Date: 20051005
Docket: IMM-1545-05
Citation: 2005 FC 1352
Halifax, Nova Scotia, October 5, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
JOTHIRAVI SITTAMPALAM
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Jothiravi Sittampalam is a citizen of Sri Lanka who came to Canada in 1990 and was found to be a Convention refugee. He has since obtained status as a permanent resident in Canada. While in Canada, Mr. Sittampalam was convicted of the following offences: January 24, 1992, failure to comply with the recognizance; July 8, 1996, trafficking heroin; and February 18, 1998, obstructing a police officer. In consequence of his conviction for drug trafficking, Mr. Sittampalam conceded at an admissibility hearing that he is inadmissible to Canada on grounds of serious criminality under what is now paragraph 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"). At a second admissibility hearing he was found to be inadmissible on grounds of organized criminality under paragraph 37(1)(a) of the Act. A panel of the Immigration and Refugee Board, Immigration Division ("the Board") found him to be a member of the AK Kannon gang, believed to be an organization engaged in activities that are part of a pattern of criminal activity as more particularly described in paragraph 37(1)(a) of the Act.
[2] Mr. Sittampalam was arrested and detained on October 18, 2001, the same day on which many others were detained as result of a joint project between immigration officials and the Toronto Police Service. Those detained were alleged to be involved with, or associated with, Tamil gangs in Toronto. The two principal gangs are said to be the AK Kannon and the VVT, the latter being an acronym for the village of Valvettithurai where many members of that gang were born.
[3] Mr. Sittampalam has received a number of detention reviews while detained. He was twice ordered released on conditions; however, both orders were set aside by this Court. He brings this application for judicial review of the February 22, 2005 decision of the Board that he should continue to be detained.
THE DECISION OF THE BOARD
[4] Section 58 of the Act provides that:
| 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.
58(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.
58(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.
|
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.
58(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.
58(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.
|
[5] Because subparagraphs (c) and (d) of the Act are not applicable on the facts of this case, the two issues the Board considered were whether, if released, Mr. Sittampalam is a danger to the public and whether he would be unlikely to appear for removal.
[6] On the issue of appearance, the Board considered that: Mr. Sittampalam was convicted of the offences of failing to comply with a recognizance and obstructing a police officer; he has been in Canada for 15 years and has close family ties in Canada; he has been found to be a Convention refugee; and he was also found, in a previous decision by another member of the Board, to lack credibility. These factual circumstances led the Board to conclude that Mr. Sittampalam's unsecured promise to appear for removal was insufficient to satisfy it that Mr. Sittampalam would report for removal when called upon to do so. However, the panel was willing to accept, as had previous panels of the Board, that the bonds offered on Mr. Sittampalam's behalf would overcome its concerns regarding appearance.
[7] On the issue of danger, the Board recognized that subsection 244(b) and sections 246 and 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations") were relevant to its consideration. They state as follows:
| 244 For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person
[...]
(b) is a danger to the public;
[...]
246 For the purposes of paragraph 244(b), the factors are the following:
(a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;
(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;
(c) engagement in people smuggling or trafficking in persons;
(d) conviction in Canada under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons;
(e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production);
(f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons; and
(g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production).
[...]
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.
|
244 Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation :
[...]
b) du danger que constitue l'intéressé pour la sécurité publique;
246 Pour l'application de l'alinéa 244b), les critères sont les suivants :
a) le fait que l'intéressé constitue, de l'avis du ministre aux termes de l'alinéa 101(2)b), des sous-alinéas 113d)(i) ou (ii) ou des alinéas 115(2)a) ou b) de la Loi, un danger pour le public au Canada ou pour la sécurité du Canada;
b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi;
c) le fait de s'être livré au passage de clandestins ou le trafic de personnes;
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes:
(i) infraction d'ordre sexuel,
(ii) infraction commise avec violence ou des armes;
e) la déclaration de culpabilité au Canada quant à une infraction visée à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances :
(i) article 5 (trafic),
(ii) article 6 (importation et exportation),
(iii) article 7 (production);
f) la déclaration de culpabilité ou la mise en accusation à l'étranger, quant à l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale :
(i) infraction d'ordre sexuel,
(ii) infraction commise avec violence ou des armes;
g) la déclaration de culpabilité ou la mise en accusation à l'étranger de l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances :
(i) article 5 (trafic),
(ii) article 6 (importation et exportation),
(iii) article 7 (production).
