Date: 20060919
Docket: IMM-7293-05
Citation: 2006 FC 1118
Ottawa, Ontario, September 19,
2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOTHIRAVI
SITTAMPALAM
Applicant
and
THE MINISTER OF PUBLIC SAFETY
&
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Jothiravi Sittampalam has been in custody since October 18, 2001. He was
arrested along with several other persons who were alleged to be members of
Tamil gangs in Toronto. Mr. Sittampalam has been detained on the basis
that he is a danger to the public, or would be unlikely to appear if he was
ordered to leave Canada: Immigration and Refugee Protection Act, S.C.
2001, c. 27, s. 58 (IRPA). Previously, Mr. Sittampalam had been convicted of
failure to comply with a recognizance (1992), drug trafficking (1996), and
obstructing a police officer (1998).
[2]
Various
panels of the Immigration and Refugee Board (Immigration Division) have
reviewed Mr. Sittampalam’s detention over the years. Two panels of the Board
ordered Mr. Sittampalam’s release on conditions (April 22, 2004 and September
27, 2004). Both of those decisions were overturned on judicial review: Canada (Minister of
Citizenship and Immigration) v. Sittampalam, 2004 FC 1756, [2004]
F.C.J. No. 2152 (F.C.) (QL).
[3]
On
several other occasions, the Board ordered Mr. Sittampalam’s continued
detention (October 29, 2001, June 21, 2002, September 26, 2002, October 21,
2002, November 19, 2002, May 8, 2003, June 3, 2003, September 3, 2003, February
17, 2004, March 16, 2004, February 22, 2005, October 27, 2005). Mr. Sittampalam
succeeded in overturning the Board’s decision of February 22, 2005 on judicial
review: Sittampalam v. Canada (Solicitor General), 2005 FC
1352, [2005] F.C.J. No. 1734 (F.C.) (QL). Justice Eleanor Dawson ordered the
Board to redetermine whether Mr. Sittampalam should remain in custody, which
resulted in the Board’s decision of October 27, 2005. Once again, the Board
ordered that Mr. Sittampalam remain in detention. Mr. Sittampalam now seeks
judicial review of that decision.
[4]
Mr.
Sittampalam argues that the Board seriously erred when it found that he poses a
danger to the public and would fail to appear if ordered to leave Canada. I am
satisfied that Mr. Sittampalam has presented valid grounds for overturning the
Board’s decision and must, therefore, allow this application for judicial
review.
I.
Issue
[5]
Was
the Board’s decision that Mr. Sittampalam should remain in custody reasonable?
II. Analysis
(a) Reviewing
the Board’s Decision
[6]
I
can overturn the Board’s decision only if its findings of fact are unsupported
by the evidence, or if its legal analysis was incorrect. For matters that are
equally factual and legal, I must apply an intermediate standard – I can
overturn the Board’s decision if it was unreasonable: Canada (Minister of
Citizenship and Immigration v. Thanabalasingham, [2004] 3 F.C.R.
523 (F.C.), affirmed [2004] 3 F.C.R. 572 (F.C.A.).
[7]
In
this case, the Board’s decision falls into this category – a question made up
of equal parts fact and law. The Board assessed the evidence to determine whether
that evidence met certain legal standards, namely, whether Mr. Sittampalam was
a “danger to the public” or “unlikely to appear for removal”. The Board found
that both standards were met. In my view, however, the Board’s conclusions
were unreasonable.
(b) The Board’s
Conclusion that Mr. Sittampalam presents a “Danger to the Public”
[8]
For
three main reasons, the Board concluded that Mr. Sittampalam continues to
represent a danger to the public. First, the Board noted that, in separate
proceedings dealing with his admissibility to Canada, Mr.
Sittampalam had been found to have been a member of the A.K. Kannan gang prior
to his arrest in 2001 and, in September 2005, he failed to persuade this Court
that that decision should be overturned on judicial review. Second, the Board did
not accept Mr. Sittampalam’s testimony. In particular, it concluded that Mr.
Sittampalam’s past denials of having been a gang member showed that he had not
been rehabilitated. Further, based on the credibility findings in the
admissibility proceedings, the Board found that none of Mr. Sittampalam’s
testimony in his detention review could be believed. Third, the Board concluded
that a summary of allegations against Mr. Sittampalam prepared by an immigration
enforcement officer reflected poorly on “the type of person Mr. Sittampalam is,
his lifestyle and the company he has kept.” I will deal with each of these
findings in turn.
