IMM-740-96
Liberal Ferriera Da Costa (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Da Costav. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, MacKay J."Toronto, February 19; Ottawa, September 24, 1997.
Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Judicial review of decision applicant danger to public in Canada — Found not guilty of crime due to mental disorder, detained in psychiatric hospital by order of Ontario Criminal Code Review Board — While appeal from deportation order pending, letter advising Minister considering rendering opinion applicant —danger to public— sent to parents' address — Copy sent to solicitor representing him in deportation appeal — Latter responding, describing circumstances of detention — Application allowed — Applicant under disability — Federal Court Rules, R. 1700(1)(a) applied i.e. procedures of Ontario Court (General Division) should be adhered to — No evidence service of Minister's possible opinion made in accord with Ontario law — Provincial officials, responsible for applicant's interests, not notified of proceedings — Decision set aside — Questions certified: (1) Whether notice of Immigration Act, s. 70(5) proceedings in accord with provincial law required to be provided to those responsible for person held in provincial facility by decision of Criminal Code Review Board; (2) if so, whether absence of evidence of such notice ground for setting aside opinion person constituting danger to public in Canada.
Practice — Service — Judicial review of Immigration Act decision applicant —danger to public— — Applicant under disability due to mental illness — Detained by order of Ontario Criminal Code Review Board — Letter advising Minister considering rendering opinion applicant —danger to public— sent to parents' address — Copy sent to solicitor representing him in deportation appeal — Federal Court Rules, R. 1700(1)(a) providing proceeding against person under disability may be brought in manner under which would be brought in superior court of province where person under disability residing — Procedures of Ontario Court (General Division) applied — No evidence service of Minister's possible opinion made in accordance with Ontario law — Provincial officials responsible for applicant's interests not notified of proceedings — Decision set aside.
Constitutional law — Charter of Rights — Criminal process — Charter, s. 12 guaranteeing right not to be subjected to cruel, unusual treatment — Defect in service of notice of Immigration Act, s. 70(5) proceedings not cruel, unusual treatment.
This was an application for judicial review of the decision that the applicant constituted a "danger to the public in Canada". The applicant is a permanent resident who came to Canada from Portugal in 1969 at age four. He has chronic schizophrenia, as a result of which he suffers from hallucinations, delusions and paranoia. He also has a history of drug and alcohol abuse and a criminal record. As a result of his most recent criminal charge, upon which he was found not guilty by reason of mental disorder, he is being detained at a psychiatric hospital by order of the Ontario Criminal Code Review Board, pursuant to Criminal Code , paragraph 672.54(c). He had earlier been served with a deportation order, which was under appeal, when the respondent's Department advised by letter dated November 7, 1995 that the applicant was being considered for determination of the Minister's opinion that he was a "danger to the public in Canada" under Immigration Act , subsection 70(5). The letter was sent to the applicant at his parents' address where he no longer resided. A copy was sent to the solicitor who had filed the applicant's appeal from the deportation order. She responded that she was applicant's counsel "for the hearing of his appeal on the deportation order", and described the circumstances in which he was being held in a psychiatric facility.
The issue was whether the applicant had been properly served with notice of the consideration being given by the Minister to rendering a "danger opinion".
Held, the application should be allowed.
The solicitor's letter made it clear that further inquiry was needed to determine whether the applicant, in view of his mental incapacity, was capable of taking responsibility for his own affairs, or whether, some other person or body responsible for looking after his affairs ought to be notified regarding the Immigration Act proceedings.
Federal Court Rules, Rule 1700(1)(a) provides that any proceeding against a person under disability may be brought in the Federal Court in the manner in which such a proceeding would be brought in a superior court of the province where the person under disability is resident. In any proceeding before this Court, including this application for judicial review, Rule 1700(1)(a) applies and the applicant should be represented in accord with procedures of the Ontario Court (General Division). The provincial Crown is responsible for the care and welfare of persons under a disability under applicable provincial law. There was no evidence that service of the notice of the Minister's possible opinion was made in accord with the law of Ontario. The applicant's rights, including procedural rights under that law, which is intended to safeguard the civil rights of persons under a disability, may not be ignored in proceedings under subsection 70(5). Provincial officials responsible for the applicant's interests may not have had notice of proceedings that affected him or their responsibilities for him.
The respondent argued that the principle of fairness was the only applicable standard in review of the procedure followed in the exercise of discretion to render an administrative decision. It was argued that there was no lack of fairness because counsel for the applicant had notice, and had responded on his behalf with submissions that were before the Minister's delegate when the decision was made. But there was no evidence that counsel was authorized to act for the applicant in relation to anything but his appeal from the deportation order. Absent appropriate notice, the proceedings did not meet minimal standards of fairness and the Minister's opinion had to be set aside.
