Date: 20081218
Docket: IMM-5058-08
Citation: 2008 FC 1394
Ottawa, Ontario,
December 18, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Applicant
and
JOTHIRAVI SITTAMPALAM
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant Minister brings
a motion seeking to stay the order of a Member of the Immigration Division of
the Immigration and Refugee Board altering the terms and conditions of the
respondent’s release from detention. For the reasons that follow, I am of the
view that the order of the Member must be stayed.
BACKGROUND
[2]
Mr.
Sittampalam is a citizen of Sri
Lanka. He has a
lengthy history with immigration officials which is set out in detail in a
number of decisions of this Court: See Canada (Minister of Citizenship and
Immigration) v. Sittampalam, [2004] F.C.J. No. 2152; Sittampalam v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1485; Sittampalam
v. Canada (Solicitor General), [2005] F.C.J. No. 1734; Sittampalam v.
Canada (Minister of Public Safety and Emergency Preparedness), [2006]
F.C.J. No. 1412; Sittampalam v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 932. The following short outline of the
most relevant facts is taken from these earlier decisions and the record before
the Court on this motion.
History of Status in Canada
- Mr. Sittampalam came to Canada in February 1990 and
made a successful refugee claim. He became a permanent resident on July
17, 1992.
- He has three criminal convictions:
(i) failure to comply with a recognizance, (ii) trafficking in a narcotic;
and (iii) obstructing a peace officer.
- Mr. Sittampalam has been identified
by the police as a leader of A.K. Kannan, one of two rival Tamil gangs
that operated in Toronto. Mr. Sittampalam has
been investigated for, but never convicted of numerous other offences,
including attempted murder, assault with a weapon, aggravated assault,
possession of a weapon dangerous to the public, pointing a firearm and
using a firearm to commit an offence, threatening, extortion, and
trafficking.
- Mr. Sittampalam was reported under
subsection 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2
(the “former Act”), because of his narcotic trafficking conviction.
- Mr. Sittampalam was also reported
under the former Act as a person engaged in organized criminality because
of his involvement in A.K. Kannan.
- In a decision dated October 4, 2004,
a panel of the Immigration and Refugee Board determined that Mr.
Sittampalam was inadmissible to Canada on grounds of serious criminality
(pursuant to subsection 36(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) and organized criminality
(pursuant to subsection 37(1)(a) of the Act). Mr. Sittampalam was ordered
deported.
- This Court upheld the Board’s
determination regarding Mr. Sittampalam’s inadmissibility to Canada (Sittampalam v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
1485; aff’d Sittampalam v. Canada (Minister of Citizenship
and Immigration),
[2006] F.C.J. No. 1512 (F.C.A.)).
- On July 6, 2006, Mr. Sittampalam was
issued a danger opinion under subsection 115(2)(a) and (b) of the Act,
which allowed for his refoulement to Sri Lanka. He was scheduled for removal on
August 24, 2006. This Court granted a stay of removal pending leave and
judicial review of the danger opinion.
- On June 28, 2007, this Court upheld
the finding that the respondent is a danger to the Canadian public, but
ordered that the decision be sent back to the Minister’s delegate for the
sole purpose of re-assessing the risk to the respondent upon his return to
Sri Lanka (Sittampalam v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 932).
- On January 11, 2008, the
re-assessment was completed and the respondent was found not to be at risk
if returned to Sri
Lanka.
That decision is the subject of an application for judicial review, which
was heard on June 5, 2008. No judgment has yet issued on that
application. This Court granted a stay of his removal pending the
determination of that review.
History of Detention
- Mr. Sittampalam was arrested and
detained on October 18, 2001. He had regular detention reviews as
required by the Act. He was twice ordered released in 2004, but both
decisions were overturned by this Court (Canada (Minister of Citizenship
and Immigration) v. Sittampalam, [2004] F.C.J. No. 2152). This
Court also overturned decisions of the Board ordering his continued
detention (Sittampalam v. Canada (Solicitor General), [2005] F.C.J. No. 1734 and
Sittampalam v. Canada (Minister of Public
Safety and Emergency Preparedness), [2006] F.C.J. No. 1412).
- Mr. Sittampalam was ultimately released
on May 22, 2007, pursuant to terms and conditions set out in an Order of Member
Gratton in a decision dated April 19, 2007.
- The terms of release were twice
amended before the amendment that underlies this motion for a stay. On October
4, 2007, the Immigration Division allowed an amendment to the original
release Order so that the respondent could move to Ajax, Ontario, and on January
30, 2008, Member Willoughby amended the release Order to allow the
respondent one outing per week.
Hearing Before and Decision of Member J.
Harnum
[3]
In August
2008, the respondent requested an amendment to the terms and conditions of his release.
The applicant was prepared to somewhat lessened restrictions on the
respondent. Specifically, the applicant attests in an affidavit filed in this
proceeding that it agreed to the following amendments:
(i)
Mr.
