Bhagwandass v. Canada (Minister of Citizenship and Immigration) (C.A.) [2001] 3 F.C. 3
Date: 20010307
Docket: A-850-99
Neutral citation: 2001 FCA 49
CORAM: ROTHSTEIN J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SUNIL BHAGWANDASS
Respondent
Heard at Calgary, Alberta, February 12, 2001
JUDGMENT delivered at Ottawa, Ontario, March 7, 2001
REASONS FOR JUDGMENT BY: SHARLOW J.A
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A..
Date: 20010307
Docket: A-850-99
Neutral citation: 2001 FCA 49
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SUNIL BHAGWANDASS
Respondent
Reasons for Judgment
Sharlow J.A.
The respondent Sunil Bhagwandass is a permanent resident of Canada, as defined in the Immigration Act, R.S.C. 1985, c. I-2. He has a criminal record that is serious enough to preclude him from making a refugee claim or appealing any deportation order that may be made against him, if the Minister of Citizenship and Immigration or her delegate renders an opinion that Mr. Bhagwandass constitutes a danger to the public in Canada (subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act, R.S.C. 1985, c. I-2). Such an opinion was rendered on December 2, 1998 but it was quashed on December 12 ,1999 by the order of Justice Gibson after a judicial review (Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619, (1999) 176 F.T.R. 204, (1999) 5 Imm. L.R. (3d) 189). The Crown has appealed that decision.
The principle issue before Justice Gibson related to the scope of the Minister's duty of fairness in the context of danger opinions. On that issue, Justice Gibson certified a question pursuant to section 83 of the Immigration Act, which I have reworded as follows for the sake of brevity:
Is the Minister's duty of fairness breached when a completed "Request for Minister's Opinion" and a "Ministerial Opinion Report" completed as far as the signature of the reviewing officer and senior analyst, or their equivalents, form part of the material considered by the Minister in rendering a danger opinion under subsection 70(5) or subsection 46.01(1)(e)(iv), and the person who is the subject of the reports was not given an opportunity to read and respond to them before the danger opinion was rendered?
After the decision of Justice Gibson was rendered, a number of decisions were issued in the Trial Division dealing with the same question. Some follow the decision of Justice Gibson in this case, others do not.
The facts of the case are not disputed. Mr. Bhagwandass came to Canada from Guyana in 1989, a few months before his twelfth birthday, and became a permanent resident on the same date. Between 1992 and 1997, he was convicted of a number of crimes, including drug trafficking and robbery. His criminal record came to the attention of an official of the Ministry of Citizenship and Immigration. On June 19, 1998, the manager of the Calgary office of the Ministry sent a letter to Mr. Bhagwandass. Counsel for the Crown referred to this as a "letter of intent". It states in part as follows:
You are hereby advised that Citizenship and Immigration Canada (CIC) possesses evidence suggesting that you are a person in Canada who is a danger to the public. We intend to request an opinion to that effect from the Minister of Citizenship and Immigration.
There follows a summary of the legal consequences of such an opinion, if given. The letter goes on to say that the Minister would consider certain documents relating to Mr. Bhagwandass's criminal record, copies of which were enclosed. In addition, the letter explains that the Minister would make reference to certain publicly available documents relating to the country or countries to which Mr. Bhagwandass might be removed (presumably Guyana). Finally, Mr. Bhagwandass was advised of his right to make written representations and submit documentary evidence. The letter concludes with this:
Any such representations, arguments or evidence will be considered by the Minister but must be received by CIC at the address noted above, on or before the expiration of 15 days from the receipt of this letter. Your evidence, argument or other representations should address whether or not you are a danger to the public, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedoms are threatened by removal from Canada.
Several observations may be made about this letter. First, it sets a 15 day time limit for making submissions. It has not been suggested that this time limit is unreasonable. Second, it discloses all of the information then in the possession of Ministry officials that was proposed to be submitted to the Minister. Third, it indicates that in the course of deciding whether to render a danger opinion, the Minister would consider whether Mr. Bhagwandass would be at risk if removed to Guyana, and would also take into account compassionate or humanitarian considerations. The relevance of removal risks and compassionate and humanitarian considerations to the danger opinion is not stated, but I infer that Mr. Bhagwandass was to understand that such factors, if sufficiently compelling, might lead the Minister to decide not to render a danger opinion, or alternatively not to remove him to Guyana.
From this it follows that the decision as to whether to render a danger opinion was represented to Mr. Bhagwandass as more than simply a determination of whether he was dangerous. It was represented to him as a discretionary decision as to whether or not his status as a permanent resident would be permitted to remain undisturbed despite his criminal record. If I correctly understood the submissions of counsel for the Crown in this case, that is precisely how the Minister and Minister's delegates regard danger opinions.