Charter, section 12 guarantees the right not to be subjected to cruel and unusual treatment. A defect in service of notice on the applicant did not result in cruel and unusual treatment.
The following questions were certified: (1) In Immigration Act, subsection 70(5) proceedings, is notice, in accord with provincial law, required to be provided to those responsible for the affairs and civil rights of the person concerned, when that person is held in a provincial facility by decision of the provincial Criminal Code Review Board? and (2) If so, is the absence of evidence of notice of subsection 70(5) proceedings to those responsible for his affairs a ground for setting aside an opinion that the person concerned constitutes a danger to the public in Canada?
statutes and regulations judicially considered
Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).
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. 7, 12.
Criminal Code, R.S.C., 1985, c. C-46, s. 672.54(c) (as enacted by S.C. 1991, c. 43, s. 4).
Federal Court Rules, C.R.C., c. 663, R. 1700(1)(a).
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), 83(1) (as am. by S.C. 1992, c. 49, s. 73).
Substitute Decisions Act, 1992, S.O. 1992, c. 30.
cases judicially considered
applied:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); R. v. Hume, Ex p. Morris, [1965] 3 C.C.C. 118 (B.C.S.C.); revd on other grounds [1965] 3 C.C.C. 349 (B.C.C.A.).
referred to:
Tsang v. Canada (Minister of Citizenship & Immigration) (1997), 37 Imm. L.R. (2d) 1; 211 N.R. 131 (F.C.A.); Casiano v. Canada (Minister of Citizenship & Immigration) (1996), 35 Imm. L.R. (2d) 25 (F.C.T.D.); 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; Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; (1992), 10 C.R.R. (2d) 348 (C.A.).
APPLICATION for judicial review of the decision that the applicant constituted a "danger to the public" based on improper service of the notice of the Immigration Act , subsection 70(5) proceedings on the applicant, who was involuntarily detained in a psychiatric hospital under order of the Ontario Criminal Code Review Board. Application allowed.
counsel:
Jeffrey A. House for applicant.
Jeremiah A. Eastman for respondent.
solicitors:
Jeffrey A. House, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This application for judicial review came on for hearing in Toronto on February 19, 1997. It seeks an order quashing the decision by a delegate of the respondent Minister, dated February 15, 1996 pursuant to subsection 70(5) [as enacted by S.C. 1995, c. 15, s. 13] of the Immigration Act, R.S.C., 1985, c. I-2 as amended (the Act), that the applicant constitutes "a danger to the public in Canada". The effect of that decision is to withdraw from the applicant a right to appeal to the Immigration Appeal Board concerning an earlier decision that he be deported from Canada.
At the time of hearing, the issues raised included some then expected to be considered by the Court of Appeal, as they later were in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.). Decision in this matter was reserved. Having considered the matters then raised and some references to statutory and other materials, concerning analogous situations, submitted following the hearing by counsel for the applicant at the Court's invitation, and in light of the decision of the Court of Appeal in Williams, an order now issues allowing the application. The decision is based on legal procedural grounds concerning appropriate notice to and provision for representation of the applicant in proceedings by or on behalf of the respondent Minister in this case.
The applicant, at times relevant for the Minister's decision under subsection 70(5) of the Immigration Act and since, has been held by order of the Ontario Criminal Code Review Board, by decision made February 21, 1995. He is detained involuntarily at the St. Thomas Psychiatric Hospital in St. Thomas, Ontario, pursuant to paragraph 672.54(c) [as enacted by S.C. 1991, c. 43, s. 4] of the Criminal Code, R.S.C., 1985, c. C-46 as amended. The order of that Board provides that he be detained at the hospital in a program of treatment pending his possible rehabilitation. Under the Criminal Code, while detained in the hospital the applicant is to be assessed at least annually to determine whether he continues to be a dangerous person from whom the public should be protected. So long as he is adjudged to be that he is to remain in detention.
It is useful to sketch the background of the applicant up to the time of the decision here impugned. He is a native and a citizen of Portugal who came to Canada with his family in 1969, when he was almost four years old. Since then he has continued to live in Canada as a permanent resident without having acquired citizenship.
