minister may be troubled by the Ontario charges which remain outstanding for a similar offence, Mr. La denies any involvement in the Ontario cultivation charge. The information provided by the OPP establishes a weak case for care and control of any marijuana found in the residence owned by Mr. La in Ontario. He is never seen there in any police surveillance until he visits to collect rent that has not been paid. In short, all the evidence establishes is that Mr. La owns a home that he has rented to people he does not know and who have been using it to grow marijuana. He has not returned to face those charges because at present he is required to remain in British Columbia until he completes the appeal of his sentence.
[11] The applicant's challenges to these two opinions is twofold. First, he argues there is no connection, except the conviction itself, between the criminal activity for which he was convicted, that is trafficking in marijuana and any present or future to the public in Canada. According to the applicant, this is not sufficient because there must be evidence and analysis of harm. Second, and in the applicant's view more important, the Minister's delegate considered charges against him for which he had not been convicted and this was an irrelevant consideration.
STANDARD OF REVIEW
[12] As for the standard of review which should be applied by this Court in reviewing the two danger opinions issued by the Minister's delegate, this matter has been settled by the Supreme Court of Canada in Suresh v. Minister of Citizenship and Immigration et al., [2002] S.C.C. 1.
[13] In that case, the Supreme Court of Canada held the opinion by the Minister's delegate a person constituted a danger to the security of Canada pursuant to section 53(1)(b) of the Act is reviewable only where the Minister's delegate makes a patently unreasonable decision. The Court said this at paragraph 29:
. . . we agree with Robertson J.A. that the reviewing Court should adopt a deferential approach to this question and should set aside the Minister's discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The Court should not re-weigh the factors or interfere merely because it would have come to a different conclusion. [emphasis mine]
[14] In Suresh, supra, the Supreme Court commented on its previous decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and said this at paragraph 37:
¶ 37 The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Re Sheehan and Criminal Injuries Compensation Board (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds). [emphasis mine]
[15] The reference to Maple Lodge Farms, [1982] 2 S.C.R. 2, is important because, in that case, Justice McIntyre, on behalf of the Supreme Court of Canada, stated the following at page 7:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[16] From this jurisprudence, it is clear that, if in exercising a discretion or in formulating a view, the statutory authority relied upon irrelevant considerations or irrelevant factors, the resultant decision is patently unreasonable.
CONCLUSIONS
[17] The proper approach to the issue before me was set out by Justice Strayer in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) at paragraph 29, where he outlined the meaning of "danger to the public" as expressed in the Act and the kind of analysis this phrase compelled:
¶ 29 It has been said by the Supreme Court in R. v. Nova Scotia Pharmaceutical Society . . . that a law is unconstitutionally vague "if it so lacks in precision as not to give sufficient guidance for legal debate". In the context of judicial review of a ministerial decision as to whether she "is of the opinion that a person constitutes a danger to the public in Canada" the question must be: does this phraseology give sufficient direction to the Minister so that both she and the Court can determine whether she is exercising the power for the purposes intended by Parliament? In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. In the context 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. It need not be proven--indeed it cannot be proven--that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case [See Note 23 below] that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court. [emphasis mine]
[18] The materials before the Minister's delegate built a case the applicant was a danger to the public in Canada because, in the words of Justice Strayer in Williams, supra, he was a person "who has committed a serious crime in the past [and] may seriously be thought to be a potential re-offender".
[19] The Minister's delegate specifically acknowledged that "in forming my opinion, I considered the Ministerial Opinion Report and the documentary evidence presented by local immigration officials to support their recommendation ... as well as the information contained in the request for Minister's opinion and supporting material". She stated she had considered the applicant's counsel's letter of January 9, 2002, parts of which were extracted into the request for Minister's opinion.
[20] Based on the evidence before me, I cannot but conclude the Minister's delegate took into account the outstanding charges in Ontario laid against the applicant. This, as his counsel argued, was an irrelevant consideration making the opinions patently unreasonable.
[21] By its very nature, an outstanding criminal charge cannot be evidence of recidivism - a likelihood of re-offending. To do so would equate a charge to a conviction without a trial.
