IMM-2811-98
Veluppillai Pushpanathan (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Pushpanathanv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Sharlow J."Toronto, May 13; Ottawa, June 10, 1999.
Administrative law — Judicial review — Prohibition — Application for order prohibiting Minister from taking steps to issue —danger opinion— pursuant to Immigration Act, s. 46.01(1)(e) — Applicant's Convention refugee claim not yet dealt with — Acquired permanent resident status under —backlog— — Convicted of drug trafficking offence — Upon release from prison, conditional deportation order issued — Could not be executed until determined not Convention refugee — Minister questioned in House of Commons about applicant's case — Applicant alleging Minister's replies raising reasonable apprehension of bias, breach of principles of fundamental justice — Application dismissed — (1) No reason in principle to refuse to issue order of prohibition merely because decision within Minister's discretion — But order prohibiting Minister, delegate from issuing danger opinion may not be appropriate relief as not ensuring no one could exercise power — Decision could be made by someone specially appointed for this purpose — (2) Court having discretion to issue prohibition order even before commencement of proceedings — As no legal principle necessarily precluding in all cases possibility danger opinion could be issued without applicant being aware process started, appropriate case to consider prohibiting Minister, delegates from acting — (3) But no reasonable apprehension of bias reading Minister's comments in context — Minister maintained awareness of legal obligation to deal fairly with applicant in any consideration of danger opinion.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Application for order prohibiting Minister from taking steps to issue —danger opinion— pursuant to Immigration Act, s. 46.01(1)(e) — Applicant's Convention refugee claim as yet not dealt with — Acquired permanent resident status under —backlog— — Convicted of drug trafficking offence, sentenced to eight years' imprisonment — Upon release on parole, conditional deportation order issued — Could not be executed until determination not Convention refugee — In 1998 applicant's case raised during Question Period in House of Commons — Applicant alleging Minister's replies raising reasonable apprehension of bias, breach of principles of fundamental justice — Application dismissed — No reasonable apprehension of bias reading Minister's comments in context — Minister maintained awareness of legal obligation to deal fairly with applicant in any consideration of danger opinion.
Practice — Costs — Immigration matter — On eve of hearing, one year after commencement of judicial review application seeking prohibition, Crown submitting evidence —danger opinion— not under consideration — Federal Court Immigration Rules, 1993, R. 22 requiring —special reasons— before costs awarded in application for judicial review under Immigration Act — —Special reasons— where one party unnecessarily, unreasonably prolonged proceedings — Crown could, should have acted sooner to bring matters to where now stand — Crown raising new argument at hearing without notice to applicant, causing further delay while submissions completed — But application failed on merits — No special reasons justifying award of costs against Crown.
This was an application for an order prohibiting the Minister of Citizenship and Immigration from taking steps to issue a "danger opinion" against the applicant based solely on a 1988 drug trafficking conviction. The applicant came to Canada in 1985. His claim for refugee status was not dealt with, and in 1987 he was granted the status of a permanent resident under the backlog. In 1988 the applicant was convicted of a drug trafficking offence and sentenced to eight years' imprisonment. The applicant was released on parole in 1991, and in 1992 a conditional deportation order was issued against him. It could not be executed until there was a determination that he was not a Convention refugee. That question was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The applicant's refugee claim has yet to be heard on the merits. On June 5, 1998 four Members of Parliament asked questions about the applicant's case during Question Period in the House of Commons. The Minister's replies were the subject of a press report in the Toronto Star under the headline "Minister vows to deport refugee drug dealer". The Minister was quoted as saying "I will use all the powers that I have in this legislation". The "other avenues" and "tools" referred to in the Minister's replies included Immigration Act , paragraph 46.01(1)(e) which precludes determination of a refugee claim by a person who has been convicted of a criminal offence carrying a stipulated penalty if "the Minister is of the opinion that the person constitutes a danger to the public in Canada". The grounds for this application were that the Minister's statements gave rise to a reasonable apprehension of bias, and it would be a breach of the principles of fundamental justice for the danger opinion process to be commenced.
