Canada (Minister of Citizenship and Immigration) v. Romans, 2005 FC 435

Date: 20050401

Docket: IMM-7277-04

Citation: 2005 FC 435

Ottawa, Ontario, April 1, 2005

Present:           The Honourable Madam Justice Mactavish                                    

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Applicant

                                                                           and

                                                   STEVEN ANTHONY ROMANS

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is a sad and difficult case - one that has clearly strained the ability of the immigration system to deal with individuals suffering from serious mental disabilities.

[2]                Steven Anthony Romans is a chronic paranoid schizophrenic, and it is generally agreed that he represents an ongoing danger to the public. Between 1999 and 2004, Mr. Romans was held in immigrationdetention. With no end to his detention in sight, in August of 2004 the Immigration Division of the Immigration and Refugee Board ordered Mr. Romans released.

[3]                In view of Mr. Romans' mental condition, the Board declined to attach any conditions to his release.

[4]                This is an application for judicial reviewbrought by the Minister from that decision. The Minister argues that the Board erred in failing to provide compelling reasons for departing from the decisions rendered in previous detention reviews, and in finding that Mr. Romans' detention had become indefinite. The Minister further argues that the Board's decision not to attach any conditions to Mr. Romans' release was perverse.

[5]                For the reasons set out below, I am satisfied that the Board did not err in deciding to release Mr. Romans from immigrationdetention. However, in light of the Board's finding that Mr. Romans represented an ongoing danger to the public, the decision not to impose any conditions on his release was patently unreasonable, and cannot stand.

Background

[6]                Mr. Romans was born in Jamaica, and came to Canada as a very young child. He has never acquired Canadian citizenship.

[7]                While in his teens, Mr. Romans began developing symptoms of schizophrenia. As a result, at least in part, of his mental illness, Mr. Romans also began to get into trouble with the law. He now has numerous convictions for a wide range of criminal offences, including eight convictions for common assault, as well as convictions for sexual assault and assault causing bodily harm. In addition to convictions for other crimes such as the trafficking in and possession of cocaine, fraud and theft, Mr. Romans has also been convicted on numerous counts of failing to appear, failing to comply with recognizances and failing to comply with the terms of his probation.

[8]                In April of 1999, after the disposition of certain criminal matters, Mr. Romans was taken into immigration detention. In June of that year, a deportation order was issued against him.

[9]                Mr. Romans appealed the deportation order to the Immigration Appeal Division of the Immigration and Refugee Board, which appeal was dismissed.    His deportation was stayed by the Federal Court while his case wended its way to the Supreme Court of Canada, which ultimately denied him leave to appeal.

[10]            Mr. Romans then applied successfully to have his case reopened by the IAD. The result of the new IAD hearing was once again not in Mr. Romans' favour. In December of 2003, the IAD's decision was set aside by Justice Russell of this Court, who ordered a new hearing before the IAD. This hearing took place in January of this year, and the IAD's decision is still under reserve.

[11]            In addition to his outstanding appeal before the IAD, Mr. Romans also has a pending application for ministerial relief on humanitarian and compassionate grounds. He has also made an application to the United Nations Human Rights Committee for relief. Although the UNHRC has evidently demonstrated interest in Mr. Romans' case, it will not decide whether it wishes to intervene in the case until such time as Mr. Romans has exhausted all available domestic remedies.

[12]            Throughout the time that Mr. Romans was pursuing these various avenues, he remained in immigration detention. He was initially held in the Don Jail, and was then transferred to the Toronto West Detention Centre. He was subsequently transferred to the Penetanguishene Mental Health Centre, where he remains to this day.

[13]            In accordance with the legislation, Mr. Romans was the subject of regular detention reviews. Until the rendering of the decision in issue, these reviews have generally resulted in Mr. Romans' continued detention, on the grounds that he posed an ongoing danger to the public and/or he was unlikely to appear for his removal.

[14]            Mr. Romans' detention was again reviewed on July 22, 2004. It is the decision in this review that is the subject of this application.

The Board's Decision

[15]            In a lengthy decision, the Board reviewed the procedural history of this matter, as well as Mr. Romans' medical situation. While noting that Mr. Romans' condition has improved from time to time over the period of his detention, at the time of the hearing his condition had again deteriorated, and he had been deemed unfit to attend his detention review hearing. He was, however, represented at the hearing by counsel who had been designated as his representative for the purposes of detention reviews pursuant to the provisions of section 167(2) of the Immigration and Refugee Protection Act.

