Pratt v. Canada ( Minister of Citizenship and Immigration )
IMM-3043-95 / IMM-3528-95
MacKay J.
30/4/97
21 pp.
Applications for judicial review of two decisions made under Immigration Act-First decision by Minister's delegate under Act, s. 70(5) that in Minister's opinion applicant constituted danger to public in Canada-Second decision to execute outstanding deportation order made against applicant on December 19, 1994-Deportation order executed, applicant removed from Canada on December 13, 1995 after applications for leave, judicial review initiated-Applicant permanent resident of Canada, born in United Kingdom in January 1972-In 1992, 1993, applicant convicted of number of offences under Criminal Code-Sentenced, upon conviction, to terms of incarceration, probation-On December 19, 1994, Adjudicator issued deportation order to applicant-On same date, applicant filed appeal from deportation order to Appeal Division of Immigration and Refugee Board-An Act to amend the Immigration Act, the Citizenship Act and to make a consequential amendment to the Customs Act came into force on July 10, 1995-Under Act, s. 70(5), permanent resident who, in opinion of Minister, constitutes danger to public in Canada, shall not have appeal to Appeal Division in relation to deportation order issued against him-On October 24, 1995, Minister's delegate issuing opinion under Act, s. 70(5) applicant constitutes danger to public in Canada-Four issues raised herein by applicant-First issue concerning application of s. 70(5) in light of statutory interpretation of amending Act, s. 13(4)-After deportation orders issued against applicants Pratt and Luksicek, each filed notice of appeal, seeking to contest deportation order before Appeal Division under Act, s. 70-Open to Minister in dealing with circumstances of both applicants to determine each one constituted danger to public in Canada-By virtue of Act, s. 70(5), when danger opinion rendered, each one lost right to appeal to Appeal Division since appeal hearing not commenced before July 10, 1995 when provision came into force-Minister did not err in law by exceeding jurisdiction in rendering opinion under s. 70(5) in relation to applicant-Second issue whether Minister failed to observe principles of natural justice, procedural fairness in rendering opinion pursuant to Act, s. 70(5) with reference to applicant-In Canada (Minister of Citizenship and Immigration) v. Williams, [1997] 2 F.C. 646 (C.A.) Strayer J. described Minister's opinion as exercise of discretion stated in statute in subjective, not objective, terms-Such subjective decisions not to be judicially reviewed except where decision-maker acted in bad faith, erred in law or acted on basis of irrelevant considerations-Absent evidence to contrary, reviewing court must assume decision-maker acted in good faith in considering material before him-Procedure established by departmental guidelines creating no procedural unfairness-Process followed herein, in accord with guidelines, met requirements for natural justice, procedural fairness-Absence of reasons for Minister's decision not violating principle of fairness, natural justice-In light of approval by Court of Appeal of process followed on behalf of Minister in Williams, minimal requirements for natural justice, procedural fairness met-Third issue concerning application of s. 70(5) in light of assurance under Charter, s. 7-Opinion, or decision to make it, not decision for detention, removal, deportation of applicant-Decision under s. 70(5) not engaging right to liberty in circumstances of case-Opinion formed under s. 70(5) not engaging, violating s. 7 Charter interests of applicant-Final argument raised by applicant wording of s. 70(5) violates Charter, s. 7 as not permitting applicant to know what test, standard must be met to avoid being found "danger to public"-Applicant's arguments s. 70(5) unconstitutionally vague in light of Charter, s. 7, and absence of reasons for Minister's opinion conflicts with principles of fundamental justice in Charter, s. 7, both unacceptable-Applicant arguing in Court No. IMM3528-95 Minister had no authority to execute outstanding deportation order before Appeal Division had "heard and disposed of" appeal of applicant-Appeal to Appeal Division initiated by applicant, heard but not determined by Division, effectively rendered nugatory, extinguished by Parliament's determination applicant could not exercise right of appeal granted by s. 70(1)-Ground for statutory stay under Act, s. 49(1)(b) removed once ministerial decision made under s. 70(5)-Decision to execute outstanding deportation order within authority of Minister under Act after opinion determined under s. 70(5) applicant constituted danger to public in Canada-Applications dismissed-Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, S.C. 1995, c. 15, s. 13(4)-Immigration Act, R.S.C., 1985, c. I-2, ss. 49(1)(b), 70(5) (as enacted by S.C. 1995, c. 15, s. 13(3))-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], s. 7-Criminal Code, R.S.C., 1985, c. C-46.