On the eve of trial, one year after the application had been commenced, the Crown submitted evidence that no danger opinion was under consideration. The applicant argued that if that information had been made available earlier, it might have been possible to reach a settlement.
The issues were: (1) whether the Crown can be prohibited from exercising a discretionary power; (2) whether the application was premature; (3) whether the statements in question gave rise to a reasonable apprehension of bias; and (4) whether costs should be awarded to the applicant.
Held, the application should dismissed.
(1) There is no reason in principle to refuse to issue an order of prohibition merely because the decision is within the discretion of the Minister or a delegate of the Minister. A person can be prohibited from exercising a discretionary power of that kind if the person's conduct gives rise to a reasonable apprehension of bias. Usually the disqualification of a decision maker for bias results in the decision being made by someone else who is not biased, or in respect of whom there is no reasonable apprehension of bias. A reasonable apprehension of bias is alleged to arise from the Minister's conduct. If a danger opinion were to be considered with respect to the applicant it could be dealt with by a delegate of the Minister. But nothing in the Act or regulations gives any assurance that a decision made by a person who is currently authorized to act as a delegate will be made independently of the Minister. For that reason it was not clear that an order directed only at the Minister would give the applicant appropriate relief, if there is reasonable apprehension of bias. An order prohibiting the Minister or any delegate of the Minister from issuing a danger opinion would not mean that no one could exercise that power. The decision could be made by a person specially appointed for this purpose who is demonstrably independent of the Minister.
(2) The Court has discretion to issue a prohibition order even before the commencement of proceedings. There is no legal principle that would necessarily preclude, in all cases, the possibility that a danger opinion could be issued without the applicant being aware that the process has started. The Minister herself could, without breaching the principles of fundamental justice, initiate a danger opinion procedure without involving the officials who, in a normal case, would act pursuant to the guidelines. The principles of fundamental justice may require no more than notice to the applicant at some point before the decision is made, and an opportunity to be heard. There was no evidence that any such possibility was being considered. It was likely in this case that if the danger opinion procedure were initiated, the applicant would have the normal amount of advance notice, but there can be no assurance of that. This was an appropriate case to consider prohibiting the Minister or her delegates from acting even though she may have no present intention of doing so. However, if there was a reasonable apprehension of bias on the Minister's part that would justify such an order, consideration would be given to giving leave to vary the order based on satisfactory evidence that the decision would be made by a delegate who can be shown to be independent of the Minister.
(3) As to a reasonable apprehension of bias, the context in which the comments were made was important. But whether the adversarial context of Question Period at the House of Commons favoured the applicant or the Crown was unclear. An adversarial context might encourage a certain amount of hyperbole that should be discounted. On the other hand, the adversarial context suggests some risk that partisan politics may colour what should be impartial decision making by the Minister. However, all of the other statements made on that occasion were qualified by reference to a stated intention to respect the rule of law and the provisions of the Immigration Act, and contain no hint of prejudgment or the fettering of discretion. The newspaper headline did not accurately reflect the Minister's comments. Reading all of the Minister's comments in context, there was no reasonable apprehension of bias. Throughout her replies, the Minister maintained an awareness of her legal obligation to deal fairly with the applicant in any consideration of a danger opinion.
(4) Federal Court Immigration Rules, 1993, Rule 22 requires "special reasons" before costs may be awarded in an application for judicial review under the Immigration Act . Special reasons may be found if one party has unnecessarily or unreasonably prolonged the proceedings. The Crown could and should have acted sooner to bring this matter to the point where it now stands. And the Crown raised an entirely new argument at the hearing without notice to the applicant, which required further delay while submissions were completed. The application, however, failed on the merits. There were no special reasons that would justify an award of costs against the Crown.
