Judgments

[1997] 1 F.C. 431

IMM-3320-95

Jeffrey Hugh Williams (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Williams v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Reed J.—Toronto, July 23; Ottawa, October 18, 1996.

Administrative law — Judicial review — Certiorari — Application to quash Immigration Act, s. 70(5) decision applicant danger to public — S. 70(5) removing statutory right to appeal from deportation order where Minister of opinion person danger to public and person convicted of serious offence — No legislatively required decision-making process for s. 70(5) decisions — Departmental official making recommendation, concurred with or rejected by manager, Minister’s delegate making final decision — No reasons given — Natural justice, fairness requiring reasons — As several decision makers, difficult to assume consistency in decision making — Decision makers required to apply legal standard to form opinion affecting liberty, but no legal training required — Decision-making process giving no assurance final decision maker considering applicant’s submissions — No way of knowing whether appropriate test for deciding whether danger to public applied — Uprooting applicant from family, removing him to country applicant left as child substantial consequences.

Bill of Rights — Application to quash Immigration Act, s. 70(5) decision applicant danger to public — S. 70(5) removing statutory right of appeal from deportation order — No legislatively required decision-making process for s. 70(5) decisions — Departmental official making recommendation, concurred with or rejected by manager, Minister’s delegate making final decision — No reasons given — Bill of Rights, s. 2(e) guaranteeing fair hearing in accordance with principles of fundamental justice to determine rights, obligations — Right of appeal, obligation to leave Canada rights, obligations — Fundamental justice requiring reasons.

Constitutional law — Charter of Rights — Life, liberty and security — Immigration Act, s. 70(5) removing statutory right of appeal from deportation order where Minister of opinion subject danger to public and serious offence committed — No legislatively required decision-making process — Departmental official making recommendation, concurred with or rejected by manager, Minister’s delegate making final decision — No reasons given — S. 7 applies as (1) liberty interest engaged when person deported; (2) decision removing avenue of legal redress otherwise available — S. 70(5) not unconstitutionally vague — Different descriptions of burden of proof in cases, Guidelines not indicating uncertainty — “Danger to the public” not so lacking in precision informed legal debate on content not possible.

Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Application to quash Immigration Act, s. 70(5) decision applicant danger to public — No legislatively required decision-making process — Departmental official making recommendation, concurred with or rejected by manager, Minister’s delegate making final decision — No reasons given — Although Charter, s. 7 applied, s. 70(5) not unconstitutionally vague — Natural justice, fairness, Canadian Bill of Rights, s. 2(e) guarantee of fair hearing in accordance with principles of fundamental justice to determine rights, obligations, requiring reasons.

This was an application to quash the decision pursuant to Immigration Act, subsection 70(5) that the applicant was a danger to the public. Paragraph 70(5)(c) removes the statutory right of appeal from a person against whom a deportation order has been made where the Minister forms an opinion that that person is a “danger to the public in Canada”, and the person has been determined by an adjudicator to be a person described in paragraph 27(1)(d) who has been convicted of an offence for which a term of imprisonment of 10 years or more may be imposed.

The applicant had been brought to Canada when he was nine years old. He is now thirty. Several family members are permanent residents and he has three children who are Canadian citizens. He was convicted of four drug-related offences in the years 1989-1992 and is thus a person described in subparagraphs 27(1)(d)(i) and (ii). The last offence was committed in 1990 for which he was not sentenced until 1992. A deportation order was issued in 1994. The applicant alleged that he has been drug-free since 1990. The Minister’s decision was dated three years after applicant had been released from prison at which time he was receiving counselling for his drug problem and was enrolled in school.

The applicant argued that subsection 70(5) was unconstitutionally vague because no standard or proof applicable to the making of decisions is set out in the statute, no criteria are established for deciding what “danger to the public” means, and there is no legislatively required decision-making process for subsection 70(5) decisions. As a matter of practice, departmental officials send a notice to an individual who may become the subject of a subsection 70(5) decision, together with the documentary evidence on which a decision may be made. The individual is given 15 days within which to respond in writing. A recommendation form is then filled in by an official and sent to his or her manager who either concurs with or rejects the recommendation. The final decision is made by the Minister’s delegate. No reasons are given.

The issues were: (1) whether subsection 70(5) and the decision-making process authorized thereby offend Charter, section 7 which guarantees the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice; (2) whether the decision-making process breached the common law principles of fairness and natural justice; and, (3) whether the Canadian Bill of Rights, paragraph 2(e), which guarantees that no law of Canada shall be construed so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations, was breached.

