Date:
20091005
Docket:
IMM-4883-09
Citation:
2009 FC 1005
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, October 5, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
and
THE MINISTER OF IMMIGRATION
AND
CITIZENSHIP
Applicants
and
JOSE GUIOVANNY TORRES VARGAS
alias
JOSE GUIOVANNY TORRES OLMEDO
Respondent
REASONS FOR ORDER AND ORDER
Preliminary remarks
[1]
The
Court has specified that once a member has determined that a person is a danger
to the public and a flight risk, there is no real alternative to detention (Canada
v. Singh, 2001 FCT 954).
[2]
The
inconveniences that could be caused by continued detention pending this Court’s
determination of the application for leave and judicial review from that
decision or until the next detention review do not displace the interests of
the public, which the Ministers seek to preserve in applying the Immigration
and Refugee Protection Act, 2001 S.C. c. 27 (paragraph 3(1)(h)).
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3.
(1) The objectives of this Act with respect to immigration are
[…]
(h) to protect the health and safety of Canadians 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 des
Canadiens et de garantir leur
sécurité;
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[3]
In
this case, the member acknowledged that the respondent was both a danger to the
public and a flight but nevertheless ordered his conditional release.
[4]
The
respondent is to appear in court shortly on three counts of robbery and
possession of stolen property, as well as charges of conspiracy, assault,
assault with a weapon and possession of weapons for a dangerous purpose.
[5]
In
addition, the applicant failed to comply with his release conditions on several
occasions and is currently facing, as noted, other charges for breach of
conditions.
[6]
Furthermore,
the respondent is under a deportation order due to his membership in a criminal
organization.
[7]
In
Canada (MCI) v. Thanabalasingham (C.A.), 2001 FCA 4, at paragraph 4, the
Court ruled that:
… the detained person bears the burden of proving that previous
decisions to detain should be set aside.
Introduction
[8]
The
Minister seeks to obtain an order from this Court staying the order to release
the respondent made by the member of the Immigration Division of the Immigration
and Refugee Board.
[9]
Following
a review of the case and after having had the opportunity to hear both counsel
by telephone conference on Sunday, October 4, 2009, the Court agrees with the
applicants’ position.
Facts
[10]
On
September 3, 2009, the member heard and dismissed the respondent’s application
for release on the following grounds:
[translation]
(a) The person who is supposed to
act as guarantor, Frédéric Huzel, clearly did not have sufficient knowledge of
the respondent’s criminal file and immigration file to offset the flight risk
and the danger posed, and thereby ensure control would be exercised over the
respondent;
(b) Indeed, Mr. Huzel’s testimony
revealed a number of contradictions that showed a limited knowledge of the
respondent, among other things:
(i) Although he claimed having
known the respondent for a year, he was unaware that the respondent’s primary occupation
for the past 11 years had been working as a personal trainer and that they had
a shared love of sport;
(ii) While the respondent claimed
to have had telephone conversations in Spanish with Mr. Huzel several times a
week, Mr. Huzel stated that he had never spoken with the respondent on the
telephone and that he was not able to carry on a conversation in Spanish;
(iii) Mr. Huzel also stated that
the respondent and his spouse had been over for dinner at his home while the
respondent stated that he had never set foot in Mr. Huzel’s place and did not
know where he lived (Marilyne Trudeau’s affidavit, para.2; Exhibit C from Sheila
Markland’s affidavit).
[11]
On
October 2, 2009, the same member ordered the respondent’s release.
[12]
At
the hearing, the member upheld his previous findings regarding the respondent’s
flight risk and high level of danger, stating that there was no new evidence
that would warrant a different finding (Marilyne Trudeau’s affidavit, para. 4).
[13]
The
respondent proposed the same alternative to detention he had during the
preceding review, that is to say, the deposit of a cash bond in the amount of $12,000
($7,000 from Mr. Huzel and $5,000 from the respondent’s spouse, Vanessa
Pinto) and his supervision by Mr. Huzel.
[14]
The
respondent proposed that he live under house arrest, at the home of Mr. Huzel,
24 hours a day.
[15]
The
member, following an objection by the hearing officer, refused to rehear Mr. Huzel, because his
testimony sought to correct previous contradictions and no new evidence was
presented.
[16]
The
member found this additional proposal to be a substantial improvement over the
previous offer.
[17]
Despite
the fact that no new evidence had been submitted since the previous review, the
member nonetheless deviated from his previous reasons with respect to the quality
of the guarantor and his inability to exercise control over the respondent (Ibid,
para. 9).
[18]
The
respondent was under a deportation order dated August 4, 2009 due to his
membership in a criminal organization (Ibid, para. 10 and Exhibit G from Sheila
Markland’s affidavit).
[19]
The
respondent’s claim for refugee protection was deemed inadmissible by reason of
the determination that he fell under section 37 of the Act.
[20]
The
respondent pleaded guilty and was convicted on two counts of breach of conditions.
[21]
The
respondent was charged with three other counts of breach of conditions (500‑01-020610-090).
