Docket: IMM-4391-11
Citation: 2011 FC 974
Vancouver, British Columbia, August 3,
2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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JOHN DOE
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Detention
is an extraordinary restraint in Canadian society. Not surprisingly, subsection
58(1) of the Immigration and Refugee Protection Act, SC 2000, c 27, as
amended (the Act), prescribes that the Immigration Division (ID) of the
Immigration and Refugee Board shall order the release of a permanent resident
or foreign national from immigration detention unless it is satisfied, taking into
account prescribed factors, that they are a danger to the public or are unlikely
to appear for examination or removal; if the ID orders release, it may impose
any conditions it considers necessary pursuant to subsection 58(3) of the Act.
The legality of one such decision is challenged today by the Minister.
[2]
Since
November 30, 2010, the respondent has been in immigration detention for the
purpose of his removal from Canada on the ground that he
poses a danger to the public. At all of his previous detention
reviews, any proposed alternatives to detention were found by the ID to be inadequate
to address the risk of re-offending. However, on July 11, 2011, despite the
fact that the respondent continues to be a danger to the public, ID Member
Tessler ordered the release of the respondent on the basis that there was new
evidence of continued efforts to rehabilitate and of good behaviour in custody,
and that the residential treatment facility for substance-addicted individuals offered
by the VisionQuest Recovery Society (VisionQuest) provided an adequate
alternative to detention (the Release Order).
[3]
The
standard of review for decisions of the ID on detention reviews, which are
primarily fact-based, is reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Public Safety and Emergency
Preparedness) v Karimi-Arshad, 2010 FC 964, [2010] FCJ No 1194; Canada
(Minister of Citizenship and Immigration) v B004, 2011 FC 331, [2011] FCJ
No 428). That said, all existing factors relating to custody must be taken into
consideration including the reasons for previous detention orders being made.
If a member of the ID chooses to depart from prior decisions to detain, clear
and compelling reasons for doing so must be set out; the best way is to
expressly explain what has given rise to the changed opinion (Canada
(Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4,
[2004] 3 FCR 572 (FCA) at paras 10-13).
[4]
The
inquiry into whether a person poses a danger to the public involves a
“consideration of whether, given what [the Minister] knows about the individual
and what that individual has had to say on his own behalf, [he] can form an
opinion in good faith that he is a possible re-offender whose presence in
Canada creates an “unacceptable” risk to the public (Williams v Canada (Minister
of Citizenship and Immigration), [1997] 2 FC 646 (FCA). Once the Minister
has made out a prima facie case, the onus shifts to the detainee to
provide grounds for release (Canada (Minister of Citizenship and Immigration)
v Sittampalam, 2004 FC 1756, [2004] FCJ No 2152, at para
27).
[5]
Pursuant
to section 248 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, as amended (the Regulations), if it is determined that there are
grounds for detention, the following factors shall be considered by the ID
before a decision is made on detention or release:
(a) the
reason for detention;
(b) the
length of time in detention;
(c) whether
there are any elements that can assist in determining the length of time
that detention is likely to continue and, if so, that length of time;
(d) any
unexplained delays or unexplained lack of diligence caused by the Department or
the person concerned, and
(e) the
existence of alternatives to detention.
[6]
Even
in cases of extended periods of detention (which has not been the case here),
the Supreme Court of Canada has recognized that the fundamental rights
mentioned in sections 7 and 12 of the Canadian Charter of Rights and
Freedoms are not breached if accompanied by a process that provides regular
opportunities for review of detention, taking into account relevant factors,
including the factors similar to the ones listed in section 248 of the
Regulations (Charkaoui v Canada (MCI) 2007 SCC 9, [2007] 1 S.C.R. 350 at paras 110
to 118.
[7]
In
the case at bar, the Minister submits that Member Tessler erred by failing
to consider and weigh all of the factors in section 248 of the Regulations,
or otherwise acted unreasonably by failing to provide clear and compelling
reasons for departing from the previous decisions to continue the respondent’s
detention; by exceeding his jurisdiction in considering the respondent’s
rehabilitation and reintegration into society as part of the alternative to
detention; by failing to assess whether VisionQuest is an effective alternative
to detention; and by making other unreasonable findings.
