McAlpin v. Canada (Public Safety and Emergency Preparedness)

McAlpin v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2018-04-19
Neutral citation
2018 FC 422
File numbers
IMM-1542-17
Notes
A correction was made on January 28, 2019.
Reported Decision
Decision Content
Date: 20180419
Docket: IMM-1542-17
Citation: 2018 FC 422
Ottawa, Ontario, April 19, 2018
PRESENT: THE CHIEF JUSTICE
BETWEEN:
THOMAS WILLIAM MCALPIN
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] Mr. McAlpin is inadmissible to Canada on grounds of serious criminality. In recommending that he be referred to an admissibility hearing, an officer employed with the Canada Border Services Agency [CBSA] placed significant weight on several findings. These included the following:
the offences for which Mr. McAlpin was convicted have a very significant impact on society;
the presence of several loaded firearms on his premises is indicative of the potential for harm to other persons in society;
his most recent convictions were for offences that were committed while he was on bail, and involved very large amounts of drugs; and
his potential for rehabilitation is low.
[2] In my view, it was not unreasonable for the officer to have reached and then placed significant weight on the foregoing findings. This is so despite the fact that the officer did not refer to information from certain sources which described Mr. McAlpin’s potential for rehabilitation in more positive terms.
[3] Having made the foregoing findings, it was also not unreasonable for the officer to have made no mention, in the recommendation section of his assessment, of the various humanitarian and compassionate [H&C] considerations that Mr. McAlpin had drawn to the officer’s attention. It is settled law that the officer was under no obligation to take those considerations into account in exercising his discretion to refer Mr. McAlpin for an admissibility hearing, particularly given that he is inadmissible to Canada on grounds of serious criminality.
[4] However, in the course of his assessment, the officer also relied on several withdrawn charges in reaching the conclusion that Mr. McAlpin “has a significant criminal history that spans the past thirty five years with few gaps.” The officer then appeared to place significant weight on that finding in recommending that Mr. McAlpin be referred for an admissibility hearing. That was unreasonable.
[5] In turn, it was unreasonable for a delegate of the Respondent Minister [the Delegate] to concur with the officer’s assessment and recommendation, and to state that it was “well founded in fact and law.”
[6] In the context of the exercise of the Minister’s discretion to refer someone who is inadmissible to Canada to an admissibility hearing, it may be reasonably open to the Minister or his delegate to place significant weight on the number of interactions that an inadmissible person has had with the law. Given the priority Parliament has placed on public safety and security (Medovarski v Canada (Citizenship and Immigration), 2005 SCC 51, at para 10 [Medovarski]; Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319, at para 23 [Sharma]), this may be entirely appropriate. Whether it is so in a particular case will depend on the circumstances, including the nature and frequency of those interactions, any crimes for which the person in question has been convicted, the extent to which the individual may have displayed wanton disregard of, or impunity in relation to, Canada’s laws, and the nature of any H&C considerations that he or she may have raised.
[7] However, interactions with the law that do not result in convictions cannot be relied upon to support a finding of criminal history. It was therefore unreasonable for the Minister’s delegate to have placed significant weight on Mr. McAlpin’s past interactions with the law, in making that finding and then partially relying on it to recommend Mr. McAlpin for an admissibility hearing.
[8] Accordingly, the decision of the Delegate to recommend Mr. McAlpin for an admissibility hearing will be set aside and remitted to the Minister for redetermination.
II. Background
[9] Mr. McAlpin is a citizen of the United Kingdom. He has been a permanent resident in Canada since shortly after his arrival in this country from Northern Ireland with his parents over 60 years ago. At that time, he was six years of age. He has not returned to the United Kingdom since then.
[10] He asserts that he has no connection to any country other than Canada, where his six siblings and their many children live and where his extended social network is located.
[11] He is not married and does not have any children or dependents.
[12] It is common ground between the parties that Mr. McAlpin has various health issues. According to the evidence in the certified tribunal record [CTR], in 1985 he was involved in an incident with a violent patient at the psychiatric hospital where he worked. As a result of that incident, he was left with severe neck and back injuries, as well as mental trauma. He maintains that these conditions continue to impact him today and have prevented him from working since they occurred. In the intervening period, he has remained involved with psychiatric treatment and continues to suffer from Post-Traumatic Stress Disorder, anxiety, and depression. In addition, his medical history includes brain tumours, “heart issues,” and breathing problems.
