Date: 20100927
Docket: IMM-4875-10
Citation: 2010 FC 964
Ottawa, Ontario, September 27, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
MEHDI KARIMI-ARSHAD
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Minister asks this Court to set aside the August 18, 2010 decision of the
Immigration Division of the Immigration and Refugee Board which ordered that
Mr. Karimi-Arshad be released from detention on the conditions set out in the
Order for Release.
[2]
The Order
under review was stayed by this Court pending the final determination of this
application for judicial review. The Court expedited the hearing of the
application and it was heard little more than a month after the Order under
review issued. In light of the fact that the respondent remains in detention
pending this decision and that it was ordered that no further detention reviews
be conducted pending this decision, it is being issued with some haste.
Background
[3]
The
respondent is 50 years old. He is a citizen of Iran. He came to Canada in 1989 and was granted refugee status.
He then embarked on a series of crimes which Board members appear to accept
were a consequence of his heroin addiction. Since 1992 he has been convicted
of 23 criminal offences, the majority of which related to theft. The
respondent’s record includes a very serious August 2001 conviction for robbery
and the use of an imitation firearm during the commission of an offence, which
related to a bank robbery he committed. His record also includes convictions
for failure to attend court in February 2000 and failure to comply with a
probation order in June 2001. Most recently, in September 2007, he was
convicted of theft under $5000. He has been in detention since then.
[4]
As a
result of the respondent’s criminality, on October 15, 2002 he was found
inadmissible and ordered deported pursuant to subsection 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27; an appeal from this order was
dismissed. On November 18, 2002 a warrant to arrest the respondent for removal
was executed while he was incarcerated at Collins Bay Institution in Kingston, Ontario. On May 31, 2004 the
respondent was found by the Minister to be a danger to the public pursuant to
section 115(2)(a) of the Act. On December 15, 2004 the respondent was transferred
to immigration detention.
[5]
The
Toronto Bail Program has repeatedly declined to offer supervision to Mr.
Karimi-Arshad because of his serious criminal record and his failure to
cooperate with Canada Border Service Agency’s (CBSA) attempts to obtain the
travel document necessary for him to return to Iran. Nonetheless, on July 20, 2006 CBSA
recommended the respondent’s release from detention on terms and conditions that
included his own promise to appear and to observe the conditions of release.
[6]
His
release did not last for long as the respondent resumed his criminal
behaviour. On April 8, 2007 the respondent was arrested by CBSA as he had
been charged with theft under $5000, attempting to resist arrest, and dangerous
driving. On September 14, 2007 he was convicted of theft under $5000 and sentenced
to four months time served. On that same day he was transferred to immigration
detention, where he remains. Since then, he has had numerous and regular
detention reviews, as is required by the Act, and until the decision under
review was made no member had ordered his release from detention.
[7]
There have
been ongoing and continuing problems arranging for Mr. Karimi-Arshad’s removal
to Iran. At first the respondent was
the principal cause of the delay in getting the required travel document;
however, more recently it appears that Iranian authorities are not fully
co-operating with attempts to return the respondent to his country of birth.
[8]
From November
2004 to October 2005 the respondent refused to complete the Travel Document
application. He informed CBSA that he had no Iranian identification documents nor
any family or friends who could assist in obtaining them. In November 2005 the
respondent provided CBSA with an unsigned Travel Document application, which was
then forwarded to the Iranian Embassy. The necessary documents from Iran were not forthcoming.
[9]
At the April
2008 detention review, Mr. Karimi-Arshad said that he had received
correspondence from the Iranian embassy advising him that he did not need
identification to be issued a travel document, but that he was required to
attend an interview and sign a form indicating that he was leaving Canada and
returning to Iran voluntarily. An interview with Iranian Embassy officials was
arranged for the respondent but he was not taken to the interview because he
refused to sign a letter indicating he would voluntarily return to Iran. Such a letter was required by the Iranian
Embassy before it would issue travel documents.
[10]
In August
2009 Mr. Karimi-Arshad signed a statutory declaration affirming that he was a citizen
of Iran and that he was prepared to return to Iran. On February 24, 2010 he attended a private
interview with officials from the Iranian Embassy and signed a statutory
declaration affirming that he had signed all travel documentation applications and
was voluntarily returning to Iran.
