Date: 20110406
Docket: IMM-5184-10
Citation: 2011 FC 419
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, April 6, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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COLONIA FALCON DOMITLIA
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Applicant
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and
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THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
This
is an application for judicial review of the decision dated August 23, 2010, by
the Canada Border Services Agency (CBSA), requiring the payment of $20,000 as a
guarantee for the breach of a release condition by the brother of Colonia
Falcon Domitlia (applicant).
[2]
For
the reasons mentioned below, the application for judicial review will be
dismissed.
[3]
The
applicant is the sister of Victor Hugo Colonia Falcon (Mr. Falcon), to whom section
37 of the Immigration and Refugee Protection Act (IRPA) currently
applies.
[4]
Mr.
Falcon arrived in Canada in August 1991 and claimed refugee protection. This
status was granted to him on May 27, 1992.
[5]
In
January 1993, Mr. Falcon filed an application for permanent residence, which
was rejected in 1997 because he was inadmissible on grounds of criminality. The
evidence demonstrates that he committed several robberies in his country of
origin before coming to Canada.
[6]
The
Court is reiterating here, almost in their entirety, paragraphs 5 to 19 of the
respondent’s memorandum regarding the subsequent events, which are not really being
challenged.
[7]
Previously,
on August 30, 1995, Citizenship and Immigration Canada (CIC) prepared an
initial inadmissibility report because Mr. Falcon had been convicted of robbery
on June 21, 1995.
[8]
On
March 12, 1997, a second inadmissibility report was prepared because Mr. Falcon
had been convicted of breaking and entering on June 3, 1996, and of robbery and
failure to comply with conditions on June 7, 1996.
[9]
Then,
on June 3, 1998, CIC prepared a new inadmissibility report because Mr. Falcon
had been convicted of assault causing bodily harm on June 7, 1996.
[10]
On
April 9, 1999, a new inadmissibility report was prepared because Mr. Falcon had
again been convicted of robbery on February 2, 1999.
[11]
On
November 16, 2006, an inadmissibility report under subsection 44(1) of the IRPA
was issued against Mr. Falcon alleging that he was part of an organized
criminal group, as defined in subsection 37(1) of the IRPA, namely, a South
American criminal organization specializing in robbery. This report was
referred to the Immigration Division (ID) of the Immigration
and Refugee Board (IRB).
[12]
On
November 17, 2006, Mr. Falcon was arrested and detained by the immigration
authorities.
[13]
On
January 23, 2007, the ID issued a deportation order against Mr. Falcon pursuant
to subsection 37(1) of the IRPA. Despite Mr. Falcon’s record, the ID released
him under several very strict conditions, including a guarantee of $20,000, on
the condition that he not enter any business or shopping centre except those
selling food only.
[14]
On
May 12, 2010, Mr. Falcon breached one of the conditions imposed by entering a
clothing store.
[15]
On
June 30, 2010, Mr. Falcon reported to the CBSA, thereby complying with his
release conditions. That same day, the Service de police de la Ville de
Montréal (SPVM) arrested Mr. Falcon in relation to the incidents of May 12,
2010. Mr. Falcon was to appear in court on September 29, 2010, regarding the
incidents of May 12, 2010.
[16]
That
same day, on June 30, 2010, the chief of operations of the CBSA, Investigations
Montréal (CBSA) signed a letter and sent it to the applicant. This letter
specified that her brother had breached some of his release conditions, more
specifically, the condition of not entering a business other than one selling
food only. The letter also indicated that the CBSA was now entitled to claim
the $20,000 offered as a guarantee for her brother’s release by the ID in
January 2007. The letter clearly specified that if the applicant was of
the opinion that the guarantee should not be enforced, she had to send, within
the thirty days following the mailing of the letter in question, explanations
in this respect and that if she failed to do so, she would receive a letter
confirming the CBSA’s final decision ordering her to pay.
[17]
The
CBSA received nothing from the applicant during those thirty days.
[18]
Meanwhile,
Mr. Falcon was arrested by the authorities on July 8, 2010.
[19]
On
July 9, 2010, the ID reviewed the reasons for Mr. Falcon’s detention. During
this hearing, a detailed report by the SPVM was filed into evidence (Exhibit
M-3). This report showed that police had been patrolling 5824-A Saint-Zotique
Street in Montréal on May 12, 2010, and that at 2:56 p.m., SPVM officer Marc
Houle had seen two unknown men and two unknown women stop in a vehicle in front
of the said residence. Further investigation revealed that one of the persons
was in fact Mr. Falcon. Afterwards, this same SPVM officer had seen Mr. Falcon and
two others enter 6200 Henri-Bourassa Street East (in Montréal), a Le Château warehouse clothing
store. According to the supplementary report dated May 25, 2010, the surveillance
team had witnessed several shopliftings in Montréal that same day. On May 19,
2010, Sergio Olivera, a loss prevention specialist, submitted a DVD of photos to
the SPVM officers, who wrote up the supplementary report dated May 25, 2010.