[13] Mr. McAlpin further asserts that if he is deported to the United Kingdom, he will not be eligible for any health coverage for at least six months.
[14] In 2010, Mr. McAlpin was arrested and charged with twenty offences. In April 2014, while on bail awaiting his trial, he was charged with four new offences.
[15] In January 2016, he pleaded guilty to two offences pertaining to the 2010 charges – production of a substance and possession of a loaded firearm. In April of that same year, he pleaded guilty to two additional offences, in relation to the 2014 charges – production of a substance and possession for the purposes of trafficking. He was given concurrent sentences of two years, six months, six months and three months in connection with the four offences, respectively.
[16] In the sentencing decision, it was noted that Mr. McAlpin was apparently selling marijuana on a large scale, and that this is “a significant problem in our community and particularly affects the youth.”
[17] Mr. McAlpin’s criminal record also includes five other offences for which he was convicted, namely Failing to Remain at the Scene of an Accident (1975), Assault (1983), Driving While Ability Impaired (1987), Mischief under $5000 (1996) and Failure to Stop at the Scene of an Accident (1997).
III. The decision under review
[18] The decision under review is the decision of the Delegate, dated August 25, 2016, to refer Mr. McAlpin for an admissibility hearing [the Decision].
[19] In the Decision, the Delegate made a few brief observations regarding Mr. McAlpin’s immigration history, his lack of dependents in Canada, the fact that his siblings all live in this country, the fact that he completed a Bachelor’s degree, and the fact that he has not worked since 1985. The Delegate then noted his recent convictions and the corresponding sentence that he received. After stating “see the notes of the officer on file,” he observed that the officer’s report was “well founded in fact and law.” Having made that determination, he proceeded to express agreement with the officer’s recommendation to refer Mr. McAlpin to an admissibility hearing.
[20] It is common ground between the parties that the officer’s assessment forms part of the Decision that is subject to review in this proceeding. In that assessment, dated August 17, 2016, the officer briefly summarized Mr. McAlpin’s family situation in Canada, described the circumstances of his four most recent convictions, briefly noted the H&C considerations that Mr. McAlpin had identified, assessed his potential for rehabilitation, referred to the fact that he had “many separate withdrawn charges” since 1975, and then provided the rationale for the recommendation that he be referred to an admissibility hearing. In the course of providing that rationale, he observed that Mr. McAlpin “has a significant criminal history that spans the past thirty five years with few gaps.”
IV. Relevant Legislation
[21] Mr. McAlpin is inadmissible to Canada pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. That provision states:
Serious criminality
Grande criminalité
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
[22] The report that was made by the officer and relied upon by the Delegate was prepared pursuant to subs. 44(1) of the IRPA, which provides as follows:
Loss of Status and Removal
Perte de statut et renvoi
Report on Inadmissibility
Constat de l’interdiction de territoire
Preparation of report
Rapport d’interdiction de territoire
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
44 (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
[23] The decision by the Delegate that is the subject of this judicial review was made pursuant to subs. 44(2) of the IRPA. That provision states:
Referral or removal order
44 (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
Suivi
44 (2) S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la Section de l’immigration pour enquête, sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances visées par les règlements, d’un étranger; il peut alors prendre une mesure de renvoi.
[24] The objectives set forth in the IRPA with respect to immigration include the following:
Objectives — immigration
Objet en matière d’immigration
3 (1) The objectives of this Act with respect to immigration are
3 (1) En matière d’immigration, la présente loi a pour objet :
[…]
[…]
(h) to protect public health and safety and to maintain the security of Canadian society;
h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne;
(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks;
i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité;
[…]
[…]
V. Preliminary Issues
[25] The Minister submits that this Application is moot. In the alternative, the Minister asserts that the doctrine of res judicata applies. In the further alternative, the Minister states that this Application amounts to an impermissible collateral attack on a subsequent decision of the Delegate, in respect of which a separate Application for Leave and for Judicial Review was denied by this Court.
[26] For the reasons set forth below, I do not accept these positions.
A. Mootness
[27] The Minister submits that this Application is moot because the Decision was superseded by a subsequent referral decision of the Delegate, dated April 3, 2017 [the Reconsideration Decision]. The latter decision was made after Mr. McAlpin made additional submissions in support of a request for reconsideration of the Decision.