The applicant has a criminal record, including a conviction for mischief to public property in 1985 and since then, robberies in 1991, 1992 and 1994. He has also had a long history of mental illness, and since 1984 he has been repeatedly hospitalized. He suffers from chronic schizophrenia, as a result of which he suffers from hallucinations, delusions and paranoia. In addition he has a history of alcohol and drug abuse. At times, even when in hospital, he has demonstrated bizarre, aggressive and abusive behaviour, and this is exacerbated by a recurring pattern of his refusal to continue with medication prescribed to alleviate his condition and to assist in controlling his impulses.
The applicant's family is supportive of him, but because of his recurring aggressive and erratic behaviour, his parents are said not to be prepared or able to take him back into their home if he should be released from the St. Thomas facility.
The applicant's most recent offence occurred on August 27, 1994 when, armed with a fork, he robbed or attempted to rob a convenience store. His prosecution for this led to a finding in January 1995 that he was not criminally responsible for the offence by reason of his mental disorder and he was ordered held, pending determination of the Ontario Criminal Code Review Board. As noted, that Board ordered in February 1995, that he be held at St. Thomas pursuant to paragraph 672.54(c) of the Criminal Code. In accord with that provision of the Code, that decision was made "taking into consideration the need to protect the public from dangerous persons".
Earlier, in November 1993, following an immigration inquiry the applicant had been served with a deportation order, when an adjudicator found him to be a person within paragraph 27(1)(d) of the Act, i.e. a person who, if he were then applying for admission to Canada would not be admissible because of his criminal convictions. That deportation order was appealed by counsel then representing him, to the Immigration Appeal Board. That appeal had not been heard when proceedings were initiated under subsection 70(5) of the Act.
By letter of November 7, 1995 the respondent's Department advised that the applicant was being considered for determination of the Minister's opinion that he is "a danger to the public in Canada" under subsection 70(5) of the Act. That provision, which came into force July 10, 1995, provides as follows:
70. . . .
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
This provision was made applicable, by a transition provision, to persons like the applicant who had filed an appeal that had not been heard before July 10, 1995 (see S.C. 1995, c. 15, s. 13(4); Tsang v. Canada (Minister of Citizenship & Immigration), (1997), 37 Imm. L.R. (2d) 1 (F.C.A.); and Casiano v. Canada (Minister of Citizenship & Immigration), (1996), 35 Imm. L.R. (2d) 25 (F.C.T.D.)).
Several issues were raised on behalf of the applicant in this application for judicial review, including some constitutional issues. With one exception, I consider the issues raised are now settled, a number of them by the decision of Mr. Justice Strayer speaking for the Court of Appeal in Williams, supra, a decision rendered after the hearing of this application. In Williams (at page 665) His Lordship commented upon the effect of subsection 70(5) of the Immigration Act as follows:
. . . I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister's humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay.
In my opinion the following issues raised in this case are now resolved.
(i) Subsection 70(5) of the Act and the manner of its application in this case, do not engage interests affecting liberty and security of the person under section 7 of the Charter [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]], even if it were the Minister's opinion under subsection 70(5) of the Immigration Act, which it is not, that causes the removal of a permanent resident from Canada. (See Williams, supra, at page 665.)
(ii) The process followed in this case in applying subsection 70(5) of the Act does not raise problems of fairness, in terms of section 7 of the Charter, or paragraph 2(e) of the Canadian Bill of Rights [R.S.C., 1985, Appendix III], or in administrative law terms, by the lack of an oral hearing (Williams, supra), by the limited time provided for comment in regard to documents assembled for a possible opinion of the Minister or her delegate under subsection 70(5), or by the lack of reasons for the opinion (see Williams, supra, page 672 ff. and page 678 ff.). Absent a statutory requirement there is no obligation for reasons to be given for a decision, even though giving reasons is generally to be commended.
(iii) Subsection 70(5) of the Act, and the manner of its application in this case, do not infringe upon the rights protected under section 12 of the Charter that is, not to be subjected to cruel or unusual punishment or treatment. (See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.).) Moreover, I am not persuaded that any defect in service of notice on the applicant can be said, as it was here urged, to result in cruel and unusual treatment, which because of the applicant's personal characteristics would warrant exempting him from the application of subsection 70(5). Appropriate service may be required. But subsection 70(5), if applied, does not result in cruel and unusual treatment contrary to section 12 of the Charter.
