Docket: IMM-249-14
Citation:
2014 FC 1128
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 25, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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JEAN BRUNEL ETIENNE
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA] from a decision of the Canada Border Services Agency [CBSA] dated
November 12, 2013, to enforce a $15,000 guarantee posted by the applicant
because of a breach of the conditions of his son’s release.
[2]
The applicant submits that the CBSA’s
decision-making process in enforcing the guarantee against him breached
procedural fairness.
[3]
The Court finds that the CBSA’s refusal to grant
the applicant a reasonable extension of time rendered his positive right to
make submissions moot.
II.
Facts
[4]
The applicant’s son, a citizen of Haiti, is the
subject of a deportation order under paragraph 36(1)(a) of the IRPA
on grounds of criminality.
[5]
On October 10, 2012, the applicant promised
to pay the CBSA $15,000 as a guarantee for the conditional release of his son.
Between April 23 and May 7, 2013, the applicant’s son was arrested
and detained by the CBSA and later released on conditions. The applicant’s
guarantee was not enforced at that time.
[6]
On October 7, 2013, the CBSA sent the
applicant a letter demanding the sum of $15,000 that he had offered as a
guarantee in May 2013. In that letter, the CBSA stated that the
applicant’s son had breached a number of release conditions and that the
applicant had 30 days to make submissions to contest the enforcement of
the guarantee.
[7]
In a letter dated November 4, 2013, the applicant
asked the CBSA for an additional 90 days to make submissions. On
November 8, 2013, the CBSA informed the applicant that his application for
an extension had been denied.
III.
Decision
[8]
On November 12, 2013, the CBSA informed the
applicant that the guarantee was to be paid immediately, failing which the sum
would be seized. That decision is the subject of this judicial review.
IV.
Issues
[9]
The issues are the following:
a)
Should an extension of time be granted, and
should the enforcement of the guarantee be stayed?
b)
Is the CBSA’s refusal to grant the applicant an
extension of time a breach of procedural fairness?
c)
Does the applicant warrant awarding costs?
V.
Statutory provisions
[10]
The following provisions of the Immigration
and Refugee Protection Regulations, SOR/2002/227, are relevant:
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Acknowledgment of consequences of failure to comply with
conditions
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Confirmation des conditions
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49. (1) A person who pays a deposit or
posts a guarantee must acknowledge in writing
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49. (1)
La personne qui fournit une garantie d’exécution confirme par écrit :
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(a) that they have been informed of the conditions imposed;
and
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a)
qu’elle a été informée des conditions imposées;
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(b) that they have been informed that non-compliance with
any conditions imposed will result in the forfeiture of the deposit or
enforcement of the guarantee.
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b)
qu’elle a été informée que le non-respect de l’une des conditions imposées
entraînera la confiscation de la somme donnée en garantie ou la réalisation
de la garantie.
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Breach of condition
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Non-respect des conditions
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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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VI.
Standard of review
[11]
First of all, a judicial review of the exercise
of the CBSA’s discretion is a question of mixed fact and law and therefore
subject to review on a standard of reasonableness (Domitlia v Canada (Minister
of Public Safety and Emergency Preparedness), 2011 FC 419 at para 27 [Domitlia];
Kang v Canada (Minister of Public Safety and Emergency Preparedness),
2006 FC 652 at para 13 [Kang]; Hussain v Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 234 [Hussain]; Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 41).
[12]
Second, the CBSA’s decision demands deference,
and this Court should not interfere if “statutory discretion
has been exercised in good faith, in accordance with the principles of natural
justice . . .” (Uanseru v Canada
(Solicitor General), 2005 FC 428 at para 25 [Uanseru], cited in
Khalife v Canada (Minister of Citizenship and Immigration), 2006 FC 221
[Khalife]).
[13]
Furthermore, the Court must also consider
whether the CBSA’s decision complies with the principles of natural justice and
procedural fairness, having regard to all the circumstances (Pusat v Canada
(Minister of Citizenship and Immigration), 2011 FC 428 at para 14; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Chir
v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC
765 at para 16; Sketchley v Canada (Attorney General), 2005 FCA 404
at paras 52 and 53 [Sketchley]).