[28] The Minister maintains that, in making the Reconsideration Decision, the Delegate relied on the exact same reasons that were set forth in the initial Decision, but provided additional reasons and came to a new decision to refer the case to an admissibility hearing. Given that Mr. McAlpin’s Application for Leave and for Judicial Review in respect of the Reconsideration Decision was denied by this Court, the Respondent submits that an independent basis for a referral of Mr. McAlpin to an admissibility hearing now exists, regardless of what I may decide in this Application.
[29] The general test for mootness was stated in Borowski v Canada (Attorney General), [1989] 1 SCR 342, at 353, as follows:
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[30] With respect to the latter circumstances, three principal factors to be considered were identified. Those are: (i) whether an adversarial relationship continues to exist between the parties, (ii) the need to promote judicial economy, and (iii) whether proceeding to determine the merits of the matter might be viewed as intruding into the role of the legislative branch: Borowski, above, at 358-362.
[31] I agree with the Minister that the Delegate’s Reconsideration Decision appears to have been intended to entirely supersede his initial Decision. I reach that conclusion based on the fact that the same officer who made the initial recommendation to refer Mr. McAlpin to an admissibility hearing simply added to his initial assessment, and then forwarded to the Delegate, his expanded assessment that included the entire initial assessment. The Delegate then wrote in section 11 of the assessment form, under the heading “Decision of the Minister’s Delegate,” the words “I concur with the Officer’s recommendation.”
[32] My conclusion on this point is reinforced by the fact that the letter the Delegate then sent to Mr. McAlpin stated, among other things, that “the circumstances” had been “reconsidered,” and it had been decided to refer Mr. McAlpin to an admissibility hearing “at this time.” These words suggest that a new decision, which superseded the initial Decision, had been made.
[33] Nevertheless, there is no evidence to demonstrate that the Delegate actually made a new referral to the Immigration Division, pursuant to subs. 44(2) of the IRPA. The only referral in the CTR is that which was made following the initial Decision. That referral is dated August 25, 2016, which is before the Reconsideration Decision was made. This apparent oversight is relevant because the Respondent asserts that the setting aside of the initial Decision would lead to an absurd result. The Respondent asserts that this is so because the Reconsideration Decision would still stand as a basis for an admissibility hearing.
[34] Had a second formal referral been made, I would have agreed that this Application would be moot, because “the Reconsideration Decision which left the Original Decision intake would remain in effect”: Fairhurst v Unifor Local 114, 2017 FCA 152, at para 16; Moazeni v Canada (Citizenship and Immigration), 2008 FC 360, at para 10. However, if, as I must assume, only one formal referral to the Immigration Division was made, then this Application is not moot. This is because granting Mr. McAlpin’s request to set aside that single formal referral would appear to deprive the Immigration Division of the only jurisdiction it currently seems to have to conduct the admissibility hearing: Immigration Division Rules, SOR/2002-229, subs. 3(d). For Mr. McAlpin, a decision by this Court to grant that relief would therefore have a very real effect: Borowski, above, at 353.
[35] In any event, even if a second formal referral does exist or could be assumed to be a “mere formality” that would quickly be made in the event that I were to set aside the initial referral Decision dated August 25, 2016, I consider that it would be appropriate to exercise my discretion to hear this Application on its merits. This is because there is an ongoing adversarial relationship between the parties that would be nurtured by the collateral consequences of the outcome of this Application: Borowski, above, at 353.
[36] Moreover, the particular facts of this case are such that it would be in the interest of justice for this Application to be heard on its merits: Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, at para 17. In this regard, it appears to be common ground between the parties that there were potentially significant documents before the Delegate that were not included in the CTR that was before this Court when Mr. McAlpin’s Application for Leave and for Judicial Review of the Reconsideration Decision was denied. Mr. McAlpin maintains that because he was incarcerated at the time he was given the opportunity to make submissions to the CBSA, he was unaware of exactly what had been sent to the CBSA on his behalf, and what the CBSA had obtained independently, including his presentencing report and local police reports.
[37] In these circumstances, I agree with Mr. McAlpin that a decision by this Court not to hear the current Application on the ground of mootness would deprive him of the only practical opportunity that he has had to argue the merits of his case on the basis of the entire record that was before the Delegate.
[38] I will simply add in passing that by hearing this Application on its merits, the Court would neither depart from its traditional role as an adjudicator nor intrude upon the legislative or executive sphere: Borowski, above at 362.
