Docket: IMM-2385-15
Citation:
2016 FC 661
Ottawa, Ontario, June 14, 2016
PRESENT: The
Honourable Madam Justice Roussel
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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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MAKADOR ALI
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, the Minister of Public Safety and
Emergency Preparedness, seeks judicial review of a decision of the Immigration
Division [ID] of the Immigration and Refugee Board [IRB] dated May 21, 2015, wherein
ID member O. Nupponen, ordered the Respondent, Makador Ali, released from
detention on a number of conditions.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Respondent was born in Somalia. He arrived
in Canada on April 15, 1996 and was granted refugee status by the IRB on April
18, 1997. He became a permanent resident on November 16, 2001.
[4]
On December 15, 2009, Canada Border Services
Agency [CBSA] issued a report under section 44 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] which stated that it was the
officer’s opinion that the Respondent was inadmissible for reasons of serious
criminality under paragraph 36(1)(a) of the IRPA as a result of his June
24, 2008 convictions for assault and mischief as per sections 266 and 430(1)(d)
of the Criminal Code, RSC 1985 c C-46. A deportation order was issued
against the Respondent on May 25, 2010.
[5]
On September 15, 2011, CBSA issued another section
44 report against the Respondent based on its belief that the Respondent was
inadmissible under paragraph 37(1)(a) of the IRPA for organized
criminality as he was a part of a criminal street gang known as the “Bloods”.
On September 16, 2011, CBSA arrested and detained the Respondent pending his
removal pursuant to subsection 55(1) of the IRPA. A detention review was held
on October 28, 2011, and the Respondent was released from immigration detention
on November 1, 2011, with his father acting as the bondsperson.
[6]
On November 10, 2011, the Respondent was
arrested by CBSA for failure to comply with his condition of release that
required him to reside with his father. A detention review was held on November
14, 2011, and again on November 21, 2011. The Respondent was released on
essentially the same conditions as those set out in the October 28, 2011
detention review.
[7]
In July 2012, a warrant was issued by CBSA and
the Respondent was arrested.
[8]
On July 31, 2012, the ID found the Respondent to
be inadmissible under paragraph 37(1)(a) of IRPA and a deportation order
was issued against him. The Respondent was further advised on October 22, 2012,
that CBSA would be pursuing a danger opinion against him under paragraph
115(2)(a) of the IRPA.
[9]
On November 2, 2012, a detention review was held
by the ID and the Respondent was released to his mother. One of the
Respondent’s conditions of release was that his mother post a bond in the
amount of three thousand five hundred dollars ($3,500.00) and his sister in the
amount of five hundred dollars ($500.00).
[10]
On July 21, 2013, the Respondent was arrested by
CBSA for breaching certain conditions of his November 2012 release. Following a
detention review conducted by ID member O. Nupponen, the Respondent was
released from detention on July 30, 2013, based upon certain conditions. As in
November 2012, the Respondent’s mother and sister were required to post the
same amount of bond. However, the ID member ordered that the deposits made in
relation to the November 2012 release order be carried over and as a result,
the bondspersons were not required to make new deposits.
[11]
On November 27, 2013, while on immigration bail,
the Respondent was arrested and detained by the police and charged with
attempted murder, aggravated assault, forcible confinement and being unlawfully
in a dwelling, in relation to events that allegedly occurred on November 17, 2013.
According to the police, a group of people severely assaulted an individual,
causing life threatening injuries and leaving him unconscious in a park. The
police allege that the Respondent was a member of the group assault.
[12]
On November 29, 2013, an arrest warrant was
issued by CBSA on the ground that the Respondent had breached his July 30, 2013
conditions of release. The Respondent was notified by CBSA on December 12,
2014, that a danger opinion was being sought against him under paragraph
115(2)(b) of IRPA.
[13]
The Respondent remained incarcerated until he
was released on bail on March 12, 2015, by the Ontario Court of Justice, based
on a number of conditions including that he resides with his mother, that she
acts as his surety and that she provides the sum of one thousand five hundred
dollars ($1,500.00) as a bond.