[8]
The
respondent submits on the contrary that the decision of the ID, ordering the
release of the respondent on terms and conditions, is reasonable. Member
Tessler did not ignore prescribed factors. There was new evidence of good
behaviour in custody and continued efforts to rehabilitate, and the new
alternative to detention (VisionQuest) provided to Member Tessler gave him a reasonable
basis upon which to differ from previous ID decisions. The factual findings
made by the ID are entitled to the greatest deference and it is not the
role of this Court to determine whether VisionQuest is an effective
alternative. Thus, the present application should be dismissed.
[9]
Having
considered the submissions of the parties, read the impugned decision and the
previous decisions of the ID, and reviewed the evidence on record, the present
judicial review application must be allowed. The Court agrees with the Minister
that Member Tessler failed to provide clear and compelling reasons for
departing from previous decisions, and that overall, the decision to order the
release of the respondent on the terms and conditions mentioned in the Release
Order is not reasonable.
[10]
The
relevant facts in this case are not seriously disputed by the parties and it is
worthwhile to highlight some key elements of the evidence of danger that
remained unchanged and that were before Member Tessler and previous members of
the ID.
[11]
The
respondent, a citizen of a South American country, is 46 years-old. In 1979, he
became a permanent resident as a dependent child. The respondent has lost his
permanent resident status and is under a removal order that was issued to him
on January 24, 2001, because he was inadmissible on the ground of serious
criminality. At the end of his last sentence (2002-2010), the respondent went
directly from incarceration into immigration detention.
[12]
Between
November 2010 and the making on July 11, 2011 of the Release Order, there have been
ten (10) detention reviews by ID members. In the course of immigration detention,
there was also a Pre-Removal Risk Assessment (PRRA). This resulted in a
positive opinion should the respondent return to his home country, based on the
risk of harm for being openly homosexual. However, because the respondent was
found inadmissible for serious criminality, the Minister must now weigh his
risk against the harm he poses to the public in Canada before a final decision
is made on his PRRA application (see subsection 112(3) and paragraph 113(d)
of the Act).
[13]
The
respondent’s convictions in Canada date back to 1982, when he was 16
years-old. It is not challenged that the respondent has committed
numerous offences involving violence, including robbery, forcible confinement,
and sexual assault causing bodily harm. Reviewing his criminal history, he
has been described as “an aggressive homosexual with violent predatory
tendencies.” In 1998, the Minister issued an opinion that the respondent poses
a danger to the public and thereby took away his right to appeal his removal
order to the Immigration Appeal Division. Following the removal process, the
respondent, who was detained by immigration, was released by the ID on terms
and conditions on January 25, 1999.
[14]
At
the time of his first release from immigration detention in January 1999, a
claim to citizenship was actually pending and the respondent was making the
point that he had displayed good behaviour while in prison. ID Member King had
noted that while “the description of [the respondent] in the psychological
reports [was] disturbing and raises a serious concern about [his] future
conduct”, however “there [was] no indication that [the respondent] had
engaged in misconduct while institutionalized.” However, the ID’s assumption
that the respondent would not reoffend proved to be wrong. Indeed, the
respondent re-offended four months later by attempting to procure juvenile
(male) prostitution and was convicted of these offences on September 14, 2000.
While on bail for these offences, the respondent committed another set of
violent acts within a sexual subtext against men and for which he was sentenced
in 2002 to eight years in prison.
[15]
Accordingly,
it has been asserted by the Minister throughout the detention reviews in 2010
and 2011 that, despite the respondent’s apparent good behaviour during the last
prison sentence and the personal development courses he may have taken, he
continues to be at high risk of re-offending. Indeed, the Minister relies
heavily relies on the independent opinion of the Correctional Service of Canada
(CSC) who has already described the respondent as “an untreated violent sex
offender who is at high risk to reoffend” [my emphasis]. Moreover, it
has also been stressed by the Minister that the RCMP has notified that if the
respondent is released, they intend to obtain from a Provincial Court judge a recognizance
order under section 810.2 of the Criminal Code, because the respondent
“poses a high risk to reoffend sexually and violently.”
