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CHAPTER 22. DANGER TO THE PUBLIC OPINIONS2.1 INTRODUCTIONAs noted in Chapter 1, certain persons who have been issued a removal order have a right to appeal to the Appeal Division on two grounds. There is an exception1 to this right of appeal, however, where the Minister has issued an opinion that the person is a "danger to the public". The relevant statutory provision for this "danger to the public" opinion is found in subsection 70(5) of the Immigration Act (the "Act") which subsection came into force on July 10, 1995 with Bill C-44. The text of subsection 70(5) reads 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 a 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
The Federal Court of Appeal in Williams 2 considered the general impact of a "danger to the public" opinion. The Court concluded that the removal of the right of appeal to the Appeal Division is remedied by the availability of judicial review (that is, the appellant is not without any remedies from the issuance of the removal order), the availability of the Minister's compassionate or humanitarian discretion under subsection 114(2) of the Act, and the availability of a judicial stay. Thus, the removal of appeal rights to the Appeal Division is not a loss of a fundamental right. 2.2 TESTA review of subsection 70(5) shows that there are two requirements which must be met before the jurisdiction of the Appeal Division to hear an appeal is removed. The first requirement is that the Minister must form an opinion that the person is a danger to the public. The second requirement is that the person must have been determined by an adjudicator to come within one of paragraphs 70(5)(a), (b) or (c). These provisions are for serious criminality either inside, or outside, Canada. In most cases, after giving the parties an opportunity to be heard, the Appeal Division is able to determine if it has jurisdiction to hear the appeal by a review of the deportation order and the Minister's opinion. If there is a Minister's opinion that the person is a danger to the public and the deportation order issued by the adjudicator is based on a determination that the person was one of the class of persons referred to in paragraphs 19(1)(c), (c.1), (c.2) or (d), 27(1)(a.1), or 27(1)(d), as required by paragraph 70(5)(a), (b) or (c), then the Appeal Division dismisses the appeal for lack of jurisdiction. However, there is an interesting issue with respect to the determination that the person is a person described in paragraph 27(1)(d) as required by paragraph 70(5)(c). Paragraph 27(1)(d) provides as follows: 27. (1) An immigration officer or a peace officer
shall forward a written report to the Deputy Minister setting out the
details of any information in the possession of the immigration officer
or peace officer indicating that a permanent resident is a person who The requirement under paragraph 70(5)(c) is that the person be 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 10 years or more may be imposed. It is important to note that the terms of imprisonment are different in paragraphs 70(5)(c) and 27(1)(d). In situations where an adjudicator finds that the person is a person described in paragraph 27(1)(d), the issue which must be addressed is whether the adjudicator must make the further finding that the person was convicted of an offence for which a term of imprisonment of 10 years or more may be imposed, or whether the Appeal Division can make that further finding. The Federal Court Trial Division has considered this issue in the Athwal 3 case. In Athwal, the adjudicator had found that the person was a person described, inter alia, in subparagraph 27(1)(d)(i),4 in that he had been convicted of an offence for which a term of imprisonment of more than six months had been imposed, and ordered his deportation. The adjudicator did not rule on whether the offence was one "for which a term of imprisonment of ten years or more may be imposed," as set out in paragraph 70(5)(c). Mr. Athwal had filed an appeal from the deportation order with the Appeal Division. The Minister subsequently filed an opinion, pursuant to subsection 70(5) of the Act, that the person constituted a danger to the public. The Appeal Division dismissed the appeal for lack of jurisdiction pursuant to paragraph 70(5)(c) of the Act, holding that the appellant "has been determined by an adjudicator to be a person described in paragraph 27(1)(d) of the Immigration Act who has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed " 5 The Federal Court Trial Division found that the Appeal Division had erred in dismissing the appeal for lack of jurisdiction. The Court held that the Appeal Division cannot look at the term of imprisonment for the purpose of paragraph 70(5)(c), since this is solely within the adjudicator's jurisdiction:6 The subsection stipulates very clearly that the determination must be made by an adjudicator. There are no provisions in the Act authorizing the Appeal Division to substitute its own decision for that of the arbitrator. (sic) The Appeal Division's decision to dismiss the appeal for lack of jurisdiction was quashed. There was a certified question in Athwal which the Minister appealed to the Federal Court of Appeal. The question was the following: "Under s. 70(5)(c) of the Immigration Act, must an adjudicator specifically find that a person described in paragraph 27(1)(d) is also a person 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, before s. 70(5)(c) will be effective to remove the Applicant's appeal to the Immigration Appeal Division, or can this finding be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with