[14]
The next day, March 13, 2015, CBSA arrested the Respondent
on the grounds that he was a danger to the public and that he was unlikely to
appear for his removal from Canada. Detention reviews were held on March 16,
2015 by ID member D. Tordoff, on March 23, 2015 by ID member Y. Dumoulin and on
April 22, 2015 by ID member S. Morin. In each case, the ID member maintained
the Respondent’s detention on the basis that he was found to be a potential danger
to the public and there was a serious flight risk.
[15]
On May 21, 2015, a fourth detention review was
conducted by ID member O. Nupponen. He ordered that the Respondent be released
on a number of conditions, one of which required that he reside with his mother,
who would also serve as bondsperson. On May 22, 2015, prior to the Respondent’s
release, the Applicant sought judicial review of the May 21, 2015 decision and
was granted an interim stay on May 24, 2015. On May 29, 2015, the Applicant was
granted a stay pending this judicial review application.
[16]
At the time of hearing this matter, the
Respondent had been subject to further detention reviews on June 18, 2015, July
10, 2015, August 10, 2015, September 9, 2015 and October 7, 2015, all of which
maintained his detention.
II.
Decision under Review
[17]
In his decision of May 21, 2015, ID member O.
Nupponen acknowledged that, like his colleagues, he believed that the
Respondent posed both a flight risk and a danger to the public. He concluded,
however, that the bail plan he would order addressed both flight risk and
danger. He stated that the terms and conditions of release would essentially be
a “melange of terms and conditions which [he] had
previously issued in July of 2013, taking in to (sic) account the fact that Mr.
Ali has been released by the Criminal Courts on some important terms and
conditions.”
[18]
The ID member underlined that while the
Respondent was facing outstanding charges in relation to the events of November
17, 2013, he had not been convicted of any of the charges. He also noted that
there appeared to be serious questions regarding the viability of the Crown’s
case against the Respondent, particularly due to the recanting of a key witness
and the delay between the events in question and his arrest. The ID member was
of the view that there was insufficient credible and trustworthy evidence to
point to a breach of any of the terms and conditions that had been previously
applied. He further found that although there were reports of the Respondent
participating in incidents of misconduct while in detention, there was not
enough evidence to conclude whether he was a victim or a perpetrator,
especially considering the difficult environment in jail. The ID member
concluded that the Respondent had “relatively well complied
with the terms and conditions which [he] had previously imposed.”
[19]
The ID member then turned his mind to the terms
and conditions of release he deemed suitable in the circumstances of the case.
In particular, he found that the Respondent’s mother was still a suitable
surety as he was not convinced that the Respondent had actually breached his
conditions. He accepted that the Respondent’s mother provide a cash bond of one
thousand five hundred dollars ($1,500.00) and that his sister provide a cash bond
of seven hundred dollars ($700.00).
III.
Issues
[20]
Although framed differently by the Applicant,
the issues in this case are:
1)
Is the application for judicial review moot as a
result of the subsequent detention review decisions maintaining the
Respondent’s detention? If so, should this Court exercise its discretion and
render a decision even though the matter is moot?
2)
If the matter is not moot, or if the Court
decides to exercise its discretion, did the ID member commit a reviewable error
in his decision?
IV.
Analysis
A.
Affidavits of the Respondent’s Counsel
[21]
As a preliminary matter, the Applicant raised
the issue of the admissibility of the Respondent’s affidavits dated July 10,
2015 and October 29, 2015, signed by one of the Respondent’s Counsel in these
proceedings. The Applicant argued that the affidavits should be struck on two
grounds. First, the affidavits do not conform with Rule 82 of the Federal Courts
Rules, SOR/98-106 [Federal Courts Rules], which requires that a solicitor
shall not both depose to an affidavit and present argument to the Court based
on that affidavit except with leave of the Court. Second, the affidavits
include opinion and hearsay evidence. In oral submissions, the Applicant
indicated that he was willing to withdraw his first objection should the
Counsel in question not appear on the merits of the judicial review
application, however he would maintain his second objection with regards to
paragraphs three (3) and four (4) of the July 10, 2015 affidavit and paragraphs
six (6) to fifteen (15) of the October 29, 2015 affidavit.
[22]
The Respondent submitted that the affidavits in
question contain relevant new evidence that seeks to correct errors contained
in the record. While the Respondent conceded that the affidavits may contain
some opinion evidence, he argued that they are relevant as they contain
important updates on the Respondent’s criminal matters to which only his
Counsel can attest to.
