Date:
20130905
Docket:
IMM-5277-13
Citation:
2013 FC 936
BETWEEN:
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CANADA (MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS)
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Applicant
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and
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MATTHEW PAUL DEHART
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Respondent
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REASONS FOR JUDGMENT
HENEGHAN J.
[1]
The
Minister of Public Safety and Emergency Preparedness (the “Applicant”) seeks
judicial review of the decision of K. Henrique of the Immigration Division of
the Immigration and Refugee Board (the “Board”) dated August 7, 2013. In that
decision, the Board ordered that Matthew Paul DeHart (the “Respondent”) be
released from detention on terms and conditions pending the outcome of his
admissibility hearing under section 44 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
At
the request of the parties, a Judgment was issued on September 3, 2013,
indicating that Reasons would follow.
[3]
Although
a Confidentiality Order was issued by Justice Zinn on August 15, 2013, upon the
hearing of a motion to stay the release of the Respondent, that Order was
lifted upon the hearing of this application for judicial review. Counsel for
both parties were invited to make submissions on the point. Although Counsel
for the Applicant requested that it remain in place, Counsel for the Respondent
expressed the view that it was not necessary. The interests of the Respondent
are more persuasive that those of the Applicant and in keeping with the general
principle that court proceedings in Canada take place in public, in the
exercise of my discretion, the Confidentiality Order was vacated.
Background
[4]
The
Respondent is a citizen of the United States who entered Canada with his parents, Paul and LeeAnn DeHart on April 3, 2013. All three claimed refugee
protection upon their entry to Canada on the basis that the Respondent had been
tortured by authorities in the United States and feared persecution if
returned.
[5]
On
October 6, 2010, the Respondent was indicted in Tennessee for production and
transportation of child pornography. The Applicant’s home had been searched and
his computer seized on January 25, 2010. He was stopped and detained on August
6, 2010, by American officials when he was crossing from Canada to the United States at Calais, Maine. He alleges he was drugged, subjected to psychological
torture and questioned by FBI agents in relation to national security matters.
[6]
During
his detention the Respondent was diagnosed with a psychotic break and has since
exhibited signs of Post Traumatic Stress Disorder. He claims that this was a
result of the torture he experienced.
[7]
The
Respondent was detained in Maine until October 2010. He was ultimately released
from custody in Tennessee on May 22, 2012, subject to conditions with his
parents posting as security for his release two automobiles that they owned and
his grandmother posting equity in her house in Indiana. He remained on
pre-trial release until April 4, 2013, when he failed to appear for a status
conference and detention review hearing related to his case. A bench warrant
issued for his arrest after the Respondent left the United States and entered Canada.
[8]
The
Respondent alleges that he has been a member of the online hacker group
Anonymous since it was founded. As a result, he was privy to what he believes
is a leaked government document relating to the national security of the United States. He claims that the child pornography investigation is a cover for the United States government to attempt to retrieve this document from him and investigate him
for espionage. This is the basis for his fear of persecution; he believes this
was the reason for his interrogation and torture in August 2010.
[9]
On
April 4, 2013, the Respondent was arrested by Canada Border Services Agency on
the grounds that his refugee claim was suspended pending an admissibility
hearing under subparagraphs 34(1)(a) and 36(1)(c) of the Act.
[10]
At
the first detention review hearing on April 8, 2013, the Respondent was ordered
detained pursuant to subparagraphs 58(1)(a) and 58(1)(b) of the Act, namely on
the grounds that he was a danger to the public, his charge being a sexual
offence falling under subsection 246(f) of the Immigration and Refugee
Protection Regulations, S.O.R. 2002-227 (the “Regulations”) and that he was
unlikely to appear for future immigration proceedings. The Board noted that detention
was warranted as he was a danger to the public due to the serious nature of the
child pornography offences and the allegations of espionage, and his history of
violating court orders. It also found that the Respondent had not presented an
alternative to detention nor was there any indication that he faced a lengthy
detention.
[11]
A
second detention review hearing was held on April 15, 2013. The Respondent
requested that he be released on his own recognizance pending his admissibility
hearing. The Board rejected this as an alternative to detention, stating that
the Applicant posed a danger to the public and was unlikely to appear for
further proceedings. It noted that the Respondent’s case was recent and the
Minister of Citizenship and Immigration (the “Minister”) ought to be given a
reasonable amount of time to prepare its case against him, and given his
failure to appear in the United States, detention was a better option than
release at this time.
[12]
A
third detention review hearing was held on May 13, 2013. The Board again
confirmed that the Respondent poses a danger to the public and is unlikely to
appear for further proceedings. The Board repeated that the Respondent’s fear
of being returned to his home country increased the likelihood that he would
fail to appear for future proceedings. The Board again found that his detention
was unlikely to be lengthy.
