Date: 20060726
Docket: IMM-2519-06
Citation: 2006
FC 924
OTTAWA, ONTARIO, JULY 26, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
MICHAEL JOHN WELCH and
LORI LYNN ROMERO
Respondents
REASONS FOR ORDER AND ORDER
[1]
The Minister
for Public Safety and Emergency Preparedness (“the Minister”) seeks judicial
review of the decision of Member Tessler of the Immigration Division of the
Immigration and Refugee Board, allowing the conditional release from detention
of the respondents, Michael John Welch and his common-law spouse, Lori Lynn
Romero.
[2]
The
Minister submits that this was the fifth review of the detention of the respondents
and that Member Tessler failed to provide clear and compelling reasons as to
why he should depart from the four previous decisions and release the
respondents on terms and conditions that are, in the Minister’s view, less
stringent than those considered at the previous reviews.
[3]
For the
reasons that follow, I have concluded that the decision must be set aside.
BACKGROUND
[4]
The
respondents are citizens of the United States. They are wanted in the State of Colorado on a number of charges. After their
release on bail pending their trial scheduled to begin in January 2006, they
fled to Canada in December 2005.
[5]
The
Minister and the respondents give two very different versions of the events in Colorado leading up to this point. It
is not for this Court to determine who is right and who is wrong.
[6]
Shortly
after the respondents came to Canada, they were arrested by the
RCMP. A decision was made to detain them and, on January 18, 2006, a removal
order pursuant to section 44 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27
(“the Act”) was issued against them.
Within a month of their arrest, the respondents claimed
refugee status on the basis that they are at risk of persecution in the United States. This claim has yet to be
decided.
[7]
Their
first detention hearing took place on January 17, 2006. At that time, it was determined
that they were a flight risk but the duration of detention contemplated was
very short. It was mentioned that they had two children.
[8]
On January
19, 2006, Member Dyck came to the same conclusion and continued the detention. The
two respondents’ children were in the audience during this second hearing. It became
clear that they had been with their parents when the latter were apprehended.
Since then, Mr. Welch’s mother had come to Canada and the children were in her care after having
been in the custody of the Ministry of Children and Families. It was argued
that it was not in the best interests of the children to be separated from
their parents. However, the presence of the children was not found to supersede
the other factors listed in section 245 of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (“the Regulations”). At that time, Member Dyck
considered and rejected a proposal that included a curfew and a $4,000 bond.
[9]
The third detention
hearing was held on February 16, 2006. At that time Member King considered the
following proposed conditions: i) physical restriction to an area; ii) $25,000
cash bond for each of the respondents; iii) a prohibition to carry weapons; iv)
daily reporting and, alternatively, the release of only Ms. Romero on these
conditions to enable the children, who were back in the United States with their
grandmother, to visit and spend some time with her.
[10]
At that
hearing, for the first and only time, the Minister argued that the respondents
posed a danger to the public. Member King rejected this argument. However,
largely because of their circumstances in Colorado, she found that the respondents were not
likely to appear for removal from Canada
if they were not in detention. She noted that, although the flight risk was
minimal while their refugee claim was under review, she was required to contemplate
their flight risk if their refugee claim was unsuccessful and they were ordered
to appear for removal to the US. She also rejected the
argument that Ms. Romero’s situation in Canada would be any more stable or settled if
she were to be released and her children allowed to visit her. At the time of
the hearing, Member King anticipated that the detention would last about ten
months. He acknowledged that the Refugee Protection Division expedites hearings
for people who are in detention and that the claim process should take six to eight
months. She considered that even a release subject to cash bonds and very stringent
reporting conditions would not be effective considering that the respondents failed
to appear for their trial in the US in spite of the significant bail bonds in
existence there (US$25,000 and US$100,000). Member King noted that the
respondents had made a calculated or measured decision to flee to Canada.
