[1997] 1 F.C. 457
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 29, 1996.
Constitutional law — Charter of Rights — Life, liberty and security — Questions certified: whether Immigration Act, s. 70(5), giving Minister discretion to issue opinion person danger to public, engaging interests affecting liberty, security of person pursuant to Charter, s. 7 — If yes, whether s. 70(5) inconsistent with fundamental justice, and of no force or effect as unconstitutionally vague and/or as not providing for rendering of reasons for determination — Whether Minister’s exercise of discretion, in context of procedure used, inconsistent with fundamental justice, Charter, s. 7, where no reasons provided.
Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Questions certified: whether Immigration Act, s. 70(5), giving Minister discretion to issue opinion person danger to public in Canada, engaging interests affecting liberty, security of person pursuant to Charter, s. 7 — If yes, whether s. 70(5) inconsistent with fundamental justice, and of no force or effect as unconstitutionally vague and/or as not providing for rendering of reasons — Whether Minister’s exercise of discretion, in context of procedure used, inconsistent with fundamental justice, Charter, s. 7, where no reasons provided.
Administrative law — Judicial review — Certiorari — Question certified: whether failure to provide reasons for determination under Immigration Act, s. 70(5) person constituting danger to public in context of procedure used breach natural justice, procedural fairness.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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. 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 70(5) (as enacted by S.C. 1995, c. 15, s. 13), 83 (as am. by S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 431 (T.D.).
APPLICATION to certify questions pursuant to Immigration Act, section 83. Application allowed.
COUNSEL:
Ronald P. Poulton and Victoria Russell for applicant.
I. John Loncar for respondent.
SOLICITORS:
Jackman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Reed J.: On October 18, 1996 [[1997] 1 F.C. 431, I issued reasons with respect to this application and indicated that the decision under review would be quashed and returned to the Minister for reconsideration. I delayed issuing a final order until counsel had an opportunity to make submissions with respect to the certification of a question, such certification being required, pursuant to section 83 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)], to allow an appeal to be filed.
Both counsel for the respondent and counsel for the applicant submitted texts that might be used for certification purposes. The respondent’s suggested text reads:
Do the principles of fundamental justice, natural justice and fairness require that an individual be given reasons for a decision by the Minister that s/he is a danger to the public in Canada as per s. 70(5) of the Immigration Act?
Counsel for the applicant proposed:
1. Does section 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 engage interests affecting liberty and/or security of the person pursuant to section 7 of the Charter of Rights and Freedoms.
2. If yes, is section 70(5) inconsistent with the requirements of fundamental justice and of no force or effect as it is unconstitutionally vague and/or does not provide for the rendering of reasons for a determination that a person constitutes a danger to the public in Canada.
3. Alternatively, is the exercise of discretion by the Minister of Citizenship and Immigration to issue an opinion that a person constitutes a danger to the public in Canada pursuant to section 70(5) inconsistent with the requirements of fundamental justice and section 7 of the Charter where no reasons are provided for the opinion.
4. Does the failure to provide reasons for a determination under section 70(5) that a person constitutes a danger to the public in Canada breach the requirements of natural justice and procedural fairness.
I find the text proposed by the respondent to lack clarity. It is in part taken from my reasons for order but without reference to the qualification that exists therein “in the circumstances of this case”. Concomitantly, a distinction does not appear to be drawn in the question between a finding that subsection 70(5) [as enacted by S.C. 1995, c. 15, s. 13] might be invalid because there is no statutory requirement that reasons be given and a finding that, even if this is not the case, the procedure that is in fact being used (and which could be modified without statutory amendment) may be contrary to one or more of the principles of fundamental justice, natural justice or fairness. The applicant’s text draws this distinction more clearly and is therefore to be preferred.
The respondent argues that the questions proposed by the applicant concerning unconstitutional vagueness should not be included in the certification because there is ample jurisprudence, which has settled this issue. The applicant’s inclusion of these questions is in the nature of a cross-appeal by the applicant. They are issues upon which the applicant was not successful in argument before me. If certification was not required, and there was an automatic right of appeal, a successful applicant could respond to an unsuccessful respondent’s appeal by challenging those aspects of the decision with respect to which the applicant had not been successful.
In any event, while there may be jurisprudence concerning constitutional vagueness, the applicant’s arguments, that vagueness exists because of the cumulative effect of a number of factors, or because there is no statutory provision requiring the giving of reasons, are not issues that I have seen addressed. The issues are serious ones of general importance, as are those concerning the validity of the procedure that has been adopted, assuming subsection 70(5) itself to be valid.
In certifying a number of questions, I know that this does not mean that the Court of Appeal must answer them. The Court of Appeal will choose, as it sees fit, what to answer. Certifying the four questions, submitted by the applicant, however, allows for all the issues of a serious nature and of general importance that were raised before me to be addressed. The following questions will therefore be certified:
1. Does subsection 70(5) of the Immigration Act, R.S.C., 1985, c. I-2 engage interests affecting liberty and/or security of the person pursuant to section 7 of the 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]]?
2. If yes, is subsection 70(5) inconsistent with the requirements of fundamental justice and of no force or effect as it is unconstitutionally vague and/or does not provide for the rendering of reasons for a determination that a person constitutes a danger to the public in Canada?
3. Is the exercise of discretion by the Minister of Citizenship and Immigration to issue an opinion that a person constitutes a danger to the public in Canada pursuant to subsection 70(5), in the context of the procedure being used for that determination, inconsistent with the requirements of fundamental justice and section 7 of the Charter where no reasons are provided for the opinion?
4. Does the failure to provide reasons for a determination under subsection 70(5) that a person constitutes a danger to the public in Canada, in the context of the procedure being used, breach the requirements of natural justice or procedural fairness?