Held, the application should be allowed.

(1) A liberty interest is engaged when a person is being deported and therefore Charter, section 7 applies to such cases. Furthermore, a decision relating to the deportation order that removes an otherwise available avenue of legal redress is equally covered by section 7. If a legislative provision infringes the section 7 guarantees, it will be invalid or at least inoperative. Section 7 also operates to discipline procedures being used by decision makers when exercising validly conferred decision-making powers, under legislative provisions that are not in themselves unconstitutional.

Subsection 70(5) is not unconstitutionally vague. While there is no express statutory standard of burden of proof, the different descriptions of the burden of proof in cases and the Guidelines published by the respondent do not indicate uncertainty. There is always a certain amount of uncertainty with any new legislative provision until case law has had time to develop and settle some of those uncertainties. “On all the circumstances” relates to the content of a danger to the public finding, not to burden of proof. The Guidelines instruct decision makers to identify those individuals who have caused or who might reasonably be expected to have caused the type of injury described. This does not detract from the overall standard of proof required to be met in deciding whether someone is a danger to the public. The standard, in the absence of any legislative direction to the contrary, is the ordinary civil standard of balance of probabilities.

A law is unconstitutionally vague if it is so lacking in precision that there is insufficient guidance to allow for an informed legal debate on the content of the concept in question. There must be sufficient precision to provide fair notice to the citizen and to provide a limitation of enforcement discretion. The concept “danger to the public” is not so lacking in precision that an informed legal debate on its content is not possible.

(2), (3) The common law principles of fairness and natural justice, which provide standards by which discretionary decision making and the procedures used therefor must operate, in the absence of any statutory provision to the contrary, apply to a subsection 70(5) decision. Canadian Bill of Rights, paragraph 2(e) is engaged as the right of appeal and the obligation to leave Canada are “rights and obligations” for paragraph 2(e) purposes.

Certain aspects of the decision-making procedure were noted: (1) as several departmental officials make the decision as delegates of the Minister, and are given extensive discretion, it is more difficult to assume that there is consistency in decision-making than when there is a single decision maker; (2) there was no indication that these individuals had any legal training, yet the concept of “a danger to the public” involves the application of a legal standard, which results in an opinion that affects a person’s liberty; (3) there is no way of knowing whether the decision maker considered any of the material on the file other than the recommendation prepared by the first level official; and, (4) there is no way of knowing whether an appropriate test for deciding that a person is a danger to the public has been applied. While the Guidelines correctly state that the mere commission of an offence is not definitive, they appear to then provide a framework whereby it is the gravity of the offence that is largely determinative. A subsection 70(5) finding requires that two components exist: a serious offence and that the person is a danger to the public. The existence of the first component is not sufficient to determine the latter. The second condition is framed in the present and is forward looking. While individuals are given a copy of the materials upon which a danger decision will be based, it may not be immediately obvious why that material supports the conclusion that the individual is a present or future danger to the public. The original conviction of an offence alone is not necessarily sufficient to support a presumption that the person is a danger to the public.

Fundamental justice, natural justice and fairness required that reasons be given in the circumstances of this case. The consequences for the individual are substantial. The applicant will be uprooted from family and returned to a country which he left and where he has not lived for 20 years. The decision-making process gives no assurance that the ultimate decision maker in fact considers the applicant’s submissions directly. It is not clear what reasoning lead to the finding that the applicant was a present or future danger to the public. In the absence of even brief reasons, a reviewing court on judicial review cannot determine whether the decision makers are applying consistent and lawful criteria in making decisions that an individual is a danger to the public in Canada.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2.

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. 6, 7.

Criminal Code, R.S.C. 1970, c. C-34.

Criminal Code, R.S.C., 1985, c. C-46.

Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d)(i), (ii), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), (1.1) (as enacted by S.C. 1992, c. 49, s. 65), (2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), (3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (3.1) (as enacted by S.C. 1995, c. 15, s. 13), (4) (as am. idem), (5) (as enacted idem), (6) (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241; R. v. Morales, [1992] 3 S.C.R. 711; (1992), 77 C.C.C. (3d) 91; 17 C.R. (4th) 74; 12 C.R.R. (2d) 31; 144 N.R. 176; 51 Q.A.C. 161; Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.).

DISTINGUISHED:

Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (1988), 90 N.R. 31 (C.A.); Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (1992), 10 C.R.R. (2d) 348 (C.A.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.).

