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📖 Quick Summary

What is a “Danger to the Public” Opinion?

A “danger to the public” opinion under Section 115 of Canada’s Immigration and Refugee Protection Act (IRPA) is one of the most serious determinations in Canadian immigration law. It allows the Minister to remove a protected person or Convention refugee from Canada, even to a country where they face persecution or torture, if they are deemed to pose a significant threat to Canadian public safety.

This exceptional power overrides Canada’s normal commitment to protect refugees from being returned to danger, a principle known as non-refoulement. The determination is reserved for individuals who have been found inadmissible on grounds of serious criminality and who the Minister believes constitute a danger to the Canadian public.

Who Can Be Subject to a Danger Opinion?

Section 115(2)(a) of IRPA applies specifically to individuals who meet both of the following criteria:

1. Inadmissible on grounds of serious criminality under Section 36(1) of IRPA, which includes:

1. Conviction in Canada for an offence punishable by at least 10 years imprisonment, or any offence with an actual sentence exceeding six months
2. Conviction outside Canada for an offence that would be punishable by at least 10 years if committed in Canada

2. Constitute a danger to the public in Canada in the opinion of the Minister of Public Safety and Emergency Preparedness or the Minister of Immigration, Refugees and Citizenship.

What Makes Someone a “Danger to the Public”?

According to the landmark Supreme Court of Canada decision in Suresh v. Canada, a person constitutes a danger to the public if they pose a serious threat to Canadian security, whether direct or indirect. The threat must be:

• Serious in nature and magnitude
• Grounded on objectively reasonable suspicion based on evidence
• Involving substantial threatened harm to public safety

The assessment is forward-looking, meaning it focuses on whether the person poses a current or future risk, not merely on past conduct.

Your Rights in the Danger Opinion Process

If you are facing a danger opinion determination, you have important procedural rights established by the Suresh decision:

Right	What It Means
Disclosure	You must be informed of the case against you and provided with the evidence (subject to national security privilege)
Opportunity to Respond	You can submit written evidence and arguments challenging the allegations
Address Key Issues	You can present evidence on whether you pose a danger, the risk of torture if removed, and humanitarian factors
Written Reasons	The Minister must provide written reasons explaining the decision

What Happens After a Danger Opinion is Issued?

If the Minister issues a danger opinion finding you to be a danger to the public in Canada:

• Your protected person or refugee status no longer shields you from removal
• Canada can deport you even to a country where you face persecution or torture (though this is extremely rare and requires exceptional circumstances)
• You can challenge the decision through judicial review in Federal Court
• The removal order against you can be enforced

Can You Challenge a Danger Opinion?

Yes. You can apply for judicial review in the Federal Court of Canada. The Court will review whether:

• The Minister’s decision was reasonable based on the evidence
• You received adequate procedural fairness
• The Minister considered all relevant factors, including the Suresh principles
• The decision was made in bad faith or arbitrarily

Why This Matters

A danger opinion is one of the few mechanisms in Canadian law that can override refugee protection. Understanding your rights, the legal standards that apply, and the procedural safeguards available is essential to mounting an effective defense. Early legal representation by an experienced immigration consultant or lawyer is critical.

Need Help? If you or a loved one is facing a danger opinion determination, contact our experienced team of Regulated Canadian Immigration Consultants for a confidential consultation.

📚 Complete Guide

Introduction: Canada’s Commitment to Refugee Protection and Its Limits

Canada has long been recognized as a global leader in refugee protection, offering safety to individuals fleeing persecution, torture, and threats to their lives. This commitment is enshrined in both domestic law, the Immigration and Refugee Protection Act (IRPA), and international treaties, including the 1951 Convention Relating to the Status of Refugees and the Convention Against Torture.

However, Canada’s protection is not absolute. Section 115 of IRPA creates a narrow but significant exception: individuals who are inadmissible on grounds of serious criminality and who constitute a “danger to the public in Canada” can be removed from the country, even if they face persecution or torture upon return. This exception reflects the government’s responsibility to balance humanitarian obligations with public safety concerns.

Understanding how this exception works, the legal standards that govern it, and the procedural safeguards available to those affected is essential for anyone facing a danger opinion determination.

The Legal Framework: Section 115 of the Immigration and Refugee Protection Act

Section 115(1): The General Rule of Non-Refoulement

Section 115(1) of IRPA establishes Canada’s commitment to the principle of non-refoulement:

“A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for 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.”

This provision protects refugees and protected persons from being returned to countries where they face serious harm. It reflects Canada’s obligations under international law and represents a fundamental principle of humanitarian protection.

Section 115(2)(a): The Danger to the Public Exception

Section 115(2)(a) creates an exception to this protection:

“Subsection (1) does not apply in the case of a person who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada.”