| statutes and regulations judicially considered |
| Federal Court Immigration Rules, 1993, SOR/93-22, R. 22. |
| Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 46.01(1)(e ) (as enacted idem, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 53(1)(d) (as am. idem, s. 12), 70(5) (as am. idem, s. 13), 121(1) (as am. idem, s. 22). |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(c). |
| cases judicially considered |
| considered: |
| Pushpanathan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 870 (T.D.) (QL); affd (sub nom. Pushpanathan v. Canada (Minister of Citizenship and Immigration)), [1996] 2 F.C. 49; (1995), 191 N.R. 247 (C.A.); revd [1998] 1 S.C.R. 982; [1998] 1 S.C.R. 1222; (1998), 160 D.L.R. (4th) 193; 43 Imm. L.R. (2d) 117; 226 N.R. 201. |
| distinguished: |
| Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363; (1988), 55 D.L.R. (4th) 321; 91 N.R. 121 (C.A.); leave to appeal to S.C.C. refused, [1989] 1 S.C.R. xi. |
| referred to: |
| 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.); leave to appeal to S.C.C. refused, [1993] 3 S.C.R. viii; 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; Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Ayala-Barriere v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 310; 31 Imm. L.R. (2d) 99 (F.C.T.D.); Minister of Employment and Immigration v. Ermeyev et al. (1994), 83 F.T.R. 158 (F.C.T.D.); Chan v. Minister of Employment and Immigration (1994), 82 F.T.R. 244 (F.C.T.D.). |
| authors cited |
| House of Commons Debates, Vol. 135, 1st Sess., 36th Parl., 1998, at pp. 7647, 7648, 7650, 7652, 7653. |
APPLICATION for an order prohibiting the Minister from taking steps to issue a "danger opinion" pursuant to Immigration Act , paragraph 46.01(1)(e) against applicant based on a reasonable apprehension of bias raised by the Minister's replies to questions about the applicant's case during Question Period in the House of Commons. Application dismissed.
| appearances: |
| Lorne Waldman for applicant. |
| Toby J. Hoffmann for respondent. |
| solicitors of record: |
| Jackman, Waldman & Associates, Toronto, for applicant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for order rendered in English by
Sharlow J.: The applicant seeks an order prohibiting the Minister of Citizenship and Immigration from taking steps to issue a "danger opinion" against him. His application is based on a reasonable apprehension of bias arising from certain comments the Minister made about him in the House of Commons.
The applicant came to Canada in 1985. He made a claim for refugee status at that time. That claim was not dealt with. Instead, in 1987 he was granted the status of a permanent resident under what was referred to as the "backlog".
In 1988, the applicant was convicted of a drug trafficking offence and sentenced to eight years imprisonment. That conviction made him vulnerable to the possibility that a danger opinion might be issued that could facilitate his deportation.
The applicant was released from prison in 1991, on parole. He has been at large since then. His sentence expired in August of 1996 and his parole ended at that time. He was never charged with any parole violation and was never taken back into custody. He has never been charged with any other criminal offence. The applicant married a Canadian citizen in 1992. He and his wife now have three children. The applicant has been employed since his release from prison and supports his family. His wife does not work outside the home. She and the children are dependent on the applicant for support.
A conditional deportation order was issued against the applicant in 1992. The conditional deportation order could not be executed until there was a determination that he was not a Convention refugee. That question was referred to the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board. As of the date of the hearing of this application, no danger opinion has been issued.
The CRDD did not consider the applicant's refugee claim on the merits, but instead held that the applicant was excluded from the definition of "Convention refugee" in the Immigration Act [R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)] on the basis that his drug offence met the description in section F(c) of Article 1 of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6]. That provision reads as follows:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
. . .
| (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
The applicant sought judicial review of that interpretation of the Convention. The decision of the CRDD was upheld by the Federal Court Trial Division in 1993 [[1993] F.C.J. No. 870 (QL)] and the Federal Court of Appeal in 1996 [[1996] 2 F.C. 49].
On June 4, 1998, the Supreme Court of Canada held that the CRDD and the courts below had interpreted the Convention incorrectly: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and [1998] 1 S.C.R. 1222 [amendment to paragraph 77]. According to that decision, the applicant should not have been excluded from making a refugee claim on the basis of section F(c) of Article 1 of the Convention.