[11]
The record
reveals that since November 2004 the Minister has made a number of efforts to
obtain Iranian identification and a travel document for the respondent so that
he could be removed to Iran. As stated, originally the
respondent was the major impediment to obtaining these documents. The member
whose decision is under review stated in her July 28, 2010 reasons that “It was
only at the point when the Iranian Embassy decided that Mr. Karimi-Arshad would
not be issued a passport even if he signed the letter of voluntary return that
Mr. Karimi-Arshad finally agreed to sign the required letter.” Therefore,
while the respondent had been the principal impediment to removal prior to
February 24, 2010, the Iranian authorities appear to have been the principal
impediment since then.
[12]
The respondent
had a number of recent detention reviews leading up to the August 18, 2010
review that resulted in the release order which is the subject of this
application. At these detention reviews, members of the Board declined to
release the respondent because of concerns relating to the inadequacy of the
proposed release terms and because of the possibility that the applicant would
be able to arrange for the respondent’s removal to Iran.
[13]
After the detention
review hearing of August 18, 2010, Board Member O.M. Kowalyk ordered the
respondent released. The Board came to this decision despite finding that Mr. Karimi-Arshad
remained a danger to the public and that he was unlikely to appear for removal
from Canada. The Board member’s specific finding with
respect to the respondent being a continuing danger to the public is reflected
in the following passage from her reasons:
I find that that evidence concerning the Danger Opinion and the
circumstances of the convictions, escalation of violence and the sentence imposed
establish that Mr. Karimi-Arshad is a danger to the public.
[14]
With
respect to the respondent continuing to be unlikely to appear for removal, the member
recites much of the history of the respondent’s dealings with CBSA but does not
provide the same sort of analysis as was provided with respect to the danger finding.
Nonetheless, the member says at the beginning of her reasons: “I find that I am
satisfied that Mr.
Karimi-Arshad is a danger to the public and that Mr. Karimi-Arshad is unlikely
to appear for removal from Canada.”
Issues
[15]
The
applicant Minister raises two issues:
1.
Whether
the member’s order unreasonably releases the respondent, a danger to the public
and a flight risk, without supervision or monitoring; and
2.
Whether
the member failed to provide clear and compelling reasons to depart from
several previous decisions ordering the respondent’s continued detention.
Analysis
[16]
The Court must
be guided by the following principles:
(i)
The
standard of review for a decision by a member of the Board to release a foreign
national from detention is reasonableness: Canada (Minister of Citizenship and
Immigration) v. Panahi-Dargahloo, 2010 FC 647, para. 25.
(ii)
Deference
is owed to the member’s findings of fact and assessment of the evidence: Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009
SCC 12, para. 59.
(iii)
The role
of this Court is not to substitute its opinion for that of the member: Walker v. Canada (Minister of Citizenship and
Immigration,
2010 FC 392, paras. 25-26.
(iv)
If a
member departs from prior decisions that maintained the detention, then the
member must set out clear and compelling reasons for so doing: Canada
(Minister of Employment and Immigration) v. Thanabalasingham, 2004 FCA 4.
[17]
The
reasonableness of the Order for release and the reasons provided require an
examination of the specific terms of release in light of the Board’s findings
that the respondent remains a flight risk and a danger to the public and in
light of the previous decisions of the Board. Accordingly, an examination of earlier
rejected proposals for release is necessary. In the present circumstances, the
more recent detention review hearings are the most relevant.
Previous Recent Detention
Reviews
2009 Reviews
[18]
Comments
from members in two of the detention reviews before 2010 reflect previous
decisions, and set the tone for subsequent reviews.
[19]
Member
Shepherd provided lengthy reasons following his review on March 12, 2009. He considered
each of the previous reviews.
In his reasons he notes that the respondent was “released on terms and
conditions on July 24, 2006 that included monthly reporting” and that he failed
to report on April 5, 2007 after he lost his cell phone which contained his
appointment calendar. The member finds this explanation wanting but does find
that he is likely to report to CBSA, notwithstanding this one occasion of
non-reporting:
Notwithstanding this explanation, his
conduct demonstrates a lack of due diligence in complying with his conditions
of release. He knew that he was subject to monthly reporting. He could
reasonably be expected to contact CBSA to confirm the next reporting date in
the event that he did not remember it. Notwithstanding this point, his
reporting history was otherwise good. … Based on all the facts of the case, I
am satisfied that he would likely report to CBSA on a monthly basis.
