Date: 20121113
Docket: IMM-11456-12
Citation: 2012 FC 1315
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 13,
2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Applicant
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and
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ABDI DAOUD DAOUD
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
When
a decision of a Canadian superior court specifically affirms in a particular
case [translation] “that the
danger to the public is real” and that [translation]
“the allegations of irreparable harm” remain and [translation] “are not speculative”, a trial court judge may
not ignore that decision or take it lightly, thereby putting [translation] “public safety” at risk.
(Paragraph 10 below illustrates the serious consequences weighing on the
decision maker.)
[2]
The
Minister of Public Safety and Emergency Preparedness has filed a second
interlocutory motion asking this Court to stay the release of Abdi Daoud Daoud pending
a ruling in an application for leave and judicial review.
[3]
In a
very recent decision in this case, rendered on November 5, 2012, Justice
Luc Martineau of the Federal Court already granted one motion by the Minister
for a stay, having found that [translation]
“in light of the applicable law and the evidence in the file, the applicant has
a very strong case against the reasonableness of the impugned decision”; Martineau J.
then specified that [translation] “the
respondent represents a high flight risk and the danger to the public is real”.
Moreover, Martineau J. concluded that [translation]
“the applicant’s allegations of irreparable harm are not speculative, given
that even after undergoing an initial detoxification treatment, the respondent
reoffended and committed assault”.
[4]
Since
this very recent decision by Martineau J., the reality of the situation
clearly shows the need for Mr. Daoud’s detention; the Minister even
obtained, with respect to the avowed criminal charges, a stay to schedule the
removal for December 6, 2012. (See the Federal Court of Appeal decision in
Canada (Minister of Citizenship and Immigration) v Thanabalinsingham,
2004 FCA 4, [2004] 3 FCR 572).
[5]
The
Immigration Division [ID] of the Immigration and Refugee Board committed a
serious error of law that warrants the intervention of this Court.
[6]
Section 244
of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]
reads as follows:
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244. For the purposes of Division 6 of Part
1 of the Act, the factors set out in this Part shall be taken into
consideration when assessing whether a person
(a) is unlikely to appear for examination,
an admissibility hearing, removal from Canada, or at a proceeding that could
lead to the making of a removal order by the Minister under subsection 44(2)
of the Act;
(b) is a danger to the public; or
(c) is a foreign national whose identity
has not been established.
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244. Pour l’application de la section 6 de
la partie 1 de la Loi, les critères prévus à la présente partie doivent être
pris en compte lors de l’appréciation :
a) du risque que l’intéressé se soustraie vraisemblablement au contrôle,
à l’enquête, au renvoi ou à une procédure pouvant mener à la prise, par le
ministre, d’une mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
b) du danger que constitue l’intéressé pour la sécurité publique;
c) de la question de savoir si l’intéressé est un étranger dont
l’identité n’a pas été prouvée.
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[7]
Furthermore,
sections 245 and 246 of the Regulations are among the key factors used to
assess danger to the public and flight risk.
[8]
Following
the determination that Mr. Daoud’s detention would continue until
December 6, 2012, the date of his scheduled removal, this factor should
have been weighed among the others to uphold Mr. Daoud’s detention until
December 6, 2012. (See paragraphs 248(b) and (c) of the
Regulations.)
[9]
Real
danger to the public and the risk of flight should have been taken into account
pursuant to paragraphs 245(c) and (d), was well as
paragraph 246(a) and subparagraphs (d)(ii) and (e)(i)
of the Regulations.
[10]
The
criminal record with convictions for assault causing bodily harm, death
threats, robbery, drug trafficking and breach of conditions; and the danger
opinion issued on this basis pursuant to paragraph 115(2)(a) of the
IRPA and upheld by the Federal Court lead, as a whole, to a single conclusion,
the one reached by this Court.
[11]
The
Court notes that section 3 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] specifies the following:
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3. (1) The objectives of this Act with
respect to immigration are
. . .
(h) to protect public health and safety and
to maintain the security of Canadian society;
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3. (1) En matière d’immigration, la
présente loi a pour objet :
[...]
h) de protéger la santé et la sécurité publiques et de garantir la
sécurité de la société canadienne;
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[12]
Justice
John Sopinka of the Supreme Court of Canada wrote the following in Canada
(Minister of Employment and Immigration) v Chiarelli, [1992] 1 S.C.R. 711:
[24] . . . The most fundamental principle of
immigration law is that non-citizens do not have an unqualified right to enter
or remain in the country . . .
[13]
Because
the three-part conjunctive test from RJR - MacDonald Inc. v Canada (Attorney
General), [1994] 1 S.C.R. 311 is satisfied, the motion for a stay of
Mr. Daoud’s release order is granted for a second time.
[14]
This
Court grants the motion for a stay of Mr. Daoud’s release order pending
the final decision in the application for leave and judicial review or Mr.
Daoud’s next detention review, whichever comes first.
ORDER
THIS COURT ALLOWS the Minister’s motion and
grants the stay of Mr. Daoud’s release pending the final decision on the
application for leave and judicial review or Mr. Daoud’s next detention review,
whichever comes first.
“Michel M.J. Shore”
Certified true translation
Francie Gow, BCL, LLB
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