[14]
This Court does not owe the CBSA’s decision any
deference in respect of the duty of procedural fairness. This principle was
laid down by Justice Richard G. Mosley in Benitez v Canada (Minister of
Citizenship and Immigration), 2006 FC 461 (see also Rivas v Canada (Minister
of Citizenship and Immigration), 2007 FC 317:
[44] However,
as noted by Justice Blanchard in Thamotharem at paragraph 15, a pragmatic and functional analysis is
not required when the Court is assessing allegations of the denial of natural
justice or procedural fairness: Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. Instead, the Court must
examine the specific circumstances of the case and determine whether the
tribunal in question observed the duty of fairness. If the Court concludes that
there has been a breach of natural justice or procedural fairness, no deference
is due and the Court will set aside the decision of the Board.
VII.
Applicant’s position
[15]
The applicant alleges that the CBSA’s decision
entails a duty of procedural fairness entitling him to a reasonable extension
of 90 additional days to make submissions regarding the enforcement of the
guarantee against him. According to the applicant, the CBSA’s refusal to grant
such an extension amounts to a negation of his actual right to answer the
allegations, as well as his right to be heard, and thus warrants the
intervention of this Court. The applicant submits that the CBSA’s refusal to
grant an extension to him, as a third party, makes any challenge to the
enforcement of the guarantee illusory. Finally, the applicant alleges that the
CBSA acted in bad faith, thereby justifying the awarding of costs.
VIII.
Analysis
1.
Extension of time and stay of enforcement
[16]
First of all, since the application was made
after the 15-day limit provided in paragraph 72(2)(b) of the IRPA,
the Court must consider whether the applicable criteria, as set out in Canada
(Attorney General) v Hennelly, (1999) 244 NR 399 (FCA) at para 3 [Hennelly],
justify an extension of time. The burden is on the applicant to demonstrate
(a)
a continuing intention to pursue his application;
(b)
that the application has some merit;
(c)
that no prejudice to the respondent arises from
the delay; and
(d)
that a reasonable explanation for the delay
exists.
[17]
The Court finds that the criteria set out in Hennelly,
above, justify granting an extension of time, in order to do justice between
the parties (Khalife, above, at para 15; Canada (Minister of
Citizenship and Immigration) v Singh, [1997] FCJ 1726). The Court notes
that the applicant provided reasonable explanations for his delay, that he
demonstrated a continuing intention to pursue this application, and that he
demonstrated that the application has some merit.
[18]
Furthermore, regarding the stay application, the
applicant must show that there is a serious question to be tried, that he would
suffer irreparable harm if a stay is not granted, and the balance of
convenience favours granting a stay (Toth v Canada (Minister of Employment
and Immigration), [1988] FCJ 587).
[19]
The existence of a procedural fairness issue
leads the Court to conclude that there is a serious question to be tried.
Moreover, in light of the evidence presented, the criteria of irreparable harm
and the balance of convenience favour staying the enforcement of the guarantee.
2.
Duty of procedural fairness
a)
Reasonableness of the CBSA’s decision to enforce
the guarantee
[20]
Guarantees are fundamental to the implementation
of conditional release in an immigration context. As Justice Anne L. Mactavish states
in Uanseru, above at para 18, “[t]he reason for using bonds is to
allow for the release of individuals in immigration detention on terms that
will ensure compliance with immigration legislation” (see Ferzly v Canada (Minister
of Citizenship and Immigration), 2007 FC 1064).
[21]
The Court notes that the forfeiture procedure
for guarantees is carried out in two steps. First, a CBSA officer recommends
enforcing the guarantee. At this stage, section 7.8 of Operational Manual
ENF-8, entitled “Deposits and Guarantees” [the Manual], states that the “rules
of procedural fairness” require that the CBSA give a person affected by the
enforcement of a guarantee undertaken by a third party the opportunity to make
representations in writing. Therefore, the guarantor is informed of his or her
right to make answer, thereby allowing him or her to submit explanations
regarding the allegations in support of enforcing the guarantee.