This provision allows the Minister of Public Safety and Emergency Preparedness (or the Minister of Immigration, Refugees and Citizenship) to form an opinion that a protected person or refugee poses such a significant threat to Canadian public safety that they should be removed, despite the risks they face upon return.

Understanding “Serious Criminality” Under Section 36

Before a danger opinion can be issued under Section 115(2)(a), the individual must first be found inadmissible on grounds of serious criminality under Section 36(1) of IRPA.

What Constitutes Serious Criminality?

Section 36(1) defines serious criminality as:

Conviction in Canada:

• An offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, OR
• An offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed

Conviction Outside Canada:

• An offence that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years

Act Outside Canada:

• Committing an act outside Canada that is an offence where it was committed and that, if committed in Canada, would be punishable by a maximum term of imprisonment of at least 10 years

Examples of Serious Criminality

Common offences that may constitute serious criminality include:

• Assault causing bodily harm
• Sexual assault
• Robbery
• Drug trafficking
• Weapons offences
• Fraud over $5,000
• Breaking and entering
• Manslaughter or murder

It is important to note that not every conviction for serious criminality will result in a danger opinion. The Minister must make a separate determination that the individual poses a danger to the public in Canada.

The “Danger to the Public” Standard: The Suresh Framework

The legal standard for determining whether someone constitutes a “danger to the public” was established by the Supreme Court of Canada in the landmark case Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1.

What is a “Danger to the Public”?

According to Suresh, a person constitutes a danger to the public if they pose a serious threat to the security of Canada, whether direct or indirect. The threat must be:

1. Serious in nature and magnitude
2. Grounded on objectively reasonable suspicion based on evidence
3. Involving substantial threatened harm to public safety

The assessment is forward-looking, meaning it focuses on whether the person poses a current or future risk, not merely on past criminal conduct. The Minister must consider factors such as:

• The nature and severity of the criminal acts committed
• The likelihood of reoffending
• Evidence of rehabilitation or lack thereof
• The potential harm to the Canadian public
• The time that has passed since the criminal conduct
• The individual’s conduct while in Canada

The Balancing Test

Suresh also established that the Minister must engage in a balancing exercise, weighing:

• Canada’s interest in protecting public safety and national security
• The individual’s interest in not being deported to face persecution or torture

The Supreme Court held that deportation to torture should generally be declined unless there are “exceptional circumstances” where the threat to Canada’s security is so serious that it outweighs the risk of torture. In practice, such exceptional circumstances are extremely rare.

Procedural Fairness: Your Rights in the Danger Opinion Process

The Suresh decision established critical procedural safeguards that must be provided to individuals facing danger opinion determinations. These rights are grounded in Section 7 of the Canadian Charter of Rights and Freedoms, which protects the right to life, liberty, and security of the person in accordance with the principles of fundamental justice.

Step 1: Ministerial Notification

The process begins when the Minister notifies you in writing that they are considering issuing a danger opinion. This notification must clearly state:

• The grounds for the proposed danger opinion
• The evidence or allegations against you
• Your right to respond

Step 2: Disclosure of the Case to Meet

You have the right to receive disclosure of the case against you. This includes:

• The evidence and materials the Minister will rely on
• Any reports, assessments, or memoranda prepared for the Minister
• Information about the allegations of danger to public safety

Important limitation: Some information may be withheld on grounds of national security privilege or solicitor-client privilege. However, you must still receive sufficient information to understand and respond to the case against you.

Step 3: Opportunity to Respond in Writing

You must be provided with a meaningful opportunity to respond to the allegations. This includes the right to:

• Submit written arguments and legal submissions
• Present documentary evidence
• Obtain and submit expert reports (e.g., psychological assessments, country condition reports)
• Address three key issues:
  1. Whether your continued presence in Canada poses a danger to public safety
  2. The risk of persecution or torture you face if removed
  3. Humanitarian and compassionate factors

Note: Suresh does not require an oral hearing. The process can be conducted entirely in writing, provided you receive adequate disclosure and a fair opportunity to respond.

Step 4: Minister’s Decision and Written Reasons

After considering your submissions and all the evidence, the Minister must:

• Make a decision on whether you constitute a danger to the public in Canada
• Provide written reasons explaining the decision
• Address all relevant factors and evidence
• Explain how the balancing test was applied (if deportation to torture is at issue)

The written reasons are essential because they allow you to understand the basis for the decision and to challenge it effectively in Federal Court if necessary.

Challenging a Danger Opinion: Federal Court Judicial Review

If the Minister issues a danger opinion against you, you have the right to apply for judicial review in the Federal Court of Canada. Judicial review is not an appeal; rather, it is a process where the Court examines whether the Minister’s decision was lawful and reasonable.