[13]
Although
the Respondent proposed that he be released and that a church in Toronto would provide a residence for him and financial support, the Board rejected this
alternative as it did not address the concerns regarding the danger he posed to
the public or his risk of flight.
[14]
The next detention review hearing was held on June 12, 2013. The
Board restated the concerns about the danger to the public posed by the
Respondent and the likelihood he would not appear for future proceedings. His
detention was continued.
[15]
On this date, the Board noted that his detention was becoming
lengthy, and he was facing a lengthy period of future detention. It expressed
concern that there had been no disclosure package from the Minister as of the
date of the hearing, and requested the Minister to advise when it would be
ready. The Board suggested to the Respondent that he retain legal counsel to
help him in this matter and that he propose a substantial release plan for his
next detention review hearing.
[16]
The
Respondent’s fifth detention review hearing took place on July 10, 2013. The
Board relied on the same reasons as in the previous decisions and continued his
detention. The Board noted that hearing dates were set for the Respondent’s
admissibility hearing and his refugee protection claim, and these would take
place shortly. The Board noted that the Respondent was working on a substantial
release proposal, however, the five thousand dollar performance bond offered by
the parents did not satisfy the Board’s concerns. Due to the fact that the two
hearings were due to take place fairly close together and with regard to the
previous reasons of the Board, the Respondent’s detention was continued.
Decision Under
Review
[17]
The
Respondent’s next detention review hearing was held on August 7, 2013. Board
Member Karina Henrique, in departing from the earlier decision of the Board, authorized
his release subject to conditions. The Board found, as clear and compelling
reasons for this departure, the potential that the Respondent’s future
detention will be lengthy and that a substantial release plan had been submitted
by the Respondent. She found that the conditions adequately addressed the concerns
that the Respondent posed a danger to the public and was unlikely to appear in
the future.
[18]
The
Respondent’s parents were to post a $10,000.00 cash deposit, and the Respondent
was to be the subject of GPS monitoring during his release. The monitoring is
to be paid for by his parents. They were required to pre-pay for six months of
monitoring to address the Minister’s concerns about the adequacy of their
funds. The GPS monitoring is to ensure that the Respondent complies with the
condition that he remain under house arrest 24 hours a day, 7 days a week, save
to attend weekly check-ins with Canada Border Services Agency and to attend
hearings related to his immigration matter. Whenever the Respondent leaves his
parents’ residence, he is to be accompanied by them. Finally, as a condition of
his release the Respondent is not to have access to the internet, nor any
electronic devices that can connect to the internet, including computers or
cell phones with a data plan.
[19]
The
Board acknowledged the seriousness of the charges faced by the Respondent but
also noted that now, these are allegations and he is presumed innocent. Being
satisfied with the release plan submitted by the Respondent, the Board ordered
he be released from detention, subject to the conditions set out in its order.
Submissions
i) Applicant’s Submissions
[20]
The
Applicant argues that the Board erred in accepting the Respondent’s parents as
bondspersons. He says that they are unsuitable, for several reasons.
[21]
First,
the Applicant refers to paragraph 47(1)(a) of the Regulations and submits that
since the parents defaulted on their guarantee in the United States, they are ineligible to act as bondspersons.
[22]
Further,
the Applicant argues that the Board unreasonably accepted that the parents
could ensure compliance with the terms of the Respondent’s release. He submits
that the conduct of the parents in accompanying the Respondent to Canada shows that they support him and believe that he is not guilty of the charges against him in
the United States. The Applicant further argues that the conduct of the parents
demonstrates a willingness to forfeit property that has been posted as security
and to help the Respondent to evade a Court order in the United States.
[23]
The
Applicant then argues that the Board unreasonably found that electronic
monitoring adequately addressed the concerns identified in paragraphs 58(1)(a)
and (b) of the Act, that is that the Respondent is a danger to the public and
unlikely to appear for proceedings under the Act.
[24]
He
submits that the GPS monitoring plan is not sufficiently specific and
accordingly that it is unreasonable. In this regard, the Applicant relies on
the decision in Canada (Minister of Public Safety and Emergency
Preparedness) v. Berisha (2012), 12 Imm. L.R. (4th) 321 at paras.
91-92. He says that the release plan does not say that the parents are to stay
home with the Respondent at all times to ensure that he complies with the
release conditions. He also complains that the plan is vague with respect to
the size of the monitored zone.