(i) The
admissibility proceedings
[9]
The
Board found that there was a “significant new milestone added to [Mr.
Sittampalam’s] case
history”. It was referring to the fact that Justice Roger Hughes had recently
decided there was no basis on which to overturn the finding that Mr.
Sittampalam was inadmissible to Canada on grounds of organized criminality
pursuant to s. 37(1)(a) of IRPA. At the inadmissibility hearing, the
Board member had concluded that Mr. Sittampalam was, up until his arrest in
October 2001, a member of the A.K. Kannan group. Justice Hughes determined that
the Board’s decision was not patently unreasonable: Sittampalam v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1211.
[10]
The
Board was entitled to refer to this Court’s judgment and the underlying
decision on admissibility. However, the Board went further. It emphasized the
fact that Justice Hughes’ judgment brings Mr. Sittampalam a step closer to
removal (even though Mr. Sittampalam has appealed it). While this is true, it
is really a neutral fact. It does not help decide whether Mr. Sittampalam should
be considered dangerous. The Board also stated that, by affirming the conclusion
that Mr. Sittampalam is a former gang member, the Court’s decision “enhances
consideration of those findings in the context of this detention review
hearing.” I take this remark to mean that the Board interpreted Justice Hughes’
decision as being an indication that Mr. Sittampalam continued to be a danger
to the public because of his past gang associations.
[11]
Clearly,
a person’s involvement in gang activity is relevant to the issue of dangerousness:
see Immigration and Refugee Protection Regulations, s. 246(b).
However, it is merely one factor to be considered. The Board must also weigh all
the other evidence. Here, the Board correctly noted that the issue before it
was not whether Mr. Sittampalam was a member of the A.K. Kannan gang, but
whether he would present a danger to the public if released. The Board also
summarized the evidence of Detective Constable Fernandes, who had testified in
prior proceedings involving Mr. Sittampalam. D.C. Fernandes noted that, since
2001, there had been little or no activity on the part of the A.K. Kannan gang,
of which Mr. Sittampalam was alleged to be a former member or leader. The gang
was essentially defunct, perhaps because it had no leader. He believed it was
unlikely that Mr. Sittampalam would return to, or try to reconstitute, the A.K.
Kannan gang but conceded that it was possible that bad feelings between rival
gangs could be revived. Nevertheless, the Board placed paramount importance on
the finding that Mr. Sittampalam had been found to be a former member of a gang.
In my view, it failed to take adequate account of the other evidence that was
more relevant to the issue of dangerousness.
(ii) The
credibility finding
[12]
After
reviewing Mr. Sittampalam’s testimony in previous detention reviews, the Board
stated:
“What seems to emerge is the image of a
reformed man, concerned about his family’s welfare, a person who vows not to
even talk to former associates at the root of his problems. I might have been
persuaded that Jothiravi Sittampalam would also respect the terms of an
immigration order for release, but I fall short of being so satisfied.”
[13]
Later
in its reasons, the Board explained why it did not accept Mr. Sittampalam’s
evidence. The first reason was because Mr. Sittampalam had sometimes denied
being a gang member. In light of the finding in the admissibility proceedings
that he was a member of the A.K. Kannon gang, a finding not overturned on
judicial review, Mr. Sittampalam’s past denials indicated to the Board that he
had not become rehabilitated. It is unclear to me how past denials of
involvement in gang activity proved a lack of rehabilitation. Further, an
absence of rehabilitation does not necessarily amount to the presence of
danger.
[14]
The
Board also concluded that Mr. Sittampalam’s testimony was not to be believed.
The Board relied on the credibility finding reached in the admissibility
hearing. There, the panel concluded that Mr. Sittampalam had “contradicted
himself egregiously while under oath and under affirmation such that his
credibility as a witness is impeached.” Bolstered by that finding, the Board
concluded that anything Mr. Sittampalam said in his detention reviews was
“self-serving, with a view to securing his freedom”.
[15]
I
would note that it is hardly surprising that a detained person would give
self-serving evidence in the hopes of being released. The question is whether
that evidence is believable. Before rejecting it, the Board must give some
explanation for doing so.