[20]
The
proposal before Member Shepherd was that Mr. Karimi-Arshad be released on his
own recognisance and reside with his former landlord. The member states:
Release to a person who has not been interviewed
for purposes of establishing suitability would not be appropriate in this
case. Given his criminal history, past heroine [sic] addiction and
flight risk, a release Order would need to address such issues as accommodation,
medical assessment and treatment, and meaningful supervision by a suitable
bondsperson to offset the various issues identified to justify release.
[21]
The member
who conducted the review on September 23, 2009 wrote that “I can easily
describe both the danger to the public that you pose if released as well as
your unlikelyness [sic] to appear for lawful removal as high to
extremely high.”
[22]
It is
against this backdrop of the respondent having breached the terms of his
earlier release as well as being found to be a high to extremely high risk of
being a danger to the public and failing to attend for removal that subsequent
decisions must be read.
April 13, 2010 Review – Member
Heyes
[23]
On April
13, 2010 Member Heyes continued the respondent’s detention and rejected the new
proposed terms of release which were outlined in letters from Salvation Army
Gateway (Gateway) and the Fred Victor Centre. This review is of particular
relevance as it appears to have been the first time these two agencies were involved
and because the decision under review did release the respondent on the basis
of letters from these same agencies, albeit under modified terms.
[24]
It was
proposed that Mr. Karimi-Arshad would become a resident at Gateway. As it was
put in the letter from Gateway dated March 9, 2010, it was responding to his
lawyers who were “looking to place Mr. Karimi Arshad [sic] at a suitable
address where supervision and case management would be present.” The letter
describes Gateway and its relationship with its residents as follows:
Salvation Army Gateway is a
men’s shelter which provides case management, housing support, and a small
clinic for our residents. Residents are required to actively participate with
a case manager to create a reasonable case plan and are responsible to meet all
pre-arranged appointments. Gateway does not provide strict supervision of
its residents; rather it is the resident’s responsibility to comply with all
shelter rules and policies and adhere to their case plan. Failure to do so
will result in the loss of their space in the bed program, in which case they
will be referred to alternate shelter accommodation. (Emphasis added)
[25]
The letter
went on to set out the conditions that had to be met before Gateway would
accept the respondent at its shelter:
We are willing to accept Mr. Karimi
Arshad [sic] at our shelter, provided the following conditions are met:
1. Mr. Karimi Arshad [sic]
is willing to sign a consent to release and disclose personal information forms
between Gateway and any agencies/systems he is to be held accountable to such
as Immigration, Legal Aid Ontario and probation/parole/bail
officers for the purposes of creating a case plan and accountability.
2. Mr. Karimi Arshad [sic]
is able to self-care and is ambulatory.
3. Mr. Karimi Arshad [sic]
agrees to be compliant with all rules and policies of this facility.
[26]
The letter
dated March 11, 2010 from the Fred Victor Centre sets out the services that it
offers as follows:
We are a preventative program that
provides responsive support in the community to people living with mental
illness who are at risk of involvement or re-involvement with the criminal
justice system. We offer intensive case management, programming, practical
support and advocacy to our clients. We make appropriate referrals to
community supports such as safe beds, legal representation, health services,
housing workers, and other services identified by the client.
[27]
Specifically
with respect to Mr. Karimi-Arshad, the Fred Victor Centre writes: “Please let
me know where and when I can meet or contact Mr. Arshad [sic] to do an
intake and begin working on a case plan with him.”
[28]
It was
proposed that the services of these organizations, as described, would be
provided to Mr. Karimi-Arshad. At the hearing the respondent’s counsel
indicated that Gateway would provide the respondent with shelter while awaiting
intake into Transition House, which would provide a maximum three-month stay
and assistance in dealing with his addiction. Member Heyes rejected the
proposal principally because it failed to provide supervision and because there
was a lack of detail concerning the programs that would be in put in place for
the respondent. Although lengthy, her statements of her concerns in this
regard are instructive when considering the decision under review:
Your past release on your own promise to
abide by conditions when combined with the treatment program dealing with the
drug addiction was not effective.