[25]
Finally,
the Applicant submits that the Board unreasonably and improperly engaged in
speculation as criticized by the Federal Court of Appeal in Canada (Minister
of Citizenship and Immigration) v. Li, [2010] 2 F.C.R. 433 at paras. 67 and
68. He argues that the Board can only estimate the length of future detention
on the basis of the facts that exist at the time of the detention review
hearing.
ii) Respondent’s Submissions
[26]
The
Respondent takes the position that the Board’s decision meets the standard of
reasonableness in all respects. In the first instance, he acknowledged that
while his parents are in default of a guarantee in a foreign jurisdiction, the
prohibition in paragraph 47(1)(a) of the Regulations does not apply since there
is nothing in those Regulations to say that this law applies in respect of a
default that occurred outside of Canada.
[27]
In
any event, the Board had evidence about the posting of security in the United States. As well, there was evidence about the money available to the parents in Canada to provide a substantial cash deposit. There was also evidence of a close
relationship between the Respondent and his parents.
[28]
Furthermore,
there was evidence about the character, employment history and recent
occupations of the parents that supports their suitability as bondspersons.
[29]
The
Board did not rely solely on the parents to ensure his compliance with the
conditions of his release. The Board ordered 24/7 house arrest and a ban on
access to the internet. The GPS monitoring was included to ensure that the
Respondent complies with the conditions of his release. There was evidence
before the Board about the functioning of the GPS.
[30]
The
Respondent further submits that the Board’s Order concerning the GPS monitoring
was sufficiently specific. The decision in Berisha can be distinguished
since the concerns addressed in that case do not arise here. The zone is
restricted to the parents’ residence and the police will be contacted if a
breach of the monitored zone is detected.
[31]
Finally,
the Respondent argues that the Board’s consideration of the anticipated period
of detention is inherently a speculative exercise. The Board’s conclusion is
based on its expertise and experience in conducting detention reviews. He
submits that the Board addressed the elements of paragraphs 58(1)(a) and (b)
and reasonably concluded that he should be released.
Discussion and Disposition
[32]
This
Application for judicial review raises the following issues:
1) What is the appropriate standard of review?
2) Was
the Board’s decision that the Respondent’s parents could act as bondspersons
unreasonable?
3) Was
the Board’s determination that electronic monitoring adequately addressed the
section 58 concerns unreasonable?
4) Was the Board’s speculation about the future length of
the Respondent’s detention unreasonable?
[33]
The
decision in issue here was made pursuant to subsection 58(1) of the Act.
Paragraphs 58(1)(a) and (b) are relevant and provide as follows:
58. (1) The Immigration Division shall order the
release of a permanent resident or a foreign national unless it is satisfied,
taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination,
an admissibility hearing, removal from Canada, or at a proceeding that could
lead to the making of a removal order by the Minister under subsection 44(2);
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58. (1) La section prononce la
mise en liberté du résident permanent ou de l’étranger, sauf sur preuve,
compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou
l’étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou
l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au
renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une
mesure de renvoi en vertu du paragraphe 44(2);
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[34]
A
decision made under section 58 involves the assessment of evidence, subject to
the statutory requirements. As such, it raises a question of mixed fact and
law, and the applicable standard of review is reasonableness; see Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190 at para. 51 and Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R.
572 at para. 10. So the principal issue in this application is whether the
Board’s decision to release the Respondent, upon conditions including the
provision of a cash deposit by his parents, was reasonable.
[35]
According
to the decision in Thanabalasingham, a detention review is not a de
novo hearing where a Board can make a decision without regard to prior
decisions. Rather, a detention review is essentially a “fact-based decision to
which deference is shown” and where a Board is to give “clear and compelling
reasons” for departing from earlier decision to detain. At para. 12, Justice
Rothstein (as he then was) described what is required:
The
best way for the member to provide clear and compelling reasons would be to
expressly explain what has given rise to the changed opinion, i.e. explaining
what the former decision stated and why the current member disagrees.
[36]
In
my opinion, the decision meets the standard of reasonableness as discussed in Dunsmuir
at para. 47, that is, justifiable, intelligible and transparent. Further the
decision demonstrates “clear and compelling reasons” for departing from the
prior decisions.
[37]
The
Board reasonably found that the parents could post security by means of a cash
deposit. The prohibition in section 249(1)(a) of the Regulations does not
apply. In the first place, there is no evidence that the parents had posted a
“guarantee” in the United States. According to the Order of the United States
District Court for the Middle District of Tennessee Nashville Division, dated
May 22, 2012, as found in the Certified Tribunal Record, the Respondent was
ordered released from detention. The Order provides, in part, as follows:
Ordered
that the defendant shall be released pending trial, conditioned upon the
posting of security satisfactory to the Clerk of the Court in the two
automobiles owned by the defendant’s parents and, within thirty (30) days of
the entry of this Order, the equity in the defendant’s grandmother’s house in
Indiana.