The applicant's refugee claim has yet to be heard on the merits. According to an affidavit filed at the hearing of this application, the Crown anticipates that his claim will be dealt with by July 1999.
On June 5, 1998, the day after the decision of the Supreme Court of Canada, the applicant's case was raised in Question Period in the House of Commons. The questions disclose concerns about the political ramifications of the decision, as well as the efficacy of the Immigration Act in relation to the deportation of persons convicted of serious offences.
The Official Report (Hansard) of the House of Commons Debates [Vol. 135, 1st Sess., 36th Parl., 1998] indicates that four Members of Parliament asked questions about the applicant's case that day. The Minister of Citizenship and Immigration replied to three of them, and also replied to follow-up questions. The Minister's replies are quoted below:
(1) Reply to question by Mr. Reynolds [at page 7647]
Mr. Speaker, members must understand that we are talking about a Supreme Court ruling. I hope that the member opposite is not asking me to flout the law of Canada.
That said, the ruling is a very recent one. We are analyzing its impact, but there are other avenues available to us in the Immigration Act that would also allow us to take action, and that is what we are examining.
(2) Reply to follow-up question by Mr. Reynolds [at pages 7647-7648]
I hope the member is not recommending that we not follow the rule of law in this country. We will respect the rule of law in the legislation that we have.
We have other tools in the Immigration Act right now. I am thinking about the certificate for danger of the public. When we tabled that legislation some years ago the Reform Party voted against that. We will take our responsibility here.
(3) Reply to question by Mr. Obhrai [at page 7650]
The Supreme Court handed down its ruling yesterday, and we are looking at the impact.
That having been said, I cannot discuss the situation of the individual concerned in detail, but there are other avenues open to us under the legislation for intervening and ensuring that this kind of individual is never allowed to stay in Canada.
(4) Reply to follow-up question by Mr. Obhrai [at page 7650]
As an immigration matter there are very complex issues here. We have to think twice before making decisions when it affects the lives of individuals. It is clear that we will look at it very closely. We have other tools in the legislation for acting in that case.
(5) Reply to question by Mr. Benoît [at page 7652]
This is the fourth question on the same subject. We answered very clearly on that. We said that we have other tools in the legislation to deal with that case.
Yesterday we had a decision by the supreme court concerning an interpretation of the refugee convention of the United Nations. This is not a simple matter. We will look at it and will act on it if we have to do so. In the meantime we can act on that individual.
(6) Reply to follow-up question by Mr. Benoît [at page 7653]
Mr. Speaker, we have to look at the impact of the decision that we received yesterday. It only says that individual should have a hearing in front of the refugee board.
We have other tools in the legislation to prevent individuals from going to the refugee board. This was in Bill C-44 voted on in the Chamber, but the Reform Party voted against it.
These comments were the subject of a press report in the Toronto Star the following day, under the headline "Minister vows to deport refugee drug dealer". In that article the Minister also was quoted as saying in an interview that "I will use all the powers that I have in this legislation." There is no evidence that enables me to determine whether that quotation is accurate.
The "other avenues" and "other tools" in the Minister's replies were references to paragraph 46.01(1)(e ) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Immigration Act. That provision precludes a refugee claim by a person who has been convicted of a criminal offence carrying a stipulated penalty (the applicant's 1988 conviction meets that description) if "the Minister is of the opinion that the person constitutes a danger to the public in Canada".
The issuance of a danger opinion would preclude any appeal of the deportation order to the Appeal Division of the Immigration and Refugee Board (subsection 70(5) [as am. idem, s. 13] of the Immigration Act). It would also permit the deportation of the applicant even if he is finally found to be a Convention refugee and is to be removed to the country in which his refugee claim arose (paragraph 53(1)(d) [as am. idem, s. 12] of the Immigration Act).
The courts have recognized no constitutional limitations on the right of Canada to deport a person who is a permanent resident, even a Convention refugee, if the person has been convicted of a serious criminal offence and the Minister has issued a danger opinion: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.).