[11]
The fourth
hearing on March 20, 2006, was conducted by Member Tessler, who again concluded
that detention was necessary to ensure that the respondents would appear for their
removal. At that time, in addition to the three conditions of release discussed
earlier, the respondents proposed their release be made subject to a review
once a decision was made on their refugee claim. They also alluded to the
possibility of electronic tracking as an alternative to detention, but had been
advised by the Minister that this was not a viable alternative as no such
system was currently available. Member Tessler reviewed those conditions and
noted that Member King had rejected similar proposals. He also found that he
had no authority to give any direction to the Minister with respect to the
quality of the detention (Mr. Welch was seeking to have conjugal visits and
access to psychological counselling) and the electronic monitoring. Despite the
fact that the respondents were likely to remain in detention for several months
pending the determination of their refugee claim, he concluded that their
continued detention was necessary.
[12]
The
decision that is the subject of the present application was issued as a result
of the fifth hearing which began on April 19, 2006. It was again presided over
by Member Tessler. The respondents, who had until then been represented by
counsel, were representing themselves. They called Mr. Beagley, a
representative of the company Trace Canada, as a witness to explain how Trace Canada could equip them with
electronic tracking devices that would keep a record of their movements at all
times. The company could then report this information to Immigration officials
who would know immediately if the respondents had breached their conditions of
release. Their submission was that the flight risk would be considerably
reduced if such a mechanism were used. Member Tessler took the matter under
advisement.
[13]
The
hearing resumed on May 11, 2006. At that time, Member Tessler specified that he
was not “reopening” the detention review, but simply wished to obtain some clarification
with regard to the services offered by Trace Canada. He began by questioning Mr. Beagley
about the functioning of the electronic tracking system.
[14]
Member Tessler
handed down his decision orally. He stated that he considered electronic
monitoring to be more responsive than a self-monitored curfew and no-go zone.
It was also more responsive than periodic physical reporting where, according
to him, the respondents could be long gone by the time they failed to show up
to report. It was thus a more immediate form of reporting. He also noted that,
in the end, if a person’s intention is to abscond, they will do so whatever the
type of monitoring and explained that:
Alternatives to detention are not
meant to provide absolute certainty of appearance for removal. They need only
have the effect of reducing the risk to an acceptable degree. The fact that the
persons concerned have proposed electronic monitoring and have made the effort
to bring a proposal for consideration is an indication of their sincerity in
seeking to address the Minister’s concerns of flight.
[15]
Member Tessler
clearly considered that while electronic monitoring could not ensure that there
would be no breach of the release conditions, it would greatly lessen the risk
of “impulsive behaviour” on the part of the respondents. As the applicant had
raised the concern that there were no resources to react if a breach occurred,
Member Tessler pointed out that a breach with electronic surveillance would tax
the available resources no more than in any case where a person fails to report
and becomes subject to arrest.
[16]
Apart from
the advantages of electronic monitoring discussed above, the other relevant
factor militating in favour of a release was the “new” information with respect
to the respondents’ teenage boys. In that respect, Member Tessler said:
… the other new information that was
presented at this hearing is that the persons concerned have two teenage boys.
Their hope is that if they’re released, the boys could join them in Canada. It’s not clear whether that
would be possible, but if the boys come to Canada, their presence would likely
have the effect of anchoring the persons concerned to a location and it would
make it harder for them to flee as a group and harder for them to hide from the
authorities. I believe it’s unlikely they would try to cross back into the United States and, in any case, they would
have difficulty evading authorities in Canada for very long as a unit of four people.
In the other scenario, if the boys do not
come to Canada, the persons concerned would be drawn back to Colorado to be reunited with them. I
highly doubt that they would suffer separation from the boys for an extended
period of time. In other words, any attempt to live below the radar would make
contact with their children extremely problematic and intolerable for them and
I consider this a serious incentive to comply.
…
In consideration of their family
obligations, I believe that they’re[sic] willingness and ability to flee, if
faced with return to the United
States, is
considerably reduced.
