Digests

Singh v. Canada (Minister of Citizenship and Immigration)

IMM-667-02

2003 FCT 795, Heneghan J.

26/6/03

19 pp.

Judicial review of Minister's delegate's decision in which Minister certified opinion applicant constituted danger to public in Canada pursuant to Immigration Act, ss. 53(1), 70(5)--Applicant, citizen of India, became permanent resident of Canada in November 1993, at age 13--When 18, applicant shot friend while intoxicated, pleaded guilty to manslaughter, convicted, sentenced to 32 months of imprisonment in September 2000--In November 2000, respondent sent applicant notice of intention to seek Minister's opinion applicant danger to public of Canada--Applicant issued deportation order in May 2001--In February 2002, Minister's delegate issued opinion applicant constituted danger to public--Danger opinion issued prior to IAD's decision on deportation order, therefore Act, s. 70(5) curtailed applicant's right to appeal and appeal dismissed due to lack of jurisdiction --Applicant currently in India as deported there after start of present judicial review--Issues whether application moot; whether danger opinion correct--Two-step analysis for consideration of issue of mootness as set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342: "live controversy" test, if so, whether Court should exercise discretion to hear case--Tangible, concrete dispute giving rise to application has disappeared: no certified danger opinion in Immigration and Refugee Protection Act (IRPA)--Therefore issue moot--Applicant herein has raised reasonable possibility outcome of judicial review proceeding will continue to have important collateral consequences for him, relative to any future application he may make with respondent--Therefore, "adversarial relationship" between parties remains, will continue in future--Here, case fully argued, without issue of mootness being raised--Here, decision will have practical side effects on rights of applicant, notwithstanding that will not have effect of determining controversy which gave rise to action--Reason for finding mootness herein occurred due to transitional issue, related to coming into force of IRPA--Such circumstances will not endure for long time period-- Therefore, concern that determining moot issue would set unnecessary precedent contained--Determining case will not intrude into legislative branch of government--While application for judicial review herein moot, court exercising discretion to hear, decide judicial review application-- Application allowed--Danger opinion reached herein based on error of law, in that Minister's delegate did not address present or future danger posed by applicant to Canadian public--Reasons for decision do not reflect that Minister's delegate turned mind to likelihood of recidivism of applicant --Fact of conviction alone insufficient basis to form danger opinion: circumstances of each case must, over and above conviction, indicate danger to public: Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.)--Minister's delegate's decision quashed, but no redetermination ordered as "decision or act" at issue no longer existing under IRPA--Immigration Act, R.S.C., 1985, c. I-2, ss. 53(1) (as am. by S.C. 1992, c. 49, s. 43), 70(5) (as am. by S.C. 1995, c. 15, s. 13)--Immigration and Refugee Protection Act, S.C. 2001, c. 27.