That was over two years ago and I do not
see anything specific in this proposal that would allay my concern that this
would not occur again.
Past failure to comply when released on a
promise to abide by conditions and rehabilitation is not determinative, but it
is certainly significant evidence pointing to the requirement that there needs
to be more to reduce or mitigate danger and flight risk.
Frankly, I do not see how simply
increasing the frequency of reporting to the Greater Toronto Enforcement Centre
reduces the flight risk or danger given the absence of any supervising surety.
This is to say that I do not find the
alternative that has been proposed is viable. There are things that are
lacking in the release plan, supervision for one thing.
It is clear from Exhibit DR-1. The
letter from Gateway that Gateway does not provide strict supervision.
The letter indicates it is the resident’s
responsibility to comply with shelter rules and policies.
Transition House can offer a three-month
stay, but does not in my view offer supervision. It indicates that their in-depth
counseling [sic] is provided by an outside primary counselor [sic]
and this is a voluntary program.
There is [sic] not a lot of
specifics in the plan to deal with the heroin addiction in terms of who would
provide it, what specifically is being offered, what monitoring there is, what
is in place to report any breaches to Canada Border Services Agency.
...
There is nothing, there is no supervising
surety attached to this release plan. Clearly it is not legally required, but
for someone who has not complied with previous release on his own promise in my
view is simply not enough to simply to rely on rehabilitation programs that are
based on a voluntary participation.
I do not see anything specific in the
program that would ensure appearance for removal for example.
And I find what is in Exhibit DR-1, DR-2,
and DR-3 somewhat lacking in details in terms of what specific treatment is
being proposed for you.
For example, in Exhibit DR-3, there is
reference to treating you for mental illness, but it does not specify that they
are aware what mental illness you are suffering from, how they intend to treat
that.
I find that the information is somewhat
general and does not specifically address violence in terms of your history and
what would be done to reduce this.
I do not after having reviewed the
document have any great understanding of what is actually being offered for you
and how this can address danger and flight risk.
Given the lack of detail and the fact
that I do not believe your detention is at this point indefinite, I'm going to
continue your detention on both grounds of both danger and flight risk.
May 11, 2010 Review – Member
Heyes
[29]
There was
no new alternative to detention presented for the member to consider and she
re-affirmed her view that “some sort of supervision would be required in the circumstances
... given that a release on your own promise to abide by conditions did not
succeed in the past.” However, the member did note that the detention was
becoming lengthy and asked the Minister to “contact the Department of Foreign Affairs
to find out what specific documents the Iranian officials are looking for” and
prepare a case history to assist in “sorting out what can still be done.”
June 9, 2010 Review – Member Kowalyk
[30]
This
member considered the same letters from Gateway and the Fred Victor Centre as
had been considered by Member Heyes at the April 13, 2010 review and concluded
that “the alternative proposed does not offset the concerns that arise from the
two factors of detention.” She specifically stated: “I agree with Member
Heyes’ assessment that the letter indicates that Gateway offers no monitoring
or supervision but rather relies on the individual to comply with the rules and
follow their case plan.”
[31]
Member
Kowalyk in her written reasons dated July 28, 2010 considers factors listed under
section 248 of the Regulations to the Act that are to be considered before a
decision is made on release or continued detention. Her concerns may be listed
as the following:
1.
The
proposed alternatives do not include the posting of any security deposit or
guarantee by a Canadian citizen or permanent resident living in Canada;
2.
The
proposed alternatives do not include monitoring or supervision by a third party
or professional organizations such as the Toronto Bail Program;
3.
Gateway
offers no monitoring or supervision but relies on the individual to comply with
the rules and follow their case plan;
4.
Gateway
does not indicate whether its services are available to an individual
regardless of legal status;
5.
Gateway
takes no responsibility to advise the CBSA that the individual has failed to
comply with the rules and is no longer in good standing with Gateway, or that
their address has changed because the individual lost his space in the bed
program;
6.
Gateway
has not confirmed the availability of a space in the bed program which it must
before an order for release is issued;
7.
It is
necessary that the case plan confirms that Gateway recognizes that Mr.
Karimi-Arshad is no longer a permanent resident and is subject to removal from Canada as soon as a travel document
is issued;
8.