[38]
There
is nothing in the terms and conditions attached to this Order spelling out the
circumstances in which the authorities could realize the security posted and
there is no evidence in the record to show if the American authorities have
taken any steps to enforce the security posted.
[39]
Furthermore,
in my opinion, there is no evidence that the parents are in “default” of any
guarantee. The policy manual ENF8, entitled “Deposits and Guarantees”, prepared
by Citizenship and Immigration Canada (“CIC”) suggests that the word
“guarantee” in subsection 48(1)(a) of the Act bears the usual meaning of
“guarantee”. In that regard, I refer to the decision of the Supreme Court of
Canada in Communities Economic Development Fund v. Canadian Pickles Corp.,
[1991] 3 S.C.R. 388 at page 413 as follows:
A guarantee is generally a contract between a guarantor and a
lender. The subject of the guarantee is a debt owed to the lender by a debtor.
In the contract of guarantee, the guarantor agrees to repay the lender if the
debtor defaults…
[40]
In
my view the security posted by the parents is not a “guarantee” according to
Canadian Law. The Applicant has failed to show that the security is a
“guarantee”, so his argument about the application of paragraph 48(1)(a) cannot
succeed.
[41]
Furthermore,
the Applicant’s argument in this regard seems to me to require the
extraterritorial application of the Act. This is contrary to the general
principle that in the absence of clear language in legislation authorizing
extraterritorial application, Canadian law applies only within Canada; see the
decision in Society of Composers, Authors, and Music Publishers of Canada v.
Canadian Association of Internet Providers, [2004] 2 S.C.R. 427 at para. 55
where Justice Binnie said “the courts nevertheless presume, in the absence of
clear words to the contrary, that Parliament did not intend its legislation to
receive extraterritorial application.”
[42]
There
is no argument raised concerning the capacity of the parents to enter a
contract in the province of Ontario, certainly no evidence was filed in that
regard. In any event, they are providing cash and no contract is required in
that regard.
[43]
I
turn next to the argument about the Board’s finding as to the appropriateness
and sufficiency of GPS monitoring.
[44]
Having
regard to the evidence that was before the Board on this issue, I am satisfied
that this part of the decision was reasonable. A representative of the GPS
monitor provider testified at the hearing. The Applicant’s representative
availed of her opportunities to ask questions. It was clear from that evidence
that the monitor would be programmed in such a way, with GPS utility, that a
breach of conditions as to the Respondent’s movements would be communicated to
the police.
[45]
The
witness specifically was asked by the Member how the apparatus would work if
she imposed a 24-hour curfew. The witness replied “That’s the most basic.”
[46]
Having
regard to the evidence before the Member, I am satisfied that she reasonably
accepted the proposed GPS monitoring as a condition of the Respondent’s
release.
[47]
Finally,
there is the issue whether the Board engaged in improper speculation about the
length of continued detention. The Board acknowledged that, as of August 7,
2013, there is “a potential” for the Respondent to “be in detention for a long
period of time”. It acknowledged that he was facing an admissibility hearing
that had been postponed and for which a date would be set administratively. It
noted that the Respondent’s refugee protection hearing was due to begin on
August 22. It went on to say the following:
However, everyone is human and
people get sick, and situations arise where there is no guarantee that your
refugee claim will proceed on the 22. There is no guarantee that will be
concluded. There is no guarantee that a decision will be rendered that day, so
that will delay the time that you have to sit in detention.
[48]
The
Applicant focuses on these remarks in arguing that the Board engaged in
speculation in making the decision of August 7, 2013. I disagree.
[49]
The
Board reasonably considered the likely length of the Respondent’s detention. In
doing so, it was building upon the remarks made by previous Boards. There is a
noticeable progression in the decision of the earlier Boards, discussing the
likely length of detention. In the beginning, Boards were saying that detention
was unlikely to be lengthy but at the hearing on June 12, that is the hearing
before Board Member Adamidis, there was a concern that detention “has begun to
be lengthy”.
[50]
It
appears that the Board reasonably took this observation and the passage of time
into account in making the decision on August 7, 2013, to release the
Respondent from detention.
[51]
Overall,
I am satisfied that the Board described clear and compelling circumstances for
departing from the prior decisions. It reasonably accepted the parents as
bondspersons in respect of a cash deposit. The Board reasonably assessed the suitability
of electronic monitoring. It established a 24-hour curfew, effectively house
arrest, together with the condition that the Respondent reside with his parents
and notify the immigration authorities prior to any change of address.
[52]
In
the result, the application for judicial review is dismissed. No serious
question of general importance was proposed for certification.
“E. Heneghan”
Ottawa, Ontario
September 5,
2013