Date: 20110525
Docket: IMM-3224-11
Citation: 2011 FC 609
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, May 25, 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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MOHAMED SAKO
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Respondent
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REASONS FOR
ORDER AND ORDER
I. Introduction
[1]
The
release of an individual recognized as a danger to the public represents a
serious risk that society, pursuant to the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), should not have to face. It is a
risk that the Court cannot allow itself to impose according to the IRPA,
paragraphs 3(1)(h) and 4(2)(h), which contains key principles
established by Parliament that the Court has a duty to interpret, not to reformulate.
(The separation of powers under constitutional supremacy gives a jurisdiction to
each of the three branches of government. The executive branch executes
and implements the legislation legislated by the legislative branch; and
the Court has a duty to interpret the Law, not to formulate or reformulate
it).
[2]
The
respondent has a significant criminal record. He has been convicted, on
numerous occasions, of various types of offences, including violent crimes. By
ordering his release on non‑binding conditions that do not eliminate the danger,
the Immigration Division (ID) ignored the statutory scheme established by the
IRPA and unreasonably assessed the danger posed by the respondent.
[3]
The
Court is in complete agreement with the applicant’s comments.
[4]
To
prevent the respondent’s release from causing irreparable harm, the ID’s
decision must be stayed until the application for leave is determined or until
judgment is rendered on the application for judicial review.
II. Facts
[5]
The
respondent, Mohamed Sako, has been detained by the Canada Border Services
Agency (CBSA) since his release from prison on May 7, 2011. He had finished
serving a three-month sentence for assault causing bodily harm and mischief.
[6]
On
May 9, 2011, the ID ordered the continued detention of Mr. Sako. During the
hearing held that same day, the CBSA submitted the ruling dated December 4,
2008, in which the Commission des libérations conditionnelles du Québec refused
to order the conditional release of Mr. Sako because he represented [translation] “an undue risk to society”,
he refused to take responsibility for his criminal acts and he had adopted a
criminal lifestyle.
[7]
During
Mr. Sako’s second detention review hearing on May 16, 2011, the CBSA put Mr. Sako’s
criminal record in evidence:
a. April 19,
2001: credit card theft; $300 fine and absolute discharge;
b. January 21,
2008: obstruction and breach of recognizance; $150 fine and one year of
probation;
c. January 30,
2008: fraud under $5,000 and conspiracy; credit card theft (two counts); 30 days’
imprisonment and one year of probation;
d. February 22,
2008: credit card theft (two counts) and fraud under $5,000; 30 days’ imprisonment
and one year of probation;
e. February 27,
2008: assault with a weapon and uttering threats; 15 days’ imprisonment and two
years of probation;
f.
July
9, 2008: procuring; imprisonment of 12 months and 18 days; three years of
probation;
g. February 17,
2011: credit card theft; 30 days’ imprisonment and two years of probation;
h. February 17,
2011: failure to comply with an order; 30 days’ imprisonment and two years of
probation;
i.
February
17, 2011: possession of property obtained by crime; 30 days’ imprisonment and
two years of probation;
j.
February
17, 2011: assault and obstruction; 30 days’ imprisonment and two years of probation;
k. February 17,
2011: assault causing bodily harm and mischief; three months’ imprisonment and
three years of probation.
[8]
Two
of Mr. Sako’s victims were his ex-girlfriends.
[9]
Still
on May 16, 2011, the ID ordered his release on conditions that, on their face, do
not eliminate the significant danger he represents:
a. report to the
CBSA or the ID at designated times for any statutory obligation, including
removal;
b. inform the
CBSA of his address before being released and inform the CBSA in person of any
change before it takes effect;
c. report to the
CBSA office closest to his residence within 48 hours of being released and once
a week after that;
d. keep the
peace and be of good behaviour;
e. confirm his
departure from Canada with a CBSA officer;
f.
cooperate
fully with the CBSA to obtain a travel document;
g. do not engage
in activities that give rise to a conviction;
h. inform a CBSA
officer of each conviction and charge;
i.
obey
a curfew from midnight to 6 a.m., unless otherwise authorized in writing by the
CBSA under certain circumstances;
j.
do
not consume alcohol or drugs;
k. comply with
the conditions imposed by the criminal courts.
[10]
On
May 16, 2011, the Minister filed an application for leave against this decision
and ex parte asked the Court to order a stay of the ID’s decision to
allow time for a formal stay motion to be heard and determined.
III. Issues
[11]
Must
the Court order the stay of the ID’s decision dated May 16, 2011? More
specifically, it must rule on the following issues:
a. Serious
issues.
In ordering the release of Mr. Sako, did the ID ignore the factors imposed by
the IRPA? Did it unreasonably assess the danger posed by Mr. Sako? Did it
impose conditions that eliminate this danger?
b. Irreparable
harm and balance of convenience. Given the danger posed by Mr. Sako, does
his release on conditions that do not make it possible to eliminate danger
cause irreparable harm to public safety? Does the balance of convenience favour the Minister?
IV. Analysis
Serious issues
[12]
The
release conditions issued by the ID are indicative of three things: first, that
it did not consider the factors imposed by section 58 of the IRPA or subparagraph
246(f)(ii) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations), and therefore committed an error in law (Canada
(Ministre de la Sécurité publique et de la Protection civile) v. Vargas,
2009 CF 1005 at paragraph 37); second, that it unreasonably assessed the significant
danger posed by Mr. Sako; and third, that the conditions themselves do not
take into account the requirement to eliminate danger. This third error is also
an error in law (Canada (Minister of Public Safety and Emergency
Preparedness) v. Al Achkar, 2010 FC 744, 371 FTR 231 at paragraph 48).