[23]
I find that paragraphs three (3) and four (4) of
the July 10, 2015 affidavit and paragraphs six (6) to fifteen (15) of the October
29, 2015 affidavit should be struck as they contain hearsay, opinion and new
evidence. As set out by Rule 81of the Federal Courts Rules, affidavits must
be confined to facts within the deponent’s personal knowledge. Moreover, as
established in Association of Universities and Colleges of Canada v Canadian
Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access
Copyright], as a general rule, the evidentiary record before this Court on
judicial review is restricted to the evidentiary record that was before the decision-maker,
save for a few specific exceptions. The impugned paragraphs do not meet these
exceptions, nor is their content confined to the personal knowledge of
the deponent. As such, I find that paragraphs three (3) and four (4) of the
July 10, 2015 affidavit and paragraphs six (6) to fifteen (15) of the October
29, 2015 affidavit should be struck.
B.
Mootness
[24]
While somewhat unusual, the Applicant submits
that its application for judicial review is now moot on the basis that the
subsequent detention review decisions maintaining the Respondent’s detention
have superseded the May 21, 2015 decision, rendering it inoperative.
[25]
The Respondent, on the other hand, disagrees
with the Applicant. He argues that, due to the pending judicial review
application and the limited availability of legal aid to fund additional
detention reviews, he specifically requested at subsequent detention reviews
that no findings be made concerning the suitability of his release plan. He
further argues that the subsequent decisions to detain the Respondent were
tainted by errors made in the April 2015 detention review decision.
[26]
The leading case on mootness is Borowski v
Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski]. At paragraph
16 of the decision, the Supreme Court of Canada outlined a two-step analysis
for determining whether an issue is moot. The first step consists of
determining whether there remains a live controversy. If the controversy no
longer exists, the issue will be considered moot. Second, if the issue is moot,
the Court must decide whether it should exercise its discretion to hear the
case in any event. The following three (3) factors are relevant to the exercise
of this Court’s discretion: 1) the existence of an adversarial relationship
between the parties; 2) concern for judicial economy; and 3) awareness of the
Court’s proper law-making function (Borowski, at paras 31, 34 and 40).
[27]
Pursuant to section 55 of the IRPA, an
enforcement officer may arrest and detain a permanent resident or a foreign
national, with or without warrant, when there are reasonable grounds to believe
that he or she is inadmissible, and is either a danger to the public or
unlikely to appear for an examination, for an inadmissibility hearing, for
removal or at a proceeding that could lead to a removal order.
[28]
Under section 57 of the IRPA, the ID must review
the reasons for continued detention: 1) within forty-eight (48) hours after the
individual is taken into detention; 2) at least once during the seven (7) days
following the forty-eight (48) review; and 3) at least once during each thirty
(30) day period thereafter. For each review, the ID must “decide afresh whether
continued detention is warranted” (Canada (Minister of Citizenship and Immigration)
v Thanabalasingham, 2004 FCA 4 at para 8 [Thanabalasingham]; Kippax
v Canada (Citizenship and Immigration), 2014 FC 429 at para 16 [Kippax];
Bruzzese v Canada (Public Safety and Emergency Preparedness), 2014 FC
230 at para 45 [Bruzzese]).
[29]
While I recognize that some applications for
judicial review of detention review decisions have been held by this Court not
to be moot even though further detention reviews were conducted (Canada
(Citizenship and Immigration) v B046, 2011 FC 877), I agree with the
Applicant that in the particular circumstances of this case, the application
for judicial review is moot. The June 18, 2015 decision maintaining the
Respondent’s detention superseded the May 21, 2015 decision, as did each detention
review that followed thereafter (Canada (Public Safety and Emergency
Preparedness) v Ismail, 2014 FC 390 at para 22; Canada (Minister of
Citizenship and Immigration) v Chen, (2000) 186 FTR 263 (FC) at para 27; Kippax,
at para 7). The May 21, 2015 decision no longer has any effect.