The photos revealed two people entering the Le Château store and stealing
clothing from there. Searches were then conducted at the residences of the
various people involved. On May 25, 2010, after the residences were searched, SPVM
officer Caroline Dupuis, another police officer in the SPVM’s Intelligence
Division, identified Mr. Falcon as one of the people who had purportedly
participated in the shoplifting committed at the Le Château store on May 12, 2010.
On May 25, 2010, the people in question were arrested, including Mr. Falcon.
[20]
On
August 23, 2010, the chief of operations of the CBSA signed a second letter and
sent it to the applicant. The letter confirmed that, in the absence of
explanations by the applicant, the CBSA required the payment in the amount of $20,000.
[21]
It
is this decision that the applicant is challenging in this application for
judicial review.
[22]
In
the case at bar, the first issue is whether the applicant’s brother breached his
release conditions.
[23]
I
am of the opinion that this is a question of fact for which the applicable
standard of review is reasonableness (Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190).
[24]
The
second issue is whether the officer erred by failing to consider reducing the
amount to be forfeited.
[25]
This
issue was already the subject of an analysis in Hussain v. Canada (Minister
of Public Safety and Emergency Preparedness), 2008 FC 234, paragraph 2, in
which the Court stated that the applicable standard is reasonableness:
2. The Standard of review in
matters respecting the return or forfeiture of bonds of this type has been
considered by Justice Mosley of this Court in Kang v. Canada (Minister of
Public Safety and Emergency Preparedness), 2006 FC 652. He considered
other decisions of this Court and stated that the jurisprudence is complex and
still evolving. While at least one decision (Tsang v. Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 474) says
that the standard is correctness, another (Khalife v. Canada
(Minister of Citizenship and Immigration), 2006 FC 221) says that it is
reasonableness. Justice Mosley determined that he would examine the
matter on the basis of reasonableness and so will I, except as to matters of
law where the standard is correctness.
[26]
The
applicant cites Tsang v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 474, arguing that this is instead a
question of law and raises the standard of correctness.
[27]
I
believe that this is a question of mixed fact and law; I would therefore apply
the standard of reasonableness.
[28]
Regarding
the allegations that the applicant’s brother breached his conditions, the
applicant draws attention to the fact that her brother’s case (breach of
condition charge) has not yet been heard and that her brother must benefit from
the presumption of innocence.
[29]
However,
subsection 49(4) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations) states the
following:
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(4)
A sum of money deposited is forfeited, or a guarantee posted becomes
enforceable, on the failure of the person or any member of the
group of persons in respect of whom the deposit or guarantee was required to
comply with a condition imposed.
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(4) En cas de non-respect, par la personne ou tout membre
du groupe de personnes visé par la garantie, d’une condition imposée à son
égard, la somme d’argent donnée en garantie est confisquée ou la
garantie d’exécution devient exécutoire.
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[30]
There
is no legal requirement for the officer to wait until the person charged with
breaching a condition is convicted or pleads guilty before the officer determines
whether the person failed to comply with one of the imposed conditions.
[31]
This
is why chapter 7.8 of Guide ENF 8 (Exhibit “S”, Guide, Respondent’s Memorandum,
page 135) states: “CIC
and CBSA managers and officers have discretionary power to decide whether a
breach of conditions is severe enough to warrant the forfeiture of the deposit
or the guarantee.” This directive, while not having the force of law, is consistent
with the interpretation of subsection 49(4) of the Regulations, which must be
applied by officers faced with a similar situation.
[32]
In
the case at bar, the officer had before him probative evidence that the
applicant’s brother had breached one of his release conditions. Moreover, Mr.
Falcon himself admitted that he was in the Le Château warehouse on May 12, 2010
(Exhibit “A”, hearing transcript dated July 9, 2010, page 29, second
paragraph).
[33]
The
officer therefore was not required to wait for a guilty verdict before writing
to the applicant to advise her that the guarantee would be required.
[34]
With
respect to the officer’s discretionary authority to require all or part of the guarantee,
the applicant raises a breach of procedural fairness (Cardinal v. Director
of Kent Institution, [1985] 2 S.C.R. 643).
[35]
The
respondent refers to the Guide and specifies that before February 1, 2007,
there was some discretion for officers, who were able to require forfeiture of
an amount less than the guarantee provided.
[36]
Given
that the condition was breached on May 12, 2010, the new directives must apply.
In fact, since February 1, 2007, officers no longer have the discretion to require
forfeiture of an amount less that the guarantee provided. Evidently, the
officer did not commit an error.
ORDER
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review be dismissed.
“Michel Beaudry”
Certified
true translation
Janine
Anderson, Translator
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