Docket:
IMM-1373-14
Citation: 2014 FC 308
Ottawa, Ontario, March 31, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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GIGA ODOSASHVILI
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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]
This application for leave and judicial review
was expedited because Mr. Odosashvili’s next detention review by the Immigration
Division [ID] is scheduled for Tuesday April 1, 2014. He seeks review of the
last decision of the ID made on March 3, 2014 – the 7-day detention review.
That decision continued his detention under paragraphs 58(1)(a) and (b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Leave will be granted and this application for judicial
review will be allowed. My reasons for so ordering are briefly set out below.
[3]
Mr. Odosashvili, a citizen of the Republic of Georgia, is a permanent resident of Canada. He has recently been charged with the
following offences:
(i)
December 12, 2013: Charged by the York Regional
Police with two counts of break and enter, possession of property obtained by crime
over $5000, and obstructing a peace officer; and
(ii) February 13, 2014: Charged by the Toronto Police Service with two
counts of break and enter.
[4]
Mr. Odosashvili appeared on these charges and was
released on conditions and bail. He was detained by the Minister of Public
Safety and Emergency Preparedness on February 21, 2014. It is alleged that Mr.
Odosashvili is inadmissible on grounds of organized criminality pursuant to
subsection 37(1) of IRPA, is a danger to the public, and is unlikely to
appear for an admissibility hearing.
[5]
Mr. Odosashvili’s 48 hour detention review was
held on February 24, 2014; he was not represented by counsel. On the basis of
the material and representations made by Minister’s Counsel, Member Henrique
ordered his continued detention. She found, on the balance of probabilities,
that Mr. Odosashvili was not likely to appear for an admissibility hearing and
was a danger to the public. With respect to the allegation that he is a member
of a criminal organization, Member Henrique stated as follows:
Since prior to you being
landed in Canada it would appear that you engaged in criminal activity and
although there have been no convictions registered against you, it does not
take away from the overwhelming documentary evidence that I have before me
in Exhibit DR-1 that points directly to your involvement in organized
criminality.
A lot of time and
resources have been spent by various joint police forces as well as the Canada
Border Services Agency.
And as a result of
this work the evidence before me does link you to the two individuals that
you named that you know who are involved in organized criminality.
(emphasis added)
[6]
Exhibit DR-1, the Minister’s exhibit, which was
relied on by Member Henrique plays a prominent role in the subsequent 7-day
review presided over by Member Kohler.
[7]
The initial submissions of the Minister’s
counsel at the 7-day review were brief. He referred to the previous decision
of Member Henrique and stated that she had noted:
There was
overwhelming documentary evidence in Exhibit DR-1 which points to involvement
in organized criminality … (emphasis added)
[8]
Mr. Odosashvili’s counsel then made submissions
on behalf of his client. One of his key submissions was that the evidence
offered by the Minister showed only that Mr. Odosashvili was suspected of
being associated with suspected members of the Georgian Mafia, but there
was nothing showing that that he was associated with a criminal organization as
required under paragraph 246(b) of the Immigration and Refugee Protection
Regulations, SOR/2002-227.
[9]
Minister’s counsel than made lengthy reply
submissions following which counsel for Mr. Odosashvili requested an opportunity
to address what he said were “glaring misrepresentation [sic] on the
evidence.” The Member refused to hear him, subsequently stating for the record:
“I did not find that I am required any further information and I was prepared
to render my decision at the time.”
[10]
Mr. Odosashvili raises two issues:
(i)
Whether there was a breach of procedural fairness
and natural justice because the Member refused counsel an opportunity to
address the alleged misrepresentations made by the Minister’s counsel in reply;
and
(ii)
Whether the Member’s decision is unreasonable in
that the proper test is whether the Applicant has an association with a
criminal organization, not whether he is associated with alleged members of a
criminal organization.
[11]
The real issue, in my view, is whether Mr.
Odosashvili’s detention review was conducted fairly and whether the decision
rendered was reasonable.
[12]
I find, for three reasons, that the detention
review was not conducted fairly and, as a result, the decision is not
reasonable.
[13]
First, Exhibit DR-1
filed by the Minister contained a statement that was known or ought to have
been known to be false. The February 15, 2014, statutory declaration of
Officer Mark Clare states that Malkhaz Tsiklauri and Giorgi Tchintcharauli were
charged with break and enter and had been identified as two of the four leaders
of the “Break and Enter Ring.” However, all of the criminal charges against
those two men were withdrawn by the Crown ten months earlier on April 24,
2013. With that withdrawal, the charges ceased to exist. An affidavit from
their criminal counsel attests that the withdrawal was unconditional. Criminal
counsel further attests that neither was ever charged with any organized crime
related offence.