B. Res judicata
[39] In the alternative, the Respondent maintains that the doctrine of res judicata applies to this proceeding and precludes the re-litigation of the same cause of action that was effectively adjudicated by this Court when Mr. McAlpin’s Application for Leave to apply for Judicial Review of the Reconsideration Decision was denied. I disagree.
[40] The Respondent submits that Mr. McAlpin raised the exact same issues in the Applications that he filed before this Court in respect of both the initial Decision and the Reconsideration Decision.
[41] I accept that the issues that have been raised in this Application were all raised in the Application that he made to this Court in respect of the Reconsideration Decision. However, that is not necessarily dispositive of the matter.
[42] The doctrine of res judicata was succinctly summarized as follows by Justice Fothergill in Singh v Canada (Citizenship and Immigration), 2015 FC 1055, at paras 22-24:
[22] Res judicata precludes the re-litigation of both the same cause of action (cause of action estoppel) and the same issues or material facts (issue estoppel) ... [citation omitted]
[23] Issue estoppel involves the application of a two-part test. The decision-maker must first determine whether the three preconditions of issue estoppel are met, as described in Angle v Canada (Minister of National Revenue - M.N.R.), [1975] 2 SCR 248 at para 3:
a. the same question has been decided;
b. the decision said to create the estoppel was final; and
c. the parties to the previous decision or their privies are the same as the parties to the proceeding in which the estoppel is raised.
[24] Second, the decision-maker must consider whether the application of issue estoppel or res judicata would lead to an injustice … [citations omitted.]
[43] In my view, the three preconditions to the application of the doctrine of res judicata in this case are satisfied: the Delegate essentially decided the same question, the Delegate’s decision became final when this Court denied Mr. McAlpin’s Application for Leave in respect of the Reconsideration Decision, and the parties to this proceeding are the same as the parties to the prior proceeding.
[44] However, for the reason discussed at paragraphs 36-37 of these reasons, I consider that the application of the doctrine of res judicata in this particular case would lead to an injustice. On the particular facts of this case, I also consider that it would not be appropriate to apply that doctrine in circumstances where this Court did not provide any reasons in finally disposing of the parties’ dispute in relation to the Reconsideration Decision. In the absence of such reasons, the basis for this Court’s decision to deny Leave in respect of that decision is not entirely clear. In this context, it behooves the Court to be very cautious in consideration whether to apply the doctrine of res judicata: Burton v Canada (Public Safety and Emergency Preparedness), 2012 FC 727, at para 21. Conceptually, it is possible that the decision to deny Leave was made on the basis that no fairly arguable issue had been raised in respect of the Delegate’s concurrence with the officer’s assessment of the new information that had been provided by Mr. McAlpin, in support of his reconsideration request. Accordingly, it would not be appropriate to rely on that decision as the basis for invoking the res judicata doctrine: Figueroa v Canada (Public Safety and Emergency Preparedness), 2016 FC 1396, at para 46.
C. Collateral attack
[45] In the further alternative, the Respondent asserts that Mr. McAlpin’s attempt to have the initial Decision overturned after this Court denied his attempt to have the Reconsideration Decision set aside amounts to an impermissible collateral attack. Relying upon Huang v Canada (Public Safety and Emergency Preparedness), 2015 FC 28, at para 80 [Huang], the Respondent maintains that in cases where “several administrative decisions are related, one cannot challenge an initial decision in order to indirectly invalidate a subsequent decision.” As with its mootness argument, the Respondent adds that it would create an absurdity to allow the initial Decision to be challenged, where the Reconsideration Decision would continue to stand.
[46] The latter position has already been addressed at paragraphs 33-34 of these reasons above.
[47] As to the Respondent’s reliance on Huang, above, that case is distinguishable. In brief, the applicant there challenged a ministerial delegate’s decision to refer her case to the Immigration Division for an admissibility hearing, but she did not challenge the subsequent decisions made by that division and then by the Immigration Appeal Division. Justice Diner ruled that her challenge of the delegate’s decision amounted to an impermissible collateral attack on the latter two decisions: Huang, above, at paras 80-81.