[16]
Objective
evidence of risk also includes the following. The respondent’s lengthiest
periods of incarceration were two eight-year periods from about December 6,
1990 to January 1999 and from about December 2, 2002 to November 30, 2010. Both
times, the respondent served his full sentence because he did not participate
in recommended programs and was determined to be at high risk to commit
another violent offence. Moreover, his only crime-free periods have been when he
was incarcerated, and he has committed offences when he was out on bail as
aforesaid. The documentary evidence also shows that the respondent tends
to minimize, deny, displace blame and also display a lack of empathy or remorse
for his victims. Notes in the record indicate that in an effort to obtain
money, for sexual gratification, for power and control and for excitement, the
respondent has notably been perpetrating robberies of homosexual men, a pattern
of conduct that has repeated itself over time.
[17]
External
factors which indicate the respondent is at risk to reoffend include any
involvement with alcohol. While programming that targets his other criminogenic
needs (e.g. abuse of alcohol) was recommended, the psychologist at the
correctional institution where the respondent served his last sentence highly recommended
further treatment and risk management, including sex offender programming. The
respondent claimed that he did attempt to attend sex offender treatment during
his sentence, but “was screened out due to an argument with the program
facilitator”. Be that as it may, he believed there were better ways to heal and
change. Painting and spiritual development through prison chaplaincy programs
and counselling were the paths chosen by the respondent.
[18]
Starting
with the first detention review on December 1, 2010, ID Member Shaw Dyck found that
the documentary evidence was mostly negative regarding the respondent’s insight
into his offences, the degree of violence he exhibited, and the offences he committed.
Member Shaw Dyck found that the respondent, who represented himself at the
time, was unlikely to appear and posed a danger to the public.
[19]
Afterwards,
the respondent consented, through his lawyer, to remain in detention at his
second and third detention reviews held on December 8, 2010 and December
16, 2010. ID members reviewed the evidence at each detention review and
continued the respondent’s detention on the ground that he poses a danger to
the public.
[20]
On
January 11, 2011, the respondent and his witness, Major Dyke of the Salvation
Army, testified at his fourth detention review. The respondent asserted that
Major Dyke would provide support to him. The respondent’s counsel argued that
the respondent was motivated not to reoffend and proposed that, as an
alternative to detention, he had been accepted into the Belkin House personal
development program (PDP), which is dispensed by the Salvation Army. Situated
in the heart of Vancouver, the Belkin House is
dedicated to “breaking the cycle of homelessness”. The PDP is particularly
beneficial as a continuum of support for men and women who have just completed
a residential addiction treatment program.
[21]
On
January 14, 2011, Member Ko rendered her decision continuing the respondent’s
detention on the ground that he posed a danger to the public, and provided
numerous and articulated reasons to support this finding. Member Ko was not
satisfied that the arrangements that had been made would mitigate the
danger he posed. Member Ko noted that Belkin House required a willingness to
actively participate in the program, and that over the eight years of his
sentence the respondent had declined to participate in programs that were
recommended to him. Member Ko was also not satisfied that his supporters could
provide a sufficient level of control over the respondent to outweigh the risk
that he would reoffend. Member Ko also found that the respondent’s length of
detention had not been very long nor that his future detention would be very
long. Member Ko was also not satisfied that the respondent would comply with
conditions imposed on him.
[22]
On
February 11, 2011, ID Member King reviewed the evidence from previous detention
reviews and concluded that “there is a significant risk that [the respondent]
would reoffend by committing a violent crime against another person.” Moreover,
Member King noted that this is because the respondent “was untreated as far as
the sexual nature of [the respondent] previous violent offences.” Reviewing
past history, Member King noted that “in 2010, at the end of [the respondent]
most significant incarceration, [he was] in the same place as [he was] in 1999.”
Again, the respondent had shown his willingness to change and raised his good
behaviour in prison as proof of his good intentions, but to no avail. Member King
also concluded that Belkin House did not provide an effective alternative,
notably because the respondent had been “unwilling to face directly the root
issues with respect to the crimes” that he had committed.
