Docket: IMM-634-15
Citation:
2015 FC 433
Toronto, Ontario, April 8,
2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Applicant
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and
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RICHARD OKWEROM
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Respondent
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JUDGMENT AND REASONS
(Reasons
delivered orally by teleconference from Ottawa on April 7, 2015)
[1]
This is an application for judicial review
brought by the Minister to review a decision of the Immigration Division
releasing Mr. Okwerom from detention. Mr. Okwerom did not appear for the
hearing of the application, although I am satisfied from the record before me
that he has been provided with notice of this hearing.
[2]
Having now heard from counsel for the Minister,
and having carefully reviewed the record in this matter, I am satisfied that
the decision to release Mr. Okwerom from detention was indeed unreasonable in
the face of the overwhelming evidence that:
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he is not rehabilitated;
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he has shown no remorse for the very serious
assault on his wife, an assault that very nearly cost her life;
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he has no understanding of the gravity of his
conduct which he evidently views as appropriate in the circumstances;
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he has repeatedly indicated that he sees nothing
wrong with his conduct as he believes that his wife is his property, and that
he owns her; and
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he has repeatedly expressed his desire to be
reunited with his wife and children after his release from detention.
[3]
To the extent that Member King adopted the
reasoning of Member Tessler rendered in connection with the December 2014
detention review, no explanation was given by Member Tessler for suddenly
believing Mr. Okwerom’s claim that he would not try to seek out his family
should he be released from detention, notwithstanding his repeatedly expressed
desire to reunite with them. This finding was unreasonable as it is not within
the range of possible acceptable outcomes which are defensible in light of the
facts and the law. The finding that there was “no evidence” that he would try to
seek out his family was moreover perverse, in light of the record that was
before the member.
[4]
I would also note that one cannot reconcile the
Member’s finding that Mr. Okwerom does indeed pose a risk to his family with
the apparent acceptance of his claim that he would not seek them out if released.
[5]
The Member also did not provide an explanation
as to how Mr. Okwerom could be expected to comply with conditions of release in
light of previous findings by Members of the Immigration Division, including
Member King, were that he is incapable of doing so. The finding that he would
comply with conditions imposed by the Immigration Division thus lacks the
transparency, intelligibility and justification required of a reasonable
decision.
[6]
I also accept the Minister’s submission that the
requirement that Mr. Okwerom report to the Canada Border Services Agency on a
twice-weekly basis would not prevent him from leaving the province and seeking
out his wife and children if he were intent on doing so.
[7]
Finally, I agree with the Minister that Member
King appears to have treated the length of Mr. Okwerom’s detention and the
uncertainty surrounding his future removal as being of paramount consideration
in this case.
[8]
Even if I accept that there is no immediate
prospect of Mr. Okwerom’s removal from Canada, as this Court noted in the B147
cases cited by the Minister [Canada (Minister of Citizenship and
Immigration) v. B147, 2012 FC 655], the indeterminate nature of an
individual’s detention is but one factor to be considered in a Detention
Review. It has to be weighed against other considerations to decide if release
is appropriate, and it is an error of law to treat the indeterminate nature of
a detention as the determinative factor: [B147, above at paras. 53-56].
[9]
As a consequence, the application for judicial
review will be granted. The February 6th, 2015 decision of Member
King releasing Mr. Okwerom from detention will be set aside, and the matter
will be remitted to a different member of the Immigration Division for
re-determination.
[10]
I agree with the Minister that this case is
entirely fact-specific and does not raise the question for certification.
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