Date: 20090918
Docket: IMM-4589-09
Citation: 2009
FC 934
Ottawa, Ontario, September 18, 2009
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Applicant
and
ROBERT
SANKAR
Respondent
REASONS FOR ORDER AND ORDER
[1]
UPON
motion on behalf of the Applicant for a stay of the order of Immigration
Division Member Louis Dubé (the ID Member), dated September 15th,
2009, releasing the Respondent from detention;
[2]
AND UPON considering
that the Respondent was scheduled to be released the following morning, counsel
for the Applicant was heard at an urgent ex parte hearing of the stay
application by telephone conference on the evening of September 15, 2009, where
I granted an interim order suspending the decision of the ID Member Louis Dubé
until hearing from counsel for both parties by telephone conference on
September 18, 2009;
[3]
AND UPON
considering the written submissions filed by the Applicant’s and Respondent’s
counsel;
[4]
AND UPON
considering the tripartite test in Toth v. Canada (Minister of Employment
and Immigration), (1988), 86 N.R. 302, 11 A.C.W.S. (3d) 302 (F.C.A.),
where, in order to obtain a stay, an Applicant must demonstrate: (1) that there
is a serious issue to be tried; (2) that the Applicant would suffer irreparable
harm if no order were granted; and (3) that the balance of convenience favours
the granting of the order;
[5]
The
Respondent is a citizen of Trinidad
and Tobago who
came to Canada on October 22, 1988 and became
a permanent resident on February 26, 1992 after being sponsored by his wife.
[6]
In 2003,
2008 and 2009, the Respondent was convicted of various offences under the Criminal
Code of Canada, R.S. 1985, c. C-46, such as assault causing bodily harm
(section 267), sexual assault (subsection 271(1)(a)), forcible confinement
(subsection 279(2)(a)) and assault with a weapon (subsection 267(a)) among
others.
[7]
The
Respondent served a term of imprisonment and was released on September 4, 2009.
Upon his release, the Respondent was detained for immigration purposes.
[8]
The
Applicant’s detention was upheld after a first detention review hearing on
September 8, 2009 because he was found to be a danger to the public.
[9]
On
September 15, 2009, following a second detention review hearing, ID Member
Louis Dubé decided that the Respondent should be released upon deposit of $3,000,
and among the conditions, that he must live at his sister’s house and he must
respect a curfew.
[10]
The
Applicant has applied for leave and judicial review of this decision and in the
meantime, seeks a stay of the Respondent’s release.
Serious Issue
[11]
I am
satisfied that the Applicant has raised serious issues to be tried with respect
to the conclusions of ID Member Louis Dubé regarding the following facts:
a) the Respondent was
found to be a danger to the public in the first detention review hearing on
September 8, 2009 and this risk remains important enough;
b) imposing conditions
including the deposit of a sum of $3,000, obligating the Respondent to live with
his sister and respecting a curfew, among others, would counterbalance the fact
that the Respondent constitutes a danger to the public;
c) the proposed
bondsperson, the Respondent’s sister, would be able to control the Respondent.
Irreparable Harm
[12]
Given the
nature of the above serious issues, I find that the danger to the public, if a
stay is not granted, is real and for the purpose of this motion, it constitutes
irreparable harm.
[13]
The Respondent’s
sister said that she has an influence on her brother because he listens to her
and respects her. However, she also testified that before her brother’s
detention, she would see him maybe once a week because she works a lot. As
such, the control and influence she could exercise seem limited.
[14]
In any event, considering
the Respondent’s criminal record, the conditional release and $3,000 bail do
not eliminate the danger to the public posed by the Respondent (Charkaoui v.
Canada (Minister of Citizenship and
Immigration), 2003 FC
882 at paragraph 66).
[15]
Although the
Respondent explained the circumstances surrounding how he committed the crimes
and he followed anger management therapy, he has clearly shown to be able to
commit serious criminal offences in a repeated manner and in breach of court
conditions.
[16]
The evidence
demonstrates that the Applicant constitutes a danger for the public.
Balance of Convenience
[17]
Finally,
the security of the public, in the circumstances, tips the balance of convenience
in favour of the Applicant, especially considering the nature of the
Respondent’s convictions and the fact that he was ordered to register as a
sexual offender and to provide a DNA sample (subsection 487.06(1) Criminal
Code of Canada).
ORDER
THIS COURT ORDERS that Immigration Division Member
Louis Dubé’s order, dated September 15, 2009, releasing the Respondent from
detention, is stayed until the earlier of either the disposition of the
application for leave and judicial review or, in the alternative, until the
Respondent’s next statutorily mandated detention review hearing.
“Richard Boivin”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4589-09
STYLE OF CAUSE: MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v. Robert SANKAR
PLACE OF
HEARING: OTTAWA, Ontario
DATE OF
HEARING: September
18, 2009
REASONS FOR ORDER: BOIVIN J.
DATED: September
18, 2009
APPEARANCES:
|
Me Geneviève Bourbonnais
Me Sherry
Rafai
|
FOR THE APPLICANT
|
|
Me
Marie-Hélène Giroux
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
Monterosso
Giroux s.e.n.c.
|
FOR THE RESPONDENT
|
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