CONSIDERED:

R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Inthavong v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 1; 30 Imm. L.R. (2d) 85 (F.C.T.D.); Reg. v. Secretary of State for the Home Department, Ex parte Doody, [1994] 1 A.C. 531 (H.L.); R. v. Civil Service Appeal Board, ex p Cunningham, [1991] 4 All E.R. 310 (C.A.); Jamieson v. Commr. of Corrections (1986), 51 C.R. (3d) 155; 2 F.T.R. 146 (F.C.T.D.); Taabea v. Refugee Status Advisory Committee, [1980] 2 F.C. 316 (1980), 109 D.L.R. (3d) 664 (T.D.).

AUTHORS CITED

Canada. Citizenship and Immigration. Immigration Manual: C-44 Implementation. Ottawa: Citizenship and Immigration Canada, 1996.

De Smith, S. A. Judicial Review of Administrative Action, 5th ed. London: Sweet & Maxwell, 1995.

APPLICATION to quash a decision pursuant to Immigration Act, subsection 70(5) that the applicant was a danger to the public on the ground that the failure to give reasons for the decision breached the common law principles of natural justice and fairness, and the Canadian Bill of Rights guarantee of a fair hearing in accordance with the principles of fundamental justice to determine rights and obligations. Application allowed.

COUNSEL:

Victoria Russell for applicant.

I. John Loncar for respondent.

SOLICITORS:

Victoria Russell, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: The applicant seeks to have a decision by a delegate of the Minister of Citizenship and Immigration set aside. That decision found him to be a danger to the public. The decision was made under subsection 70(5) of the Immigration Act.[1]

The decision is challenged on a number of grounds. One of these is that the legislative provisions that authorize the decision-making process and that process itself offend section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. Alternatively, it is argued that the decision-making process, as it presently operates, does not accord with the common law principles of fairness and natural justice. In addition, section 2 of the Canadian Bill of Rights, R.S.C., 1985, Appendix III, is relevant.

Nature of the Applicant’s Interest

In order to obtain the protection of section 7 of the Charter, a person must show that the consequences of the decision to which it is sought to apply that section would potentially deprive the individual of “the right to life, liberty” or “security of the person”:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The decisions to which the common law principles of fairness and natural justice apply are not so constrained. Nor is section 2 of the Canadian Bill of Rights:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

…

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

Paragraph 70(5)(c) of the Immigration Act[2] (the paragraph relevant for present purposes) provides that if a person has been convicted of a certain type of offence (a serious criminal offence) and the Minister forms an opinion that that person is a “danger to the public in Canada”, a statutory right of appeal, with respect to the deportation order that has been issued, is taken away. In the absence of a subsection 70(5) decision, the individual has a right to have the Immigration Appeal Division review the deportation order to which that person has become subject. The Appeal Division may determine whether in “all the circumstances of the case” the person should be deported. This involves assessing factors that were not relevant to the issuance of the deportation order itself. These traditionally have included: the age of the individual; when he or she arrived in Canada; his or her social and financial ties within Canada; the extent of the person’s continuing connection to the country to which he or she will be deported. The Appeal Division also has authority to suspend deportation orders, on a conditional basis, to give the individual a chance to demonstrate that he or she can live a lifestyle free of criminality. The individual has the right to produce witnesses, to give oral evidence, and to be given reasons for the decision that is eventually made. A subsection 70(5) decision takes away that statutory right of appeal. It clears the way for the immediate execution of the deportation order.

Subsection 70(5) of the Immigration Act applies to permanent residents. Such individuals may have lived in this country nearly all their lives, may have all their friends and family here, may have all their assets here, including a home. In so far as the right to remain in, return to, work and live in Canada is concerned, a permanent resident has rights closer to those of a citizen than does a person seeking the right to enter or the right to remain in Canada on the basis of an as yet unprocessed application, such as an application for landing or a claim for refugee status.

This applicant was brought to Canada in 1976 when he was nine years old. He is now thirty. His mother, step-father, two sisters, two nephews and common-law wife are all permanent residents here. He has three children who are Canadian citizens and who are here. A deportation order was issued against him on June 27, 1994. He was convicted of four-drug related offences in the years 1989-1992 and thus is a person described in subparagraphs 27(1)(d)(i) and (ii) of the Immigration Act. As such he falls under paragraph 70(5)(c) of the Immigration Act. The last offence was committed in 1990,[3] for which he was not sentenced until 1992. He alleges that he has been drug-free since 1990. He received an opinion of the Minister, dated November 10, 1995, stating that he constituted “a danger to the public in Canada”. As of that date, he had been released from prison for three years. He states that at that time he was continuing to receive psychological counselling with respect to his drug problem and was enrolled in full-time study at the Toronto School of Business, studying computers and electronics.

