Date:
20130614
Docket:
IMM-2864-13
Citation:
2013 FC 655
Ottawa, Ontario, June 14, 2013
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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ALAN KIPPAX
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is presently in immigration detention and in this application for
judicial review seeks to set aside the April 15, 2013 decision of the
Immigration Division of the Immigration and Refugee Board of Canada [the ID or
the Division] finding his continued detention to be warranted under section 58
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA
or the Act]. He also requests that I order his release from immigration
detention and set terms for his release.
[2]
By
Order of my colleague, Justice Kane, this hearing has been expedited. Following
the April 15th detention review, another review was conducted by the
ID, which continued the applicant’s immigration detention. The day after this application
was argued, a further detention review was scheduled, in accordance with
subsection 57(2) of the IRPA, which requires that ongoing reviews be held at no
more than 30 day intervals. Given these subsequent events, this judicial review
application is technically moot as the decision being reviewed is spent. That
said, the parties concurred that I should exercise my discretion to nonetheless
decide the application given that the applicant is unlikely to be deported in
the near future and the issues raised in the present application will therefore
be relevant to his ongoing detention reviews.
[3]
I
concur that it is appropriate that I exercise my discretion in this manner and
have accordingly decided to rule on the merits of the applicant’s application. There
is ample authority for doing so in circumstances like the present (see e.g. Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342 at 360, 57 DLR (4th) 231; Cuskic
v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 3, [2000]
FCJ No 1631 at paras 2-4 (CA); Rootenberg v Canada (Attorney General),
2012 FC 1289 at para 24; Es-Sayyid v Canada (Minister of Citizenship and
Immigration), 2011 FC 1415 at paras 26-29). For the reasons set out below,
I have determined that this application should be dismissed, without costs.
Background
[4]
The
applicant
was born in the United Kingdom but has lived in Canada for the past 43 years.
He claims to have missed his Canadian citizenship swearing-in ceremony when he
was a teenager and therefore did not become a Canadian citizen. On January 7,
2013, the Division found him to be inadmissible to Canada on the basis of
criminality and ordered him deported, thereby stripping him of his permanent
residence status. He has not yet been deported because criminal charges related
to section 206 of the Criminal Code, RSC 1985, c C-46 (illegal
lottery) are pending against him. Proceedings in respect of these charges are
likely to take some time; the respondent’s understanding is that the trial may
only begin in 15-18 months. The applicant has also filed an Application for
Leave and Judicial Review in respect of the January 2013 inadmissibility
decision that is still pending.
[5]
The
applicant has a lengthy criminal record, involving 14 criminal convictions.
Many of these date from the 1987 to 1994 timeframe and include narcotics
offenses, possession of a restricted weapon, impaired driving, driving while
disqualified, assault causing bodily harm, failure to appear, obstruction of a
peace officer and dangerous operation of a motor vehicle. The majority of these
offences resulted in fines, but the applicant was sentenced to three months
imprisonment for driving while disqualified.
[6]
The
applicant was convicted of his most serious offense in April 2010, when he was
found guilty of the dangerous operation of a motor vehicle causing death and of
two counts of dangerous operation of a motor vehicle causing bodily harm, for
which he was sentenced to three years imprisonment. A 10-year driving ban was
also imposed. These convictions resulted from the applicant’s driving at
excessive speeds, on a rainy night, when he was essentially street racing with
his cousin. The cousin’s car spun out of control and crashed into another
vehicle. The applicant's cousin was killed and the passengers of the other car
were seriously injured. The applicant left the scene of the accident, parking
on a cross street, and did not call for assistance. In imposing sentence,
Justice Baltman of the Ontario Superior Court, in R v Kippax, [2010] OJ
No 2021 at para 33, noted that the applicant:
[…]
shows little appreciation or regret for the horrific injuries that followed his
driving that night. As the author of the pre-sentence report observed, he
requires the structured environment of a correctional institution to drive the
point home.