[16]
Here,
the Board simply relied on the credibility finding from the admissibility
proceedings. Again, I would not fault the Board for referring to those
proceedings. However, I think the panel’s conclusion was of limited value in
the detention review. The main issue in the admissibility hearing was whether
Mr. Sittampalam was, or had been, involved in organized criminality. The panel
itself defined the issue before it as follows:
The legal test cited in paragraph
37(1)(a) of the Act is whether there are reasonable grounds for belief that an
organization is or has been engaged in activity that is part of a pattern of
criminal activity planned and organized by a number of persons acting in
concert in furtherance of the commission of an indictable offence under the Act
of Parliament. (Quoted in Justice Hughes’ decision, above, at para. 4.)
[17]
Obviously,
this is quite a different issue than was before the Board on the detention
review. As mentioned, the finding that Mr. Sittampalam had been a gang member
was a relevant factor for the Board to consider. However, just because Mr.
Sittampalam’s testimony about his past gang activity was found not to be credible
should not necessarily mean that his evidence on the detention review must be disbelieved.
In his detention reviews, Mr. Sittampalam testified, among other things, about
his disciplinary record while in custody, his time on bail, his past drug use,
his family responsibilities, his intentions if released, his plans if sent back
to Sri
Lanka,
as well as his alleged gang activity. The finding in the admissibility hearing
that Mr. Sittampalam’s evidence on the last subject was not credible does not
help decide if his testimony on all the others should be believed.
(iii) The
summary of allegations
[18]
The
Board referred to a document setting out a summary of incidents involving the
A.K. Kannon gang, as well as other Tamil gangs. The summary was prepared by an
immigration enforcement officer for the benefit of the Minister’s delegate, who
would be called on to decide whether Mr. Sittampalam should be allowed to
remain in Canada. The summary
referred to matters for which Mr. Sittampalam had been charged and convicted,
charged and acquitted, or never charged, as well as several instances where Mr.
Sittampalam had been the victim of criminal acts. All of the incidents
pre-dated his arrest in October 2001.
[19]
While
it is open to the Board to refer to allegations beyond those that led to
convictions, it must do so carefully, relying on evidence it considers to be
credible and relevant to the specific issue before it: Thanaratnam v.Canada
(Minister of Citizenship and Immigration), 2004 FC 349, [2004] F.C.J. No.
395 (F.C.) (QL), reversed on other grounds: 2005 FCA 122, [2005] F.C.J. No. 587
(F.C.A.)(QL). Here, the Board simply stated that the summary “calls into
question, once again, the type of person Mr. Sittampalam is, his lifestyle and
the company he has kept.” In my view, the Board’s statement demonstrates the
harm that may come from failure to interpret this kind of evidence with care.
Unproved allegations can easily give rise to an inference that the person named
in them is undesirable. But this is not what tribunals are typically called
upon to decide, and it is certainly not the issue that was before the Board
here. The Board had a duty to decide if Mr. Sittampalam presented a danger to
the public. The summary of evidence on which the Board relied was relevant to
that issue, but it was not enough for the Board simply to refer to the summary
and conclude from it that Mr. Sittampalam’s character, lifestyle and associates
were objectionable. It had to consider what, if anything, that summary said
about Mr. Sittampalam’s dangerousness now, especially in light of the fact that
it referred to events that happened several years ago. As Justice Frederick
Gibson stated, a tribunal deciding whether a person should be released must not
ignore “indications of change and … rely solely on past conduct”: Willis v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 822, [2001] F.C.J. No. 1183 (T.D.)
(QL), at para. 17.
(c) The
Board’s Conclusion that Mr. Sittampalam is “unlikely to appear for removal”
[20]
The
Board gave three reasons for concluding that Mr. Sittampalam would probably not
present himself for removal from Canada if he were ordered to
leave. First, the Board repeated its characterization of Justice Hughes’
decision on the issue of admissibility to Canada. Second, the
Board noted again its concerns about Mr. Sittampalam’s credibility. Third, the
Board rejected the alternatives to continued detention. I have already analyzed
the Board’s decision in relation to the first two issues and need not discuss
them further. The only issue that remains is whether the Board reasonably
concluded that alternatives to detention would not be effective in Mr. Sittampalam’s
circumstances.
[21]
Mr.
Sittampalam presented to the Board three persons who were willing to post bonds
on his behalf – his wife, Ms. Pushpalatha Rajaratnam, his cousin, Namunakulan
Kalavathy, and her husband, Naunakulan Ponnamapalum. The latter two persons had
been found to be suitable bondspersons on those occasions when the Board
concluded that Mr. Sittampalam could be released on conditions (April 22, 2004
and September 27, 2004). However, when those decisions were overturned on
judicial review, Justice Pierre Blais observed that Mr. Ponnamapalum was not
well-placed to serve as a bondsperson because he had little knowledge of Mr.
