Date: 20130417

Docket: IMM-9448-12

Citation: 2013 FC 387

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Montréal, Quebec, April 17, 2013

PRESENT: The Honourable Mr. Justice Shore 

 

BETWEEN:

	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
		Applicant
	and
	ROSA CHINCHILLA RAMIREZ
		Respondent

 

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

I. Preliminary remarks

[1]               This is an application by the Minister of Public Safety and Emergency Preparedness for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board [panel] by which the panel decided, after a detention review hearing held on August 28, 2012, to release the respondent, on certain conditions.

II. Introduction

[2]               Section 58 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] provides that the panel shall order the release of a foreign national or a permanent resident unless it is satisfied of certain facts. However, where these facts have been established, the panel may order detention.

 

[3]               Section 244 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] states as follows:

 

[4]               Section 245 lists the factors that are to be used to assess the flight risk of a detainee who may be subject to any proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the IRPA:

 

[5]               Section 246 of the Regulations states the factors which the panel shall take into consideration when assessing whether a person is a danger to the public. Where there are grounds for detention, the factors generally taken into consideration before a decision is made on detention or release are listed in section 248 of the Regulations:

 

[6]               In the present case, the application has become moot, and the applicant concedes this, given that the respondent voluntarily left Canada before the scheduled date for the enforcement of the removal order. The respondent was later arrested and detained in the United States. However, the applicant is asking the Court to nevertheless exercise its discretion to rule on the merits of the application, considering the urgency and seriousness of the situation. Even though resolving the issues in dispute will have no practical consequences in the present case, the applicant argues that he is challenging what he describes as a [translation] “constant” practice of the panel, and he asks that the Court assume its role in the development of the law and intervene to sanction the unreasonable decisions made by decision makers in detention reviews while defining the limits of their powers, thereby ensuring, among other things, that similar decisions are not rendered in the future.

 

[7]               After reviewing the record and hearing the parties’ arguments, and after carefully considering the issues raised by the applicant in light of the test laid down by the Supreme Court in Borowski v Canada (Attorney General), [1989] 1 SCR 342, the Court is of the opinion that it must intervene in this case.

 

[8]               For the reasons that follow, the Court finds that this is indeed not an isolated case. It is becoming an increasingly common practice for panels to favour releasing detainees on conditions that are completely unreasonable in their circumstances, when no reasonable alternative supports release. Even though the respondent did not represent a danger to the public according to the factors under section 246 of the Regulations, and even though the Court’s intervention would probably not be necessary in this case had it not become moot, the Court is of the opinion that the current situation requires its intervention. Judicial passivity sometimes carries a heavy price, particularly where security constraints and imperatives are at stake.

 

III. Relevant facts

[9]               The respondent is a citizen of Guatemala without status in Canada. She is unmarried and has two minor children. She arrived in Canada on August 21, 2005, and made a claim for refugee protection, which claim was rejected on June 2, 2006, essentially because of her lack of credibility. The respondent’s application for judicial review of that decision was dismissed on September 7, 2006.

 

[10]           The respondent then applied for a pre-removal risk assessment [PRRA], but the application was rejected on April 30, 2008. On September 22, 2009, the negative PRRA decision was hand-delivered to the respondent. On that same occasion, she was summoned to attend an interview on October 19, 2009, to prepare for her removal. The applicant did not attend that interview.

 

[11]           On October 26, 2009, a warrant for the respondent’s arrest was issued.

 

[12]           In the meantime, the respondent had obtained a work permit valid until December 15, 2009. On December 29, 2009, the respondent applied to have her work permit extended. However, she did not report for the two interviews scheduled successively for that application, on October 5, 2010, and February 3, 2011.

 

[13]           On August 25, 2012, Montréal police arrested the respondent for shoplifting. From that moment on, the respondent was detained by the Canada Border Services Agency [CBSA] because of the outstanding warrant against her, from October 26, 2009. However, no criminal charges were laid against her.

 

[14]           On August 27, 2012, during an interview with an enforcement officer, the respondent was notified that her removal had been scheduled for September 3, 2012. According to the officer’s notes, the respondent said at that time that she did not report for her interview on October 19, 2009, because she feared being deported from Canada; that she was still working full time even though her work permit had expired and had not been renewed; that she was the mother of two children, one of whom was a Canadian citizen; and that she could not go back to Guatemala.

 

IV. Impugned decision of the panel

[15]           On August 28, 2012, a hearing was held before the panel to review the reasons for detaining the respondent. The CBSA essentially argued that the respondent’s failure to comply with three previous notices to appear and the reasons she gave for failing to do so justified keeping her in detention until her removal, which at the time was scheduled for September 3, 2012. The respondent argued that despite her failure to honour her previous commitments, there was still a reasonable alternative to detention which would allow her to be released without bond, under the usual release conditions.