[22]
The
respondent has several criminal charges pending, other that those for breach of
conditions, namely:
(a) Robbery and possession of
stolen property of less than $5,000 (SPVM # 108-065-244);
(b) Aggravated assault and
assault with a weapon, and possession of a weapon for a dangerous purpose
(500-01-009788-081);
(c) Robbery and possession of
stolen property of less than $5,000 (SPVM # 108-065-244);
(d) Robbery and possession of
stolen property of less than $5,000 and conspiracy (SPVM # 108-065-244) (Marilyne
Trudeau’s affidavit, para. 14; Exhibit D from Sheila Markland’s affidavit).
[23]
The
guarantor who is supposed to ensure that the respondent complies with the
conditions is employed and would therefore be unable to ensure that the
respondent does not leave the residence.
[24]
The
guarantor and the respondent only have tenuous ties to each other, which
creates no moral obligation on the part of the respondent to comply with the
conditions of his release (Marilyne Trudeau’s affidavit, para. 16).
[25]
The
second guarantor, Vanessa Pinto, has always been deemed as being unable to act
as a guarantor or exercise control over the respondent, since July 2009 (Marilyne
Trudeau’s affidavit, para. 19, Exhibit A, B and C from Sheila Markland’s
affidavit).
[26]
The
member had already determined that Mr. Huzel would not be a reasonable
guarantor (Exhibit C from Sheila Markland’s affidavit) and no new evidence was
adduced to change that finding.
[27]
The
member acknowledged that the respondent continues to be a flight risk and pose
a danger to the public.
Issue
[28]
The
only issue is whether the Ministers have demonstrated the existence of a
serious issue and irreparable harm, and that the balance of convenience is in
their favour.
Analysis
[29]
The
Ministers must meet the conditions of the tripartite test set out in Toth v.
M.E.I. (1988) 86 N.R. 302 (F.C.A.). All three conditions must be met.
Failure to meet one of these would therefore be fatal.
A. Serious issue
[30]
The
term “serious issue” or “question sérieuse” in French is derived from the
Supreme Court of Canada’s decision in Manitoba (A.G.) v. Metropolitan
Stores (MTS) Ltd. [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada
(A.G.), [1994] 1 S.C.R. 311.
[31]
In
both of these decisions, the Court explained that the “serious issue” means
that the application is not frivolous or vexatious. However, the threshold is
very low. An analysis of the merits of the application is neither necessary nor
desirable (RJR-MacDonald, supra, p. 335, 337-338; Wang v. MCI,
2001 FCT 148, para. 11). Once the judge is satisfied that the application is
not frivolous or vexatious, he or she must, as a general rule, find that the
serious issue test has been met.
[32]
The
serious issue threshold is lower than that for a prima facie case (North
American Gateway Inc. v. Canada (Canadian Radio-Television and
Telecommunications Commission), [1997] F.C.J. No. 628, 214 N.R. 146, pp.
148-149 (C.A.); North of Smokey Fishermen’s Association v. Canada (Attorney
General), 2003 FCT 33, para. 18.
(a) Applicable legislation
[33]
Subsection
58(1) of the Immigration and Refugee Protection Act states as follows:
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58 (1). The Immigration
Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the
public;
(b) they are 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);
…
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58 (1). La section prononce la
mise en liberté du résident permanent ou de l’étranger, sauf sur preuve,
compte tenu des critères réglementaires, de tells des faits suivants:
(a) le résident permanent ou
l’étranger constitue un danger pour la sécurité publique;
(b) le résident permanent ou
l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au
renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une
mesure de renvoi en vertu du paragraphe 44(2);
(…)
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[34]
Sections
244, 245, 246, and 248 of the Immigration and Refugee Protection Regulations
(“Regulations”) list the factors that must be taken into account to
determine whether the detention of a person should be continued.
[35]
These
factors include, among others, the risk of the person failing to appear for
examination, the danger they may pose to the public and their membership in a
criminal organization.
[36]
By
ordering the respondent’s conditional release, the member committed several
errors of law and fact.
(b) Respondent is a danger to Canadians and a
flight risk
[37]
The
member committed an error of law by concluding that the conditions of release
were sufficient to offset the fact that the respondent is a danger to the
public and a flight risk.
[38]
In
Canada (M.C.I) v. Singh, supra, the Court specified that once an adjudicator
has determined that a person is a danger to the public and a flight risk, there
is no real alternative to detention.
[39]
In
this case, however, the member acknowledged that the respondent was both a
danger to the public and a flight risk, but nevertheless ordered his conditional
release (Marilyne Trudeau’s affidavit, para. 20).
[40]
The
respondent is to appear in court shortly on three counts of robbery and
possession of stolen property, and charges of conspiracy, assault, assault with
a weapon and possession of weapons for a dangerous purpose.
[41]
In
addition, the applicant failed to comply with his release conditions on several
occasions and is currently facing, as noted, other charges for breach of conditions.