[16]            Based upon the record, as well as the presiding member's own previous observations of Mr. Romans, she came to the conclusion that he likely represented an ongoing danger to the public. The member also found that because of his mental state, Mr. Romans could not be relied upon to comply with conditions of release.

[17]            While generally opposing Mr. Romans' release on any basis, the Board observed that in the course of these lengthy proceedings, the Minister has, on occasion, taken the position that Mr. Romans could be released, provided that suitable alternate arrangements could be made for his care.

[18]            In this regard, the presiding member noted that in early 2003, information had been provided that Mr. Romans was to undergo an assessment in order to determine whether he should be detained under the provisions of the Ontario Mental Health Act. This process, however, appeared to have gone by the wayside.

[19]            After reviewing the relevant legislative provisions, the member noted that the authority to continue Mr. Romans' detention exists only for the purpose of securing his removal from Canada. The Immigration and Refugee Protection Act does not authorize the detention of anyone to allow for, or to compel, medical treatment.

[20]            The Board noted that there had been a valid deportation order in effect against Mr. Romans since 1999, and that arrangements had been made in the summer of 2001 for his removal. More than three years later, however, the removal had yet to take place.

[21]            The Board went on to observe that in light of the outstanding proceedings involving Mr. Romans, his removal was still somewhere in the indefinite future. In these circumstances, the Board went on to examine whether Mr. Romans' continued detention accorded with the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms.

[22]            In addressing this question, the Board referred to the factors cited in the decision of the Federal Court in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214. That is, the Board examined the reasons for Mr. Romans' detention, the length of time involved, any delay or lack of diligence on Mr. Romans' part, and possible alternatives to detention.

[23]            While noting that the fact that Mr. Romans continued to be a danger to the public weighed heavily in favour of his continued detention, the Board stated that even this fact could not justify continued detention, if that detention was indefinite in nature, and in breach of Charter principles.

[24]            The Board found that in this case, the length of Mr. Romans's detention was of particular importance. While Mr. Romans had been detained for more than five years, his case was far from resolved. There were at least three processes outstanding, and the Minister had given an undertaking not to remove Mr. Romans until such time as the UNHRC dealt with the case. In these circumstances, the Board found that there was simply no way of knowing when, if at all, Mr. Romans would be removed from Canada.

[25]            Insofar as possible alternatives to detention were concerned, the Board found that the provisions of the Ontario Mental Health Act provided the only realistic alternative to Mr. Romans' continued detention under the provisions of the Immigration and Refugee Protection Act.

[26]            In all of the circumstances, the Board found that Mr. Romans' continued detention was indefinite, and contravened the Charter. Mr. Romans was therefore ordered to be released. As noted earlier in this decision, in light of Mr. Romans' mental state, the Board felt that he was unlikely to comply with any conditions of release, and therefore decided not to attach any such conditions to his release.

Post-Decision Events

[27]            The parties have advised me that as a result of serious concerns with respect to public safety arising from the decision to release Mr. Romans from detention, proceedings were immediately commenced under the Ontario Mental Health Act. Within 48 hours of the Board's decision, Mr. Romans' detention was continued under that legislation. He still resides in the Penetanguishene Mental Health Centre, but is there now as an involuntary patient. Hisday-to-day existence has not changed at all, despite his change in status.

[28]            In light of Mr. Romans' ongoing incompetency, by order of Justice Phelan, Mr. Romans' mother was appointed as his litigation guardian for these proceedings, and counsel appeared on his behalf at the hearing of this application.

Relevant Statutory Provisions

[29]            The relevant portions of the Immigration and Refugee Protection Act provide:

[30]            Also of significance are the following provisions of the Immigration and Refugee Protection Regulations, which provide:

Issues

[31]            The Minister raises three issues on this application. These are:

1.         Whether the Board provided compelling reasons for departing from decisions rendered in previous detention reviews;

2.         Whether the Board erred in finding that Mr. Romans' detention had become indefinite; and

3.         Whether the Board erred in refusing to attach any conditions to Mr. Romans' release.

[32]            As a preliminary matter, Mr. Romans argues that the application should not be dealt with, on the basis that it has become moot. This issue will be addressed first.

Is the Application Moot?