Grounds for Judicial Review

You can challenge a danger opinion on several grounds:

1. Procedural Fairness Violations

• You were not provided with adequate disclosure
• You were not given a fair opportunity to respond
• The Minister failed to provide written reasons
• The process violated the Suresh principles

2. Unreasonableness of the Decision

• The decision is not supported by the evidence
• The Minister failed to consider relevant factors
• The Minister considered irrelevant factors
• The decision is arbitrary or made in bad faith

3. Failure to Apply the Correct Legal Test

• The Minister did not apply the Suresh framework
• The Minister failed to conduct the required balancing test
• The Minister misunderstood the legal standard for “danger to the public”

Standard of Review

The Federal Court applies a deferential standard of review to danger opinion decisions. According to Suresh:

• The Minister’s determination on whether someone poses a danger to security is reviewed on a patent unreasonableness standard (now “reasonableness” under modern administrative law)
• The Minister’s assessment of the risk of torture is also reviewed for reasonableness
• Procedural fairness issues are reviewed on a correctness standard

This means the Court will not substitute its own view for the Minister’s, but it will intervene if the decision is not supported by the evidence or violates procedural fairness.

Remedies Available

If the Federal Court finds in your favor, it can:

• Set aside the danger opinion
• Order the Minister to reconsider the matter
• Provide directions on how the reconsideration should be conducted
• Award costs in appropriate circumstances

Reconsideration of Danger Opinions

Even after a danger opinion is issued, circumstances may change. Section 115(2) allows for reconsideration of danger opinions if there has been a material change in circumstances.

Grounds for Reconsideration

You may request reconsideration if:

• Significant time has passed since the original decision
• You have demonstrated rehabilitation
• New evidence has emerged that was not available at the time of the original decision
• Country conditions in your home country have changed
• Your personal circumstances have changed significantly

Reconsideration requests are discretionary, and there is no automatic right to have your case reconsidered. However, if you can demonstrate a material change in circumstances, the Minister may agree to reconsider the danger opinion.

The Intersection with Removal Orders

A danger opinion under Section 115(2)(a) does not, by itself, result in removal from Canada. However, it removes the protection that would otherwise prevent your removal.

How Removal Proceeds

If you are subject to a danger opinion:

1. Removal Order in Effect: You must already have a removal order against you (typically a deportation order issued on security or criminality grounds)
2. Loss of Protection: The danger opinion means Section 115(1) no longer protects you from removal to a country where you face risk
3. Enforcement: The Canada Border Services Agency (CBSA) can enforce the removal order and deport you
4. Stay of Removal: If you apply for judicial review in Federal Court, you can request a stay of removal to prevent deportation while your case is being heard

Practical Considerations and Strategic Advice

If you are facing a danger opinion determination, consider the following strategic steps:

1. Retain Experienced Legal Representation Immediately

Danger opinion cases are among the most complex and high-stakes matters in Canadian immigration law. You need a Regulated Canadian Immigration Consultant (RCIC) or immigration lawyer with specific experience in danger opinions, national security cases, and Federal Court litigation.

2. Gather Comprehensive Evidence

Your response to the Minister should include:

• Rehabilitation evidence: Psychological assessments, certificates of completion for rehabilitation programs, letters from counselors or support workers
• Country condition evidence: Expert reports on the risk you face if returned to your home country
• Character references: Letters from community members, employers, religious leaders, and family members
• Humanitarian factors: Evidence of family ties in Canada, length of residence, integration into Canadian society

3. Obtain Expert Assessments

Consider obtaining:

• Psychological or psychiatric assessments addressing risk of reoffending
• Country condition reports from experts on your home country
• Expert opinions on the risk of torture or persecution

4. Address the Risk of Torture Directly

If you face a risk of torture upon return, this must be thoroughly documented and argued. The Suresh balancing test requires the Minister to weigh this risk against the danger you pose to Canada.

5. Monitor Timelines Carefully

• Respond to the Minister’s notification within any deadline provided
• If no deadline is specified, respond as quickly as possible
• If a danger opinion is issued, you have limited time to apply for judicial review (typically 15-30 days)
• Request a stay of removal immediately if you are at risk of imminent deportation

Conclusion: Protecting Your Rights and Your Future

A danger opinion under Section 115 of IRPA represents one of the most serious threats to your status and safety in Canada. It can result in removal even to countries where you face persecution or torture. However, you have important legal rights and procedural protections.

By understanding the legal framework, the Suresh principles, and the procedural safeguards available, you can mount an effective defense. Early legal representation, comprehensive evidence gathering, and strategic advocacy are essential to protecting your rights and your future in Canada.

Related Resources

Explore these related guides to learn more:

1. The Step-by-Step Process for “Danger to the Public” Determinations
2. Critical Deadlines and Timeline Management
3. Essential Documentation and Evidence Requirements
4. Finding Qualified Immigration Legal Representation
5. Evidence Gathering and Documentation Strategies

Legal Citations and References

• Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36, 115
• Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3
• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, s. 7
• Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, Can TS 1969 No 6
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85

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