On August 17, 1998, submissions were made by counsel on behalf of Mr. Bhagwandass. Those submissions included a discussion of humanitarian and compassionate considerations applicable to Mr. Bhagwandass, and evidence of family and community support.
Another Ministry official in Calgary, apparently an immigration officer, prepared a report dated October 7, 1998 based on all of the material referred to in the letter of intent and in the submissions made on behalf of Mr. Bhagwandass. The report is entitled "Ministerial Opinion Report" and consists of a completed form, supplemented by a second page for additional information, summarizing the "danger and criminality information", the "service and submission information" and "other considerations" (said to include humanitarian and compassionate considerations, public policy and removal risk factors). The report concludes with this recommendation:
On the basis of the above information and having considered all relevant factors, I recommend that pursuant to [section 70(5)] of the Immigration Act that the Minister's opinion be requested that [Mr. Bhagwandass] is a danger to the public.
This recommendation is signed by the immigration officer. In the portion of the form marked "Manager's comments", are the handwritten words "I concur", followed by the signature of the manager dated October 7, 1998.
The Ministerial Opinion Report was sent to Ministry offices in Ottawa. Mr. Bhagwandass was not given a copy of it before it was sent. Nor was he given an opportunity to respond to it.
In Ottawa a second report, called "Request for Minister's Opinion", was prepared by a reviewing officer. The first part of the report, entitled "Danger Profile", summarizes the criminal record of Mr. Bhagwandass. The second part, entitled "Removal Risk Considerations", discusses conditions in Guyana. No mention is made any of the matters set out in the submission made on behalf of Mr. Bhagwandass, except perhaps in the third part of the report entitled "Reviewing Officer's Comments and Recommendation", which reads as follows:
I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client [Mr. Bhagwandass]. The foregoing documents comprise the entirety of the material provided to the Minister's delegate in support of the request that he form an opinion that [Mr. Bhagwandass] constitutes a danger to the public pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act.
The "Request for Minister's Opinion" is signed by the reviewing officer on November 25, 1998. Below her signature are the printed words "I concur", signed by a senior analyst on November 27, 1998. The record does not disclose whether the recommendation of any Ministry official is required before the Minister or Minister's delegate considers whether a danger opinion ought to be rendered in a particular case. In any event, in this case four Ministry officials made such a recommendation.
It appears that the Request for Minister's Opinion, completed as far as the signatures of the reviewing officer and senior analyst, was given to the Minister's delegate for consideration, along with the Ministerial Opinion Report, the documents relating to the criminal record of Mr. Bhagwandass, and the submissions made on his behalf. Mr. Bhagwandass was not given a copy of the Ministerial Opinion Report or the Request for Minister's Opinion before they were given to the Minister's delegate. Nor was he given an opportunity to respond to them.
The last part of the "Request for Minister's Opinion" is a section marked "Decision", in which the Minister's delegate signified, by his signature dated December 2, 1998, that he is of the opinion that Mr. Bhagwandass constitutes a danger to the public.
Mr. Bhagwandass was notified of the opinion shortly after it was rendered. The Ministerial Opinion Report and Request for Minister's Opinion were not disclosed to him at that time. They were disclosed only when he commenced his application for leave and judicial review, when they were included with the documents Mr. Bhagwandass requested for purposes of his leave application.
The Immigration Act and Regulations are silent on the procedure to be followed in rendering danger opinions. It is common ground that the procedure actually followed in this case was the procedure normally followed, but no documentary evidence was provided to explain the normal danger opinion procedure or the policies underlying it.
The Crown argued before Justice Gibson, and in this Court, that to compel the advance disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion would be inconsistent with the decision of this Court in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.). Justice Gibson rejected that argument on the basis that the decision of the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817 has overtaken Williams and is now the governing authority.
Neither Williams nor Baker deals with the extent of the obligation of a decision maker to disclose to the person affected by the decision the documents to be relied upon so that the person has an opportunity to respond. However, that was the question before this Court in the more recent decision of Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, (2000) 257 N.R. 139 (C.A.).
In Haghighi, an Iranian citizen had applied for relief under subsection 114(2) from the requirement to apply for landing from outside Canada. The Minister's delegate denied the relief, relying in part on a report prepared by a Post-Claims Determination Officer (PCDO) relating to country conditions in Iran. The PCDO had concluded that the applicant would not face an undue risk of torture or other persecution if returned to Iran. The PCDO report was not disclosed to the applicant before his subsection 114(2) application was considered, although he was aware of all of the documents upon which it was based. This Court, applying the analysis in Baker, held that the duty of fairness required that the report be disclosed to the applicant so that he could respond to it before the subsection 114(2) decision was made.
