Bayani v. Canada ( Minister of Citizenship and Immigration )
IMM-4250-97 / IMM-4251-97
Rothstein J.
24/9/98
6 pp.
Judicial review of danger opinions-Applicant alleging Minister's opinion, rendered without affording applicant oral hearing, contrary to Canadian Bill of Rights, s. 2(e)-Alleging where credibility issues at stake, oral hearing mandatory-Submitting rights under s. 2(e) broader than those under Charter s. 7-Alleging danger opinion under Immigration Act, s. 53(1)(d) depriving him of right not to be returned to country where life, freedom threatened, and that this constitutes elimination of right protected under s. 2(e), if not under Charter, s. 7-Relying on s. 2(e) to avoid response proceedings under s. 53(1)(d) only with respect to issuance of danger opinion, not automatically resulting in deportation to country from which Convention refugee originally fleeing, and not engaging protection of s. 7-Unnecessary to decide whether broader interests protected under s. 2(e) than under s. 7-In Williams v. Canada, [1997] 2 F.C. 646 (C.A.) Strayer J.A. finding even if interests protected by Bill of Rights, s. 2(e) broader than those protected by Charter, s. 7, requirements of fundamental justice under s. 2(e) no broader than those under s. 7-Therefore case law under Charter, s. 7 as to requirements of fundamental justice relevant-Applicant relying heavily on dicta of Beetz J. in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 that when threats to life or liberty by foreign power relevant, at least one full oral hearing required before adjudication on merits of Convention refugee claim-But in cases under s. 53(1)(d), individual already determined to be Convention refugee-That applicant also involved in criminal activity what gives rise to proceedings-Danger assessment proceeding under s. 53(1)(d) not appeal from applicant's criminal convictions-Criminal court proceedings gave applicant opportunity to avail himself of all substantive, procedural protections relevant to such proceedings-Under Corrections and Conditional Release Act, determinations respecting applicant's behaviour in jail, including in this case, applicant's transfer to maximum security institution, subject to extensive procedural protection-Requirement for oral hearing mandated by Singh not applicable to proceedings under s. 53(1)(d)-In Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.) Marceau J.A. holding oral hearings not requirement in relation to s. 46.01(1)(e)(ii) proceedings-S. 46.01(1)(e)(ii) very similar to s. 53(1)(d)-In both cases, danger opinion step in process ultimately leading to removal-Marceau J.A.'s finding no requirement for oral hearing with respect to s. 46.01(1)(e)(ii) equally applicable to s. 53(1)(d)-Application dismissed-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-Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e)-Immigration Act, R.S.C., c. I-2, ss. 46.01(1)(e)(ii) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 53(1)(d) (as am. idem, s. 43; S.C. 1995, c. 15, s. 12)-Corrections and Conditional Release Act, S.C. 1992, c. 20.