[48] By contrast, Mr. McAlpin did in fact challenge the subsequent decision in question, namely, the Reconsideration Decision. He did so on April 6, 2017, two days after challenging the initial Decision. However, his Application in the present proceeding was not perfected until well after his Application in respect of the Reconsideration Decision was perfected. As a result, the latter Application proceeded on a more expeditious time path and was rejected approximately two months before Leave was granted in respect of this Application. In these circumstances, Mr. McAlpin’s challenge of the initial Decision cannot be said to constitute an impermissible collateral attack on the Reconsideration Decision.
[49] On the contrary, Mr. McAlpin has every right to challenge both decisions, which are considered to be distinct: Canada (Human Resources Development) v Hogervorst, 2007 FCA 41, at para 20; Vidéotron Télécom Ltée v Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90, at paras 11-14; Soimu v Canada (Secretary of State), [1994] FCJ No 1330, at para 10.
[50] Given the conclusions that I have reached in respect of the preliminary issues raised by the Respondent, I will turn now to the merits of this Application.
VI. Issue and standard of review
[51] As counsel to Mr. McAlpin acknowledged during the hearing of this Application, the issues that he has raised in respect of the initial Decision can be conveniently summarized into the single issue of whether that exercise of the Delegate’s discretion to refer Mr. McAlpin to an admissibility hearing was reasonable. It is common ground between the parties that this exercise of discretion is reviewable on a standard of reasonableness: Kidd v Canada (Public Safety and Emergency Preparedness), 2016 FC 1044, at para 17 [Kidd]; Melendez v Canada (Public Safety and Emergency Preparedness), 2016 FC 1363, at para 11 [Melendez].
[52] In assessing whether a decision is reasonable, the focus of the Court is upon whether the decision is appropriately intelligible, transparent and justified. In this regard, the Court’s task will be to assess whether it is able to understand why the decision was made and to ascertain whether the decision falls “within a range of acceptable outcomes which are defensible in respect of the facts and the law”: Dunsmuir v New Brunswick, 2008 SCC 9, at para 47 [Dunsmuir]; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 16 [Newfoundland Nurses].
[53] Given the highly fact-based nature of a decision by a ministerial delegate to refer or to not refer someone to an admissibility hearing, such decisions will ordinarily attract significant deference. Stated differently, such decisions will typically attract “a wide margin of appreciation”: Paradis Honey Ltd v Canada, 2015 FCA 89, at paras 135-137, leave to appeal to SCC refused, 36471 (29 October 2015); Canada (Attorney General) v Boogaard, 2015 FCA 150, at paras 35-53, leave to appeal to SCC refused, 36621 (7 April 2016). Significant deference is also warranted in light of the fact that the exercise of a ministerial delegate’s discretion not to refer someone for an admissibility hearing, after having determined that an officer’s recommendation in favour of a referral is “well-founded,” would be exceptional in nature. In my view, this follows from the analysis at paragraphs 58-69 below.
VII. Analysis
[54] Mr. McAlpin submits that the Decision to refer him to an admissibility hearing was unreasonable because of several errors in the officer’s assessment, upon which the Delegate relied. In particular, Mr. McAlpin submits that the officer’s assessment was unreasonable because the officer:
simply listed some of the H&C factors present in his case, without undertaking any consideration or balancing of those factors, and without taking any account of other compelling H&C considerations that he had identified;
failed to take into account important information in relation to his work history;
conducted an assessment of his potential for rehabilitation that did not include important information that was before the officer; and
relied on withdrawn charges in concluding that Mr. McAlpin has a long criminal history and is a serious criminal.
[55] I will consider each of the foregoing submissions in order below.
A. The Officer’s treatment of the H&C factors put forth by Mr. McAlpin
(1) General principles
[56] As recognized by both of the parties to this Application, there is divergence in this Court’s jurisprudence regarding the scope of the discretion that Ministerial delegates have in deciding whether to refer an individual for an admissibility hearing pursuant to subs. 44(2) of the IRPA.
[57] In Melendez, above, Justice Boswell provided a very helpful summary of that divergence. He then arrived at the following conclusions at para 34 of his decision:
1. There is conflicting case law as to whether an immigration officer has any discretion under subsection 44(1) of the IRPA beyond that of simply ascertaining and reporting the basic facts which underlie an opinion that a permanent resident in Canada is inadmissible.
2. Nevertheless, the jurisprudence and the Manual do suggest that a Minister’s delegate has a limited discretion, when deciding whether to refer a report of inadmissibility to the Immigration Division pursuant to subsection 44(2) or to issue a warning letter, to consider H&C factors, including the best interests of a child, at least in cases where a permanent resident, as opposed to a foreign national, is concerned.