[22]
Second, the CBSA exercises its discretion to
demand the repayment of the guarantee, if it decides that the breach of
conditions is “severe enough” to justify this.
[23]
In this light, there can be no doubt that the
applicant is bound by his promise to realize the $15,000 guarantee should his
son breach one of his release conditions. Having regard to the deference that
this Court owes to the CBSA’s decision, the Court finds that it was reasonable
for the CBSA to enforce the guarantee against the applicant.
b)
Compliance of CBSA decision with procedural
fairness
[24]
Procedural fairness concerns the manner in which
the CBSA’s decision was made. If the duty of fairness is breached in the
process of decision making, the decision in question must be set aside (Sketchley,
above at para 54). Only where the breach of procedural fairness is
immaterial to the decision or the outcome is characterized as inevitable will
such a breach not require that the decision be sent back for redetermination (Hassani
v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 40;
Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202).
[25]
The facts surrounding the release conditions of
the applicant’s son and the alleged breach of these conditions are rather
complex. The letter sent by the CBSA to the applicant on December 7, 2013,
which invited him to make submissions within 30 days and engaged his
liability as guarantor, contains little information concerning the allegations
against his son.
[26]
The Court finds that it was reasonable for the
applicant to request 90 days to adequately inquire into and respond to the
allegation underlying the enforcement of the guarantee. The Court also finds
that the applicant submitted his extension application within the 30 days
granted to him. Moreover, in its letter requesting the 90-day extension, the
defendant raised several points justifying the need for such an extension;
those points are reproduced in part below:
[translation]
[W]e ask that the Border Services Agency
grant us additional time to submit our explanations. First, we are waiting for
the transcript of the reasons for the decision made by the Immigration Division
in the recent review of the grounds for detaining Jean Bruno Étienne. Second,
some of the facts referred to in your letter are currently the subject of a
trial in the Court of Québec, Criminal Division, in the district of Joliette. The
outcome of that trial will have a decisive effect on the representations that
we could make to you. Finally, other matters related to your correspondence are
also the subject of judicial proceedings, and we believe that in order to have
a full idea of the grounds that we could raise and that you should consider, it
would be preferable to wait for the result of these proceedings.
Given that we must act within 30 days, it
will not be possible to validly contest this seizure without this information.
We therefore request an additional 90 days to send you our submissions
regarding your correspondence.
(Exhibit P-4, Affidavit of Jean Brunel
Étienne, Applicant’s Record, p 20)
[27]
The respondent submits that the CBSA has
discretion to decide whether to enforce the guarantee and is not bound by the
proceedings in progress in Immigration Division or the Court of Québec. To
illustrate this point, the respondent refers to the reasoning in Domitlia,
above at para 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.
[28]
The Court finds that although the CBSA is not
bound by the parallel proceedings regarding the release conditions of the
applicant’s son, since they are distinct, the CBSA is however bound by the
Manual, which states that the CBSA cannot recommend enforcing a third party’s
guarantee “until that person is given an opportunity to make a written
representation concerning the decision to be made” and
should “consider each case on its own merits”
(Sections 7.5 and 7.8 of the Manual).
[29]
The Manual provides officers of Citizenship and
Immigration Canada and the CBSA with guidelines regarding the exercise of their
duties in enforcing a guarantee. Although these guidelines do not have the
force of an act or regulation, the case law recognizes that these guidelines
provide the Court with assistance in determining whether discretion has been
properly exercised (Hussain, above at para 10; Kang, above at
para 37).
[30]
Section 7.8 of the Manual states:
7.8. Deposit or guarantee given by a
third party
The rules of procedural fairness require
that a CIC or CBSA officer not recommend forfeiture of a deposit or realize a
guarantee executed by a third party until that person is given an opportunity
to make a written representation concerning the decision to be made.
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. However, CIC as well
as CBSA managers and officers do not have discretionary power to reduce or
otherwise alter the amount of the deposit or guarantee.
When a breach of conditions occurs that will
result in forfeiture of a deposit or action to realize on a guarantee, the
depositor or guarantor must be informed in writing of the breach and the
possible forfeiture or enforcement action, and be granted an opportunity for
written representation. If the final decision is to forfeit the deposit or
guarantee, the depositor or guarantor will be held accountable for the entire
amount of the deposit or guarantee.