It is clear that the common law principles of fairness and natural justice apply to a subsection 70(5) decision. It is also clear that paragraph 2(e) of the Canadian Bill of Rights is engaged. The applicant’s right of appeal and the obligation on him to leave Canada are involved. These are “rights and obligations” for paragraph 2(e) purposes. What has been less clear is whether the applicant’s interest is one that fits under section 7 of the Charter.

In Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, the Federal Court of Appeal appeared to take the view that deportation of a person for serious offences in Canada did not involve an interest protected by section 7 of the Charter. This view was considered by the Supreme Court in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. The Court however left that issue open.[4] The Court decided that, in any event, there had been no breach of the principles of fundamental justice. The Federal Court of Appeal reconsidered the issue in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 In that case Mr. Justice Marceau made it abundantly clear that a liberty interest is engaged when a person is being deported and therefore section 7 applies to such cases. He wrote [at page 703]:

… forcibly deporting an individual against his will has the necessary effect of interfering with his liberty, in any meaning that the word can bear. [Underlining added.]

The Federal Court of Appeal in Nguyen also decided that a decision relating to the deportation order that removed an otherwise available avenue of legal redress was equally covered by section 7 of the Charter. Mr. Justice Marceau refers, at page 705, to the Supreme Court’s analysis in Chiarelli:

The Supreme Court, following in that respect the approach of this Court, examined the constitutional challenge as being aimed at the scheme viewed as a whole. The removal of the special right to appeal was perceived as the removal of a means to oppose the deportation order and, as a result, might engage section 7 of the Charter. Similarly in our case, while a determination of the ineligibility under subparagraph. 46.01(1)(e)(ii) of the Act is only indirectly linked to the deportation order, nevertheless it has the effect of taking away the only possible barrier to the issuance of an unconditional deportation order, and as such participates in the deprivation of liberty and, possibly, the security of the individual which results from deportation. [Underlining added.]

Canadian Charter of Rights and Freedoms— Section 7

Before engaging in an analysis of the applicability of section 7 to the present situation another reference to Chiarelli v. Canada (Minister of Employment and Immigration) must be made. The comment is made in that decision that it is a fundamental principle of immigration law that non-citizens do not have the right to enter or remain in Canada.[5] This comment is frequently cited by the respondent in cases such as the present. I fear the comment is often used somewhat out of context. The Charter recognizes the right of citizens to enter and remain in Canada. At the same time, however, the Charter also recognizes that citizens and non-citizens alike, when they are within Canada, have certain fundamental rights. One of these is the right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice. The question is not whether the applicant can be deported without infringing section 6 of the Charter; he clearly can. The question is whether part of the decision-making process, which leads to that deportation, must be made in accordance with the principles of fundamental justice referred to in section 7.

If a legislative provision infringes the guarantees of section 7, that provision will be invalid or at least inoperative. Section 7 also operates to discipline procedures being used by decision makers when exercising validly conferred decision-making powers, under legislative provisions that are not in themselves unconstitutional. I will deal with the arguments challenging the validity of subsection 70(5) first.

Constitutional Vagueness of Subsection 70(5)

I turn to counsel for the applicant’s arguments that subsection 70(5) is unconstitutionally vague because no standard of proof applicable to the making of decisions is set out in the statute, no identifiable criteria are established for guidance in deciding what “danger to the public” means and there is no procedural framework set out in the legislation to govern the decision-making. It is the cumulative effect of these factors that, it is argued, renders the statutory provision unconstitutionally vague.

I turn first to the arguments concerning the lack of a standard of proof. It is argued that the confusion that arises from an absence of an express statutory standard can be seen in the conflicting descriptions, of the applicable standard, that exist. Counsel notes that one would have expected, in the absence of any express standard, that the ordinary civil standard of balance of probabilities would have applied. Yet, in Inthavong v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 1 (F.C.T.D.), at page 9, Mr. Justice Muldoon described the standard as requiring that the “person judged on past and recent behaviour presents an extremely high risk of danger” (emphasis added). At the same time, the respondent states in paragraph 24(g) of his further memorandum of argument that the Minister or his delegate decides if “on all the circumstances of the case, the person, in his opinion, constitutes a danger to the public” (emphasis added). Counsel argues that this sounds as though the Minister’s delegate is applying a test similar to that applied in humanitarian and compassionate reviews. Lastly, counsel argues that, in the Guidelines[6] published by the respondent, for the guidance of departmental officials, the decision maker is directed to consider “persons who as a result of their actions have caused or might reasonably be expected to … cause … [serious harm]” (emphasis added). Counsel notes that this sounds like a “reasonable grounds to believe” test.