[7]
In
March 2011, the applicant was convicted of obstructing a police officer, after
he pled guilty to the charge. (The more serious charge of assaulting a peace
officer was stayed.) These charges stemmed from the applicant’s behavior at a party
held during the period between the street racing incident and his
incarceration.
[8]
In
making the decision under review, the ID had before it a copy of the Arrest
Report for this incident, which indicted that the applicant was repeatedly
defiant of direct police orders and had engaged in a physical altercation with
a police officer when the officer intervened to try to quiet the party. It
appears that this Report, as well as evidence of the March 2011 conviction,
itself, was not before the ID on the applicant’s first detention review (which
occurred on April 30, 2012 and is discussed below).
[9]
Following
his conviction and a period of incarceration in a federal penitentiary, on
April 26, 2012 the applicant was granted statutory release from custody, with terms
and conditions. These included a prohibition against owning or operating a
motor vehicle, a requirement that he not travel outside set boundaries within
the Toronto area without the authority of his parole officer and that he not
associate with those whom he knew or had reason to believe were involved in
criminal activity.
[10]
On
April 29, 2012, the applicant was placed in immigration detention. On April 30,
2012, the Division issued an order, releasing him from detention on terms and
conditions, which included the requirement that he abide by the terms imposed
in connection with his statutory release. A $10,000.00 cash bond and a
$20,000.00 performance bond were also required (and furnished by two different
bondspeople). In its reasons for the order initially releasing the applicant
from immigration detention the Division noted that “the case about whether or
not [the applicant] would appear is fairly weak” (Applicant’s Judicial Review
Application Record at p 16). The ID also determined that the main danger the
applicant posed was related to the operation of a motor vehicle, which could be
mitigated through the bonds and release conditions.
[11]
On
June 26, 2012, the applicant and one of his bondspersons were charged with
criminal offences related to the operation of a marijuana grow operation at a
warehouse owned by the applicant. The warehouse is located outside the
boundaries the applicant was allowed to visit under his terms of release. As a
result of these charges, the applicant’s statutory release was revoked and
recalculated to January 14, 2013.
[12]
On
November 7, 2012, the charges against the applicant, stemming from his
suspected involvement in the grow operation, were stayed. (The charges against
the bondsperson were also subsequently stayed.) The transcript of the hearing
before Justice Gorewich of the Ontario Court of Justice indicates that the
applicant committed to testifying as part of the Crown’s case against others
charged in connection with the grow operation. The applicant filed an affidavit
with the Ontario Court of Justice indicating that he had no knowledge of the
grow operation.
[13]
On
December 30, 2012, the Parole Board of Canada [PBC] imposed additional
conditions on the applicant’s release, following a paper review of the file.
Although the applicant wished the opportunity to make representations at an
oral hearing, he was denied this opportunity as the first scheduled hearings
were adjourned to allow the PBC to collect evidence and due to a snow storm.
Thereafter, there was insufficient time before the applicant’s mandatory
release date to schedule an in-person hearing.
[14]
In
making its decision, the PBC concluded that the applicant had violated the
terms of his statutory release order by going to the warehouse in Mississauga,
in contravention of the travel permit his parole officer had issued, and had
also associated with individuals he knew or had reason to believe were engaged
in criminal activities in violation of his release conditions. The PBC based
these determinations on police reports related to the observations that led to
the charges in connection with the grow operation. The PBC also expressed a
series of concerns related to the danger the applicant posed, noting that he
was not frank with his parole officer about the reasons for his attendance at
the warehouse or regarding where he went after visiting the warehouse, thereby
demonstrating “the enduring nature of [his] criminal attitudes” (Certified
Tribunal Record [CTR] at p 47). The PBC also noted that it had concerns about
the applicant’s potential for violence due to reports regarding his activities
while in prison, where he attacked another offender, causing him to bleed
profusely from the head. The PBC concluded as follows (CTR at p 48):
In
short, [the applicant’s] persistently violent behavior, when viewed in concert
with [his] lack of treatment for the risk factors that contribute to this
negative conduct and a record of poor performance during past periods of
community supervision, signals a clear need for the highest level of structure,
supervision and support that is presently available in the community setting.
