Digests

Chu v. Canada (Minister of Citizenship and Immigration)

A-614-97

2001 FCA 113, Rothstein J.A.

11/4/01

7 pp.

Appeal by way of question certified by Trial Division ([1997] F.C.J. No. 1116 (QL)): whether consideration by decision-maker of documentary evidence, neither specifically identified for nor provided to subject of "danger to public" opinion, offending principles of natural justice, procedural fairness or fundamental justice--Other issues whether duty of fairness requiring disclosure to appellant of Ministerial Opinion Report submitted to Minister's delegate by officials of Ministry of Citizenship and Immigration, and provision of opportunity to respond to it--Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.) dispositive of this appeal--Holding duty of fairness requiring disclosure to party affected, of Ministerial Opinion Report, Request for Minister's Opinion, to enable him to make submissions to Minister's delegate before latter deciding whether to issue danger opinion--Bhagwandass applied Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.)--Haghighi identifying following factors to be considered to determine whether disclosure required: (1) nature, effect of decision within statutory scheme; (2) whether report likely to have such degree of influence on decision-maker that advance disclosure required to "level playing field"; (3) harm likely to arise from decision based on incorrect or ill-considered understanding of relevant circumstances; (4) extent to which advance disclosure of report likely to avoid risk of erroneously based decision; (5) costs likely to arise from advance disclosure, including delays in decision-making process--Process commenced with February 26, 1996 letter to appellant indicating Department in possession of evidence suggesting appellant danger to public and Minister or delegate would be considering whether to issue danger opinion--While, unlike Bhagwandass, letter not stating departmental officials would be seeking danger opinion from Minister or delegate, that is effect of letter--Ministerial Opinion Report, based on evidence which letter says suggests appellant danger to public, confirming process adversarial from outset and remaining so until conclusion--While Ministerial Opinion Report appearing more carefully prepared, better balanced than similar documents in Bhagwandass, duty of fairness requiring disclosure because of adversarial nature of danger opinion process--In adversarial proceedings of this nature, fairness requiring documents submitted to decision-maker by one party be disclosed to other--Duty not diminished by content, tone of submissions--Minister breached duty of fairness by failing to disclose Ministerial Opinion Report--Principle equally applicable to other documents submitted by Ministry officials to Minister's delegate--Any documents submitted to Minister's delegate by Ministry officials acting in adversarial role to appellant must generally be disclosed to appellant, or at least must be specifically identified--Resulting mischief delay--No indication delay herein need be lengthy--Over one year elapsed to initiate danger opinion proceedings--Additional 15 days in order to meet requirements of procedural fairness not causing undue delay--Indeed disclosure could diffuse any possible arguments Minister's delegate disregarded important information, potentially removing ground of judicial review, resulting in overall reduction of time in removal of persons found to be dangers to public.