I am not persuaded that the different descriptions of the burden of proof indicate as much uncertainty as counsel suggests. There is always a certain amount of uncertainty with any new legislative provision until jurisprudence has had time to develop and settle some of those uncertainties. I do not characterize “on all the circumstances of the case” as being a burden of proof issue but rather related to the content of a danger to the public finding.

With respect to the argument based on the Guidelines, I have summarized the Guidelines, above, as counsel for the applicant reads them. They in fact read:

Persons who as a result of their actions have caused or might reasonably be expected to have caused death or serious physical or psychological harm to persons and/or significant damage to property.[7] [Underlining added.]

While counsel reads the underlined portion as referring to future expectations and states that the text contains a grammatical error, I am not persuaded that this is so. This portion of the Guidelines focuses attention on past events only. The French version is perhaps clearer:

Les personnes qui, à la suite des actes qu’elles ont posés, ont causé ou pourraient raisonnablement être présumées avoir causé la mort, des blessures ou des tort psychologiques graves à autrui ou des dommages importants à la propriété.[8]

I read the Guidelines as instructing decision makers to first identify those individuals who have committed certain types of crimes (persons who have caused or who might reasonably be expected to have caused the type of injury described). This does not detract from the overall standard of proof required to be met in deciding whether someone is a danger to the public. The standard, as counsel notes, in the absence of any legislative direction to the contrary, is the balance of probabilities.

With respect to the failure to provide criteria for the making of decisions, counsel states that the vagueness of the legislative provisions are obvious from the fact that Guidelines had to be issued by the department, to its officials, to enable the legislative provisions to operate. Yet the Guidelines are not part of the legislative scheme; they are not binding; they are not exhaustive. These factors, it is argued, illustrate the vagueness of the legislative provisions. Reference was made to R. v. Lyons, [1987] 2 S.C.R 309. In that case, criteria set out in the relevant legislative text saved the indeterminate sentence provisions of the Criminal Code [R.S.C. 1970, c. C-34] relating to dangerous offenders from being unconstitutionally vague. Those criteria include the requirements that the offence be a serious personal injury offence, that it carry a possible sentence of ten years, and that a pattern of behaviour exists that is likely to continue.

Lastly, counsel notes that there is no legislatively prescribed decision-making procedure. A procedure has however been adopted, by officials, about which more will be said later.

The principles to be applied in determining whether unconstitutional vagueness exists are found in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 and R. v. Morales, [1992] 3 S.C.R. 711. A law will be unconstitutionally vague if it is so lacking in precision that there is insufficient guidance to allow for an informed legal debate on the content of the concept in question. There must be sufficient precision to provide fair notice to the citizen and to provide a limitation of enforcement discretion:

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.[9]

I cannot conclude that the concept “danger to the public” is so lacking in precision that an informed legal debate on its content is not possible. I note that the applicant’s counsel in making submissions to the Minister, before the subsection 70(5) decision was made, wrote that while there was no jurisprudence, as yet, on the test to be applied, guidance could be found in provisions such as the dangerous offender provisions of the Criminal Code [R.S.C., 1985, c. C-46] and the requirements respecting bail.

I cannot agree with counsel’s argument that there is a cumulative uncertainty that leads to a conclusion that subsection 70(5) is unconstitutionally vague.

Fundamental Justice, Natural Justice and the Procedure Being Used

As has been noted, there is no legislatively required decision-making process for subsection 70(5) decisions. As a matter of practice, departmental officials have taken to sending a notice to an individual who may become the subject of a subsection 70(5) decision, together with the documentary evidence on which a decision may be made. The individual is given 15 days within which to respond in writing. A recommendation form is then filled in by a departmental official and sent to his or her manager who checks one of two boxes on the form, either the box concurring with the recommendation or that rejecting it. The ultimate decision maker is yet a third person who is described as the Minister’s delegate. (Interestingly, in this applicant’s case, while the manager signed the form there is no indication that approval was given.) No reasons are ever given for the decision.