The PBC therefore determined that the
applicant was required to live in a halfway house until his sentence ended and
imposed this term in addition to the other release conditions that were
originally imposed.
[15]
The
applicant made a timely appeal of the PBC’s decision to the Appeal Division of
the PBC, but the Appeal Division did not hear it by virtue of paragraph
147(2)(d) of the Corrections and Conditional Release Act, SC 1992, c 20
because the applicant had less than 90 days to serve before reaching his
warrant expiry date. The applicant has not sought to judicially review the
PBC’s decision.
[16]
The
applicant was released from criminal custody on January 11, 2013. He was then
placed in immigration detention, and has been there ever since, with several
decisions having been issued finding the applicant to be both a danger, within
the meaning of paragraph 58(1)(a) of the IRPA and section 246 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations], and a
flight risk, within paragraph 58(1)(b) of the IRPA and section 245 of the
Regulations. The bonds have also been forfeited (but the decision doing so is
subject to an Application for Leave and Judicial Review to this Court).
The Decision under Review
[17]
As
noted, the decision under review in this application was made by the Division
on April 15, 2013 and ordered the applicant’s continued detention. The decision
is comprised of two separate analyses: the first, considering whether the
applicant is likely to fail to appear for removal (or is a flight risk), and
the second, considering the extent to which the applicant poses a danger to
Canadian society.
[18]
With
respect to the first part – whether the applicant is a flight risk – the
Division noted its general concern that, having lived his whole life in Canada, the applicant would be unlikely to want to leave and thus might be hesitant to
report for deportation. The Division then considered the applicant’s criminal
history, including the offenses that occurred between 1987 and 1994, and the
more recent ones, namely the dangerous driving convictions from 2010 and the
2011 conviction resulting from obstructing a peace officer. The ID found that
there had been “a pattern of ongoing criminal behaviour, an indication that
[the applicant does] not respect the law.” The Division continued, noting that,
while disputed by the applicant, the record indicated that the terms of the
immigration bonds and statutory release were violated, and the bonds thus
forfeited. The ID determined that it was “not in a position to go behind the
Parole Board and make a different decision” regarding whether the conditions of
the applicant’s statutory release had actually been violated and stated that
the Federal Court is presently reviewing whether the PBC’s decision is
reasonable. The Division continued, stating that, “If that decision is
successfully appealed, then Mr. Kippax will be in a stronger position to argue
that he should have never been rearrested for immigration purposes”. The ID
however concluded that in light of the PBC decision the applicant had violated
the terms of his release order and was thus unlikely to appear for removal.
[19]
With
respect to the second part of the Division’s decision – whether the applicant
would pose a danger to the public if released – the ID again considered the
applicant’s extensive criminal record, focusing on the recent convictions and,
in particular, the seriousness of the driving offence from 2010. The Division
was particularly concerned with the lack of apparent remorse or rehabilitation
on the part of the applicant, as demonstrated through his attitude at the
hearing and through his 2011 conviction for obstructing a peace officer.
However, in finding the applicant to be a danger to the public, the Division
did not rely upon any of the circumstances related to the statutory release
violation.
Submissions of the Parties
[20]
The
applicant disputes having violated the conditions of his statutory or immigration
release. He submits that the ID erred in failing to consider the evidence he
submitted to this effect, which he argues demonstrates the incorrectness of the
PBC’s decision, and submits that the Division thereby breached his rights to
procedural fairness and improperly failed to exercise its jurisdiction. The
applicant asserts that the Division hearing violated his section 7 rights under
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11,
in that he is being detained through a process that does not respect
fundamental fairness. He further submits that the Division should have followed
its April 2012 detention review decision (in which it found that any danger the
applicant posed was related to his driving and could be offset by conditions),
and that it failed to provide “clear and compelling” reasons for departing from
this decision, as is required by the case law. The applicant submits that the
issues he raises should be reviewed on the correctness standard as they involve
constitutional and jurisdictional issues.