All of
issues 1 to 7 “would have to be addressed in a case plan, agreement or
conditions” and the case plan has to be developed before an order for release
is issued (“it is not clear why the case plan cannot include monitoring and reporting
conditions to meet the concerns of CBSA and a copy of the case plan be provided
to the ID for consideration as basis of an order for release”);
9.
It is not
clear why the Fred Victor Center cannot develop the case plan, including the
confirmation of a safe bed, and present it at a detention review hearing; and
10.
The case
plan by either Gateway or the Fred Victor Center has to recognize and deal with
Mr. Karimi-Arshad’s precarious legal circumstances and “in their present form,
the letters from Gateway and the Fred Victor Centre do not deal with those
circumstances.”
[32]
Member
Kowalyk then focused her comments on the length of time in detention and the
efforts made by the Minister to enforce the deportation order as soon as
reasonably practicable. She notes that the last entry in the chronology of
attempts to obtain a travel document is March 11, 2010 and that at previous
hearings the Minister had referenced diplomatic contacts with the Iranian
Embassy. The member writes: “The CBSA will have to present a detailed update
on the obligations that the Iranian Embassy has concerning nationals of Iran and the steps or processes available to
ensure or convince Iranian authorities to carry out their obligations.”
July 28, 2010 Review – Member Kowalyk
[33]
On this
date the member released the reasons for her decision on the previous review
and she continued the detention as there had been no change since then. She
set the next review date and stated: “I will again hear from both parties and
in particular I would want the parties to address my analysis in the decision
that I have issued today.”
August 18, 2010 Review –
Member Kowalyk
[34]
At the
hearing the respondent presented two revised letters, both dated August 17,
2010. The first was from Gateway and the second was from the Fred Victor
Centre.
[35]
The
Gateway letter contained the same paragraphs set out in paragraphs 24 and 25 of
these Reasons and to that extent was no different from that considered
previously by Board members and rejected as insufficient; however, the letters
contained additions.
[36]
The Fred
Victor Centre letter indicates that its author and the representative from
Gateway had a telephone conference call with the respondent which was an
opportunity “to begin to form a case plan with him.” This beginning of a case
plan contained the following provisions:
1.
Mr.
Karimi-Arshad if released would go directly to Gateway, be admitted to its
shelter and access its addictions counsellor “once he settles in”;
2.
He will be
referred to a doctor in order to continue with his medication for Post
Traumatic Stress Disorder; and
3.
Gateway
and the Fred Victor Centre would continue to work collaboratively with the
respondent “to provide the optimum quality of support with his case plan.”
[37]
The
Gateway letter confirms that its author spoke to the respondent during a
telephone conference call and confirms the following:
1.
Mr.
Karimi-Arshad “expressed an interest in a case plan which includes meeting with
Gateway’s addictions counsellor, exploring possible treatment options for his
drug use and finding long-term housing”;
2.
The
respondent and the author of the letter will meet on “a regular basis (every 1-2
weeks, depending on need)”; and
3.
The
specifics of the case plan would be crafted in collaboration with the Fred Victor
Centre and would be “explored in more depth once the respondent is a resident
at the shelter.”
[38]
Gateway
confirms that it knows that Mr. Karimi-Arshad is incarcerated, does not have
status, and is waiting for his travel documents to be issued. It further
confirms that it is able to provide the respondent with a bed on his release.
[39]
Gateway
reiterates that it does not provide strict supervision to its residents but
that it will be the responsibility of Mr. Karimi-Arshad to comply with the
shelter’s rules and policies and “adhere to his case plan.” Importantly, it
adds:
With proper consents, Gateway will be
able to respond to CBSA, should they call and ask if Mr. Arshad [sic] is
residing at Gateway. However, Gateway will not be responsible for reporting
Mr. Arshad [sic] to CBSA, should he leave Gateway, as that is not our
mandate. I am willing to write a letter of support (at Mr. Arshad’s [sic]
request) to take to immigration with the dates of any appointments that Mr.
Arshad [sic] has with Gateway’s case management.”
[40]
Lastly,
echoing the letter from Fred Victor Centre, Gateway says that it is committed
to connecting the respondent to its case management staff “in order to start
the process of developing a case plan to which he will be held accountable.”