I take from the Haghighi decision the proposition that, after Baker, the content of the duty of fairness with respect to decisions under subsection 114(2) must be seen as more than minimal. On this point Baker overrules the decision of this Court in Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, 29 Imm. L.R. (2d) 82. However, because of the discretionary nature of a subsection 114(2) decision and the non-adversarial and institutional setting in which it is made, the content of procedural fairness is less than that applicable to an independent adjudicative tribunal deciding the legal rights of individuals.
Haghighi also establishes that, in considering whether the duty of fairness requires advance disclosure of an internal Ministry report on which a decision maker will rely in making a discretionary decision, the question is not whether the report is or contains extrinsic evidence of facts unknown to the person affected by the decision, but whether the disclosure of the report is required to provide that person with a reasonable opportunity to participate in a meaningful manner in the decision making process. The factors that may be taken into account in that regard may include the following: (i) the nature and effect of the decision within the statutory scheme, (ii) whether, because of the expertise of the writer of the report or other circumstances, the report is likely to have such a degree of influence on the decision maker that advance disclosure is required to "level the playing field", (iii) the harm likely to arise from a decision based on an incorrect or ill-considered understanding of the relevant circumstances, (iv) the extent to which advance disclosure of the report is likely to avoid the risk of an erroneously based decision, and (v) any costs likely to arise from advance disclosure, including delays in the decision making process.
A consideration of those factors led the Court in Haghighi to conclude that the duty of fairness required advance disclosure of the PCDO report in issue in that case. In my view, the reasoning in Haghighi is compelling and should govern the result in this case, unless it can be distinguished on the basis of the difference between a discretionary decision under subsection 114(2) and a danger opinion under subsection 70(5) or subparagraph 46.01(1)(e)(iv). It is in that context that it is useful to consider Williams.
There were several issues in Williams, but for present purposes it is necessary to refer to only two. The first was whether subsection 70(5) of the Immigration Act, one of the two danger opinion provisions, was invalid because it breached section 7 of the Canadian Charter of Rights and Freedoms. It was said in Williams that the public policy reason for deporting permanent residents who commit crimes of a certain seriousness is that they have deliberately violated an essential condition under which they were permitted to remain in Canada (referring to Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711). Such a person has no further right to remain in Canada. His Charter rights are not breached by the lawful execution of a deportation order. Similarly, the Charter is not breached merely because a deportation order cannot be appealed to the Appeal Division of the Immigration and Refugee Board.
The second issue in Williams that should be considered in this case is whether reasons must be given for a danger opinion. The Court said that although it is always preferable for a decision maker to give reasons for his or her decision, failure to give reasons for a danger opinion is not a breach of the principles of fundamental justice or the duty of fairness.
These two propositions from Williams are based on a rejection of the argument that the legal effect of a danger opinion under subsection 70(5) is deportation. Clearly, a subsection 70(5) danger opinion is not a deportation order or removal order. It merely precludes an appeal of a deportation order to the Appeal Division of the Immigration and Refugee Board, which means, in practical terms, that the Appeal Division cannot consider the humanitarian and compassionate grounds for not executing the deportation order. It was said in Williams that those same considerations may be considered by the Minister under subsection 114(2) to grant the same discretionary relief. Therefore, it was said, the danger opinion merely substituted the possibility of one form of discretionary relief for another.
A similar argument was made by the Crown in this case. It was suggested that a negative subsection 114(2) decision represents an applicant's last chance for relief on humanitarian and compassionate grounds from the requirements of the Immigration Act, and that is a factor that may justify additional procedural protections. By contrast, a person who is the subject of a danger opinion retains the right to seek humanitarian and compassionate relief under subsection 114(2) from a deportation or removal decision. On that basis, it was argued, the effect of a danger opinion is not as dire as the effect of a negative subsection 114(2) decision, and the procedural protections should be correspondingly less.
I am unable distinguish Haghighi on the basis suggested by the Crown. I do not quarrel with the conclusion in Williams that the issuance of a danger opinion does not engage section 7 of the Charter, but I do not take Williams as requiring a conclusion that the legal and practical effect of the danger opinion is less significant than a negative subsection 114(2) decision. As noted in Baker, a negative subsection 114(2) decision may have the effect of facilitating deportation, because an application under subsection 114(2) represents the last hope for avoiding removal from Canada. Similarly, the effect of danger opinion is to facilitate removal. This accords with what I understand to be the purpose of subsection 70(5) and subparagraph 46.01(1)(i)(e), which is to take away one potential obstacle to the speedy removal of dangerous criminals from Canada.