Sittampalam be allowed to remain alone in the residence;
(ii)
Mr.
Sittampalam could be in the yard alone provided there was a surety in the
residence;
(iii)
Mr.
Sittampalam be allowed two outings per week (maximum of four hours each) as
long as prior approval (72 hours) was obtained and he was in the presence of a
surety;
(iv)
Mr.
Sittampalam be allowed to walk his children to school in the morning and pick
them up from school in the afternoon; and
(v)
Mr.
Sittampalam must consult a psychiatrist/psychologist with respect to his mental
state and submit a report within six months.
[4]
Mr.
Sittampalam sought further amendments to the terms of the release order which
were opposed by the applicant. On Wednesday, October 8, 2008, a hearing was
held before Member Harnum. Counsel for the respondent provided the Member with
a six-page document that outlined the amendments being sought. Mr. Sittampalam
gave evidence and counsel for both parties made lengthy submissions to the
Member on the amendments being sought by the respondent. During the course of
the proceeding the respondent dropped or modified some of his demands.
[5]
On
November 13, 2008, Member Harnum released her order in the form of a four-page
document headed “Order for Release’. This was distributed to the parties with
a cover sheet that stated: “Reasons to follow November 24, 2008”. No reasons
have been provided. The applicant, in its affidavit in support of this motion,
attests that numerous inquiries have been made concerning the status of the
reasons but no information of assistance has been forthcoming. The lack of
response and the failure to provide reasons may be explained by the fact that
Member Harnum left her position as a Member of the Immigration Division,
shortly after issuing the order amending the respondent’s terms and conditions
of release.
[6]
The
applicant submits that Member Harnum’s Order compromises the ability of Canada
Border Services Agency to properly monitor the respondent and thus brings this motion
to stay her Order pending a determination of its application for leave and for
judicial review of her Order.
ANALYSIS
[7]
In determining
whether the applicant is entitled to an interim injunction staying the Order of
Member Harnum, the test to be applied is that established by the Supreme Court
of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311 and Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302 (F.C.A.). The applicant must establish that:
(i)
There is a serious
issue to be tried;
(ii)
The applicant will
suffer irreparable harm if the injunction is not granted; and
(iii)
The balance of
convenience favours the granting of the injunction.
The
tripartite test is conjunctive; the applicant has to satisfy all three elements
of the test before it will be entitled to the relief sought.
[8]
The applicant has
raised the following four issues that it submits are serious issues in the
underlying application:
(i)
Whether the Member’s
reasons are adequate;
(ii)
Whether the Member
erred in departing from the orders of previous Members without clear and
compelling reasons for so doing;
(iii)
Whether the Member
breached the applicant’s right to procedural fairness in making alterations and
deletions to conditions of release that were not requested by the respondent
and that were not at issue in the detention review of October 8, 2008; and
(iv)
Whether the Member
erred and the applicant was denied procedural fairness in making changes to the
conditions of release that differed from and were less restrictive than those
requested by the respondent.
[9]
A serious issue is
one that is neither frivolous nor vexatious. I am satisfied that each of the
four issues raised by the applicant is a serious issue in the underlying
application. In particular, the allegation that the Member issued an Order amending
previous terms of release that were not before her and without alerting either
party of her intent to do so is a serious breach of procedural fairness. As
well, the failure, at present, to provide reasons also raises a serious issue
in light of the statutory requirement that reasons are to be provided: See
section 169 of the Act.
[10]
The applicant raised
a number of allegations of irreparable harm. Generally they fall within one of
the following descriptions:
(i)
The lessening of the
conditions of release will put the safety of the Canadian public at risk, given
that the respondent has been found to be a danger to the Canadian public;
(ii)
The lessening of the
conditions of release may put the respondent at greater risk as he has previously
been the subject of threats and attacks and because recently he appears to have
become psychologically unstable as he has twice overdosed and recently has
threatened to kill himself; and
(iii)
The lessening of the
conditions of release increases the likelihood that the respondent will not be
continuously monitored and he may disappear or fail to appear for removal
should the outstanding judgment on his judicial review application be
dismissed.
[11]
I am not convinced
that the alleged harm in (ii) above, i.e. harm to the respondent, meets the
test set out in the jurisprudence as it is not obvious that it amounts to harm
to the applicant. It might be said that the applicant has a duty to protect
all persons under its supervision and thus harm to the respondent also,
indirectly, harms the applicant. However, the applicant’s motivation in opposing
the requested changes to the conditions of release was not his concern for the
respondent’s well-being.
[12]
I am also not
satisfied that the possibility of the respondent disappearing or failing to
attend for removal is more than speculation on the part of the applicant.
There is not clear and convincing evidence before the Court on which it could
be said that this harm is likely. As was stated by the Court in Ramratran
v. Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC
377, [2006] F.C.J. No. 472 (QL):
As a stay or interlocutory injunction is
determined prior to the determination of the issues on judicial review, the
evidence in support of irreparable harm must be clear and non-speculative; the
Court must be satisfied that irreparable harm will occur if the relief sought
is not granted.