Further, I am not persuaded that the Minister's delegate in this case erred in interpretation and application of the words "danger to the public". I accept, as was urged for the applicant, that while generally similar concepts are used in subsection 70(5) of the Act (and some other sections), and also in the Criminal Code of Canada, section 672.54, where reference is made to "the need to protect the public from dangerous persons", the considerations concerning the application of those words in the Immigration Act may differ from those applicable in the context of the Criminal Code. In my view, the finding by the Ontario Board in relation to the applicant, that he is a danger to the public, is in no way binding on the Minister's delegate, just as a future decision by that Board that he is no longer a danger to the public, and may be released, would not bind the Minister under subsection 70(5) of the Act.
Yet, I am not persuaded, as was urged for the applicant, that the absence of evidence that he had ever physically hurt anyone, and the fact that he was held in an institution under the Criminal Code so that he was not at large among members of the public, must lead to a conclusion that the Minister's delegate erred in law in reaching the "danger opinion". That argument invites the Court to substitute its decision for that of the Minister's delegate. That, the Court may not do.
I am not persuaded that there was no evidence to support the Minister's opinion. In those circumstances the opinion cannot be said to be unreasonable. Even if I might have reached a different decision on the evidence that was before the Minister's delegate, had it been mine to make, it is not possible to say the decision was made without reference to the evidence before the decision maker.
There is, however, one argument on behalf of the applicant that leads me to conclude that in this case there was procedural error that violates legal principle, if not the law, and that warrants intervention to set aside the opinion and refer the matter back for reconsideration.
It is urged that the applicant was not properly served with notice of the consideration being given by the Minister that a "danger opinion" be rendered with reference to him. The facts from the record are as follows. The letter of November 7, 1995 advising of a possible opinion of the Minister, and setting out the documents to be relied upon, with an opportunity for the applicant to make representations within 15 days, was addressed to the applicant at his parents' address where he no longer resided. A copy was sent to the solicitor who had earlier filed the applicant's appeal to the Appeal Division in regard to the deportation order that had been issued against him in 1993.
No response to the letter of November 7 was made by the applicant himself. The solicitor, who had received a copy of that letter on November 9, 1995 did write on November 23, 1995, in response to that letter. In her response she advised she was counsel for the applicant "for the hearing of his appeal on his deportation order". She submitted letters in support of the applicant, including a letter from his family, including his parents, and she described the circumstances in which he was then held in a treatment facility until the Ontario Board should determine he will no longer be a danger to the public. Whether in or out of that facility the applicant was described as one who will require support and treatment which could not be expected to be available to him if he were deported to Portugal, where he has no close relatives or friends.
In my opinion, it must have been clear from the solicitor's letter that further inquiry was needed to ensure that the applicant, apparently held under the Criminal Code, because of his mental incapacity, was in a position to be responsible for his own affairs, or whether, apparently being under a disability, some other person or body, appointed to look after his affairs, needed to be advised about his interests under Immigration Act proceedings. I believe that his circumstances were clear, for in the "Criminal Backlog Review Ministerial Opinion Report, Danger to the Public", completed in January 1996, after submissions had been made by the applicant's then solicitor earlier acting in relation to his appeal, reference is made to the applicant being in detention at the St. Thomas Psychiatric Facility. Also included in that Report was a note of the January 1995 finding that he was not criminally responsible for the robbery earlier committed by reason of mental disorder. Further the report notes that his release is "Awaiting Review Board Disposition on s. 672.45 C.C.". Moreover, a letter in support of the applicant, submitted by his then solicitor, dealt with his circumstances of being detained and under care.
The applicant is a person under a disability by reason of his mental illness. He is detained by the order made by the Ontario Board under the Criminal Code. In any proceedings before this Court, including presumably this application for judicial review, paragraph 1700(1)(a) of the Federal Court Rules [C.R.C., c. 663] should apply and he should be represented in the manner and through procedures there provided, i.e., in accord with procedures of the Ontario Court (General Division). I concede that Rule 1700 does not specifically apply to the Minister and her officers in discharging their duties under the Act. However, by the general principles of parens patriae, care for the welfare and the interests of a person under a disability, like the applicant, is the responsibility of the provincial Crown, a responsibility that may be discharged through the provincial superior courts in regard to ordinary legal proceedings in the courts, but in any event a responsibility established under applicable provincial law.
In R. v. Hume, Ex p. Morris, [1965] 3 C.C.C. 118 (B.C.S.C.); reversed on other grounds, [1965] 3 C.C.C. 349 (B.C.C.A.) the British Columbia Supreme Court upheld that principle in relation to the application of the Criminal Code provisions then relating to an inquiry to declare a person to be a habitual criminal. In that case Mr. Justice Munroe said (at pages 119-120):
In British Columbia, personal service of a writ of summons or other civil process upon a patient confined in the Provincial Mental Hospital, who is deprived of his right to manage his own affairs, would not be deemed good service. Surely, then, service upon such person of the important notice required by the criminal law cannot be deemed good service. The law concerns itself with safeguarding the civil rights of such persons. It can be no less zealous to preserve and safeguard the rights of such persons in criminal proceedings.