Sittampalam’s previous involvement in gang activity. As for Ms. Kalavathy and
Ms. Rajaratnam, the Board concluded that they were not suitable bondspersons
for essentially the same reasons as applied to Mr. Ponnamapalum. The Board
clearly felt that it was bound by Justice Blais’ characterization of Mr.
Ponnamapalum’s suitability and applied the same reasoning to the other proposed
sureties. However, the Board did not consider Mr. Ponnamapalum’s testimony at a
hearing that took place after Justice Blais had rendered his decision. In my
view, the Board should have reviewed that evidence to determine whether Justice
Blais’ concerns had been addressed. I also note that in many of Mr.
Sittampalam’s previous detention reviews, various panels concluded that any concerns
about his willingness to appear for removal could be met by the posting of a
bond (see decisions of October 29, 2001, June 21, 2002, September 26, 2002,
October 21, 2002, April 22, 2004, September 27, 2004, February 22, 2005). Those
panels were more concerned about the issue of dangerousness.
[22]
Because
of the unsuitability of these proposed bondspersons, the Board concluded that
there was no meaningful alternative to Mr. Sittampalam’s continued detention
and, therefore, there was no option but to keep him in custody. Counsel had
proposed a range of other means of ensuring that Mr. Sittampalam would appear –
house arrest, supervision by family members, and the wearing of an electronic
bracelet. The Board addressed only the latter possibility in its reasons. It
stated that, because it was not ordering Mr. Sittampalam’s release, it was “not
considering the use of an electronic bracelet as a measure of control”. Clearly,
the Board did not consider the possibility that Mr. Sittampalam could be
released and his appearance for removal vouchsafed by means other than the
posting of bonds. In my view, the Board did not fully analyze the available
means of ensuring Mr. Sittampalam’s appearance for removal.
(d) Conclusion
[23]
The
Board must fully consider the relevant evidence and factors relating to the
decision whether a person should remain in custody. It is important to note
that the factors outlined by Justice Marshall Rothstein in Sahin v. Canada
(Minister of Citizenship and Immigration), [1994] F.C.J. No. 1534 (T.D.)
(QL), and which are now set out in s. 248 of the Immigration and Refugee
Protection Regulations , SOR/2002-227, are mandated by the right to
liberty, guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.
[24]
It
is unnecessary for me to decide whether any one of the issues discussed above
would have justified overturning the Board’s decision. It is clear to me, however,
that their cumulative effect compels that conclusion in relation to both
branches of the Board’s decision. Therefore, I must grant this application for
judicial review and order a new detention review for Mr. Sittampalam.
[25]
Counsel
for the respondent requested an opportunity to propose a question for
certification if this case turned on an issue of law. Out of caution, I will
entertain any submissions from the parties that are filed within ten (10) days
of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT IS
THAT:
1.
The
application for judicial review is granted;
2.
A
new detention review for Mr. Sittampalam is ordered;
3.
The
Court will consider any submissions regarding a certified question that are
filed within ten (10) days of the issuance of these reasons.
“James
W. O’Reilly”
Annexe “A”
|
Immigration
and Refugee Protection Act, S.C. 2001, c. 27
Organized Crime
37. (1) A permanent resident
or a foreign national is inadmissible on grounds of organized criminality for
(a) being a member of an organization that is believed on
reasonable grounds to be or to have been engaged in activity that is part of
a pattern of criminal activity planned and organized by a number of persons
acting in concert in furtherance of the commission of an offence punishable under
an Act of Parliament by way of indictment, or in furtherance of the
commission of an offence outside Canada that, if committed in Canada, would
constitute such an offence, or engaging in activity that is part of such a
pattern
Release Immigration Division
58. (1) The Immigration Division shall order the
release of a permanent resident or a foreign national unless it is satisfied,
taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for
examination, an admissibility hearing, removal from Canada, or at
a proceeding that could lead to the making of a removal order by the Minister
under subsection 44(2);
(c) the Minister is taking necessary
steps to inquire into a reasonable suspicion that they are inadmissible on
grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion
that the identity of the foreign national has not been, but may be,
established and they have not reasonably cooperated with the Minister by
providing relevant information for the purpose of establishing their identity
or the Minister is making reasonable efforts to establish their identity.