the appeal?" The Federal Court of Appeal answered the certified question as follows: "Under s. 70(5)(c), a finding that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed can be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with an appeal." Accordingly, the appeal was allowed.7 As a consequence of Athwal, it is clear that the Appeal Division continues to have jurisdiction to hear the appeal where the person is described in paragraph 27(1)(d). The Federal Court of Appeal concluded that because subsection 69.4(2) gives the Appeal Division sole jurisdiction to hear and determine all questions of law, including questions of jurisdiction, with respect to appeals made under section 70, the Appeal Division has jurisdiction to determine whether a person has been convicted of an offence for which a term of imprisonment of 10 years or more may be imposed. It is therefore apparent that the Appeal Division has jurisdiction to determine whether a right of appeal is lost under paragraph 70(5)(c) and in doing so, to determine whether the requirements of this subsection have been met. 2.3 TIMING OF THE OPINION2.3.1 Transitional ProvisionsIn Bill C-44, which enacted subsection 70(5), subsection 13(4) contained the transitional provision to deal with appeals of removal orders which had already been filed with the Appeal Division. Subsection 13(4) provided that Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5). In Tsang, 8 the Federal Court Trial Division and then the Federal Court of Appeal had occasion to consider a comparable transitional provision, subsection 15(3), for sponsorship appeals. In that case, the appeal had been filed prior to July 10, 1995, commenced after July 10, 1995 and after the matter was reserved, the Minister filed the opinion. The question for the Court was whether the filing of the opinion after the hearing had commenced resulted in the Appeal Division losing jurisdiction over the appeal. The Federal Court-Trial Division and then the Federal Court of Appeal indicated that the appeal right was extinguished after the opinion was filed, on the basis of the clear statutory wording of the transitional provision that there was no appeal to the Appeal Division if the hearing had not been commenced by July 10, 1995 when Bill C-44 came into effect. As a result, the Minister may - in transitional sponsorship appeals -issue a "danger to the public" opinion at any time before the Appeal Division decides the appeal. As the provisions of subsections 15(3) and 13(4) are comparable, the same rationale of the Federal Court applies to transitional removal order appeals. If the appeal was filed before July 10, 1995 but commenced after July 10, 1995, then the Minister can issue the opinion at any time until the Appeal Division decides the appeal.9 2.3.2 Non-Transitional CasesThe timing of the filing of opinions in non-transitional cases has not been resolved. In the usual case, the opinion is filed prior to the commencement of the appeal and the appeal is dismissed for lack of jurisdiction. If the Appeal Division commences the appeal before the opinion is filed, it is not clear from the statutory language whether the Minister's filing of the opinion - at any time until the decision is rendered - results in the extinguishing of the jurisdiction of the Appeal Division to consider the appeal. 2.4 ARGUMENTS MADE ON THE "DANGER TO THE PUBLIC" OPINIONS2.4.1 Constitutionally VagueThe argument has been made by appellants that the phrase "danger to the public" is constitutionally vague. In Williams, 10 the Federal Court of Appeal stated that the test for constitutional vagueness is whether a provision gives sufficient guidance for legal debate. On the basis of this test, the Court concluded that the wording "danger to the public" is not unconstitutionally vague in that it refers to the possibility that a person who has committed a serious crime in the past may seriously be considered to have the potential to re-offend. Even though this requires an assessment of future risk, this is not vague as there is no constitutional mandate that there be an exact predictability of future behaviour. In addition, the Court considered whether subsection 70(5) engaged interests affecting the life, liberty or security of the person under section 7 of the Charter of Rights and Freedoms (the "Charter"). The Court concluded that it did not. These conclusions by the Court in Williams have not been the object of any significant controversy. 2.4.2 Duty to Give ReasonsThe argument was also made in the Williams case that there was a duty on the Minister to give reasons for the issuance of the "danger to the public" opinion. The Federal Court-Trial Division found, in Williams, that such a duty existed on the basis of the rules of natural justice as found in the common law, and on the basis of the rules of fundamental justice pursuant to section 7 of the Charter. The Federal Court of Appeal, in Williams, overturned the Federal Court-Trial Division on both of these points and found that there was no duty on the Minister to give reasons. The Supreme Court decisions of Baker 11 reopened the question. The decision involved a refusal of an inland application for landing based on humanitarian and compassionate grounds pursuant to subsection 114(2).The Supreme Court held that where the decision had important significance for the individual, some form of reasons was required12. Although the duty of fairness required in that context had clearly been expanded, there was a marked divergence of opinion at the Trial Division whether Baker should be interpreted as having overruled Williams. Mr. Justice Dubé, in Ip 13, relying on the reasoning in Baker, specifically addressed the question of whether written reasons were required for a danger opinion: I agree with the applicant that written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act. This is clearly a case where a decision has enormous significance for the individual and is extremely critical to his future. In Atwell, Mr. Justce Teitelbaum expressed his view that nothing in Baker indicated that Williams should be disregarded stating, "Danger opinions are not analogous to H&C decisions; the two have totally different significance and contexts."14 He held that reasons were not required for a subsection 70(5) danger opinion. 