Procedures used under other provisions of the Act, for the purpose of declaring a person a danger to the public, have been found by the Federal Court of Appeal not to infringe the principles of fundamental justice. In Nguyen, referred to above, a certificate signed by the Minister stating that the person in question was a danger to the public was at issue. The effect of the certificate was to prevent the person from being eligible to have his refugee claim adjudicated. A number of grounds were argued. For present purposes only those relating to the procedural guarantees of section 7 will be considered. The decision was challenged on the ground that an oral hearing was required (since a liberty interest was at stake) and on the ground that there was a reasonable apprehension of bias because two decisions had been made finding the applicant to be a danger to the public, one before Guidelines were issued to guide the Minister’s delegates in making a decision, and one after the Guidelines had been issued. The Court stated that, strictly speaking, it did not need to address those submissions because the decision being reviewed was that of a tribunal which was not entitled to look behind the validity of the certificate. However, the Court went on to state that an oral hearing was not required, and that it did not understand on what ground bias could be alleged.

In Chiarelli, a decision by the Security Intelligence Review Committee that the individual was involved with organized crime was in issue. The fairness of the procedure was challenged because the individual had only been given a summary of certain evidence, which had been taken in camera. He was not given a verbatim transcript, nor was he given the names of informers. This was held not to be a breach of fundamental justice because he had been given enough information to know the case against him; he was given an oral hearing, the right to call witnesses and the right to cross-examine the RCMP witnesses who had given evidence in camera. In the circumstances, it was held there was no breach of section 7.

In the Hoang decision, referred to above, there was no issue concerning procedural fairness comparable to that raised in the present case. The individual in question had a right of appeal to the Immigration Appeal Board and had exercised that right. In that context, he had the right to an oral hearing, to call witnesses and to receive reasons for the decision rendered. The decision in Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594(C.A.) also involved an appeal from the Immigration Appeal Board, as did Canepa v. Minister of Employment and Immigration, [1992] 3 F.C. 270(C.A.).

I note, as well, that while a procedure similar to that being used in subsection 70(5) danger to the public decisions, has been approved for humanitarian and compassionate reviews, see Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), the nature of those decisions is quite different from that of a danger to the public finding. The Court of Appeal, in Shah, noted that when an exemption is being sought from the provisions of the Act on humanitarian and compassionate grounds, an individual does not have “a case to meet”, of which he must be given notice; rather it is for him to persuade the decision maker that he should be given exceptional treatment and exempted from the general requirements of the law. However, when a determination is being made as to whether a person constitutes a danger to the public, there is a case which that person must meet.

The Federal Court of Appeal in the cases cited by the respondent was not asked to deal with the arguments that have been put before me in this case. Nor were the facts that have been brought to my attention discussed in those cases.

Analysis

It is trite law that what is required, in order to meet the requirements of procedural fairness, will vary with the circumstances and particularly with the consequences that follow from the decision under review for the individual concerned. In this case, as noted above, the consequences are substantial. The individual will be uprooted from family and returned to a country where he has not lived for over 20 years, and from which he came when only 9 years old. The Federal Court of Appeal, as I read Nguyen, has characterized the interest as a liberty interest. Even, if I am incorrect in my interpretation of that case, the decision-making process in question still falls to be interpreted pursuant to the provisions of the Canadian Bill of Rights, as well as being subject to the common law principles of natural justice.

The common law principles of fairness and natural justice have developed as a gloss on Parliament’s legislative authority. They provide standards by which discretionary decision making and the procedures used therefor must operate, in the absence of any statutory provision to the contrary. It was and is presumed that Parliament did not intend discretionary power to be exercised without regard to these principles. The Canadian Bill of Rights has reinforced that imperative by providing that statutes must be so interpreted. The Canadian Charter of Rights and Freedoms elevated the principles to constitutional status in certain circumstances.

Four aspects of the decision-making procedure that is being used are particularly relevant for present purposes. First, while decision-making authority is given by the statute to the Minister, it is not in fact the Minister that renders the decision. A number of departmental officials make the decision as delegates of the Minister. When there exists only a single decision maker, one may assume a consistency in decision making because of that fact. This assumption is more difficult to make when a number of different decision makers are involved, and where there is extensive discretion given to those decision makers.

Secondly, there is no indication that these individuals have any legal training yet the concept of “a danger to the public”, involves, at least in part, the application of a legal standard, which application results in an opinion that affects a person’s liberty. In the present case, I am unable to even ascertain who the final decision maker was. A scrawled signature appears on the decision over the title “delegate of the Minister”. Yet it is the decision of that person that is under review. I note that the applicant assumed in his application that it was the first level immigration officer (Ms. Stock) who had made the final decision. This does not appear to be the case.