[41]
The member
ordered the release of the respondent on terms and conditions, the most
relevant of which, for the purposes of this application, are the following:
§
Be
accepted as a client for supervision and case management by the Salvation Army
Gateway Counselling Services and the Fred Victor Mental Health and Justice
program and remain in good standing with the agencies and the case plan
developed.
§
Shall
report on the next working day to an officer at the CBSA office at GTEC, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 if he is rejected as a client
for supervision and case management.
§
Shall
comply with conditions of the case plan, treatment program for mental health
and substance abuse developed by the case management by the Salvation Army
Gateway Counselling Services and the Fred Victor Mental Health and Justice
program.
§
Shall sign
a consent form to release and disclose to the CBSA personal information forms
given to agencies or physicians dealing with the case plan, programs or
treatment he is enrolled in; updates of the case plan, treatment and program
set up in his case; updates on his compliance with the case plan, programs,
treatment and medication plan.
§
Shall sign
a consent form to allow the CBSA to request information, updates and
documentation on the case plan, treatment and his compliance with the
conditions, rules and policies of the case plan and to confirm that he remains
in good standing with the agencies and the case plan.
§
Present
himself at the date, time and place that a Canada Border Services Agency (CBSA)
officer or the Immigration Division requires him to appear to comply with any
obligation imposed on him under the Act, including removal, if necessary.
§
Provide
CBSA, prior to release with his address and advise the CBSA in person of any
change in address prior to the change being made.
§
Report to
an officer at the CBSA office at GTEC, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 on or before date scheduled
by the CBSA and once a week thereafter. A CBSA officer may, in writing, reduce
the frequency or change the reporting location.
§
Reside at
all times at the address referred to by the Salvation Army Gateway, Counselling
services or the Fred Victor Mental Health and Justice program and comply with
all rules and policies of that facility.
[42]
The
letters from Gateway and Fred Victor Centre satisfy some of the conditions set
out by Member Kowalyk in her reasons of July 28, 2010. Specifically they
address items 4, 6, and 7 as summarized in paragraph 31 of these Reasons in
that they indicate that services are available to someone regardless of legal
status, that a bed will be available for the respondent on release, and that
the agencies acknowledge that they know that the respondent is subject to
removal.
[43]
Gateway does
not directly address the remaining previous concerns. Specifically, the
proposed alternative does not include the posting of any security deposit or
guarantee by a Canadian citizen or permanent resident living in Canada; does
not include the monitoring or supervision by a third party or professional
organization such as the Toronto Bail Program; does not include the reporting
to CBSA by the agencies of non-compliance or change of address, and does not
set out a developed case plan prior to release, although one has begun to be
created.
[44]
The
Minister submits that the reasons of the member do not set out how the consents
that the respondent is ordered to provide to CBSA will ensure compliance by the
respondent with the terms and conditions of release. The Minister further submits
that the member fails to provide clear and compelling reasons for departing
from earlier decisions that maintained the detention of the respondent. These
are inter-related issues and I will deal with them together.
[45]
Unlike
earlier decisions, this member finds that she is “unable to determine that
removal will be effected as soon as reasonably practicable.” She reaches this
conclusion after having reviewed the previous history of contacts with the
Iranian authorities. The record before the member indicated that the Iranian
authorities were not consistent in indicating what exactly was required to
provide the necessary travel document; however, it appears that what is now
required is original documentation that shows that the respondent is a citizen
of Iran. He has none and it appears that none can be obtained from Iran unless one is actually present in the
country – thus a Catch-22 faces the parties.
[46]
The Minister
has been in contact with the respondent’s family members in Canada (who appear to have had
little contact with the respondent) in an attempt to obtain original
documentation; however, they do not appear to have any such documents. There
is some suggestion that the respondent’s mother in Iran may have original
records of his Iranian military service and that she may be coming to Canada and she may be able to bring
these with her; however, this is all very speculative. Lastly, the Minister
advised the member that he was looking into whether someone in Iran with a power of attorney from the respondent
might be able to access original documents; again this was very speculative and
success was uncertain. Nonetheless, the member noted that while the respondent
had previously refused to provide such a power of attorney at the hearing in
August he agreed to sign a power of attorney “to allow the Canadian Mission in Tehran to act on his behalf to
secure a birth certificate or other original identity document.”