[30]
My conclusion that the application for judicial
review is moot is further supported by the fact that in the event I were to
find that the May 21, 2015 decision was reasonable, I would nevertheless have
to order that a new detention review be conducted on the basis of the most up-to-date
facts regarding the Respondent’s current situation. Information which was not
available or in existence at the time of the May 21, 2015 detention review
could now very well be relevant and would have to be considered by the ID
member in deciding the matter afresh as to whether the Respondent should remain
detained or be released.
[31]
I now turn to the second step of the Borowski
mootness analysis. The Applicant argues that there are no grounds that would
justify this Court exercising its discretion because there are no collateral
consequences for the Applicant since the subsequent decisions of the ID remain
operative and will not be impacted by the outcome of this application for
judicial review. In relation to the concern for judicial economy, the Applicant
argues that the circumstances which favour the exercise of discretion are not
present in the case at hand and finally, that there is no meaningful
adversarial context to this application.
[32]
The Respondent argues that the Court should
exercise its discretion because the matter is one in which the public has an
interest in its resolution since the Respondent remains in custody. The
Respondent submits that it would be inherently unfair to deny him the right to
have the judicial review heard on its merits on the basis that statutorily
prescribed detention reviews have subsequently occurred, particularly given
that he was initially granted release. Finally, the Respondent is of the view
that to deny him the opportunity to have this matter adjudicated, where it is
the Applicant who contested the ID’s findings, runs afoul to the principles of
fundamental justice.
[33]
I have considered the principles set out in Borowski
and have decided to address the merits of the application for judicial review
notwithstanding its mootness. I agree that there is still an adversarial
relationship between the parties. The Respondent remains in detention and the
suitability of the Respondent’s mother as a bondsperson appears to still be an
issue before the ID in its ongoing detention reviews. While this Court has not
been provided with a transcript of the September 9, 2015 and October 7, 2015
decisions, the decision dated June 18, 2015 rejected the Respondent’s mother as
a suitable bondsperson and the July 10 and August 10, 2015 decisions indicate
that the Respondent requested that the ID member refrain from determining
whether or not his mother is a suitable bondsperson until this Court decides
the application for judicial review.
C.
Did the ID member commit a reviewable error in
his decision?
[34]
The Applicant submits that the ID member’s May
21, 2015 decision was incorrect as well as unreasonable as it failed to provide
clear and compelling reasons for departing from previous detention review
decisions, and in particular the April 22, 2015 decision which found: 1) the
Respondent posed a danger to the public; 2) he was a flight risk; 3) his mother
was not an appropriate bondsperson; 4) the Respondent had breached his
conditions of release; and 5) the amount of two thousand two hundred dollars
($2,200.00) was insufficient to ensure the Respondent’s compliance with
conditions of release. The Applicant argues that ID member O. Nupponen completely
reversed these findings without referring to the April 22, 2015 decision or
providing any reason for his divergence.
[35]
The Respondent argues that the May 21, 2015 decision
was reasonable and accurately reflected the ID member’s knowledge of the
Respondent’s case and the fact that counsel was not present at the three (3)
prior detention reviews which maintained his detention. With respect to the
April 22, 2015 detention review, the Respondent argues that this decision also
disregarded previous detention reviews, contained factual and prejudicial
errors and ignored previous findings and relevant information. The Respondent
submits that the ID member was entitled to rely on his own previous findings of
July 2013 in assessing the suitability of the Respondent’s mother as a
bondsperson. The Respondent also argues that the ID member did not deviate from
previous rulings without providing compelling reasons for doing so.
[36]
As stated earlier, each ID member must decide
the matter afresh and take all existing factors into account including the
reasons for previous detention review decisions. However, the law is clear that
while prior detention review decisions are not binding, the ID member must not
depart from prior decisions without providing clear and compelling reasons for
doing so. The subsequent decision maker must give a clear explanation of why
the previous ID member’s detention review decision should not stand (Thanabalasingham,
at paras 8 and 10; Bruzzese, at para 45; Kippax, at para 17).
[37]
As the Federal Court stated in Thanablasingham,
at paras 12-13:
[12]
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.
[13] However, even if the
Member does not explicitly state why he or she has come to a different
conclusion than the previous Member, his or her reasons for doing so may be
implicit in the subsequent decision. What would be unacceptable would be a
cursory decision which does not advert to the prior reasons for detention in
any meaningful way.