[33]            Mr. Romans submits that as he is now being detained under the provisions of the Ontario Mental Health Act, this application is moot. As I understand his argument, his view is that even if the Board should have imposed conditions on his release requiring that he continue to receive treatment at the Penetanguishene Mental Health Centre, the fact is that he is now receiving treatment at that institution on an involuntary basis.

[34]            According to Mr. Romans, the practical reality is that he is still in detention, albeit now under the appropriate authority. As a consequence, there is simply nothing to be gained by sending the matter back to the Board.

[35]            In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada held that the doctrine of mootness is part of the general policy that a court may decline to deal with a case that raises hypothetical or abstract questions. A case is moot when the decision will not have the effect of resolving a live controversy affecting or potentially affecting the rights of the parties. Such a live controversy must exist, not only when the action or proceeding is commenced, but also when the court is called upon to make its decision.

[36]            There is also discretion for a court to deal with a case in certain circumstances, notwithstanding the fact that it may be moot.

[37]            I am satisfied that this case is not moot. There is still a tangible and concrete dispute between the parties with respect to the matter of the immigration authorities' control over Mr. Romans.

[38]            By releasing himunconditionally, the immigration authorities have lost all control over Mr. Romans. Had he been in a position to understand the implications of the Board's ruling, Mr. Romans could have simply walked away from the Penetanguishene Mental Health Centre during the 48 hour period that it took to have him held under the Mental Health Act.

[39]            Even though he is now detained involuntarily, there is no assurance that the immigration authorities will be notified in the event that Mr. Romans' detention under the mental health legislation ends. Assuming that Mr. Romans would no longer be a threat to either himself or to the public at that point, the immigration authorities would still have an interest in ensuring that he will appear for his removal.

Standard of Review

[40]            Decisions of the Immigration Division of the Immigration and Refugee Board dealing with questions of law are to be reviewed against a standard of correctness, whereas findings of fact are subject to the patent unreasonableness standard: Minister of Citizenship and Immigration v. Thanabalasingham, 2004 FCA 4.

[41]            Insofar as questions of mixed fact and law are concerned, a determination has to be made as to how factually intensive the question is, or whether a pure question of law can be extracted from the issue. Where the question depends largely on an interpretation of the facts of the case, it will be subject to the patent unreasonableness standard.

Did the Board Provide Compelling Reasons for Departing from Decisions Rendered in Previous Detention Reviews?

[42]            While conceding that the primary argument on this application relates to the failure of the Board to attach conditions to Mr. Romans' release, the Minister nevertheless submits that the Board erred in failing to provide "compelling reasons" for departing from decisions rendered in earlier detention reviews, as mandated by the Federal Court of Appeal in Thanabalasingham, previously cited.

[43]            According to the Minister, the obligation to provide compelling reasons for a decision is all the greater where, as in this case, there was no new evidence before the Board on which to base the decision.

Analysis

[44]            Thanabalasingham is clear: on each detention review, the Immigration Division must come to a fresh determination as to whether the detained person should continue in detention. While the Board is not bound by previous decisions, in the event that the Board member chooses to deviate from these decisions, the member must provide compelling reasons for doing so.

[45]            As the Court of Appeal noted in Thanabalasingham, one of the best ways for a member to provide clear and compelling reasons for his or her decision is to expressly explain what it is that has given rise to the changed opinion. That is, the member should explain what the earlier decisions said, and why the member does not agree with them.

[46]            In my view, insofar as the reasons in this case relate to the decision to release Mr. Romans from detention, the reasons amply conform to the standard mandated by the Federal Court of Appeal in Thanabalasingham. The reasons are lengthy and careful. The member reviews the history of this matter in considerable detail, including what had gone on in previous detention reviews. She then goes on to explain why, in her view, the time had come to do something about Mr. Romans' situation.

[47]            It is true that there was no new evidence before the member, nor was there any change in Mr. Romans' circumstances. Indeed, that was the whole point of the decision: that despite the passage of more than five years, there was still no end in sight for Mr. Romans, insofar as his legal proceedings were concerned. Further, despite indications from the parties over the years that the alternative of detention under the Mental Health Act was being explored, nothing ever seemed to happen in this regard.

[48]            In the circumstances, I am more than satisfied that the reasons given by the presiding member for departing from decisions rendered in earlier detention reviews are sufficiently clear and compelling as to meet the Thanabalasingham standard.         

Did the Board Err in Finding That Mr. Romans' Detention Had Become Indefinite?