[47]
Although
the Minister submitted that there were ongoing diplomatic discussions between the
two countries, the member noted that no specifics had been provided. She
specifically found that there was no update provided as to “the actions DFAIT
will implement to resolve the issues and when the parties expect the issuance
of a travel document.”
[48]
The
member, in my view, clearly weighed all of the evidence that had previously
been submitted, the history of efforts to obtain the necessary travel document,
the lack of any information showing the current state of these efforts, and,
most importantly, the lack of any indication of when the necessary document
might be provided. With that background, the member’s assessment that she was
unable to determine that removal would be effected as soon as reasonably
practicable was reasonable, transparent and justified. I agree with the
applicant that the member did not find that the respondent will be detained
indefinitely or in a manner contrary to the Charter, however her finding
regarding the likelihood of removal was significantly different from that of
previous members. She was entitled to consider this factor and determine what
weight to give it.
[49]
The fact
that removal from Canada was not likely to happen
within the foreseeable future was a significant change in circumstance and it warranted
the member seriously examining the new proposal for release, which she did.
[50]
The major
obstacle to release had always been supervision and monitoring of the
respondent while on release from detention both to ensure that he was not a
danger to the public and to ensure his compliance with the terms of release. The
member notes and is aware that the current proposal for release does not
include the posting of a security deposit or guarantee by a Canadian citizen or
resident and does not include any third party agency alerting CBSA when the
respondent has
breached any of the terms of
release, breached his treatment plan, or left Gateway. However, the member
concludes:
I am satisfied that with the signing of
the consent by Mr. Karimi-Arshad that the CBSA will have access to current and
reliable information as to Mr. Karimi-Arshad’s compliance with terms and
conditions of the order for release. The requirement that Mr. Karimi-Arshad
reports once a week to the Bond Reporting Centre will allow the CBSA to monitor
weekly his compliance with his case plan for rehabilitation and control his
mental health and drug addiction. His compliance with the case plan for
rehabilitation is necessary to ensure that his criminal activity is checked and
prevent such incidents as lead to the serious convictions in 2001.
[51]
If a
surety, guarantor, or third party providing direct supervision and reporting to
CBSA had been available to the respondent, it is reasonable to assume that he
would have advanced it at some point during his three-year detention. I agree
with the submission of the respondent that the member engaged in a weighing of
the factors and a balancing exercise. The respondent did not have a surety or
guarantor and there was no third party prepared to provide supervision and
monitoring that included alerting CBSA when he was in default of the terms and
conditions of release or his treatment plan. The member clearly recognized
that CBSA had to have some mechanism in place to allow it to become aware of
any such breach. Gateway’s agreement that it would provide information to
CBSA, given the consent of the respondent, on his compliance with his case plan
and with the terms and conditions of the two agencies was found by the member,
when coupled with weekly reporting to CBSA, to provide the supervision and
monitoring that was required and reasonably available in the circumstances.
[52]
I have no
doubt that CBSA would prefer that a third party call it when a foreign national
on release breaches the conditions of release; however, the record before this
member indicated that no such system is available to this respondent. If such
a system were a pre-condition to release and it was not available to a
detainee, then that detainee could never be released from detention. This
cannot be the case. While inconvenient to CBSA, there is nothing that prevents
it from contacting Gateway as often as it deems necessary to check on the
respondent’s status and, if it learns that he is non-compliant, to detain him
again.
[53]
The
applicant submits that it was unreasonable for the member not to require as a
term of release that the respondent execute the consents necessary to permit
CBSA to contact Gateway and obtain information. The Minister submits that “the
agencies, given their mandates, are certainly not going to require these
consents and the member has imposed no deadline as to when such consents must
be provided for the order to be complied with.” I find this submission to be without
merit. The timing of the execution of the consents is fully within the control
of the applicant. I accept the submission of the respondent that “since it is
a condition of release that the consents be signed, these consents can easily
be prepared for the applicant’s signature by CBSA to be signed upon release.”
[54]
For these reasons,
I find that the decision releasing the respondent on the terms set out in the
Order for Release is not unreasonable and further find that the member provided
clear and compelling reasons to depart from previous detention orders.
[55]
No
question was proposed by either party for certification and there is no serious
question of general importance involved in this application.
JUDGMENT
THIS COURT ORDERS that:
1. This
application is dismissed; and
2. No
question is certified.
“Russel
W. Zinn”
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