3. Although the Minister’s delegate has discretion to consider such factors, there is no obligation or duty to do so.
4. However, where H&C factors are presented to a delegate of the Minister, the delegate’s consideration of the H&C factors should be reasonable in the circumstances of the case, and in cases where a delegate rejects such factors, the reasons for rejection should be stated, even if only briefly.
5. The consideration of H&C factors by the Minister’s delegate in respect of a permanent resident need not be, in my view, as extensive as or comparable to an analysis of such factors under subsection 25(1) of the IRPA in order to be reasonable; it need not be so because that would usurp the role and purpose of that subsection.
[58] Shortly after Justice Boswell’s decision was issued, the Federal Court of Appeal [FCA] addressed the scope of the discretion conferred upon immigration officers and ministerial delegates under subss. 44(1) and (2) of the IRPA, respectively, in Sharma, above. There, the Court observed that such discretion is “very limited,” and is “dependent on a number of factors, including the alleged grounds of inadmissibility and whether the person concerned is a permanent resident or a foreign national.” In any event, the Court stated that “officers and the Minister or his delegate must always be mindful of Parliament’s intention to make security a top priority (see paragraphs 3(1)(h) and (i) of the IRPA)”: Sharma, above, at paras 23-24.
[59] However, with respect to inadmissibility on grounds set forth in s. 36 of the IRPA (namely, “serious criminality” and “criminality”), the FCA stated that the following rationale offered by that Court in Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 [Cha], which concerned a foreign national, would appear to apply with equal force to permanent residents:
[37] It cannot be, in my view, that Parliament would have in sections 36 and 44 of the Act spent so much effort defining objective circumstances in which persons who commit certain well defined offences in Canada are to be removed, to then grant the immigration officer or the Minister’s delegate the option to keep these persons in Canada for reasons other than those contemplated by the Act and the Regulations. It is not the function of the immigration officer, when deciding whether or not to prepare a report on inadmissibility based on paragraph 36(2)(a) grounds, or the function of the Minister’s delegate when he acts on a report, to deal with matters described in sections 25 (H&C considerations) and 112 (Pre-Removal Assessment Risk) of the Act […]
Sharma, above, at para 23, emphasis added.
[60] The reference in the passage quoted above to paragraph 36(2)(a) of the IRPA was made because the applicant in that case was inadmissible under that provision, namely, on grounds of “criminality.”
[61] In my view, the last sentence in that passage applies with greater force to the grounds of inadmissibility contemplated by subs. 36(1), which was at play in Sharma, above. That is to say, if it can be inferred that Parliament could not have intended immigration officers and ministerial delegates to have the discretion to take H&C considerations into account in the context of alleged inadmissibility on grounds of “criminality,” then the basis for drawing that inference would be even stronger in the context of alleged “serious criminality.”
[62] The comments that I have reproduced at paragraphs 58-59 above from Sharma were obiter dictum because the FCA proceeded to observe that the applicant’s submissions regarding the scope of discretion contemplated by subs. 44(1) of the IRPA were academic. It reached that conclusion after determining that the officer in that case had in fact considered the various personal or mitigating factors that had been raised by the applicant: Sharma, above at paras 47-48. As a result, the FCA considered it to be preferable to leave for another day the determination of “the precise extent of an officer’s discretion”: Sharma, above, at para 48. I pause to note in passing that the FCA in Cha, above, at para 41, took the same position.
[63] Notwithstanding the foregoing, the nature and tenor of the observations made by the FCA in Cha, above, and Sharma, above is such that they ought to prevail over any inconsistent jurisprudence of this Court.
[64] It is also relevant to keep in mind that a person who is inadmissible under s. 36 is still eligible to make an application on H&C grounds under s. 25 of the IRPA: Sharma, above, at para 37; Faci v Canada (Public Safety and Emergency Preparedness), 2011 FC 693, at para 25. This has a bearing on whether H&C considerations should be read into other provisions of the IRPA: Canada (Citizenship and Immigration) v Bermudez, 2016 FCA 131, at para 38.