[42]
Nothing
in the evidence leads to the conclusion that the respondent will comply with
the conditions imposed on his release.
[43]
Indeed,
the respondent has only tenuous ties to his guarantors and therefore in under
no moral obligation to comply with his conditions in order to prevent these
persons from losing their deposited guarantee.
[44]
Furthermore,
the respondent’s principal guarantor would not be in a position to exercise
control over the respondent to ensure that he complies with the conditions of
the release order because he is employed and would be away from his home for
long periods of time.
[45]
The
release order is therefore clearly unreasonable.
(c) Prospective
guarantors would not be reasonable guarantors
[46]
The
member agreed to have Mr. Huzel act as guarantor when he had indicated in the
previous
detention review, on September 3, 2009, that this same guarantor did not have
sufficient knowledge of the respondent to act in that capacity (Marilyne
Trudeau’s affidavit, paras. 2, 19).
[47]
It
was up to the member to explain how the situation had changed over the past 30
days for him to have come to a different conclusion, given the fact that no new
evidence had been adduced.
[48]
The
member even refused to rehear Mr. Huzel, concluding that the purpose of his testimony
was to correct the contradictions that had been raised by the member at the
previous hearing (Ibid, para. 8).
[49]
As
for the second guarantor, Ms. Pinto, she had always been deemed to have been
unsuitable as a guarantor, since July 2009.
[50]
However,
the member agreed to have her guarantee the respondent’s release by paying
$5,000 without explaining how or why he deemed her able to act as guarantor (Ibid.
paras. 17-18).
[51]
The
member rendered a decision that departs completely from previous detention
review decisions.
[52]
Yet
the courts have consistently held that a member has an obligation to clearly
explain why he or she has elected not to follow the case law, particularly with
regard to the issue of guarantors.
[53]
In
Canada (MCI) v. Thanabalasingham (C.A.) 2004, FCA 4, at para. 4, the
Court held that:
…. previous
decisions to detain the individual must be considered at subsequent reviews and
the Immigration Division must give clear and compelling reasons for departing
from previous decisions. (Minister of Public Safety and Emergency
Preparedness v. Iamkhong, 2009 FC 52, para. 3).
[54]
The
member erred by failing to apply paragraph 47(2)(b) of the Regulations,
which states that a person who posts a guarantee must be able to ensure that
the person in respect of whom the guarantee is required will comply with the conditions
imposed.
[55]
The
member failed to consider whether the guarantors were able to ensure that the
respondent would comply with the conditions of his release in order to manage
his dangerousness: he completely omitted discussing Ms. Pinto, even though she
is the respondent’s spouse, and he completely contradicted himself with regard
to Mr. Huzel, without any new supporting evidence.
[56]
The
member was of the view that the principal guarantor, Mr. Huzel, would be able
to exercise control over the respondent.
[57]
Yet
the member failed to consider that Mr. Huzel would be at work during the day,
thereby rendering him unable to supervise the respondent during that time.
[58]
The
member also failed to take into account the fact that Mr. Huzel and Ms. Pinto
had only a very limited knowledge of the respondent and, as a result, any
influence or control they might have over him would be extremely limited (Minister
of Public Safety and Emergency Preparedness v. Sankar, 2009 FC 934, para.
13).
[59]
In
light of the foregoing, the member’s decision is unreasonable and there is a
serious issue to be tried.
B. Irreparable harm
[60]
It
is acknowledged by the member that the respondent poses a danger to Canadians,
which constitutes irreparable harm (Ibid. par. 12).
[61]
He
is facing criminal charges of an extremely serious nature and has demonstrated
on five occasions that he has no respect for court orders.
[62]
His
release exposes the Canadian public to a high risk because the offences with
which the respondent is charged are all of a violent nature.
[63]
The
respondent is also a flight risk and the evidence shows that the two guarantors
accepted by the member are unable to exercise control over the respondent.
[64]
The
respondent’s release would interfere with the Ministers’ duties to Canadian
society and to protect the public.
[65]
If
the respondent is released, the application for leave and judicial review filed
by the Ministers would become moot, thereby depriving the Ministers of the
opportunity of verifying the legality of the member’s order by means of
judicial review.
[66]
This
factor also constitutes irreparable harm.
C. Balance of convenience
[67]
The
balance of convenience favours the Ministers.
[68]
Section
48 of the IRPA provides that a removal order must be enforced as soon as is
reasonably practicable. There is a public interest in having a system that
operates in an efficient, expeditious and fair manner.
[69]
The
inconveniences that could be caused by continued detention pending this Court’s
determination of the application for leave and judicial review from that
decision or until the next detention review do not displace the interests of
the public, which the Ministers seek to preserve in applying the Act.
[70]
The
respondent’s constant failure to respect court orders, combined with the danger
he poses and his flight risk are salient factors that militate in favour of the
order sought by the Ministers.
[71]
Thus,
the balance of convenience decisively favours the Ministers.
ORDER
THE COURT ORDERS that the motion for a stay
be granted.
“Michel
M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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