Thirdly, the decision appears to be made on the basis of a recommendation in a document prepared by what I will call the first level immigration officer, a document which the applicant never sees. The recommendation is then approved by that officer’s manager. The decision, however, is made by a third official, the Minister’s delegate. There is no way of knowing whether the ultimate decision maker actually considers the applicant’s submission directly. There is no way of knowing whether the decision maker considers any of the material on the file other than the recommendation prepared by the first level official.

Fourthly, while there are Guidelines that have been prepared for the use of the decision makers, there is no way of knowing whether an appropriate test for deciding that a person is a danger to the public has been applied in a given case. There is much in the text of the Guidelines that have been prepared by the Department that focuses almost exclusively on the crime that has been committed. The profile that officials are to use as an initial screening factor contains little reference to the need to determine whether there is a likelihood that a person is, or will be in the future, a danger to the public. Officials are cautioned in the text of the Guidelines that it cannot be merely the commission of an offence that brings into play a “danger to the public”. Yet the factors that are then listed, as relevant to that determination, except for one, all focus on the offence or offences that have been committed, rather than on the question of whether the individual, at the time the determination is made, or in the future, will be a danger to the public. Five factors are listed for consideration: the nature of the offence that was committed (was it one that involved violence, weapons, drugs, sexual offences); the circumstances of the offence (its severity, what led to its commission); the sentence given (it will assist in determining severity); recidivism; humanitarian and compassionate considerations. The first three considerations focus entirely on the offence that has been committed. This focus is also illustrated elsewhere in the text of the Guidelines:

Normally, the officer’s recommendation should not be at odds with the court’s disposition of the offence (for example, where the court imposed a fine with little or no incarceration time). This aspect is important so that it does not appear that the courts and the department have completely different viewpoints as to whether or not the person is a danger to society. However, it should be kept in mind that the conviction registered against the individual and the resulting sentence do not always accurately reflect the circumstances surrounding the offence(s) (eg., plea bargaining).

A finding of danger to the public is forward looking. The instructions to consider recidivism relates to such an analysis and some humanitarian and compassionate considerations may indirectly, although these appear largely to be unrelated to a danger to the public finding. Thus, while the considerations correctly state that the mere commission of an offence is not definitive, they appear then to provide a framework whereby it is the gravity of the offence committed that is largely determinative. A subsection 70(5) finding requires that two components exist: a serious offence and that the person is a danger to the public. The existence of the first component is not sufficient to determine the latter.

In the text by De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed.) (London: Sweet & Maxwell, 1995), at pages 462-465, the extent to which the principles of natural justice require a decision maker to give reasons is discussed. A requirement to give reasons is said to exist when a statute expressly or impliedly so requires, where a right of appeal exists on a point of law only and, in limited situations, where reasons are important to assess whether an action for judicial review can be maintained. This last is said to exist when the issue for the individual is of such importance that he cannot be left to receive an unreasoned decision, as if “the distant oracle has spoken, and that is that”.[10]

In R. v. Civil Service Appeal Board, ex p Cunningham, [1991] 4 All E.R. 310 (C.A.), it was held that the Civil Service Appeal Board was under a duty to outline reasons for its decision sufficient to show to what it had directed its mind and to show that its decision was lawful. It was held that the form of the recommendation (i.e., the form in which the decision was rendered) was no less subject to the requirements of natural justice than any other part of the decision-making process. The requirement to give reasons followed from the nature of the tribunal in question and the importance of the decision for the applicant. Lord Donaldson M.R. stated, at page 319:

… the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.

The board’s objection to giving reasons, which curiously is fully supported by both the official and the staff sides, is that this would tend to militate against informality and would lead to an undesirable reliance upon a body of precedent. I find this totally unconvincing.

In Reg. v. Secretary of State for the Home Department, Ex parte Doody, [1994] 1 A.C. 531 (H.L.), a decision by the Minister pursuant to which prisoners sentenced to life for murder might be released, after a specified time, was under consideration. In rendering his decision, Lord Mustill wrote:

My Lords, I can moreover arrive at the same conclusion by a different and more familiar route, of which Ex parte Cunningham [1991] 4 All E.R. 310 provides a recent example. It is not, as I understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it is important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed.[11]

I have been unable to find much Canadian jurisprudence on this point but note that Mr. Justice Strayer in Jamieson v. Commr. of Corrections (1986), 51 C.R. (3d) 155 (F.C.T.D.) required that reasons be given to a prisoner explaining why he was being transferred to another prison institution, a higher security institution, as well as an opportunity to respond thereto. Guidelines in place indicated that such reasons should be provided within ten days of an objection to a transfer by a prisoner. Mr. Justice Strayer stated that while those guidelines, of themselves, had no force in law, they nevertheless constituted the standard of procedural fairness required by the Charter. This decision is not entirely on point because, although it can be read as a requirement to give reasons for a decision that has already been made, the transfer decision may be rescinded or not executed at all if the inmate’s response to the “reasons” is persuasive. Thus the decision is an application of the principle that the case one has to meet must be disclosed not an application of the principle that natural justice requires, in certain circumstances, that reasons be given for a decision, which has been made.