2.4.3 Right to an Oral HearingSince the coming into force of subsection 70(5), it has been argued that an appellant has a right to an oral hearing before the issuance of the "danger to the public" opinion. The Federal Court-Trial Division has held15 that there is no requirement for an oral hearing as long as the person affected by the opinion has been given adequate notice of the case that has to be met and afforded the opportunity to respond before the decision is rendered. In Bhagwandass 16, Mr. Justice Gibson considered the effect of the Baker decision on Williams and concluded that the principles arising from Baker regarding the "characterization of the impact of a decision (or opinion) on the individual(s) concerned, the content of the duty of fairness in light of that impact and the applicable standard of review supersede[d] those stated in Williams such that they now govern." The failure to disclose the "Request for Minister's Opinion" and the "Ministerial Opinion Report" before a decision was made, to give Mr. Bhagwandass an opportunity to respond to them, and to include any response he made in the materials forwarded to the Minister's delegate was found to constitute a breach of the duty of fairness. The Federal Court of Appeal17 affirmed the Trial Division decision. Since the Court of Appeal decision, it has been accepted that failure to provide reasons18 and failure to provide the two reports as well as an opportunity to respond to them19 are breaches of procedural fairness. 2.4.4 OtherThe Federal Court of Appeal in Williams indicated that subsection 70(5) confers on the Minister a discretion based on subjective terms, that is, whether the Minister is "of the opinion" that the appellant is a danger to the public. Therefore, the Court concluded that the scope of judicial review of the Minister's opinion is limited to the grounds of bad faith, error of law or acting on the basis of irrelevant considerations. In Nguyen, 20 the Federal Court-Trial Division found that the Minister's delegate had taken into account extrinsic evidence which had not been provided to the appellant and had taken into consideration irrelevant factors. Because of these two factors, the Minister's opinion was quashed and the judicial review application allowed. On a stay of removal application, the Federal Court-Trial Division in Thompson 21 considered the meaning of the phrase "danger to the public". The Court considered the legislative scheme in which subsection 70(5) was found and determined that in order for the Minister to form an opinion under subsection 70(5) the Minister must have some evidence that the appellant is a "present or future danger to other persons in Canada". The fact of the conviction alone is an insufficient basis for the issuance of the opinion. Another important issue which arises in subsection 70(5) cases is the jurisdiction of the Appeal Division to hear arguments against the validity of a "danger to the public" opinion. The Appeal Division has considered its jurisdiction in the case of Reynolds 22 and in that case determined that the Appeal Division has jurisdiction to consider constitutional arguments as to the substantive validity of subsection 70(5), but does not have jurisdiction to consider constitutional challenges with respect to the process of issuing a "danger to the public" opinion. Such challenges must be brought to the Federal Court-Trial Division rather than the Appeal Division. On judicial review of this decision of the Appeal Division, the Federal Court-Trial Division held23 that the tribunal had exclusive jurisdiction to consider questions of law and to determine its own jurisdiction pursuant to subsection 69.4(2) of the Act in relation to a removal order, but that its general power did not extend to finding that a statutory provision [subsection 70(5)] which contained an express limitation on its jurisdiction was unconstitutional. That would be to ignore an express limitation that Parliament has placed on its jurisdiction. 2.5 "DANGER TO THE PUBLIC" AND STAYS OF REMOVALThere is also provision for the situation where the Appeal Division has already considered a removal order appeal and has put the appellant on a stay (see Chapter 10 for Remedies and Terms and Conditions of a Stay). Subsection 70(6) of the Immigration Act provides that a stay of execution is of no effect, and the Appeal Division cannot review the stay, where three criteria have been met. First, the Minister is of the opinion that the appellant has breached the terms and conditions of the Appeal Division's stay. Second, the Minister is of the opinion that the appellant is a danger to the public. Third, the appellant was determined by an adjudicator to be a member of an inadmissible class described in paragraphs 19(1)(c), (c.1), (c.2) or (d), a person described in paragraph 27(1)(a.1), or 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 10 years or more may be imposed.
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