[13]
In
December 2008, the Commission des libérations conditionnelles du Québec had
already found that Mr. Sako posed [translation]
“an undue risk to society”. It found that, at the end of its hearing, he did
not take responsibility for the actions for which he was charged, he minimized
them or sought to have himself exonerated, he refused to participate in any
program because he did not see any problem and he had adopted a disorganized
lifestyle characterized by associating with criminals and using drugs.
[14]
After
he finished serving his sentence of more than one year for procuring and 15
days for assault with a weapon and threats, he was convicted of multiple
criminal offences ranging from failure to comply with an order to assaults, obstruction,
assault causing bodily harm and mischief. Two of Mr. Sako’s girlfriends were
victims of his assaults, of a more or less serious nature. The courts imposed
four terms of imprisonment of 30 days and one of three months, all with periods
of two or three years of probation.
[15]
Under
these circumstances, the Minister intends to issue a danger opinion against Mr.
Sako. A decision will be made within the next three months. A first set of
documents was therefore issued to him in this regard on June 29, 2010. Mr.
Sako has yet to respond, even though the Minister gave him 15 days to present
his submissions.
[16]
Mr.
Sako poses a danger to the public under paragraph 58(1)(a) of the IRPA. The
ID nevertheless ordered his release on conditions so minimal that they do not make
it possible to keep the danger posed by Mr. Sako at an acceptable level.
[17]
Of
course, section 58 of the IRPA makes release the rule. Detention must become
the exception.
However, in
assessing risk, the ID must consider alternatives to detention (Regulations, paragraph
248(e)). In that regard, the ID committed a second error.
[18]
The
conditions that it imposed on Mr. Sako would have been completely acceptable if
he had had no criminal record or violent past, if he had generally appeared for
all appointments and meetings, if he had complied with the conditions imposed
on him by the courts of other jurisdictions and if he had acknowledged his
wrongdoings. Because Mr. Sako’s conduct does not fit these
characteristics, the ID has a duty to consider the need to: (1) order his
continued detention using a solution that should be preferred under the circumstances,
or (2) impose conditions that reduce, inasmuch as possible, the danger posed by
Mr. Sako. None of the imposed conditions make it possible to reach this
objective.
[19]
First,
the release does not appear to be accompanied by any suitable surety of any
kind, given the facts in the record:
a. turn himself in—which he will
probably not be inclined to do as he does not even acknowledge his criminal responsibility;
b. not engage in
criminal activities, which he is unable to do according to the Commission des
libérations conditionnelles;
c. obey a curfew from
midnight to 6 a.m.—but he may reside where he pleases and has only to provide
an address, any address;
d. report to the nearest
CBSA office once a week—whereas it was not his practice to comply with internal
rules in the detention facilities in which he was incarcerated;
e. comply with
the conditions imposed by the criminal courts—he was convicted for not complying
with them;
f.
keep
the peace and be of good behaviour, which he is also unable to do.
[20]
Clearly,
if he is released under these conditions, Mr. Sako will continue to be a danger
to the public in Canada. The
ID did not impose any conditions encouraging him to adopt non-violent behaviour or requiring him to
abandon the lifestyle he adopted several years ago.
Irreparable harm and
balance of convenience
[21]
Given
the nature of the offences committed by Mr. Sako, the high risk to reoffend and
the fact that he is shirking his criminal responsibility; his release would
cause irreparable harm. It is in the public interest that he be in continued
detention until the application for leave against the decision to release him
is determined or, if need be, until judgment is rendered on the application for
judicial review, the Minister having the duty to protect Canadian society (Canada
(Minister of Public Safety and Emergency Preparedness) v. Castillo, 2009 FC
1022 at paragraphs 23-24).
[22]
The
release conditions, which do not make it possible to eliminate the danger posed
by Mr. Sako, also constitute irreparable harm (Canada (Minister of
Public Safety and Emergency Preparedness) v. Sankar, 2009 FC 934 at paragraphs
14 and 17).
[23]
Furthermore,
if Mr. Sako is released, the Minister’s application for leave will become moot
(Vargas, above, at paragraph 66).
V. Conclusion
[24]
In
rendering its decision, the ID committed three errors: (1) it did not consider
the statutory scheme applicable to detention reviews; (2) in light of the
evidence of Mr. Sako’s serious criminality, it unreasonably assessed the danger
he poses; and (3) the release conditions it imposed do not make it possible to eliminate
the danger.
[25]
Under
these circumstances, releasing a man as dangerous as Mr. Sako constitutes
irreparable harm to public interest. The balance of convenience cannot but tip
in favour of the Minister.
[26]
For
all of the above-mentioned reasons, the stay of the decision rendered by the ID
dated May 16, 2011, is granted until the application for leave is determined
or, if need be, until judgment is rendered on the application for judicial
review.
ORDER
THE COURT
ORDERS a
stay of the decision rendered by the ID dated May 16, 2011, until the
application for leave is determined or, if need be, until judgment is rendered
on the application for judicial review.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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