 

[16]           The panel acknowledged that the respondent had on three occasions failed to appear for an interview to try to regularize her status and that she had lived without status in Canada for three years. However, the panel decided to make an order releasing the respondent under the usual conditions, considering among other factors that the respondent had been living at the same address all this time, that she answered her telephone and that the CBSA should therefore have been able to reach her, although it had not tried to locate or arrest her. Moreover, the panel noted that the respondent was aware that she had to renew her driver’s licence and had applied to do so.

 

[17]           In the end, the panel concluded that the respondent’s attitude did not indicate an intention to flee and that her refusal to appear for her appointments was motivated by her fear of being removed from Canada. The panel added that there was a sufficient alternative in the circumstances and that the onus was on the applicant to take the necessary steps to enforce the removal and on the respondent to report for removal.

 

[18]           The respondent’s release conditions included the following:

•         present herself at the time and place that the CBSA or the Immigration Division requires her to appear to comply with any obligation imposed on her under the Act, including removal, if necessary;

•         provide the CBSA, prior to release from the detention centre, with her address and advise the CBSA in person of any change in address prior to the change being made;

•         starting August 29, 2012, report every working day to the CBSA offices in Montréal;

•         confirm her departure with the CBSA before leaving Canada; and

•         not work without a work permit.

 

[19]           Pursuant to the panel’s decision, the respondent’s removal was postponed to September 24, 2012, to give the applicant time to obtain a travel document from the Guatemalan consulate for the respondent’s Canadian son.

 

[20]           The respondent did not report for her removal on that date, and another warrant for her arrest was issued on September 25, 2012. On September 27, 2012, the respondent was arrested in the United States.

 

V. Issues

[21]           (1) Could the panel release the respondent immediately even though she offered no alternative to her detention?

(2) Given that the respondent presented a flight risk, were the conditions imposed by the panel reasonable, in that they adequately countered this risk?

(3) Did the panel breach the principles of natural justice in not giving sufficient reasons for its decision?

 

[22]           The case law has established that the issue of whether a panel has failed to consider relevant factors, as well as its assessment of the evidence presented to it, must be reviewed on a standard of reasonableness. However, although the adequacy of reasons has not been approached from the angle of procedural fairness since Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the case law is to the effect that if the panel fails to consider the appropriate factors altogether, the correctness standard applies (see Canada (Minister of Citizenship and Immigration) v B001, 2012 FC 523, 409 FTR 74 at paras 6-7, and Canada (Minister of Citizenship and Immigration) v B004, 2011 FC 331, 387 FTR 79 at paras 17-19).

 

[23]           However, it is common ground that this case raises first and foremost a moot issue, such that the Court must consider whether, having regard to the facts of the case and the basis for the impugned decision, it must nevertheless exercise its discretion to hear the matter even though the outcome of this application for judicial review will have no real and present repercussions on the parties.

 

VI. Analysis

Preliminary issue: Should the Court exercise its discretion and hear this case even though it is now moot?

 

[24]           The two-part test for determining whether the Court may rule on a moot case, as laid down by the Supreme Court of Canada in Borowski, above, is well known:

16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

 

[25]           First, the Court must determine whether its decision will affect the rights of the parties. In the present case, the applicant concedes that there is no live controversy between the parties, owing to the fact that the respondent has left for the United States, but submits that the respondent’s challenge of the reasonableness of the decision to release her shows that the parties continue to have opposing interests in an adversarial context.

 

[26]           The fact that the outcome of this matter would have no practical effect on the respondent, since she is no longer in Canada, is not determinative in and of itself under the test in Borowski, above. The Court must decide whether it is appropriate for it to exercise its discretion to hear the case, having regard to the following factors, as laid down in Borowski.

 

[27]           First, the Court must consider whether, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail (Borowski, at para 31). Second, it must be determined whether hearing the case is in the interests of judicial economy. Such is the case for example in (i) cases where the Court’s decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action (Borowski at para 35); (ii) cases which are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the courts, the mootness doctrine is not applied strictly. The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved (Borowski at para 36); or (iii) cases which raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law (Borowski at para 37).

 

[28]           The first factor is not neutral in the present case. It is true that despite the cessation of a live controversy, the parties are still locked in an adversarial context because the respondent has retained counsel to defend her case before the Court and, moreover, it is not impossible that she may one day try to return to Canada.

 

[29]           The practical concerns for judicial economy also support the applicant’s position. The applicant submits that he is challenging what he calls a [translation] “constant” practice of the panel and argues that this is the only way for the Court to put an end to it, by setting limits. According to the applicant, the Court must assume its role in the development of the law and intervene to sanction the unreasonable decisions made by decision makers in detention reviews while defining the limits of their powers, thereby ensuring that similar decisions are not rendered in the future.

