Clarke v. Canada ( Minister of Citizenship and Immigration )
IMM-2962-95
Wetston J.
28/11/96
11 pp.
Application for judicial review of Minister's decision applicant constituting danger to public in Canada, pursuant to Act, s. 70(5)-Applicant, born in Jamaica, permanent resident in Canada for 17 years-Applicant compiled lengthy criminal record of fourteen convictions ranging from narcotics to assaults to obstruction of peace officers in exercise of duties-Substantial amount of time in jail-No conviction resulting in greater than 8 months incarceration-Applicant having ten children in Canada-In 1993, served with deportation order as result of 1993 conviction for trafficking in narcotics-Appealed to Immigration Appeal Board-Opinion rendered pursuant to Act, s. 70(5) applicant danger to public in Canada and applicant notified appeal barred by s. 70(5)-Applicant submitting Minister ignored or misinterpreted relevant evidence, erred in law in determining applicant danger to public, had flawed record which should render decision null and void, and violated principles of procedural fairness and natural justice in failing to give reasons-Appropriate test: Thompson v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1097 (T.D.) (QL)-Whether Minister required to issue reasons for decision rendered under Act, s. 70(5)-Application allowed-Common law principles of procedural fairness and natural justice apply to decisions made by administrative decision maker which may substantially affect rights, interests, property, privileges or liberties of individual concerned: Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643-Decisions pursuant to s. 70(5) substantially affect interests of permanent residents and therefore attract protection of procedural fairness and natural justice: Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.)-Extent of protection varying according to circumstances, protected interest, statutory framework for decision and nature of decision-Act, s. 70(5) granting Minister broad discretion, but Minister must objectively determine facts and apply appropriate legal principles-Danger opinion having profound impact on individual-According to case law, absent statutory requirement, failure to provide reasons for administrative decision not violating applicant's right to procedural fairness and natural justice-However, contents of procedural fairness and natural justice dependent upon circumstances of decision, consequences, statutory scheme and nature of decision-In case of s. 70(5) opinion herein, procedural fairness mandating reasons for Minister's opinion should be provided-Question certified: whether, in absence of statutory requirement to give reasons, failure of Minister to give reasons, in rendering s. 70(5) danger opinion, violating principles of procedural fairness and natural justice-Immigration Act, R.S.C., 1985, c. I-2, s. 70(5) (as am. by S.C. 1995, c. 15, s. 13).