The issuance of a danger opinion is within the discretion of the Minister. The only legal constraints on the exercise of the discretion of the Minister are the principles of fundamental justice. The Federal Court of Appeal has determined that in the context of danger opinions, fundamental justice does not require an oral hearing: Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.); leave to appeal refused, [1993] 3 S.C.R. viii.
In practice, danger opinions are sometimes issued by the Minister personally, but usually they are issued by a delegate of the Minister appointed under subsection 121(1) [as am. idem, s. 22] of the Immigration Act. There are no provisions in the Immigration Act governing the terms of appointment of a Minister's delegate who is authorized to issue danger opinions. There is no statute or regulation that would assist in determining whether and to what extent a delegate acts or may act at the direction of the Minister.
The Immigration Act and regulations are silent as to the procedure to be followed in issuing a danger opinion. I understand that the procedure normally followed begins with a letter to the person in respect of whom the opinion is to be considered. The letter lists the documents and describes other information to be considered before the opinion is issued, and invites submissions by the applicant or counsel for the applicant. An official of the Department of Citizenship and Immigration prepares a summary report based on that material, including any submissions made by or on behalf of the applicant. That report is reviewed by another official, who makes a recommendation to the Minister or the Minister's delegate, who then decides whether or not to issue the danger opinion. Counsel for the Crown indicated that the Minister has issued guidelines requiring these steps, but those guidelines are not part of the record before me, and in any event they have no statutory sanction.
There is no right to appeal a danger opinion. As with most decisions made under the Immigration Act, there is a possibility of judicial review, but only if leave is granted by a judge of the Federal Court Trial Division. The result of a judicial review cannot be appealed unless the trial judge conducting the judicial review certifies that the case involves a serious question of general importance.
On June 8, 1998, the applicant filed an application for leave and for judicial review seeking an order enjoining the Minister from commencing the process that would lead to the certification of the applicant as a danger to the public pursuant to paragraph 46.01(1)(e) of the Immigration Act. The basis of the applicant's claim was that the statements of the Minister quoted above give rise to a reasonable apprehension of bias and it would be a breach of the principles of fundamental justice for the process to be commenced.
On August 14, 1998, the Crown filed a response to the application for leave, giving two reasons why leave should not be granted. The first was that the statements in question did not give rise to a reasonable apprehension of bias. The second was that there was no arguable issue of law upon which the proposed application for judicial review might succeed, because there was no decision upon which the application could be based.
Leave to proceed with the application for judical review was granted on March 9, 1999. The hearing was scheduled for May 13, 1999. Neither party filed a further memorandum of argument.
At the hearing, counsel for the applicant indicated that he was no longer seeking an order in the broad terms stated in the original application, only an order enjoining the issuance of a danger opinion based solely on the applicant's 1988 conviction. This would leave open the possibility of a danger opinion if new facts become known.
All points raised in the written material were argued at the hearing. Counsel for the Crown also raised a new argument to the effect that no order of prohibition could be made because the Minister cannot be prohibited from doing something that is within her statutory jurisdiction. He argued in the alternative that the order should not be made because the application is premature.
The Crown's alternative argument is supported by an affidavit of an official of the Department of Citizenship and Immigration dated April 14, 1999, who claims to be responsible for reviewing and recommending to the Minister or her delegate whether an individual should be determined a danger to the public pursuant to paragraph 46.01(1)(e) of the Immigration Act. The affidavit reads in part as follows:
I unequivocally state that the Minister of Citizenship and Immigration or her delegates will not be asked to make any determination regarding the applicant pursuant to section 46.01(1)(e) of the Immigration Act on the basis of existing convictions.
Counsel for the applicant requested further time to make submissions on the Crown's additional arguments, and I agreed. Written submissions have now been received from both parties.
Whether a prohibition order can be issued with respect to a discretionary power
I will deal first with the Crown's argument that the Minister cannot be prohibited from exercising a discretionary power. The power to issue a danger opinion is clearly discretionary. If the Crown's argument is correct, there is no sound legal basis for this application. However, in my view it is not correct, at least in so far as danger opinions are concerned.