 

[30]           The Court agrees. The criteria for the second component of the Borowski test have been met in this case. Not only will the resolution of the case have tangible future effects on the rights of the parties, but this is also a case of a recurring nature arising from an increasingly frequent practice of the panel. Finally, the public interest, too, requires that the Court rule on the merits of this case.

 

(1) Could the panel release the respondent immediately even though she offered no alternative to her detention?

 

[31]           The applicant submits that there was no alternative to detaining the respondent in the circumstances, since in the past she had not complied with the only release conditions that she proposed. He submits that the panel did not assess the respondent’s flight risk or the risk that she would once again refuse to report for her removal, given that she was subject to a warrant for her arrest for already having failed to report for her removal and that she ignored two notices to appear in order to avoid her arrest. The applicant further submits the respondent’s explanations to the effect that she feared being removed from Canada and therefore refused to report when summoned by the immigration authorities should not have been accepted by the panel as a justification for the respondent’s behaviour.

 

[32]           The Court agrees that the panel based its decision solely on less relevant factors that favoured the respondent’s immediate release, such as the fact that she had not tried to hide by changing her home address. In doing so, the panel ignored the respondent’s flight risk, her repeated failures to appear for interviews to regularize her status in Canada, and the true ground for her detention, namely, the outstanding warrant for her arrest issued on October 26, 2009.

 

(2) Given that the respondent presented a flight risk, were the conditions imposed by the panel reasonable, in that they adequately countered this risk?

 

[33]           According to the applicant, had it not been for the immediate release of the respondent, the applicant would have immediately brought before the Court an urgent motion to stay her release. The lack of adequate release conditions, such as the payment of a sum of money or the posting of a bond, prevented the Minister from appealing to the Court before the respondent was released.

 

[34]           The Court recognizes that it was unreasonable for the panel not to impose any conditions on the respondent other than ones she had already failed to comply with in the past and was unlikely to be able to comply with in the circumstances. Indeed, upon reading these conditions, it is difficult to see what practical and enforceable conditions the panel used as a basis for ending her detention. More importantly, none of the conditions imposed by the panel were likely to oblige the respondent to comply with the plans for her removal or to reduce the chances of her fleeing. In deciding as it did, the panel erred in its assessment of the criteria set out in sections 245 and 248 of the Regulations. Such a decision cannot fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and is therefore unreasonable (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).

 

(3) Did the panel breach the principles of natural justice in not giving sufficient reasons for its decision?

 

[35]           The applicant submits that the panel did not give adequate reasons for its decision, such that the parties and the Court could assess the decision’s reasonableness.

 

[36]           According to the teachings of the Federal Court of Appeal in Ralph v Canada (Attorney General), 2010 FCA 256, at paras 17-19, the reasons for decision must contain enough information about the decision and its bases so that, first, a party can understand the basis for the decision and decide whether or not to apply for judicial review, and second, the supervising court can assess, meaningfully, whether the panel met minimum standards of legality. A decision is therefore justified and intelligible when its basis has been given and the basis is understandable, with some discernable rationality and logic.

 

[37]           In light of these factors, the Court is satisfied that the reasons for decision at issue are insufficient and inadequate because they do not allow the parties, or the Court, to understand the panel’s reasoning and the precautions taken to reduce the respondent’s flight risk. The fact that the panel should have developed its reasons further is particularly relevant because the respondent had to understand the rationale for and the nature and scope of her release conditions so that she would feel obliged to comply with them. The panel did not rule on whether the alternative proposed by the respondent was sufficient and appropriate and gave no justification for it in relation to the circumstances. Nor did the panel rule on whether the conditions imposed were adequate and enforceable or explain how they could reasonably counter the respondent’s flight risk.

 

VII. Conclusion

[38]           For all the reasons given above, this application for judicial review is allowed. Counsel for the parties did not propose any questions for certification, and the Court agrees that this case does not raise any.

 

JUDGMENT

THE COURT ORDERS that the application for judicial review be allowed. There is no question of general importance to be certified.

 

“Michel M.J. Shore”

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-9448-12

 

STYLE OF CAUSE:                        THE MINISTER OF PUBLIC SAFETY

                                                            AND EMERGENCY PREPAREDNESS

                                                            v ROSA CHINCHILLA RAMIREZ

 

 

 

PLACE OF HEARING:                  Montréal, Quebec

 

DATE OF HEARING:                    April 16, 2013

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         SHORE J.

 

DATED:                                            April 17, 2013

 

 

 

APPEARANCES:

 

Emilie Tremblay	FOR THE APPLICANT
Vincent Desbiens	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	FOR THE APPLICANT
Monterosso et associés Montréal, Quebec	FOR THE RESPONDENT