(emphasis
added)
[13]
Notwithstanding
my findings with respect to allegations (i) and (ii), I am nonetheless satisfied
that on the facts before the Court, there is clear and convincing evidence that
irreparable harm will occur as a result of the lessening of the conditions of the
respondent’s release, in the manner ordered by the Member. The clear and
convincing evidence that supports that finding is firstly, the finding of the
Minister’s delegate, upheld by this Court, that Mr. Sittampalam is a danger to
the public, and secondly, the fact that the respondent had no opportunity to
make submissions to the Member with respect to some of the terms and conditions
she altered. The following serves as an illustration.
[14]
The previous order
for release provided that Mr. Sittampalam was to remain in his residence unless
otherwise provided in the terms of release. He was permitted to be outside his
residence, one time each week on an outing, of limited duration, provided 72
hours notice was given, and he was accompanied by a supervisor with continuous
supervision. The list of those qualified as supervisors was set out in the
original order. Mr. Sittampalam was seeking an amendment that would permit him
to be away from his residence to take his children to and from school and to
seek employment and to work. In the course of the hearing counsel dropped the
request related to employment, indicating that the respondent would come back
to the Division, if he wished to seek employment outside the home (see page 143
of the transcription of the hearing before the Member). However, the
respondent made no request to amend the notice required for outings or the
requirement that he be supervised. It is not surprising therefore that the
respondent made no submissions on this – it was simply not an issue in dispute
before the Member. The Member, however, reduced the advance time to be
provided to the applicant of outings outside the residence to 24 hours, eliminated
the need for supervision entirely and permitted the respondent to be outside
the house at any time, subject to the revised notice conditions, between 6 a.m.
and 11 p.m.
[15]
Mr. Sittampalam’s
previous terms and conditions of release were close to terms of house arrest –
his counsel described them as intrusive and onerous. That they may have been;
however, they were terms imposed by a Member of the Division after both parties
had an opportunity to make submissions as to their appropriateness. In this
case, the Member relaxed these conditions on her own, without being asked and
without the benefit of submissions by either party. In my view the absolute
legal right of each party to make submissions on the particular terms of
release that she was considering, was lost. Each party suffered irreparable
harm as a direct result of the manner in which the Member proceeded. There is
nothing that can compensate for the loss of the right to make submissions prior
to the release of the respondent on these relaxed terms. This stay must be
granted to prevent this irreparable harm to the parties.
[16]
This is a harm that
is separate from the harm to the public that was urged upon the Court by the
applicant in his written submissions. In that respect the respondent submits that there
is no recent evidence to support any harm to the public under the relaxed terms
of release. I cannot agree. While the immediacy of the harm may have
dissipated over time, the fact remains and cannot be ignored that he has been
and continues to be a danger to the public, as it has been determined by the
Minister. The respondent relies heavily on the following passage from the
judgment of Justice Blais, of this Court, as he then was, in Canada
(Minister of Citizenship and Immigration) v. Sittampalam, 2004 FC 1756,
[2004] F.C.J. No.. 2152 (QL) at paragraph 17:
If one of the grounds for detaining the
respondent is that he is a danger to the public, it may be that the danger to
the public dissipates due to the length of time in detention, or that the
evidence supporting a detention order will turn stale. Length of detention is
properly considered with regard to a dissipated threat or stale evidence
regardless of whether the length of time in detention was by virtue of the
respondent's own delay in the matter. The responsibility of the Board if it
does conclude that evidence is stale by virtue of the passing of time is a
different matter and will be dealt with below.
Justice
Blais, in the passage cited, was considering the respondent’s situation as a
detained person before the Minister’s danger opinion under section 155 issued.
That opinion was that Mr. Sittampalam “constitutes both a current and future
danger to the public pursuant to paragraph 115(2)(a) of the IRPA…”
(emphasis added). Mr. Sittampalam’s challenge to that finding was dismissed by
this Court. In the face of the Minister’s determination and this Court’s
finding, it can be said that the respondent’s release on terms that have not
been fully argued before the Member, results in an irreparable harm to public
safety and security.
[17]
I am also
satisfied that the balance of convenience rests with the applicant. The proper
application of the provisions of the Immigration and Refugee Protection Act
is a matter of public interest which, in my view, and in this case, outweighs
the interests of the respondent.
[18]
For all of
these reasons the tri-partite test has been met by the applicant and the Order
of the Member will be stayed.
ORDER
THIS COURT ORDERS that the decision of J. Harnum, a Member of the Immigration
Division of the Immigration and Refugee Board, dated November 13, 2008,
altering the terms and conditions of the release of the respondent from
detention, is stayed pending the final determination of the application for
leave and judicial review of that decision.
“Russel W. Zinn”
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