The decision to issue a danger opinion is one that must be exercised in accordance with the principles of fundamental justice. As I read the authorities, a person can be prohibited from exercising a discretionary power of that kind if the conduct of the person gives rise to a reasonable apprehension of bias: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369.
Usually, the disqualification of a decision maker for bias results in the decision being made by someone else who is not biased, or in respect of whom there is no reasonable apprehension of bias. In this case, a reasonable apprehension of bias is alleged to arise from the conduct of the Minister. If a danger opinion were to be considered with respect to the applicant, it could be dealt with by a delegate of the Minister. But there is nothing in the record, or the Immigration Act or regulations, that gives any assurance that a decision made by a person who is currently authorized to act as a delegate will be made independently of the Minister. For that reason, it is not clear that an order directed only at the Minister would give the applicant appropriate relief, if there is a reasonable apprehension of bias.
It does not follow, however, that an order prohibiting the Minister or any delegate of the Minister from issuing a danger opinion based solely on the applicant's 1988 conviction would mean that no one could exercise that power. The decision could be made by a person specially appointed for this purpose who is demonstrably independent of the Minister. I have no doubt that such a person could be found.
From this I conclude that there is no reason in principle to refuse to issue an order of prohibition in this case merely because the decision in question is within the discretion of the Minister or a delegate of the Minister.
Whether the application is premature
Counsel for the Crown argues that as there is no evidence that the danger opinion procedure has been commenced, the application for a prohibition order is premature. Counsel for the applicant argues that the Court has the discretion to issue such an order, even before the commencement of proceedings (Committee for Justice and Liberty et al. v. National Energy Board et al., supra). I agree that such a discretion exists.
Counsel for the Crown argues that the order should not be issued because the evidence establishes that there is no present intention to initiate the normal danger opinion process. This argument is based in part on the affidavit referred to above, and in part on the premise that the guidelines for the danger opinion procedure would preclude any danger opinion from being issued unless the procedure is followed. I do not accept that premise.
Even if I assume that there are guidelines as represented by counsel for the Crown, those guidelines are not law and are not binding. It is an open question whether the requirements of fundamental justice could be met by a procedure that does not adhere to the guidelines. There is no legal principle that would necessarily preclude, in all cases, the possibility that a danger opinion could be issued without the applicant being aware that the process has started.
It must also be recognized as possible that the Minister herself could, without breaching the principles of fundamental justice, initiate a danger opinion procedure without involving the officials that in a normal case would act pursuant to the guidelines. The principles of fundamental justice may require no more than notice to the applicant at some point before the decision is made, and an opportunity to be heard.
There is no evidence that any such possibility is being considered. Bearing in mind the history of this case and the strongly worded affidavit indicating the lack of a present intention to proceed with a danger opinion, it is likely that if the danger opinion procedure were initiated, the applicant would have the normal amount of advance notice. However, there can be no assurance of that.
In my view this is an appropriate case to consider prohibiting the Minister or her delegates from acting even though she may have no present intention of doing so. However, if I find a reasonable apprehension of bias on the part of the Minister that would justify such an order, I would also consider giving leave to vary the order based on satisfactory evidence that the decision would be made by a delegate who can be shown to be independent of the Minister.
Reasonable apprehension of bias
The applicant alleges that there is a reasonable apprehension of bias with respect to any future consideration of a danger opinion in respect of his 1988 conviction.
There is no allegation of actual bias, only of a reasonable apprehension of bias. The question is whether the comments of the Minister would cause an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that it is more likely than not that the Minister or her delegates, consciously or unconsciously, would not decide fairly (Committee for Justice and Liberty et al. v. National Energy Board et al., supra).
Counsel for the Crown argues that the Minister's comments cannot be distinguished from the comments of a number of Ministers that were considered in Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363 (C.A.); leave to appeal refused, [1989] 1 S.C.R. xi. The comments are substantially similar. In Mohammad the Federal Court of Appeal concluded that no reasonable apprehension of bias arose from such remarks.