In my view the principle is equally applicable in proceedings under the Immigration Act, particularly proceedings like those under subsection 70(5) which are initiated by or on behalf of the respondent Minister and which may affect adversely the applicant's procedural rights under the Act. There is no evidence in this case that service of the notice of the Minister's possible opinion was made in accord with the law of Ontario. In my opinion, the applicant's rights, including procedural rights under that law, which is intended to safeguard the civil rights of persons under a disability, may not be ignored in proceedings under subsection 70(5) of the Act. Without appropriate notice as required by Ontario law applicable in the case of administrative processes in regard to persons under a disability, provincial officials responsible for the applicant's interests may not have notice of proceedings that may affect him or their responsibilities for him.
It was urged on behalf of the respondent that the only applicable standard in review of the procedure followed in the exercise of discretion to render an administrative decision is the principle of fairness. In this case, it was argued, there could be no serious claim of a lack of fairness where counsel for the applicant had notice and had responded on his behalf with submissions that were before the Minister's delegate when the decision in question was made. That begs the question whether counsel representing the applicant in relation to his appeal filed earlier, concerning a deportation order, was authorized by law to represent him in dealing with other immigration proceedings initiated after the applicant, who was found not criminally responsible for an offence by reason of a mental disorder, was ordered held in a psychiatric facility until released by order of the provincial Review Board. There is no evidence the applicant's then solicitor was authorized to act for him in relation to anything but his appeal to the Appeal Board. The subsection 70(5) proceedings were different from those of the Board in relation to his appeal.
When this matter was heard I sought advice of counsel concerning requirements for service of notice upon a person under a disability in circumstances of administrative decisions analogous to that here in question. Despite efforts which I am sure were diligent, no legislative provisions or jurisprudence dealing directly with the issue was suggested. The Ontario Substitute Decisions Act, 1992, S.O. 1992, c. 30, in so far as it deals with the person and decisions affecting a person under a disability, may be of some relevance.
In my opinion, the record is clear that there is no evidence the applicant had notice of the subsection 70(5) proceedings in accord with applicable Ontario law. Absent appropriate notice the proceedings were faulty in the sense that they did not meet minimal standards of fairness. In those circumstances, in my view the opinion of the Minister cannot stand. An order will issue that it be set aside and the matter be referred to the Minister for reconsideration in accord with the law.
At the conclusion of the hearing of this application, I left open the possibility for counsel to submit any questions for certification pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Act for consideration by the Court of Appeal.
Before issuing an order allowing the application, I invite counsel to submit in writing any question or questions pursuant to subsection 83(1). If counsel can agree on any question(s) and submit those by October 6, 1997 that would be helpful. If they cannot agree and either of counsel submits a question by that date, it should be submitted to opposing counsel who may then comment in writing on or before October 10, 1997.
* * *
[Order dated October 20, 1997.]
UPON application for judicial review of and for an order setting aside the decision of the delegate of the respondent Minister dated February 1, 1996 and communicated to the applicant on February 20, 1996 wherein the Minister's delegate formed the opinion, pursuant to subsection 70(5) of the Immigration Act (the Act), that the applicant is a danger to the public in Canada;
UPON hearing counsel for the parties in Toronto on February 19, 1997 when decision was reserved, and upon consideration of submissions then made, and subsequently this Court having filed reasons for order which invited counsel to propose questions for certification pursuant to subsection 83(1) of the Act, and thereafter having considered written submissions by counsel of proposed questions;
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed.
2. The decision, dated February 1, 1996, whereby the Minister's delegate was of the opinion that the applicant is a danger to the public in Canada, is set aside and the matter is referred back to the Minister for reconsideration in accord with the law.
3. Pursuant to subsection 83(1) of the Act the following questions are certified for possible consideration by the Court of Appeal:
1. In proceedings pursuant to subsection 70(5) of the Immigration Act is notice, in accord with provincial law, required to be provided to those responsible for the affairs and civil rights of the person concerned when that person is held in a provincial facility by decision of the provincial Criminal Code Review Board?
2. If the answer to question 1 is "yes", is the absence of evidence of notice of subsection 70(5) proceedings to those responsible for his affairs a ground for setting aside an opinion that the person concerned constitutes a danger to the public in Canada?