[17]
After revealing that
he was prepared to offer release on terms and conditions, Member Tessler sought
to have a discussion with the parties about those terms and conditions before
finalizing them. He noted that he wanted to address the set-up of the monitoring
system. The Minister’s response was that he still objected to the proposed
release and would leave it up to the Member to fashion whatever terms and
conditions he found satisfactory because the applicant had no faith in Trace Canada’s proposal. After further discussion with Mr. Beagley,
Member Tessler fixed the terms and conditions as follows:
i)
a passive reporting
electronic monitoring system would be put in places;
ii)
within 72 hours of
the release, the respondents were to report their residential address to an
Immigration officer, as well as any and all changes of address while in Canada;
iii)
they had to agree to:
a.
not remove the ankle
bracelet affixed by Trace Canada
b.
not leave the
geographical boundaries set out in a map attached to the order
c.
provide, prior to
release, evidence to Immigration officials of having executed an equipment
lease and monitoring service agreement for passive GPS electronic monitoring
with Trace Canada including evidence of the payment of the
security deposit and the annual fee
d.
the agreement with
Trace Canada was to provide, among other things, that daily monitoring reports would
be sent to the Canadian Border Service Agency (“CBSA”) by way of fax or email,
that CBSA would be advised of any breach by telephone and that Mr. Welch and
Ms. Romero had to agree to place their belt units in the Charger Base Unit on
or before 11:00 p.m. every day
e.
the electronic
monitoring system was to be operational within seven days of release and the
respondents were to report additionally when and where directed by Immigration
officials, including for removal if required.
[18]
After Member Tessler
made his decision, the Minister began the present application for judicial
review. Justice Robert Barnes issued an interim stay of the release pending the
hearing on the merits of the Minister’s motion to stay. Shortly thereafter,
Chief Justice Allan Lutfy stayed the release pending the outcome of this
application.
[19]
The text of the
relevant portions of the Act and Regulations are set out in Annex I.
ISSUES
[20]
As mentioned, the
Minister argues that Member Tessler failed to give clear and compelling reasons
for deviating from the four previous decisions of his colleagues. He also submits
that there were several procedural irregularities; particularly, that Member
Tessler made his decision to release the respondents before setting out the
conditions for their release. These irregularities allegedly amount to an
excess of jurisdiction.
[21]
There will be no need
to determine whether there were any irregularities because I find that Member
Tessler failed to give clear and compelling reasons and that such failure is
sufficient to justify setting aside the decision.
[22]
The Court notes that
the decision to set aside Member Tessler’s order should not be construed in any
way as an opinion on the adequacy of the conditions he set out. Although the
Minister clearly does not agree that these conditions are suitable, his attack did
not focus on this point. As noted during the hearing, on such an issue, the
Minister would have had to establish that the decision was patently
unreasonable.
ANALYSIS
[23]
In Canada (Minister of Citizenship and
Immigration) v. Thanabalasingham,
[2004] F.C.J. No. 15 (QL), 2004 FCA 4, the Federal Court of Appeal considered
the nature of the Immigration Division’s detention reviews under sections 57
and 58 of the Act. It noted that the Act does not draw any distinction between
the first and subsequent detention reviews or impose any requirement for any new
evidence to be presented. Rather, at each hearing, the Member must decide
afresh whether continued detention is warranted.
[24]
In that case, the
Federal Court of Appeal also had to determine what weight was to be given in
subsequent reviews to previous decisions. Justice Marshall Rothstein said:
11 Credibility of
the individual concerned and of witnesses is often an issue. Where a prior
decision maker had the opportunity to hear from witnesses, observe their
demeanour and assess their credibility, the subsequent decision maker must give
a clear explanation of why the prior decision maker's assessment of the
evidence does not justify continued detention. For example, the admission of
relevant new evidence would be a valid basis for departing from a prior
decision to detain. Alternatively, a reassessment of the prior evidence based
on new arguments may also be sufficient reason to depart from a prior decision.
12 The best way for
the Member to provide clear and compelling reasons would be to expressly
explain what has given rise to the changed opinion, i.e. explaining what the
former decision stated and why the current Member disagrees.
13 However, even if
the Member does not explicitly state why he or she has come to a different
conclusion than the previous Member, his or her reasons for doing so may be
implicit in the subsequent decision. What would be unacceptable would be a
cursory decision which does not advert to the prior reasons for detention in
any meaningful way.
[25]
With respect to the
burden of proof, it is clear that the Minister bears the initial burden of
establishing that continued detention is warranted since section 58 provides
that “[t]he Immigration Division shall order the release … of a foreign
national unless it is satisfied … that” one of the listed conditions is met.