[21]
The
respondent, on the other hand, submits that the decision must be reviewed on
the reasonableness standard and that it is fully reasonable. The respondent
argues that the ID was right to not “go behind” the PBC decision as the
appropriate channels for review of that decision are appeal and judicial review
and that the applicant is seeking to collaterally attack the PBC decision
before the Division. In the alternative, the respondent submits that even if
the Division erred in not reconsidering the PBC decision, the Division’s
decision remains reasonable on the grounds of its independent finding that the
applicant poses a danger to the public.
[22]
In
response to the respondent’s argument that he is inappropriately seeking to
collaterally attack the PBC decision in another forum and failed to pursue the
proper review, the applicant notes that he was not permitted to appeal the PBC
decision and argues that if the respondent wants to rely on that decision to
demonstrate whether the applicant would be a flight risk, the applicant should
be allowed to challenge the merits of the decision before the ID.
Issues and Standard of Review
[23]
This
application raises two issues. The first is whether the ID should have inquired
into the basis of the PBC’s decision or, to use the words of the Division in
its decision, whether it had the authority to “go behind the Parole Board and
make a different decision.” In my view, this issue is one of the elusive “true
questions of jurisdiction” that the Supreme Court of Canada has indicated
should be considered on the correctness standard (see Alberta (Information
and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at
para 30 [Alberta Teachers]; Nor-Man Regional Health Authority Inc v
Manitoba Association of Health Care Professionals, 2011 SCC 59 at para 35; Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53
at para 18; Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 26; Dunsmuir
v New Brunswick, 2008 SCC 9 at para 59 [Dunsmuir]). In making this
finding, I am cognizant of the caution of the Supreme Court that the category
of true questions of jurisdiction is narrow and that a court should not “brand
as jurisdictional, and therefore subject to broader curial review, that which
may be doubtfully so” (Canadian Union of Public Employees, Local 963 v New
Brunswick Liquor Corp, [1979] 2 S.C.R. 227; cited in Alberta Teachers at
para 33 and Dunsmuir at para 59; see also Rogers Communications Inc v
Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35
at para 62). However, the Division’s determination as to whether it can
properly reconsider the decision of the PBC is one on which it must be correct.
To use the words of the Supreme Court of Canada in Dunsmuir, “[A]
tribunal must interpret the grant of authority correctly or its action will be
found to be ultra vires or to constitute a wrongful decline of
jurisdiction” (at para 59) [emphasis added]. Thus, I find that the first
issue must be assessed on the correctness standard of review.
[24]
The
second issue involves consideration of whether the Division’s danger finding is
reasonable, and if so, whether this provides sufficient basis for the decision
to be upheld.
[25]
The
jurisprudence of this Court establishes that the ID is generally entitled to
deference in respect of its detention review decisions, which are typically to
be reviewed on the reasonableness standard of review (see e.g. Canada
(Minister of Citizenship and Immigration) v John Doe, 2011 FC 974 at para
3; Canada (Minister of Citizenship and Immigration) v B046, 2011 FC 877
at para 32; Walker v Canada (Minister of Citizenship and Immigration),
2010 FC 392 at paras 24-25). As recently stated by my colleague Justice
Martineau in Muhammad v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FC 203 at para 5:
While
a different decision maker may have come to a different result, this is not the
test, and overall, I must find that the continued detention of the applicant,
until the next detention hearing, is an acceptable outcome in light of the law
and the evidence on record.
In considering the second issue raised
by this application – the reasonableness of the danger determination – I must
consider whether the decision reached is transparent, justified and
intelligible and whether it falls within the permissible range of outcomes in
light of the facts and law (Dunsmuir at para 47).
Issue 1: Inquiring into the Parole
Board’s Decision
[26]
With
respect to the issue of whether and the extent to which the Division should
have reconsidered the PBC’s decision, I need not reach a final conclusion on
this issue because the Division made a critical factual error in its
consideration of the issue. As indicated, in addressing the applicant’s
concerns with its relying on the PBC’s finding that he had violated his release
conditions, the Division noted that the Federal Court was presently considering
a challenge to the PBC’s decision (the Division refers to a pending “appeal”,
although it would technically be a judicial review).