[49]            The Minister submits that the Board's finding that Mr. Romans' detention had become indefinite was perverse and capricious, and that the presiding member erred in law in failing to apply the principles contained in the Immigration and Refugee Protection Act and Regulations, as well as those established by the jurisprudence.

Analysis

[50]            The issue of indefinite detention was considered by Justice Rothstein, then of the Federal Court, in the Sahin decision previously cited. In that case, Justice Rothstein noted that since detention under immigration legislation is done in anticipation of the individual's likely danger to the public or likely failure to appear for removal, such detention may not be indefinite.

[51]            While those held in immigration detention are entitled to a detention review every thirty days, and may be held only as long as a removal order is pending, nevertheless, when a number of steps remain to be taken before the removal process can be implemented, and the time required to complete those steps is unknown, a lengthy detention may, for practical purposes be reasonably termed "indefinite".

[52]            Justice Rothstein went on to find that indefinite detention, for a lengthy period of time could, in the appropriate circumstances, constitute a deprivation of liberty that is not in accordance with principles of fundamental justice, and thus violates the provisions of section 7 of the Canadian Charter of Rights and Freedoms.

[53]            Section 7 of the Charter provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[54]            Fundamental justice requires that a fair balance be struck between the interests of the person who claims that his liberty has been affected and the protection of society. To assist in assessing whether the continued detention of an individual amounts to an indefinite detention,

Justice Rothstein suggested a non-exhaustive list of factors to be considered. These factors include the reasons for the detention, the length of time in detention, whether either party caused any of the delay, or failed to exercise due diligence, and the availability of alternatives to detention.

[55]            It should be noted that these factors are now reflected in section 248 of the Immigration and Refugee Protection Regulations.

[56]            Justice Rothstein also noted that where an applicant is a danger to the public, or there is a concern that he may not appear for removal, there will be a stronger case for continuing the detention. On the other hand, where the individual has been in detention for a long period of time, and a further lengthy detention is anticipated, or the length for the future detention cannot be ascertained, this would favour release.

[57]            It bears noting that the period of detention in issue in Sahin was 14 months, albeit in somewhat different circumstances. At the time of the Board's decision in this case, Mr. Romans had been detained for in excess of five years.

[58]            The question of whether, in a given set of circumstances, the detention of an individual has become indefinite is a question of mixed fact and law. In this case, the answer to that question is highly dependant on the unusual facts of this case. As a consequence, I am of the view that the Board's finding in this regard is properly reviewable against the standard of patent unreasonableness. My conclusion in this regard is not, however, determinative of the issue, as I am satisfied that the Board's conclusion on this issue would also withstand scrutiny under the more exacting standard of reasonableness.

[59]            A review of the Board's decision reveals that the Board member correctly identified the relevant factors to be considered in assessing whether, in the circumstances, Mr. Romans' detention could properly be considered to be "indefinite".

[60]            Each of these factors was then carefully weighed by the member. While she appears to have been acutely aware of the danger to the public presented by Mr. Romans, she noted that this factor could not justify continued detention if that detention was indefinite in nature and in violation of Charter principles.

[61]            The Board member then weighed the danger to the public posed by Mr. Romans against the nearly five and a half years that he had already spent in detention. She further considered the fact that there were at least three legal processes ongoing, and the fact that there was no end in sight to this litigation.

[62]            The member also considered the fact that there was an alternative to continued immigration detention available under the provisions of the Ontario Mental Health Act.

[63]            Taking all of these factors together, the Board member concluded that the time had come for Mr. Romans to be released from immigration detention. This conclusion was one that was reasonably open to the member, and although others might have weighed the various factors differently, I see no basis for interfering with this aspect of the member's decision.

[64]            This leaves the decision not to attach any conditions to Mr. Romans' release.

Did the Board Err in Refusing to Attach Any Conditions to Mr. Romans' Release?

[65]            In contrast to the portion of the reasons dealing with the decision to release Mr. Romans, which is detailed and careful, the member's reasons for not attaching any conditions to his release are brief to the point of terseness. The sum total of the Board's reasoning on this point is set out in the Board's statement that "In view of his mental condition, I impose no conditions on him at this time".

[66]            From a review of the decision as a whole, however, it appears that the member came to this conclusion on the basis that, because of his mental state, Mr. Romans could not be relied upon to comply with any conditions of release.