[31]
In Khalife, above, Justice Mosley considered
the exercise of discretion by officers where the guarantor is a third party in
relation to the acts triggering the enforcement of a guarantee:
[35] As one can see from this
statement, Lord Denning was addressing the situation where a third party has
provided a surety that the accused would appear for trial. Where the accused has
failed to appear, the court faced with an application for forfeiture should
inquire into the surety’s degree of fault or lack of diligence in performing
this duty.
. . .
[37] The circumstances described by
Lords Denning and Widgery may also arise in the immigration context where a
performance bond is posted by a relative or friend of the detainee. But that is
not Mr. Khalife’s situation. In the present case, the forfeiture complained of
directly concerned the individual who failed to abide by the conditions, not a
third party. The person who was best placed to avoid the breaching of the
conditions was the applicant, Mr. Khalife. There is no question as to his
culpability for the default and no issue was raised in these proceedings as to
his means to pay the forfeited amount.
[32]
It follows from Khalife that the fact
that a guarantor is a third party in relation to the detainee is a relevant
factor when CBSA officers exercise their discretion to decide whether or not to
enforce a guarantee. Contrary to the situation in Khalife, the applicant
is a third party to the actions of his son. The evidence shows that the breach
of conditions by the applicant’s son cannot be attributed to the applicant, and
the evidence does not establish that the applicant did anything wrong.
[33]
Regarding the discretion of the CBSA in
enforcing guarantees, Justice Mactavish states the following in Uanseru,
above:
[20] In Gayle, the only reason
given for the forfeiture of a bond was the failure to comply with a condition
of release. Justice Dawson found that while a breach of condition was a
condition precedent for the exercise of discretion, the Officer still had to
turn his or her mind to the exercise of discretion or the principles which
should guide the exercise of discretion. Having failed to do so, the decision
was set aside.
. . .
[23] . . . [S]ince the
decision in Gayle and Bcherrawy, an Officer still has some
discretion to decide whether forfeiture should be required in a given case, and
that in exercising this discretion, the Officer is entitled to consider all
of the facts of the case in issue.
[24] This position is reflected in the
provisions of the Citizenship and Immigration Canada Enforcement Manual.
Specifically, section 7.5 of Chapter 8 of the Manual advises Officers that, in exercising
their statutory authority in relation to the forfeiture of bonds, each case
is to be considered on its own merits. The Manual further stipulates that
where action is being taken to forfeit the bond, the bondsperson is to be
advised, in writing, of the reason for the forfeiture.
[Emphasis added.]
[34]
The respondent argues that the 30 days given to
the applicant to submit explanations is reasonable. However, the Court notes
that a strict limit of 30 days is not mandated by law or by the Manual, which states
the definition of “reasonable time” depends on the circumstances and on factors
such as the nature of the allegations and the availability of evidence.
[35]
The Court concludes that, in light of all the
circumstances, the applicant’s right to submit arguments against enforcing the
guarantee is rendered illusory if the time limit is not extended. The
applicant’s request for a reasonable 90-day extension is consistent with the
principles of procedural fairness and the audi alteram partem rule.
3.
Costs
[36]
The applicant argues that the respondent showed
bad faith, particularly in refusing to grant a reasonable extension of time and
in relentlessly pursuing the enforcement of the guarantee, despite the
proceedings undertaken by the applicant.
[37]
The fact that the CBSA made an error does not by
itself constitute a special reason for costs (Tsang v Canada (Minister of
Public Safety and Emergency Preparedness), 2006 FC 474). The Court finds
that the facts and the evidence do not lead to the conclusion that costs should
be awarded.
IX.
Conclusion
[38]
In this case, the CBSA’s refusal to grant the
applicant a reasonable extension of time to give him a real opportunity to make
his submissions is a breach of the principles of procedural fairness. This
defect in the CBSA’s decision-making process did indeed prevent the applicant
from asserting his right to be heard.
[39]
The Court concludes that the application should
be allowed.
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