Chedid v. Canada ( Minister of Citizenship and Immigration )
IMM-1359-96
Cullen J.
27/2/97
13 pp.
Judicial review of Minister's delegate's decision applicant constituting danger to public in Canada pursuant to Immigration Act, s. 70(5)-S. 70(5) prohibiting appeal by person against whom deportation order made where Minister of opinion person "constitutes" danger to public in Canada and person determined by adjudicator to be person described in s. 27(1)(d)-Applicant, landed immigrant, convicted of three counts of trafficking in narcotic, sentenced to one year imprisonment-Subject of s. 27(1) report-Documents before Minister in assessing whether danger to public: A27(1) Report, detailing applicant's degree of establishment in Canada with brief history of employment, family here; indictment indicating convictions, sentences; letter from probation/parole officer; Ottawa Police memorandum; RCMP Court folder; applicant's submissions, current country reports-Minister not having before her Parole Board's decision to grant applicant parole as soon as eligible therefor based on lack of previous criminal record, completion of bail without problems, commitment to leading law-abiding life, employment, supportive family-Application allowed-Minister erred in law, fact-While exercise of discretion under s. 70(5) largely subjective, Minister must objectively determine facts, apply appropriate legal principles-Reference in s. 70(5) to person who "constitutes" danger to public in Canada meaning present or future threat posed by person-Mere fact of conviction of criminal offence(s) not in itself supporting determination person is, may be, or is likely to pose danger to public: Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 (T.D.)-Continuing likelihood of danger to public determined from circumstances of each case-Minister basing determination on mere fact of applicant's convictions, without regard to other circumstances of case-While not impossible to found danger opinion on single serious conviction, Court cannot do so when no evidence person posing present or future danger-Previous criminal conviction alone not enough to tip scale in favour of danger determination-In absence of evidence of likelihood to commit further criminal offences, as may be established through pattern of violent or criminal behaviour or individual's criminal lifestyles or values, finding person likely to pose danger to public by reason of previous criminal conviction perverse: Archibald v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 259 (F.C.T.D.)-Neither evidence of likelihood to commit further criminal offences (in fact evidence to contrary) nor of established pattern of violent or criminal behaviour or lifestyle or values-Applicant already determined by criminal system not to be threat to society-In absence of nexus between applicant's criminal conviction and likelihood to commit further criminal offences and in face of considerable evidence applicant not posing danger to public, Minister basing decision on erroneous finding of fact, made without regard for material before her-Test to be met under s. 70(5) not of "seriousness" but of "danger"-Reports before Minister making case for seriousness, but not for danger-When so little evidence to support Minister's decision on record and substantial evidence leading to contrary conclusion, reasonable to conclude Minister's opinion formed "without regard for material before it"-Parole Board's decision crucial to question of whether applicant danger to public as providing evidence as to unlikelihood of recidivism-Normally Parole Board decision inadmissible in judicial review application because not part of record before Minister, but where important, relevant evidence, easily accessible to decision makers, and considering serious consequences of negative decision, evidence should have been enquired after-Essential such relevant, crucial information be before Minister, considered in s. 70(5) determinations-Parole Board decision ought to have been before Minister regardless of whether applicant making submissions or not-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d), 70(5) (as enacted by S.C. 1995, c. 15, s. 13)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5).