More relevant, perhaps, is the decision in Taabea v. Refugee Status Advisory Committee, [1980] 2 F.C. 316 (T.D.). In that case a duty to give the applicant the Minister’s reasons for finding the applicant not to be a Convention refugee was imposed. There was no statutory duty to disclose the reasons but the Court held that in the circumstances of that case, that the reasons might disclose evidence of which the applicant would not otherwise be aware, and these reasons would eventually, in fact, be disclosed before the Immigration Appeal Board, in the course of the Minister’s presentation of his arguments to that Board. Therefore, it was held that fairness required the disclosure of the reasons to the applicant at the early stage of the proceedings at which they were sought. The hearing before the Immigration Appeal Board was in the nature of a hearing de novo.

The absence of jurisprudence with respect to the requirement of written reasons in Canada may exist because, in most cases, where section 7 interests (or even lesser interests) are involved, there are statutory requirements that written reasons be given. The giving of reasons serves several purposes. First and perhaps most importantly, it gives some assurance to the individual concerned that his or her submissions have been considered (the absence of reasons can create a disturbing impression of injustice). Secondly, it provides a meaningful basis on which an assessment can be made as to whether or not to appeal the decision or to seek judicial review when that is the appropriate remedy. Thirdly, from the perspective of a reviewing court, indeed, in the case of judicial review, it is very difficult, often impossible, to know on what basis a decision was made if reasons are not given. Reasons are not as important when a full right of appeal exists. In such circumstances the reviewing court can consider all the evidence and determine whether in its view errors exist with respect to the conclusions drawn. In the case of judicial review, however, a reviewing court starts with a presumption that deference must be accorded to the decision maker.

A person is entitled to some assurance that all factors have been considered, and to a fair opportunity to exercise his or her right of judicial review with respect to decisions made inadequately. Reasons allow both the person concerned and a court, on judicial review, to know whether the appropriate legal test has been applied by the decision maker.

Under subsection 70(5) two conditions must be met: (1) the person committed a serious criminal offence of the type described; (2) the Minister (one of his delegates) has formed the opinion that the person is a danger to the public in Canada. The second condition is different from the first. In addition, the second condition is framed in the present and is forward looking. While individuals in the position of this applicant are given a copy of the materials upon which a danger decision will be based (usually documents relating to the criminal offence or offences they committed) it may not be immediately obvious why that material supports the conclusion that the individual is a present or future danger to the public. Where a person has been convicted of an offence and has served the sentence, the original conviction alone is not necessarily sufficient to support a presumption that the person is a danger to the public.

The circumstances of this case are such that the principles of fundamental justice, natural justice and fairness are not met unless the applicant is given reasons for the decision that has been made. This follows from a number of considerations. In the first place the consequences for the individual are substantial. Secondly, the decision-making process (through three levels of immigration officials) gives no assurance that the ultimate decision maker, in fact, considers the applicant’s submissions directly. Thirdly, reading the Guidelines that have been issued, and the evidence of the applicant’s offences that formed the basis for the decision, it not clear what reasoning lead to this applicant being found to be a present or future danger to the public. Fourthly, in the absence of even brief reasons, a reviewing court on judicial review cannot determine whether the decision makers (the delegates of the Minister) are applying consistent and lawful criteria in making decisions that an individual is a danger to the public in Canada.

I am not saying that in all cases where judicial review is the only type of “appeal" possible that reasons must be given. In most cases reasons are given. All that is being said, in this case, is that given the nature of the applicant’s interest and the nature of the multilevel procedure adopted and given the opaqueness to review that exists in the absence of reasons, fundamental justice, natural justice and fairness require that reasons be given.

For the reasons set out above, the decision under review will be quashed, and the matter returned for reconsideration in accordance with these reasons. Counsel, at the hearing asked that I not render an order on this application until an opportunity had been given to address submissions with respect to the certification of a question. Accordingly, no order will be issued until October 28, 1996. If submissions on certification are not made before the closing of the Registry on that date, I will assume that certification is not being requested.

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