Digests

Rasa v. Canada (Minister of Citizenship and Immigration)

IMM-6818-98

O'Keefe J.

11/5/00

37 pp.

Judicial review of Minister's delegate's decision applicant danger to public in Canada pursuant to Immigration Act, ss. 70(5), 53(1)(d)--Applicant permanent resident since 1992--In 1998 convicted of conspiracy to commit assault causing bodily harm, conspiracy to use forged credit cards, possession of restricted weapon--Member of one of two organized criminal groups within Tamil community within Greater Toronto area--Organization willing to resort to violence to preserve criminal enterprise--Applicant's role in this aspect of gang's activity significant--Subsequently applicant served with notice of intention to seek Minister's opinion applicant danger to public in Canada--Applicant informed of evidence to be considered, given opportunity to make submissions as to why Minister should not issue opinion--Application dismissed--(1) Person having right under Charter to remedy for breach of Charter rights, subject to Charter, s. 1--(2) As to standard of review, since Minister's decision discretionary, Court bound by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 wherein held exercise of Minister's discretion under s. 114(2) subject to review on reasonableness simpliciter standard--(3)Minister not breaching principles of fundamental justice under Charter, s. 7--(a) Minister not, by exercise of discretion herein, breaching any of three named Conventions--Applicant submitting decision to return him to country where likely to face harsh or inhuman treatment violating terms of international treaty to which Canada party, thus breaching Charter, ss. 7, 12--International Covenant on Civil and Political Rights absolutely prohibiting torture, unacceptable conduct occurring within geographic area over which party having control--As Canada having no jurisdiction over Sri Lanka, no breach of Covenant--Convention Against Torture dealing only with acts of torture carried out in territory within state's jurisdiction--Art. 16(2) stating provisions of Convention are without prejudice to provisions of any other international instrument relating to extradition or expulsion--Canada signatory to Convention Relating to Status of Refugees, Art. 33(2) of which would allow Minister in appropriate cases to order refoulement of refugee when that person's life, freedom would be threatened--Minister, by issuing order pursuant to s. 53(1)(d) acting in situation contemplated by Art. 33(2)--Principles of customary international law may be recognized, applied in Canada only to extent not conflicting with Canada's domestic law--Customary international law urged upon Court would conflict with Immigration Act, s. 53(1)--(b) Words "danger to the public" in ss. 70(5), 53(1)(d) not void for vagueness--Law not violating doctrine of vagueness simply because requiring interpretation--That legislation not setting out criteria for determination of meaning of "danger to the public of Canada" not meaning words void for vagueness--Court's role to try to give meaning to these words--Can do so provided words give sufficient evidence for legal debate--If use of accepted means of interpreting legislation such as contextual analysis of legislation allowing Court to give meaning to words in question, then vagueness doctrine will not apply--One purpose of Canadian immigration policy protection of safety, good order of Canada--Not unreasonable to say one purpose of legislation to exclude from Canada persons who engage in serious criminal activity while in Canada as permanent resident--First step in determining whether person posing danger to public to determine whether within any of classes of persons who can be removed after admission to Canada--As within s. 27(1)(d), applicant within class of persons who can be removed--Minister must make assessment, decide whether to issue danger opinion--Applicant's activity examined to determine whether danger to public in Canada--Any one should know that significant role in organized criminal group would make person someone who would be considered to be danger to public interest--(c) Refoulement of applicant to place where likely to receive harsh or inhuman treatment by government authorities not breach of Charter, ss. 7, 12--S. 12 prohibiting imposition of "cruel and unusual treatment or punishment"--Application of Charter confined to legislative, executive acts of Canadian governments--As torture or punishment herein would not be imposed by Canada, but by another country, no breach of s. 12--S. 7 guaranteeing right not to be deprived of security of person except in accordance with principles of fundamental justice--Court balancing state's interests against right of person when Charter, s. 1 analysis performed--Although s. 53(1)(d) infringing Charter, s. 7, saved by s. 1--Applying The Queen v. Oakes, [1986] 1 S.C.R. 103 analysis, right of public in Canada to be secure from activities of applicant outweighing applicant's right to be secure against possible harm--(i) Protection of public in Canada from refugees posing danger underlying objective of s. 53(1)(d)--Applicant's conduct of type legislation trying to prohibit--Canadian public having right to be free from concern about criminal groups led by refugees--(ii) S. 53(1)(d) providing means to remove people from Canada who constitute danger to public in Canada--Rational connection between objective of s. 53(1)(d) and process chosen to determine whether person danger to public in Canada--(iii) Applicant's right under Charter, s. 7 should be impaired as little as possible--Attorney General showing s. 53(1)(d) extending no further than necessary to achieve goal because only allowing Minister to remove person described in s. 27(1)(d) who has been convicted of offence under Act of Parliament for which may be imprisoned for 10 years or more and Minister satisfied person constituting danger to public; Minister's decision can be reviewed on judicial review if leave granted; Minister's use of discretion always subject to review when Court reviewing file to determine whether or not leave should be granted--(iv) Proportionality between objective of legislation, deleterious and salutary effects--S. 53(1)(d) allowing Minister to remove from Canada persons posing danger to public--In harmony with Charter, s. 6(1) in that reflects fact non-citizens not having unfettered right to stay in Canada--Salutary effects of legislation outweighing deleterious effects on applicant who faces refoulement and who may likely experience harsh or inhuman treatment upon return to Sri Lanka--Removal of applicant to country where may be subjected to harsh or inhuman treatment would not shock conscience of Canadian people--Applicant must live with consequences of choices i.e. to engage in activity in Sri Lanka getting him in trouble with government and in criminal activity in Canada while not Canadian citizen--Minister's decision to form opinion pursuant to s. 53(1)(d) that applicant danger to public in Canada not only reasonable, but correct--Applicant allowed to make written submissions before opinion formed--Minister balancing risk to public against risk of torture if applicant returned to Sri Lanka--Test for whether Minister's decision breaching applicant's right to security of person under Charter, s. 7 recast as: would deportation shock conscience of Canadian people?--Canadians would lose faith in refugee system if applicant allowed to remain in Canada--Principles of fundamental justice not requiring statutory source for ministerial obligation to conduct risk assessment, balancing of interests as obligation found in Charter, s. 7--(4) Applicant afforded procedural due process--(a) Law not requiring Minister's decision-making process be objective--(b) Since applicant making written submissions to Minister before decision made, oral hearing not required to satisfy s. 7--(c) Written reasons for decision contained in request for Minister's opinion--(d) Applicant arguing different decision maker required to act at each stage of proceedings--Overlapping functions authorized by statute not resulting in apprehension of bias as long as statutory provisions followed--Immigration Act, R.S.C., c. I-2, ss. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78), 53(1)(d) (as am. by S.C. 1995, c. 15, s. 12), 70(5) (as am. idem, s. 13)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 6, 7, 12--International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47--Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, UN GAOR, December 10, 1984--United Nations Convention Relating to Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33(2).