Docket: IMM-4554-16
Citation:
2016 FC 1239
[ENGLISH
TRANSLATION]
Ottawa, Ontario, November 4, 2016
PRESENT: The Honourable Mr.
Justice Shore
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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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ALEXANDRE CHIPOVALOV
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Respondent
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JUDGMENT AND REASONS:
[1]
A decision-maker should be cautious when
concluding on clear-cut evidence without having anticipated the consequences of
that decision, given compelling overall evidence leading to an unreasonable
decision. Furthermore, such a decision is likely to be set aside by the Toth
v. Canada (Citizenship and Immigration) (1988), 86 NR 302 (FCA) and R.J.R.
MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311 [R.J.R.
MacDonald] conjunctive three-part test, vindicating the successful party.
[2]
The applicant appears before this Court with an
application for suspension of the release order issued by a member of the
Immigration Division (ID) of the Immigration and Refugee Board.
[3]
The respondent did not meet the previous
conditions in respect of his criminal record. Starting in 1999, the respondent
was convicted of criminal acts, robbery, assault, possession of stolen
property, obstruction, possession of property obtained by crime, breach of
conditions, failure to comply with a recognizance, etc. In addition, the
respondent was arrested on the ground that he was considered a flight risk
based on his history.
[4]
The ID has kept the respondent in detention
since 2013, following at least 35 detention reviews for flight risk, and no
reasonable alternatives were seen based on the circumstances of the case.
[5]
No justification of the ID’s decision is
considered reasonable based on the facts of the case.
[6]
In order to set aside an earlier reasoning of
the ID concerning a release from custody, there is an obligation to provide a
rationale for its departure from previous decisions, only if the situation has
changed to in fact provide a reasonable justification for a release from
custody. This is in no way reasonable way considering the facts supported by
the evidence in his record; and even during the current detention period, the
respondent’s actions show the opposite. The Court also notes about 60 charges
of breach of an undertaking or breach of probation; in the past, the ID
concluded that the alternative did not offset the flight risk since the
respondent did not cooperate. Overall, the situation has not changed.
[7]
The Court points out the importance of Canada
(Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4,
[2004] 3 FCR 572 at para. 24:
[24] The reasons given by Judge
Gauthier are logical and clear. I am fully satisfied that she correctly applied
the proper standards of review to Mr. Iozzo’s findings and that she
correctly interpreted the relevant law. I would dismiss the appeal. I would
answer the certified question as follows:
At each detention review made pursuant to
sections 57 and 58 of the Immigration Refugee Protection Act, S.C.
2001, c. 27, the Immigration Division must come to a fresh conclusion whether
the detained person should continue to be detained. Although the burden of
proof might shift to the inmate once the Minister has established a prima
facie case, the Minister always bears the ultimate burden of establishing
that the detained person is a danger to the Canadian public or is a flight risk
at such reviews. However, previous decisions to detain the individual must be
considered at subsequent reviews and the Immigration Division must give clear
and compelling reasons for departing from previous decisions.
[8]
The applicant fully satisfied the requirements
specified in this decision.
[9]
The ID has ignored clear-cut evidence.
[10]
A decision-maker cannot speculate rather than
analyze evidence in the docket that the decision-maker must consider (see Canada
(Citizenship and Immigration) v. Li, 2009 FCA 85 at para. 62).
[62] With respect, I do not think that
it was appropriate for the Board, at the September 11, 2008 review hearing, to
base its assessment of the anticipated future length of detention on a mere
preliminary opinion when the final decision would come only a month later and a
detention review is held every month. The Board was led by this opinion to
assume that judicial review proceedings would be authorized by the Federal
Court and that an appeal would necessarily be heard by the Court of Appeal. It
then felt justified to review its previous time estimate to include the
additional time which would result from its assumption.
[11]
The applicant has satisfied the conjunctive
three-part test of the Supreme Court of Canada’s decision in R.J.R.
MacDonald Inc., supra.
[12]
The Court orders that the respondent’s release
order be stayed until the respondent completes a new detention review with a
supporting decision and until the Court has ruled on the application for leave
to apply for judicial review.
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