Date:
20110506
Docket:
IMM-2963-11
Citation:
2011 FC 532
[ENGLISH
TRANSLATION]
Ottawa, Ontario, May 6, 2011
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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SIU KWAN HONG
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is a motion to stay in which the applicant is asking the Court to extend the
respondent’s detention until determination of the application for leave and
judicial review of the refusal by the member from the Immigration Division of
the Immigration and Refugee Board to review the applicant’s reasons for
detention under subsection 57(2) of the Immigration and Refugee Protection
Act, SC 2001, c. 27 (IRPA) and/or until the Immigration Division reviews
the applicant’s reasons for detention under subsection 57(2) of the IRPA.
[2]
The
Court fully agrees with the arguments by counsel for the applicant and therefore
accepts all statements by counsel for the applicant.
II. Facts
[3]
On
April 19, 2011, the respondent was arrested by Laval police in a massage
parlour and was turned over to the Canada Border Services Agency (CBSA) because
she had no legal status in Canada.
[4]
Consequently,
the applicant was arrested under section 55 of the IRPA.
[5]
On
April 20, 2011, the applicant claimed refugee protection.
[6]
On
April 21, 2011, the respondent received a first detention review under
subsection 57(1) of the IRPA.
[7]
On
April 28, 2011, the respondent received a second detention review under
subsection 57(2) of the IRPA. Following the hearing, the member ordered
that the respondent be released on certain conditions, including proving that
the guarantor, Ms. Sin Fu, is a Canadian citizen, a permanent resident or a
recognized refugee.
[8]
In
a fax dated May 2, 2011, counsel for the respondent advised the Immigration
Division that Ms. Sin Fu could not meet the required conditions for the release
of Ms. Hong.
[9]
In
her letter dated May 2, 2011, counsel also requested an early hearing to hear a
new potential guarantor, Mr. Way Keung Wong.
[10]
The
early hearing was held on May 4, 2011.
[11]
At
the hearing on May 4, 2011, counsel for the respondent explained to the panel
that Ms. Sin Fu, who is a refugee claimant, did not have the required
status to be a guarantor under the conditions imposed by the panel.
[12]
In
his sworn testimony, Mr. Wong, a second potential guarantor, admitted to having
owned a massage parlour and to having been convicted, as owner of a place, of
knowingly permitting the place or any part thereof to be let or used for the
purposes of a common bawdy-house (paragraph 210(2)(c) of the Criminal
code, RSC 1985 c-46).
[13]
Following
the testimony by Mr. Wong, who claimed to be a waiter, counsel for the Minister
submitted the police report regarding the events that led to Mr. Wong’s
conviction.
[14]
The
member disallowed the submission of the police report on the grounds that the
report had not been translated into Mandarin, when the requirement is that
documents must be submitted, when possible, in the language of the proceedings
and the hearing, i.e. one of Canada’s two official languages, English or
French. In this case, the hearing was held in French with a Mandarin/French
interpreter.
[15]
The
Minister objected to the respondent’s release on the grounds that Mr. Wong did
not qualify as a guarantor under the specific circumstances of this case,
namely that the respondent was arrested in a massage parlour and that, based on
checks with Quebec’s Enterprise Register, Mr. Wong still owned a massage
parlour, while he testified that he was a waiter.
[16]
Counsel
for the Minister objected to the respondent’s release on the grounds that she
represented a flight risk and that the alternative presented did not offset
that flight risk.
[17]
Despite
this, the member accepted Mr. Wong as a guarantor because he was of the view
that the alternative proposed was appropriate under the circumstances, that Mr.
Wong’s testimony was credible, and that he had only been convicted once.
[18]
The
member thus ordered the respondent released on payment by the guarantor, Mr.
Wong, of an amount of $1,500 cash.
III. Issues
[19]
Can
a person who has been convicted and served a recent sentence, without being
pardoned, be accepted as a guarantor for an individual involved in a context of
related activities for which the guarantor was convicted? This case therefore
raises three questions: Did the applicant demonstrate the existence of a
serious issue, of irreparable harm, and that the balance of convenience was in
his favour?
IV. Analysis
A. Serious
issue
[20]
On
May 4, 2010, the member committed an error in law by disallowing the submission
of the police report on the grounds that the document had not been translated
into Mandarin, when a review of the report would have allowed him to verify the
facts regarding Mr. Wong.
[21]
The
member also erred by requiring that the police report be translated into
Mandarin, which is not one of the two official languages.
[22]
The
member erred in law by not allowing an important document to be submitted as
evidence, without valid reasons.
[23]
The
member committed another error in finding that the Guarantor, who claimed to be
simply a waiter, had been a credible witness when the evidence submitted by the
Minister showed that the guarantor still owned a massage parlour.
[24]
Finally,
the member committed an error in holding that the guarantor had only been
convicted once, thus ignoring the nature of the offence for which the guarantor
was convicted and the relevance of that offence to the facts of this case.
B. Irreparable
harm
[25]
The
minister would suffer irreparable harm, as it is very likely that, if released,
the respondent would not respect the other conditions set out in the order,
including reporting to Canadian authorities.
[26]
Moreover,
it must be noted that the respondent is living in Canada illegally and that, if
she had not been arrested, she would not have tried to correct her situation.
C. Balance of
convenience
[27]
The
IRPA requires that the Minister ensure compliance with the provisions of
that Act. This is not simply a matter of administrative convenience, but is
instead the integrity and fairness of the Canadian immigration control system
and the public trust in that system. It is in the public interest to have an
efficient, expeditious and fair system.
V. Conclusion
[28]
For
all these reasons, the applicant’s motion is allowed and the Court extends the
respondent’s detention until the next review by the Immigration Division of the
reasons for detention in accordance with subsection 57(2) of the IRPA.
JUDGMENT
THE
COURT ORDERS that the applicant’s
motion be allowed and the Court extends the respondent’s detention until the
next review by the Immigration Division of the reasons for detention in
accordance with subsection 57(2) of the IRPA.
“Michel
M.J. Shore”
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