Last updated on June 10th, 2021
Last Updated on June 10, 2021 by Steven Meurrens
Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
There are exceptions, however, for people who are:
- inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or
- inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada.
Determining Whether to Issue a Danger Opinion
In considering whether to issue a Danger Opinion for criminality, officers will go beyond looking at just the conviction and the sentence, and will also analyze a person’s past and current offences and activities to determine whether a person is a danger to the public.
The following are some of the factors that are considered:
- criminal history and established patterns of violent criminal behaviour or threats of violent behaviour that suggest present and future danger to the public, and evidence to support the person’s pattern of behaviour;
- convictions for serious offences involving but not limited to violence, weapons, drug trafficking, human smuggling and trafficking, sexual offences and economic crimes;
- documents illustrating an escalation of violence or of gravity in the convictions;
- convictions for actions by the person that caused or might reasonably be expected to have caused death, serious physical or psychological harm or significant property damage;
- evidence to substantiate the link between the criminal conviction, the likelihood that the person will re-offend and a pattern of increasingly serious criminal activity;
- police, correctional services or other credible source information indicating that the person continues to pose a danger to the public;
- the circumstances of the offence(s) in order to provide insight into the level of risk the person may present to the public
- evidence of rehabilitation on the part of the individual (education or training certificates, psychological reports, reports from the parole officer, evidence of employment, etc.);
- multiple convictions, including serious offences, that could form the basis for a danger opinion. It should be noted that a single conviction may sustain a finding of danger to the public if it is clearly demonstrated that the person poses a present or future risk of danger to the public, as evidenced by the nature and circumstances of the offence.
As the Federal Court noted in Baladie v. Canada, 2018 FC 706, officers are not restricted considering criminal activity related to violent criminal offences. Instead, they can determine whether someone has become or was becoming a law-abiding and productive member of society.
That being said, the analysis must be forward looking. As the Federal Court found in JBL v. Canada (Citizenship and Immigration), 2021 FC 487, it would be unreasonable, for example, for a danger opinion to be used to further punish someone for past offences.
For Danger Opinions involving national security, officers will examine the seriousness and nature of the person’s actions or the actions of the organization of which the person was a member. They will also consider whether there are reasonable grounds to believe the individual will continue to engage in nefarious activities in the future. Some of the relevant factors include the:
- acts committed by the individual or the group, if applicable;
- activities undertaken by the person in the furtherance of the group’s objectives;
- level of involvement of the person in the acts committed by the organization; and
- level of threat either direct or indirect that the person presents to the security of Canada.
If a Danger Opinion is refused the Canada Border Services Agency will only consider a reconsideration request if new evidence is submitted that meets all of the following criteria:
- Reliability – the evidence must be reliable, considering its source and the circumstances in which it came into existence.
- Relevance – the evidence must be relevant to the decision type, in the sense that it is capable of proving or disproving a fact that is relevant to the proceeding.
- Material – the evidence must be material, in the sense that the decision maker may have come to a different conclusion if it had been known.
- Newness: The evidence must be capable of proving the current state of affairs in the country of removal, proving a fact that was unknown at the time of the original decision, or contradicting a finding of fact made by the original decision maker?
Reconsideration requests can also occur where it was discovered that there was a breach of procedural fairness.
The following is a sample letter that the Canada Border Services Agency will send to an individual to ask them to provide submissions as to why a Danger Opinion should not be issued.ENF 28 Ministerial opinions on danger to the public, nature and severity of the acts committed and danger to the security of Canada