[65] Moreover, it is important to remain cognisant of the very different focuses of ss. 25 and 36 of the IRPA. Whereas the former is focused on the individuals who may advance H&C considerations as a basis for being relieved of the general requirement to apply for permanent residence from outside Canada, the latter is focused on public safety and security: Medovarski, above, at paras 9-10. As a result, it would ordinarily be reasonably open to an officer or a ministerial delegate to prioritize public safety and security, even to the point of entirely refraining from taking H&C factors into account in stating the rationale for a decision to refer someone for an admissibility hearing. This is particularly so in the case of someone who is or appears to be inadmissible on grounds of “serious criminality.” Indeed, this follows from the fact that there is no obligation on an officer or a ministerial delegate to consider H&C factors in exercising the discretion that is contemplated by subss. 44(1) and (2) of the IRPA: Melendez, above, at para 34.
[66] The very restrictive approach that the FCA in Sharma, above, took in commenting upon the scope of the discretion contemplated by subss. 44(1) and (2) of the IRPA in a case involving serious criminality is consistent with the approach taken by Citizenship and Immigration Canada in its manual entitled ENF 5 Writing 44(1) Reports [ENF 5]. Although that manual is not binding on the Court, it can be helpful in determining the reasonableness of the approach taken by an officer or a ministerial delegate to the exercise of the discretion contemplated by subss. 44(1) and (2), respectively.
[67] In s. 8.1 of ENF 5, it is noted that “the scope of discretion varies depending on the inadmissibility grounds alleged, whether the person concerned is a permanent resident or a foreign national, and whether the report is to be referred to the Immigration Division.” With respect to “criminal” inadmissibility, the document states that the scope of an officer’s discretion “will be narrower” than may otherwise be the case (s. 8.3). In exercising that discretion, officers are instructed to consider six factors, none of which include H&C considerations. Instead, those factors relate to the person’s criminal history, the sentence that was imposed, the maximum sentence that was available, the circumstances of the particular incident and whether the conviction involved crime of violence or drugs. In addition, “in minor criminality cases,” officers are instructed to consider whether a decision on rehabilitation is imminent and likely to be favourable (emphasis added).
[68] With respect to alleged inadmissibility on grounds involving security (s. 34 of the IRPA), violation of human or international rights (s. 35), serious criminality (subs. 36(1)) or organized criminality (s. 37), ENF 5 states that officers may choose not to prepare a report only “in rare instances” (s. 8.3). As a result, Mr. McAlpin’s suggestion that he had a legitimate expectation that his H&C considerations would be considered by the officer cannot be maintained.
[69] The approach taken in ENF 5 is broadly consistent with the approach taken in the manual entitled ENF 6 Review of reports under subsection A44(1) [ENF 6]. After identifying a range of considerations, including H&C factors that may be taken into account by ministerial delegates exercising their discretion under subs. 44(2), the document addresses the factors that should be considered in criminal cases. Those factors do not include H&C considerations. Rather, they closely track the factors in ENF 5 that are discussed in the penultimate sentence of paragraph 67 above.
[70] Having regard to all of the foregoing, and in particular the guidance that the FCA has provided in Sharma, above, I consider it necessary and appropriate to update and elaborate upon the conclusions reached by Justice Boswell in respect of the current state of the jurisprudence concerning the scope of the discretion contemplated by subss. 44(1) and (2) in cases involving allegations of “criminality” and “serious criminality” on the part of permanent residents. Maintaining the framework adopted by Justice Boswell, I would summarize that jurisprudence as follows:
1. In cases involving allegations of criminality or serious criminality on the part of permanent residents, there is conflicting case law as to whether immigration officers and ministerial delegates have any discretion under subss. 44(1) and (2) of the IRPA, respectively, beyond that of simply ascertaining and reporting the basic facts which underlie an opinion that a permanent resident in Canada is inadmissible, or that an officer’s report is well founded.
2. In any event, any discretion to consider H&C factors under subss. 44(1) and (2) in such cases is very limited, if it exists at all.
3. Although an officer or a ministerial delegate may have very limited discretion to consider H&C factors in such cases, there is no general obligation or duty to do so.
4. However, where H&C factors are considered by an officer or by a ministerial delegate in explaining the rationale for a decision that is made under subs. 44(1) or (2), the assessment of those factors should be reasonable, having regard to the circumstances of the case. Where those factors are rejected, an explanation should be provided, even if only very brief in nature.
5. In this particular context, a reasonable assessment is one that at least takes account of the most important H&C factors that have been identified by the person wh