However, there is an important distinction between Mohammad and this case. In Mohammad the question was whether a reasonable person would conclude that an adjudicator would be unfairly influenced by the Ministers' comments, or would take them as a direction as to the decision to be made. By contrast, the question here is whether the Minister's comments can fairly be read as indicating that she has prejudged a decision that she herself may be called upon to make. The Minister's comments must be considered with that in mind.
Counsel for the Crown argued that I must consider the fact that all of these statements were made in what the Federal Court of Appeal in Mohammad called the "adversarial atmosphere" of Question Period. I agree that the context in which the statements were made is important. Whether that consideration favours the applicant or the Crown in this case is far from clear. An adversarial atmosphere might well encourage a certain amount of hyperbole that should be discounted. On the other hand, the adversarial context of Question Period suggests some risk that partisan politics may colour what should be impartial decision making by the Minister.
I turn now to an assessment of the comments themselves. In my view, the principal problem arises with the Minister's replies to the questions of Mr. Obhrai, where she refers to "other avenues" being open to ensure that "this kind of individual is never allowed to stay in Canada". Read literally and in isolation, this statement suggests prejudgment. It could be interpreted to mean that a person convicted of an offence, like the applicant, has no chance of being allowed to stay in Canada because the conviction would lead automatically to a danger opinion. It is arguable that the Minister would be unlawfully fettering her discretion if she were to issue danger opinions on that basis.
However, this statement must be read in the context of the other statements made at or about the same time. All of those other statements are qualified by reference to a stated intention to respect the rule of law and the provisions of the Immigration Act, and contain no hint of prejudgment or the fettering of discretion.
For example, in her replies to the questions of Mr. Reynolds, the Minister mentions "other tools" in the legislation, and says "we will take our responsibility." Similarly, in her replies to the questions of Mr. Benoit, she refers to "tools in the legislation to deal with that case". In both cases, her comments indicate that she intends any action to be governed by the applicable law, which must be understood to include the principles of fundamental justice.
It would be understandable if the headline in the Toronto Star article published the day after the Minister's comments, "Minister vows to deport refugee drug dealer," alarmed the applicant. However, that headline is not an accurate reflection of the Minister's comments. The headline is not relevant to the objective assessment of the Minister's comments required by an allegation of reasonable apprehension of bias.
Taking all of these considerations into account, and reading all of the Minister's comments in their context, I have concluded that there is no reasonable apprehension of bias in this case. The Minister's comments make it quite clear that throughout her replies she maintained an awareness of her legal obligation to deal fairly with the applicant in any consideration of a danger opinion.
On that basis, this application will be dismissed. This is not an appropriate case for a certified question.
Costs
Counsel for the applicant has argued that costs should be awarded to the applicant in any event. The application was commenced in June of 1998 and it was only on the eve of the hearing, almost one year later, that counsel for the Crown submitted evidence that no danger opinion was under consideration. Counsel for the applicant argues that if that information had been made available earlier, it might well have been possible to reach a settlement.
Rule 22 of the Federal Court Immigration Rules, 1993 [SOR/93-22] requires "special reasons" before any costs may be awarded in an application for judicial review of a decision under the Immigration Act . A review of the case law indicates that special reasons may be found if one party has unnecessarily or unreasonably prolonged the proceedings: Ayala-Barriere v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 310 (F.C.T.D.); Minister of Employment and Immigration v. Ermeyev et al. (1994), 83 F.T.R. 158 (F.C.T.D.); Chan v. Minister of Employment and Immigration (1994), 82 F.T.R. 244 (F.C.T.D.).
The circumstances of this case are unusual. The applicant successfully appealed to the Supreme Court of Canada to win the right to a refugee hearing, and for an entire year believed himself to be at risk of losing that right because of the possibility of a danger opinion. The Crown now says that no such opinion is under consideration. The Crown could and should have acted sooner to bring things to the point where they now stand.
I have also taken into account the fact that counsel for the Crown raised an entirely new argument at the hearing without notice to counsel for the applicant, which required further delay while written submissions were completed.
However, at the end of the day the application failed on the merits. In my view, there are no special reasons in this case that would justify an order for costs against the Crown.