Detention – Immigration Division
(2) The Immigration
Division may order the detention of a permanent resident or a foreign
national if it is satisfied that the permanent resident or the foreign
national is the subject of an examination or an admissibility hearing or is
subject to a removal order and that the permanent resident or the foreign national
is a danger to the public or is unlikely to appear for examination, an
admissibility hearing or removal from Canada.
Conditions
3) If the Immigration Division orders the release of a permanent
resident or a foreign national, it may impose any conditions that it
considers necessary, including the payment of a deposit or the posting of a
guarantee for compliance with the conditions.
Immigration and Refugee
Protection Regulations, SOR/2002-227
Danger to the public
246. For the purposes of
paragraph 244(b), the factors are the following:
…
(b) association with a criminal organization within the
meaning of subsection 121(2) of the Act;
Other factors
248. If it is determined that there are grounds
for detention, the following factors shall be considered before a decision is
made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements
that can assist in determining the length of time that detention is likely to
continue and, if so, that length of time;
(d) any unexplained delays or
unexplained lack of diligence caused by the Department or the person
concerned; and
(e) the existence of alternatives to
detention.
Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act (U.K.), 1982, c. 11
Life, liberty and security of
person
7. Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
|
Loi sur
l’immigration et la protection des réfugiés, L.C.
2001, ch. 27
Activités
de criminalité organisés
37. (1) Emportent interdiction de territoire pour criminalité
organisée les faits suivants :
a) être membre d’une organisation dont il y a des motifs
raisonnables de croire qu’elle se livre ou s’est livrée à des activités
faisant partie d’un plan d’activités criminelles organisées par plusieurs
personnes agissant de concert en vue de la perpétration d’une infraction à
une loi fédérale punissable par mise en accusation ou de la perpétration,
hors du Canada, d’une infraction qui, commise au Canada, constituerait une
telle infraction, ou se livrer à des activités faisant partie d’un tel plan
Mise en liberté par la Section de
l’immigration
58. (1) La section prononce la mise en liberté du résident permanent ou de
l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel
des faits suivants :
a) le
résident permanent ou l’étranger constitue un danger pour la sécurité publique;
b) le
résident permanent ou l’étranger se soustraira vraisemblablement au contrôle,
à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le
ministre d’une mesure de renvoi en vertu du paragraphe 44(2);
c) le
ministre prend les mesures voulues pour enquêter sur les motifs raisonnables
de soupçonner que le résident permanent ou l’étranger est interdit de
territoire pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux;
d) dans
le cas où le ministre estime que l’identité de l’étranger n’a pas été prouvée
mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en
fournissant au ministre des renseignements utiles à cette fin, soit ce
dernier fait des efforts valables pour établir l’identité de l’étranger.
Mise en détention par la Section de
l’immigration
(2) La section
peut ordonner la mise en détention du résident permanent ou de l’étranger sur
preuve qu’il fait l’objet d’un contrôle, d’une enquête ou d’une mesure de
renvoi et soit qu’il constitue un danger pour la sécurité publique, soit
qu’il se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi.
Conditions
(3) Lorsqu’elle
ordonne la mise en liberté d’un résident permanent ou d’un étranger, la
section peut imposer les conditions qu’elle estime nécessaires, notamment la
remise d’une garantie d’exécution.
Règlements
sur l’immigration et la protection des réfugiés,
DORS/2002-227
Danger pour le public
246. Pour
l’application de l’alinéa 244b), les critères sont les suivants :
[…]
b) l’association
à une organisation criminelle au sens du paragraphe 121(2) de la Loi
Autres critères
248. S’il est constaté qu’il existe des motifs de détention, les critères
ci-après doivent être pris en compte avant qu’une décision ne soit prise
quant à la détention ou la mise en liberté :
a) le
motif de la détention;
b) la
durée de la détention;
c)
l’existence d’éléments permettant l’évaluation de la durée probable de la
détention et, dans l’affirmative, cette période de temps;
d) les
retards inexpliqués ou le manque inexpliqué de diligence de la part du
ministère ou de l’intéressé;
e)
l’existence de solutions de rechange à la détention
Charte
canadienne des droits et libertés, annexe B de la
Loi de 1982 sur le Canada, 1982, ch. 11 (R.-U.), entrée en vigueur le
17 avril 1982
Vie, liberté
et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa
personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les
principes de justice fondamentale.
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