Onganda v. Canada ( Minister of Citizenship and Immigration )
IMM-2565-97
Hugessen J.
7/10/98
7 pp.
Application for judicial review of Minister's danger opinion-Applicant, black Kenyan citizen, convicted of three counts of trafficking in cocaine-Applicant invoking Charter, s. 15, first on ground Immigration Act, s. 70(5) and related s. 46.01(1)(e)(iv) might be applied in his case in discriminatory manner-Not basis upon which statute can be struck down-Even if Charter, s. 15 capable of preventive application, no court would ever exercise that power without evidence of actual discriminatory application or of intention to do so-No question herein of any evidence of intention-Second, no sufficient evidence of actual discrimination-Data showing as many as 75% of persons subject to danger opinions coming from countries where population predominantly Black, Hispanic, Semitic or Asian-No material establishing proportion of immigrant population Black, Hispanic, Semitic or Asian-Equally, requirement there be conviction of serious crime raising question as to population of immigrants convicted of serious crimes-If disproportionate number Black, Hispanic, Semitic or Asian, then difficulty lies not in Immigration Act, s. 70(5) but in administration of criminal justice system, matter beyond reach of Court-History of racial discrimination in Canada's immigration policy and possibility of continuing discrimination not sufficient basis upon which to strike down statute-Fact may be difficult to prove racial discrimination does not mean Court should presume there is racial discrimination-No evidence to establish Minister's decision perverse-Application dismissed-Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(1)(e)(iv) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 70(5) (as am. by S.C. 1995, c. 15, 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], s. 15.