[22] I find support for this proposition in a recent decision of Justice MacKay in Dokmajian v. Canada (Minister of Citizenship and Immigration, [2003] FCT 85, a case where my colleague was reviewing a danger opinion. He said this at paragraph 26:
¶ 26 The first reference is:
The nature of these offences warrant [sic] consideration for danger opinion. He has an outstanding charge on 20/4/01 for possession of stolen property under $5000. pending. Court date scheduled 26/2/02.
The first of the sentences quoted does not indicate why the applicant could be considered a danger to the public, it merely refers to the nature of the offences. As we have seen, that does not in itself support such an opinion. The second sentence refers to an outstanding charge, not a conviction, a matter which would not by itself warrant an opinion that he constitute a danger.
[23] Justice Gibson in Hinds v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1544, was also reviewing a danger opinion. The ministerial opinion report mentioned under "Danger Rationale" the fact the applicant there had been arrested and charged with trafficking in drugs but was subsequently acquitted. Justice Gibson refrained from commenting on the propriety of relying, in a danger rationale, on circumstances surrounding events that led to a charge against the applicant on which he was acquitted. He said it was sufficient to note that this was one of only three paragraphs constituting the "danger rationale" in the report and given the acquittal and limited context in which it appears, it can only be regarded as highly prejudicial.
[24] In Kumar v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 1046 (F.C.A.), Justice Heald, for the Court, wrote this:
While the Immigration Appeal Board in its reasons for decision clearly attempted to base its decision only on facts unrelated to the existence of criminal charges then outstanding against the appellant, the reference to those charges in the penultimate paragraph of the reasons . . . casts doubt on the Board's success in so doing. As we see it, the Board was quite entitled to exercise its discretion by refusing the adjournment of the hearing sought by the Appellant pending disposition of the outstanding criminal charges and to proceed with the Review. However, fairness required that, if it did so, the existence of the charges ought not to have played any part in the decision to grant or not grant the extension to the stay being asked for. Since we have doubt that this requirement of fairness was met, the appeal should be allowed and the matter referred back to the Board for a rehearing by a panel which may or may not be that which conducted the impugned review.
[25] I take Kumar, supra, to stand for the proposition that, in exercising its equitable jurisdiction under the Act to grant a stay or not, it was improper for the IAD to take into account outstanding charges in deciding whether to stay a deportation order.
[26] If it was improper in that circumstance, I find it all the more improper when the issue before the Minister's delegate is whether the applicant constitutes a danger to the public on account of recidivism with the effects which such an opinion has, namely, inter alia, destroying a stay application granted by the IAD.
[27] In Bertold v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1492, Justice Muldoon discussed the jurisprudence related to decisions subsequent to Kumar, supra, in the context of his review of a decision by the IAD not to exercise its discretionary relief. He concluded reference to such charges was inadmissible.
[28] Counsel for the Minister sought to distinguish the jurisprudence. She argued the Minister's delegate could take into account the charge to determine whether there had been a breach of the terms of the IDA's stay - the applicant was obliged to report the Ontario arrest - and that it was in this context the reference to the outstanding charges should be appreciated. Counsel for the Minister also pointed out the extract in the request for opinion simply reproduced what counsel for the applicant had said about the outstanding Ontario charges. She also referred to the decision of Madam Justice Reed in Kessler v. M.C.I., [1998] F.C.J. No. 1134 (T.D.).
[29] I am not persuaded by those arguments. First, I do not see how, having taken the charge into account to determine breach of the IDA's stay, counsel for the Minister could wipe out from her mind that charge when it came to decide the question whether the applicant would likely re-offend, especially since the Ontario charge was specifically identified in the analysis concerning recidivism. Second, counsel for the applicant only commented on the Ontario charges because the Ontario charges were mentioned in the Ministerial Opinion Report. Lastly, Kessler, supra, is of no assistance to the Minister because it was in the context of an H & C application to have a person's application for permanent residence processed in Canada.
[30] For all of these reasons, this judicial review application should be allowed, the danger opinions quashed, and the matter remitted to the Minister's delegate for reconsideration.
[31] Counsel for either party may propose questions for certification by writing to the Registry on or before May 2, 2003. If one or more questions are proposed for certification, comments from opposing counsel should be forwarded to the Registry on or before May 9, 2003.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1882-02
STYLE OF CAUSE: Dinh Tien La v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 12, 2003
REASONS FOR : Lemieux, J
APPEARANCES:
Mr. Christopher Elgin FOR APPLICANT
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Department of Justice
Vancouver Regional Office