[23]
On
March 11, 2011 and April 8, 2011, the respondent consented to remaining in
detention. On both dates, ID Member Schwartz ordered that the respondent’s
detention be continued.
[24]
At
the respondent’s eighth detention review held on May 5, 2011, the Minister’s
counsel estimated that it would take three to five months for CIC to complete
the balancing of the respondent’s danger to the public against his PRRA risk.
ID Member Del Duca reviewed all of the transcripts, reasons and documentary
evidence and determined that the alternative of Belkin House would not outweigh
the risk posed by the respondent. Member Del Luca
completely agreed with the assessment made by Member Ko. Member Del Duca did
not find that the length of detention had been unduly lengthy. ID Member
Del Luca ordered the respondent’s continued detention on the ground that
he poses a danger to the public.
[25]
On
May 27, 2011, the respondent was given a copy of the Restriction Assessment
completed by the Minister’s Case Management Branch in Ottawa, which reviewed
the evidence and stated the opinion that, “the Respondent constitutes a
present and future danger to the public of Canada.” The respondent was
given 15 days to respond to this assessment. At the request of his counsel,
he was given a 30-day extension to July 13, 2011 to provide submissions.
[26]
On
June 2, 2011, the respondent again consented to remain in detention while his
counsel looked for another alternative to his detention. ID Member Ko continued
the respondent’s detention.
[27]
ID
Member Tessler presided over the respondent’s tenth detention review hearing
which took place on June 28, 2011. The only new evidence at that hearing
was documentary evidence submitted on behalf of the respondent. These documents
included information about the VisionQuest Recovery Society; more letters of
support, a letter from the detention centre confirming information submitted at
the last detention review regarding courses the respondent had taken in April
2011, while in immigration custody, and his request to take further courses.
[28]
The
Minister provided revised recommended conditions from the RCMP regarding the section
810.2 Criminal Code order they intended to apply for upon the
respondent’s release, because they believe he is at high risk to commit another
violent offence. The Minister also submitted that it would take one to three
months from the date of the respondent’s submissions on the Restriction
Assessment to complete the balancing process.
[29]
ID
Member Tessler found that the respondent poses a danger to the Canadian public,
noting that very little had changed in that respect since the last
detention review. Member Tessler apparently adopted Member Ko’s reasoning from
the January 14, 2011 detention review, but at the same time, he appears to
accept arguments which had not been found by other ID members to justify
release.
[30]
Member
Tessler noted the courses that the respondent had taken and that the respondent
had a spotless prison record between 2001 and 2010. With respect to the
respondent’s failure to take or complete any programming identified for him by
Correctional Services, Member Tessler found that the respondent had designed
his own rehabilitation program which “included introspection through painting
and spiritual guidance and course work through chaplaincy”. Member Tessler did
not explain how the course taken in April 2011 for a ten-day period can compare
to the sex offender program to be taken over a four-month period, and which the
respondent apparently refused to take in prison.
[31]
With
respect to the length of detention, Member Tessler made no finding that the respondent’s
detention had been too long or that it was becoming indefinite. However, Member Tessler
questioned the Minister’s estimation of the time needed to complete the process of balancing
the respondent’s risk on return to his home country against the risk he poses to Canadian
society. That said, Member Tessler did not explicitly mention the one-month
extension granted to respondent’s counsel to complete submissions and which
naturally had an impact on the length of delay.
[32]
That
said, it is obvious that the main reason why Member Tessler decided to depart
from previous ID members’ decisions is because, in his opinion, VisionQuest
provided an adequate alternative to detention that was more comprehensive
than the previously proposed Belkin House alternative and apparently addressed
the issues of concern to the previous ID members: control and supervision.