[38]
This Court has recognized that the issue as to
whether or not a member erred by failing to provide clear and compelling
reasons for departing from previous detention review decisions is a question of
mixed fact and law and is therefore reviewable on a reasonableness standard of
review (Kippax, at paras 13-15; Bruzzese, at paras 42-45; Canada
(Citizenship and Immigration) v Li, 2008 FC 949 at paras 12-16).
[39]
Upon review of the transcripts of the various
detention review decisions, I agree with the Applicant that in ordering the
release of the Respondent on May 21, 2015, ID member O. Nupponen failed to
provide clear and compelling reasons for departing from the previous detention
review decision of April 22, 2015, by ID member S. Morin.
[40]
In considering whether the Respondent’s
continued detention was justified, ID member S. Morin noted during the April
22, 2015 detention review that at the forty-eight (48) hour detention review on
March 16, 2015, the ID member had afforded the Respondent the benefit of the doubt
with respect to whether or not he had breached his conditions of release
because CBSA had not yet seized the bonds of the bondspersons. ID member S.
Morin noted that CBSA had since taken the official step of seizing the bonds
and thus he concluded that the conditions of release had been breached by the
Respondent. ID member S. Morin found two (2) major flaws with the alternatives
to detention proposed by the Respondent. First, he found that the Respondent’s
mother was not a “suitable” bondsperson as she had not been able to ensure that
the Respondent respect his conditions of release. He also found that the amount
of two thousand two hundred dollars ($2,200.00) proposed for a new bond was
insufficient to ensure the Respondent’s compliance with conditions of release
given that he previously had been released on a bond of four thousand dollars
($4,000.00) that had eventually been seized due to a breach.
[41]
At the May 21, 2015 detention review, ID member
O. Nupponen agreed with his colleagues that there was a danger to the public
and a flight risk in releasing the Respondent. While he provided a number of
reasons why he was satisfied that the proposed alternative to detention addressed
both flight risk and public safety, he failed to acknowledge the existence of previous
detention review decisions and in particular, the April 22, 2015 decision, which
addressed these same risks and identical alternatives to detention.
[42]
In his memorandum of fact and law, the
Respondent relies on the following excerpt of the May 21, 2015 decision to
support the argument that ID member O. Nupponen clearly referred to the
decisions of his colleagues:
[4] Taking into
account the submissions of counsel; Mr. Makador Ali’s testimony and the
Minister’s counsel’s submission; the additional evidence that was received my
conclusion is that there is a danger to a public, and there is a flight risk.
So in that regard, I do agree with my colleagues who have continued detentions
in the past.
[5] However, I am satisfied with the
alternative which is proposed today. In my view the alternative suitably does
address both flight risk and danger.
…So when I released Mr. Ali in July 2013 I
made certain determinations as to alleged breaches of terms of conditions.
…So it was pointed out by colleagues in the
past that in Canada a person is innocent until proven guilty.
[43]
I disagree with the Respondent’s interpretation
of this passage. In my view, the references noted by the Respondent are not
meaningful references and do not meet the requirement of providing “clear and
compelling reasons” for departing from previous detention review decisions. The
reference to “the past” does not reveal whether the ID member is referring to
detention review decisions pre-July 2013, or after the Respondent’s November
28, 2013 arrest. Moreover, the ID member does not explain what previous
decisions stated or what specifically has given rise to his diverging opinion,
whether it is new evidence or changed circumstances. This does not in my
opinion constitute a meaningful reference to the prior detention review
decisions, nor can it be said that the ID member’s reasons for departing from
the previous detention review decisions are implicit in the decision. His
failure to explain why he was diverging from the April 22, 2015 assessment of continued
detention constitutes a failure to provide “clear and compelling reasons” for
departing from previous decisions as required in law. In failing to do so, ID
member O. Nupponen committed a reviewable error (Canada (Citizenship and
Immigration) v B046, 2011 FC 877 at para 50) that renders the decision
unreasonable, in the sense that it falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[44]
For these reasons, I am satisfied that the
application for judicial review should be allowed and that the May 21, 2015
decision of the ID releasing the Respondent from detention should be quashed. Since
the Respondent will almost immediately have a new detention review, as required
by subsection 57(2) of the IRPA, no purpose would be served by remitting this
matter to a different member of the ID for re-consideration.
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