[67]            It was this aspect of the Board's decision that was the real focus of the Minister's arguments.

[68]            According to the Minister, while the Board member may well have been frustrated by the ongoing failure of those involved with Mr. Romans' care to see that the appropriate steps were taken to ensure his detention under the provisions of the mental health legislation, it was simply perverse and irresponsible for her to have ordered his release without imposing any conditions to ensure that the public was protected.

[69]            In contrast, Mr. Romans submits that while section 58(3) of IRPA empowers the Board to impose conditions on the release of an individual, it is not obliged to do so. While conceding that it would have been better if the Board had required that Mr. Romans continue to get appropriate medical treatment as a condition of his release, he nevertheless submits that the Board did not err in failing to do so.

[70]            In support of this submission, Mr. Romans argues that the Board clearly turned its mind to the possibility of imposing conditions on his release, and decided not to do so, giving clear reasons for its decision in this regard.

[71]            According to Mr. Romans, the attempts to have Mr. Romans dealt with under provincial mental health legislation had previously met with no success, and it can be reasonably inferred that the member's decision to release Mr. Romans unconditionally was intended to put pressure on the provincial health care authorities to take the necessary steps to ensure that the public was protected.

Analysis

[72]            The member's evident frustration with the fact that, some five and a half years after he was first detained, Mr. Romans had not yet been dealt with under the applicable mental health legislation is entirely understandable. While there is some suggestion that Mr. Romans may have slipped through the cracks between the federal immigrationprocess and the provincial health care system, the fact is, as Justice Russell himself noted when he heard the review of the IAD's decision in this matter, "The applicable provincial laws should have been used long ago to ensure that [Mr. Romans] gets the treatment he needs for his illness and to ensure that he is detained in an appropriate institution until he ceases to be a danger to himself and the public."

[73]            That said, there is a legislative requirement on the Board to consider conditions on release, especially in cases involving a clear danger to the public. In deciding not to impose any conditions on Mr. Romans' release, the member's reasoning is perverse. It is precisely because of Mr. Romans' mental health condition and the resulting danger that he poses to the public that stringent conditions should have been imposed upon his release.

[74]            Section 58(3) of the Immigration and Refugee Protection Act empowers the Board to impose any conditions that it deems appropriate in releasing an individual from detention. While it would clearly have been beyond the jurisdiction of the Board to order that Mr. Romans be detained under the provisions of provincial mental health legislation, it would have been entirely open to it to order, at a minimum, that Mr. Romans' release be made conditional upon his designated representative providing the Board with satisfactory evidence that he was receiving appropriate medical care as an involuntary patient in a secure facility, so that the safety of the public could be protected.

[75]            In the face of the express finding that Mr. Romans continues to be a danger to the public, the failure of the Board to impose such a condition was, in my view, patently unreasonable. As a result, this aspect of the Board's decision cannot stand.

Conclusion

[76]            For these reasons, the application for judicial review is allowed insofar as it relates to the failure of the Board to impose any conditions on Mr. Romans' release from detention. The matter is remitted back to a different member of the Immigration Division for a determination of the appropriate conditions to be attached to Mr. Romans' release.

[77]            Despite the difficulties that have arisen in this case, it appears that the parties have endeavored to work together in order to try to find the best way to address the challenges presented by Mr. Romans' case. The parties are encouraged to continue to consult with each other, and, to the extent possible, with Mr. Romans' health care providers, in order to identify potential options for conditions for Mr. Romans' release in order to assist the Board in its task.

Certification

[78]            In light of the unique facts of this case, neither party has suggested a question for certification, and no question of general importance arises here.

                                                                       ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is allowed, in part, and the question of what conditions should be attached to Mr. Romans' release is remitted to a different member of the Immigration Division for redetermination, in accordance with these reasons.

2.          No serious question of general importance is certified.

             "Anne L. Mactavish"                  

Judge                              

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-7277-04

STYLE OF CAUSE:                          THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

-and-

STEVEN ANTHONY ROMANS

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      MARCH 24, 2005

REASONS FOR ORDER

AND ORDER:                                MACTAVISH J.

DATED:                                             APRIL 1, 2005

APPEARANCES:

Mr. Jamie Todd

FOR APPLICANT

Ms. Krassina Kostadinov

FOR RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR APPLICANT

Mr. Lorne Waldman

Deputy Attorney General of Canada

FOR RESPONDENT