[27]
However,
as noted above, no such judicial review is pending before the Federal Court.
The PBC Appeal Division refused to hear the applicant’s appeal due to the imminent
end to his sentence, and the applicant never challenged that decision. At the
hearing into the present case, counsel for the respondent conceded that
judicial review of the Appeal Division’s decision may still be possible, as the
Federal Court can grant an extension to the normal time limits for seeking such
review.
[28]
The
(incorrect) fact that review of the PBC decision was pending before the Federal
Court was central to the Division’s conclusion to not consider evidence
challenging the PBC’s decision. Having based itself on an erroneous finding of
fact, the Division failed to properly assess the issue of whether it should
reconsider the PBC’s decision. Its treatment of the first issue was thus
incorrect.
[29]
I
do not find it necessary to settle the issue of whether the Division ought to
determine if the applicant violated his release conditions, as this is a
factually-dependent determination that, amongst other things, raises
institutional interests that the Division is the best placed to consider. The Court
should have the benefit of these considerations before it rules on this issue.
[30]
I
would, however, note, that if it examines this issue in the future, the ID
should be guided by the doctrine of abuse of process, as discussed by the
Supreme Court of Canada in Toronto (City) v CUPE, Local 79, 2003 SCC 63
and British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC
52 (as arguably nuanced by Penner v Niagara (Regional Police Services Board),
2013 SCC 19). In my view, the necessary inquiry into this issue involves
consideration of the fairness of allowing the applicant to challenge the
findings of the PBC in proceedings before the Division and the circumstances of
the PBC’s determination in this case, which must be balanced against
institutional interests in finality of PBC decisions and the respective
jurisdictions and roles of the PBC and the ID.
Issue 2: The Reasonableness of the
Danger Basis for the Decision
[31]
In
my view, the Division’s finding that the applicant presented a danger to the public
is severable from its findings regarding whether the applicant was likely to
appear for future proceedings and/or removal. It is evident that the Board
considered the two issues separately. Under the IRPA, only one of the
determinations is required for a detention order to be made. The issue
therefore becomes whether the Division’s danger finding is reasonable.
[32]
In
my view, the Division’s danger finding was grounded in the evidence before it
and is wholly reasonable.
[33]
The
Division considered the applicant’s attitude and lack of remorse, as
demonstrated at the hearing, and through his continuing criminality, and most
particularly through his interactions with police in the 2011 obstruction
incident, and concluded that he was not rehabilitated. Given the lack of
rehabilitation, the Division reasoned that the applicant was “likely [to]
engage in similar high risk behaviour if released” and thus found that he
presents a danger to the public.
[34]
The
applicant is correct in submitting that jurisprudence dictates that the ID is
not to depart from previous decisions without cogent evidence (see Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA
4 at paras 10-13 [Thanabalasingham]). However, such evidence existed
here: unlike the Division decision to release the applicant on April 12, 2012,
in the decision under review, the Division had evidence of the lack of remorse
and rehabilitation on the part of the applicant as well as subsequent criminal
charges (namely those from 2011). In my opinion, this provided sufficient
basis for the Division to depart from its April 30, 2012 finding and resulted
in a decision that was well within the range of permissible outcomes with
regard to the facts and law.
[35]
This
application will therefore be dismissed as the Division’s danger determination
is reasonable.
Certified Question
[36]
The
applicant suggested that a question should be certified regarding the ability
of the Division to look into the reasons for the PBC decision and to make its
own determination as to whether there has been a violation of release
conditions. The respondent noted that any certified question would have to be
determinative of the case, and indicated that this would not be the case if I
were to rule as I have done. The respondent is correct in this regard. To be
appropriately certified, a question must be both of general importance and
determinative of the application (Zazai v Canada (Minister of Citizenship
and Immigration), 2004 FCA 89 at para 11). Neither branch of this test is
satisfied in the present circumstances as my decision turns on well-settled law
and rests on the particular facts of this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified under section 74 of the IRPA; and
3.
There
is no order as to costs.
"Mary
J.L. Gleason"
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