[14]
Second, the Minister’s counsel, presumably relying
in part on the statutory declaration of Officer Clare made false submissions to
the Member. Specifically he stated that: (i) “Mr. Tsiklauri is a member
of this criminal organization;” (ii) “The child has two godfathers, one is Mr.
Odosashvili … and one is another known member Malkaz Tsiklauri;” and (iii)
“Mr. Odosashvili’s other friends are members of the criminal organization”
(emphasis added).
[15]
Contrary to these submissions, there is no
evidence in the record that supports the assertion that Malkhaz Tsiklauri, or
Giorgi Tchintcharauli, or indeed that anyone is a member of the criminal
organization. The Minister and the police may believe they are, but there has
been no finding of any criminal court that any one of them is a member of such
an organization. Given the forcefulness of these unambiguous statements by
counsel, I simply do not accept the submission of the Minister that these
statements would have been understood by all to have meant no more than an
allegation of membership.
[16]
Third, where misrepresentations of this
magnitude are made in reply, the detainee ought to have had the right to
address them, if by doing no more than pointing out to the Member that they
were untrue. Applicant’s counsel attempted, but was not permitted by the
Member, to address them, and on these particular facts, that was unfair.
[17]
In short, the Minister improperly used the
withdrawn charges against Malkhaz Tsiklauri and Giorgi Tchintchrauli as
evidence of their involvement in the criminal organization. He then used Mr.
Odosashvili’s association with these two men as evidence of his association
with the criminal organization.
[18]
The Member relied on the connection between Mr.
Odosashvili and Mr. Tsiklauri and Mr. Tchincharauli in finding that he
was associated with a criminal organization and thus a danger to the public.
The Member further relied on that association, in part, to find that Mr. Odosashvili was a flight risk, and to deny his proposed surety.
[19]
The denial of the surety may also have been
influenced by another statement improperly made by the Minister’s counsel. In
the course of the detention review, it was submitted: “Let us note that during
the execution of search warrants where Mr. Odosashvili was originally
arrested by the Toronto Police Service approximately $18,000 in cash was
seized” (emphasis added). The basis for that submission was a press release
issued by Toronto Police Services. It states that there were five search
warrants issued that were executed beginning on December 2, 2013, eleven days
before Mr. Odosashvili was charged. He was one of four men charged. The
release does not say where the funds were seized. Moreover, as was noted by
Applicant’s counsel, another of the accused, unlike Mr. Odosashvili, was
charged with being in possession of property obtained by crime and with
possession of the proceeds of crime. This is strong evidence that the $18,000 was
not found where Mr. Odosashvili was arrested, for otherwise he would have faced
such charges.
[20]
The Court finds these inaccuracies very
disturbing. In Tursunbayev v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 504, [2012] FCJ No 540 at para 42, Justice
Mactavish set out the duty of Minister’s counsel duty of candour and fair
dealing:
Individuals
representing the Crown before courts and tribunals always have an obligation to
be candid and fair in their dealings both with litigants and with the courts
and tribunals themselves. The fact that the comments in question were made by
the Minister’s representative in submissions rather than in evidence does not
in any way reduce or limit the representative’s duty of candour.
I agree with this
observation completely, and would add that the duty of candour and fair dealing
takes on added importance and significance when a person’s liberty is at stake.
[21]
For these reasons, the decision of the ID cannot
be allowed to stand. It is based, in part, on inaccurate information provided
by the Minister. Absent that information, it cannot be said that the Member
would have inevitably continued the detention of the Applicant.
[22]
In Canada (Minister of Citizenship and
Immigration) v Thanabalasingham, 2004 FCA 4, [2004] FCJ No 15 (QL), the
Federal Court of Appeal at para 10, held that “if a
Member chooses to depart from prior decisions to detain, clear and compelling
reasons for doing so must be set out.” That decision to detain after the first
detention review was made, in part, on the inaccurate information provided in
the statutory declaration of Officer Clare. Although that decision is not the
subject of this review, I note that should the next Member determine that
detention is not warranted, that inaccuracy alone might well provide a clear
and compelling reason to depart from that earlier decision.
[23]
No question was proposed for certification.
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