[33]
The
terms and conditions of the respondent’s proposed stay at a VisionQuest
Recovery House would require that for the first 30 days he only leave the
residence for approved purposes and if accompanied. After 30 days, he could leave
the residence on his own as long as the activity was approved, or for a medical
emergency. While in residence at VisionQuest, the respondent would be under a
curfew from 10 p.m. to 7 a.m. daily. Under the agreement with VisionQuest, the
respondent would be required, among other things, to attend in-house Narcotics
Anonymous/Alcoholics Anonymous meetings daily, as well as three times/week in
the community. Member Tessler also assumed that the respondent “would also be
subject to a recognizance under 810(2) of the Criminal Code imposed by a
Provincial Court judge”, and Member Tessler included, as a term and condition
of the release, that the respondent also comply with all terms and conditions
imposed by the Provincial Court of British Columbia “if imposed”.
[34]
Objectively
speaking, there are a number of problems associated with those conditions,
which Member Tessler has not really addressed in the impugned decision.
[35]
First,
in finding VisionQuest adequate, Member Tessler seems to have missed the point
made by the Minister that VisionQuest is not a detention facility, compliance
is voluntary, and that after 30 days the respondent would be permitted to leave
the residence unescorted. This poses the question whether VisionQuest
constituted an effective alternative since all parties agreed that the
respondent would be residing at VisionQuest for a much longer period.
[36]
Second,
Member Tessler did not address the point made by the Minister that VisionQuest
“is for people who genuinely desire to heal from the ravages of addiction”.
VisionQuest does not have the internal resources to deal with issues of sexual
abuse outside programs. The agreement with VisionQuest does not require the
respondent to attend any programs to address his propensity to commit violent
or sexual offences. Although VisionQuest may refer residents to other such
outside programs, the resident has to first demonstrate for a period from 30 to
90 days that the resident is following their rules.
[37]
Third,
as was already noted by Member Ko, the respondent’s victims were typically
individuals that he had become acquainted with. Although alcohol was often a
factor, Member Ko had noted that the programs that had been taken by the
respondent were always the ones that he wanted to participate in. They were not
necessarily the ones that could have successfully reduced the risk of re-offending,
like a sex offender program.
[38]
Fourth,
Member Tessler also found that releasing the respondent to VisionQuest would
allow him to demonstrate his ability to control his antisocial behaviours and
allow him to slowly reintegrate into the community. However, rehabilitation of
a detained person within the community is not a prescribed factor and
constitutes an irrelevant consideration insofar as it is not directly related
to the issue of whether an alternative to detention exists.
[39]
Fifth,
Member Tessler’s condition restricting the respondent from entering the City of
Vancouver (except for confirmed medical or legal or immigration-related
appointments) amply demonstrates that the Member still had concerns about the
respondent re-offending while residing at VisionQuest. However, the
respondent also committed offences in other communities, including the Vancouver suburb of Burnaby; in
addition, the respondent’s victims were homosexual men. There are certainly
reasons to believe the respondent could find victims elsewhere in the greater Vancouver area or
Lower Mainland of British Columbia. It is also troubling that Member Tessler
was counting on the fact that following release, the RCMP would be seeking to
have further conditions imposed by the Provincial Court.
[40]
Overall,
the Court finds that the decision to release the respondent on the terms and
conditions mentioned in the Release Order does not constitute an acceptable and
defensible outcome in light of the law and the facts of this case. There were
simply no compelling reasons to depart from previous decisions and the terms
and conditions of the Release Order do not completely address the continued
risk of re-offending.
[41]
In
the present case, there is an obvious public interest in detaining a person who
would pose a danger to the public. This Court held that in weighing this
public interest against the liberty interest of the individual, in many cases
the most satisfactory course of action will be to detain the individual, but
expedite the immigration proceedings (Sahin v Canada (MCI), [1995] 1 FC
214 (TD) at para 31). This seems to be the path that should be followed in this
case, unless other alternatives to detention in the case of an untreated sexual
offender exist and are presented to the ID at another detention review
hearing.
[42]
For
these reasons, the application for judicial review is allowed and the Release
Order is set aside by the Court. Counsel indicated at the hearing that there were
no serious questions of general importance raised in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
application for judicial review by the Minister is allowed;
2. The
Release Order made on July 11, 2011, is set aside; and
3. No
questions are certified.
“Luc
Martineau”
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