Quite apart from that, it bears repeating that when Mr. Bhagwandass was notified that a danger opinion was being considered, he was asked to make submissions relating to humanitarian and compassionate considerations applicable to his situation. He was led to believe, and the practice is, that those considerations are taken into account in determining whether the danger opinion ought to be rendered. Although it would be possible for Mr. Bhagwandass, if the danger opinion were rendered, to make a further application under subsection 114(2) asking for specific relief from deportation or removal, it is difficult to imagine how a subsection 114(2) decision could reasonably be expected to be favourable if the same considerations did not deter the rendering of the danger opinion. It is possible that, after the danger opinion is rendered and before removal, circumstances could change that could motivate a favourable subsection 114(2) decision, but it seems to me that in most cases the time interval between those two events would be relatively short and the likelihood of a significant change in circumstances correspondingly small. To rely on the technical possibility of a last minute favourable subsection 114(2) decision as a reasonable basis for imposing a lower standard of procedural fairness on a danger opinion is to prefer form to reality.
The Crown also argues that the degree of procedural protection should be relatively low for danger opinions because the subject of a danger opinion, having acquired a criminal record of the requisite seriousness, has already breached one of the conditions upon which he was granted landing and is thus undeserving of the additional procedural protection that is being sought in this case. I do not accept this argument. The public has a substantial interest in the speedy removal of criminals who may be dangerous, but at the same time Parliament has implicitly recognized that not all criminals are dangerous, and has entrusted the Minister with the widest possible degree of discretion to determine which criminals are so dangerous that they should be denied the right to claim refugee status and to appeal a deportation order. Timely disclosure of the documents in issue in this case is intended only to enhance the fairness of the danger opinion procedure.
Finally, the Crown argues that the danger opinion procedure is not adversarial and for that reason the Minister's duty of fairness fall at the low end of the spectrum. I cannot accept this argument. It seems to me, on the contrary, that the danger opinion procedure adopted by the Minister suggests the need for a higher standard of fairness than for subsection 114(2) decisions. That is because the procedure is adversarial from the outset and remains so until its conclusion. The procedure in this case began with the letter of intent dated June 19, 1998 which informed Mr. Bhagwandass that an official of the Ministry believed that a danger opinion was warranted. It speaks of representations, arguments and evidence being considered by the Minister, which are clearly the badges of an adversarial process. The last step in the procedure, before the decision was rendered, was the presentation to the Minister's delegate of the Ministerial Opinion Report and the Request for Minister's Opinion. Given their content and apparent purpose, those documents can properly be characterized as instruments of advocacy, in which Ministry officials recommend the rendering of a danger opinion and state the facts that they believe justify such a recommendation. The documents indicate as clearly as can be that Ministry officials had aligned themselves against Mr. Bhagwandass. They are not to be criticized for that. They were obviously asked for their views and were entitled to state them. But to characterize the procedure as non-adversarial is simply not consistent with the evidence.
I have also concluded that the disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion would not result in such delays in the deportation of dangerous persons that the object of the legislation would be frustrated. The additional delay need not be lengthy. It would be open to the Minister to impose deadlines on final submissions on the reports, to limit those submissions to points raised or that should have been raised in the reports on the basis of evidence previously submitted, and to refuse to accept any additional evidence, except in special circumstances. Also, the disclosure of the reports and responding submissions, if properly made, could defuse any possible argument that the Minister or Minister's delegate has disregarded some important information, potentially removing one ground from many applications for judicial review of danger opinions. That could result in an overall reduction of delay in the removal of dangerous criminals.
The Crown also argued that, according to Baker, the Ministerial Opinion Report and the Request for Minister's Opinion are "reasons" and therefore it makes no sense to require their disclosure before the decision is rendered. This argument evaporates when the Baker decision is properly understood. Before Baker, the general view was that the duty of fairness did not require reasons to be given for subsection 114(2) decisions. Baker established the proposition that reasons are required for such decisions. However, in the particular circumstances of that case, the notes of the decision maker were found to suffice as reasons. The basis for that conclusion is the factual inference that the reasons for the decision are disclosed in the notes made by the decision maker, even if they were not intended as reasons when they were written.
What is sought in this case is disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion when they are completed as far as the signatures of the reviewing officer and senior analyst, and before they are submitted to the Minister. At that point in time, they were not and could not be the reasons for rendering the danger opinion, because no opinion had been rendered. The Minister or Minister's delegate accepted the recommendation of the Ministry officials as set out in the two reports and rendered the danger opinion, and could have adopted the reports as the reasons for doing so. Whether the reports were so adopted in this case is a factual question that does not need to be addressed because the merits of the danger opinion itself are not in issue.
For the foregoing reasons, I conclude that the Minister breached the duty of fairness to Mr. Bhagwandass by failing to disclose to him the Ministerial Opinion Report and the Request for Minister's Opinion, in the form in which they were presented to the Minister or Minister's delegate, to afford Mr. Bhagwandass a reasonable opportunity to respond to them. I agree with Justice Gibson that the certified question should be answered in the affirmative, and I would dismiss this appeal.
Karen R. Sharlow
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
Brian Malone J.A."