[26]
As noted earlier, the
question here is not whether or not the Member was justified in ordering the
release on the conditions he did but simply whether he has provided clear,
compelling reasons for departing from the previous decisions reached at the
detention reviews.
[27]
In my view, this is a
question of procedural fairness for which there is no need to proceed to a
pragmatic and functional analysis to determine the standard of review to be
applied. If there was a breach, the decision must normally be set aside.
[28]
If I am wrong in that
respect and the consideration of the previous decisions is part of the decision
maker’s overall assessment of the facts and the evidence before him, I adopt
the pragmatic and functional analysis I conducted in Canada (Minister of
Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 523, 2003
FC 1225. The standard of the patently unreasonable decision would apply to such
an issue. If, as argued by the Minister, Member Tessler misapprehended the
evidence adduced before him and wrongly believed that some evidence he
considered very relevant to his final conclusion was new, his conclusion would
be patently unreasonable.
[29]
The Court agrees with
the statement made by Justice Pierre Blais in Canada (Minister of
Citizenship and Immigration) v. Sittampalam, [2004] F.C.J. No. 2152 (QL),
2004 FC 1756, that the threshold set out by the Court of Appeal in Thanabalsingham,
above, is a fairly low one which will depend on the circumstances of each case.
[30]
In the case before
Justice Blais, it was clear that time had passed and that the decision maker questioned
whether there still remained a danger to the public. Here, the Minister noted
that there were no changes in the relevant circumstances before Member Tessler,
the expected length of the detention had not increased and both sides had been
diligent in bringing this matter forward. The only issue was the existence of
alternatives to detention.
[31]
As mentioned, the
Minister is adamant that Member Tessler contradicted himself by imposing
lighter conditions on the respondents than those he rejected at an earlier
hearing and that insufficient justification was given in that respect. The Minister
seemed particularly troubled by the fact that the respondents were given seven
days without any surveillance until Trace Canada had set up their monitoring system.
[32]
The Court does not
accept these submissions. Member Tessler makes it clear that he finds
electronic monitoring to be superior to physical reporting, curfews or no-go
zones. It is also evident that during the first seven days Member Tessler (as
well as Member King) considered the risk of flight to be minimal because the
respondents are still awaiting a decision on their refugee claim. The Minister
acknowledged that this fact could be properly considered when gauging the
effectiveness of the conditions.
[33]
It is true that
Member Tessler does not specifically discuss the giving of a bond and why it is
not necessary in this case. However, the Court is satisfied that the answer to
this question is implicit in his decision given that, in all previous decisions,
it was recognized that the posting of bail would have no real impact on the flight
risk. Had the superiority of electronic monitoring been the sole basis of the
decision, the Court would have concluded that the reasons given by Member
Tessler meet the low threshold set out by the Court of Appeal in Thanabalsingham.
However, it was not so.
[34]
Member Tessler clearly
distinguished the situation before him from those reviewed by his colleagues on
the basis of the “new evidence” with respect to the respondents’ children. As
mentioned earlier, the fact that the children were with their parents when they
were arrested, and that they could visit their mother if Ms. Romero alone was
released, was clearly considered by the previous decision makers.
[35]
Member Tessler could not
properly turn his mind to the decisions of his colleagues on this point and consider
why he should depart from the course of action they took if he believed that
the information relating to the existence of the respondents’ children was new.
[36]
The respondents argue
that the decision is simply badly written and that the new information was not
the existence of the children, as noted in the decision, but rather the new
hope that the children could come to live in Canada if
the respondents were released.
[37]
The Court cannot
accept this argument. The Court cannot rewrite the decision on such a material
issue. While the ultimate conclusions of Member Tessler with regard to the
children may be correct, he clearly failed to consider the contrary view
expressed by Member King in particular.
[38]
The Court has much
sympathy for the difficult situation in which the respondents find themselves. However,
they will be entitled to seek release at the next detention hearing which,
according to the parties, will take place as soon as possible after the release
of these reasons.
[39]
The parties did not
submit any question for certification and the Court is satisfied that this
matter turns on its own facts.
ORDER
THIS COURT ORDERS that the application is granted.
The decision of Member Tessler dated May 11, 2006 is set aside. A new detention
review should be held as soon as possible.
“Johanne
Gauthier”
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