[...]
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.
|
[8] The Board then looked at the factors listed in section 246 of the Regulations, noting that Mr. Sittampalam fell within subsection 246(e) as a result of the trafficking conviction in 1996, and fell within subsection 246(b) as a result of his membership in a criminal organization, the AK Kannon gang. The Board considered that the conviction for trafficking was now more than eight years old, and expressed the view that if this were the only factor, it might be willing to accept that Mr. Sittampalam does not now pose a danger to the public. However, the Board found the second factor to be of much more concern. The evidence before the Board was that Mr. Sittampalam not only associated with a criminal organization, but that he was a member, and the alleged founder, of the AK Kannon.
[9] The Board reviewed what Mr. Sittampalam had told the police, namely, that he thought that members of a rival gang had made attempts on his life in retaliation for Mr. Sittampalam's activities as a gang member. Also, evidence before the Board established that members of AK Kannon had engaged in death threats, pointing firearms, using firearms in the commission of an offense, kidnapping and forcible confinement. Detective Constable Fernandes of the Toronto Police Service had previously testified that Tamil gangs are engaged in criminal activities such as the possession of weapons, car theft, assault, extortion, credit card fraud and debit card fraud.
[10] The Board concluded that as a member and leader of AK Kannon, Mr. Sittampalam is a person who is a danger to the public.
[11] The Board went on to consider Mr. Sittampalam's counsel's submissions that Mr. Sittampalam had been detained for over three and a half years and that the passage of time has caused the circumstances to change such that at this point he is no longer a danger to the public, even if he was a danger in 2001 when he was first detained. In that context, the Board relied upon testimony from Detective Constable Fernandes that while there has been little word on the street about AK Kannon since 2001, the gang still exists and a member of AK Kannon had been arrested on a weapons charge in January of 2003. Detective Constable Fernandes testified that he believed the reason why AK Kannon was not as active as before was because the gang is now leaderless due to Mr. Sittampalam's detention.
[12] While Detective Constable Fernandes had not heard any news on the street that Mr. Sittampalam is still engaged in gang-related activity, the Board did not conclude from that information that Mr. Sittampalam is no longer involved in, and has no intention of engaging in gang-related activity. The Board also did not accept that Mr. Sittampalam is not intent on taking retaliation, or resuming his place as leader of AK Kannon, merely because Detective Constable Fernandes had heard no news on the street to that effect. Similarly, the Board found that although there was no news on the street that detective Constable Fernandes was aware of concerning further attempts on Mr. Sittampalam's life, the Board could not conclude that any such threat is over. The Board noted that while Mr. Sittampalam is in detention it would be more difficult to assassinate him.
[13] The Board found there to be credible evidence that the attempt on Mr. Sittampalam's life came about as a result of his actions as a gangster and that when the first attempt did not meet with success, a second attempt was made. On this evidence, the Board found that this appeared to be a clear indication that the people making attempts on Mr. Sittampalam's life are determined to kill him.
[14] With regard to the submission that Mr. Sittampalam had learned his lesson, the Board found that just because Mr. Sittampalam said so it did not make it true. Mr. Sittampalam was found in the past to lack credibility, and he had previously spent time in jail which had not changed his life. The Board understood that Mr. Sittampalam has a family now, but noted that his criminal activities had carried on after he was married and had a child.
[15] The Board concluded that it was satisfied that there was sufficient evidence upon which to conclude that Mr. Sittampalam continued to engage in criminal activities through his leadership in the AK Kannon. That organization was found by the police, the courts and the Board to have been involved in criminal activities including assault, weapons charges, theft, fraud and kidnapping. Mr. Sittampalam, as a leader of this criminal organization, is a person who is dangerous to the Canadian public. The bonds offered for Mr. Sittampalam's release did not overcome the Board's concerns that Mr. Sittampalam posed a danger to the public and the Board chose not to make an order for Mr. Sittampalam's release from detention.
THE STANDARD OF REVIEW
[16] In Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 523 (F.C.) my colleague Madam Justice Gauthier, after conducting a pragmatic and functional analysis with respect to decisions of the Board, found that the patent unreasonableness standard should apply to questions of fact, the correctness standard should apply to questions of law, and on questions of mixed fact and law the standard ought to depend upon whether to question was factually or legally intensive.
[17] On appeal, reported at [2004] 3 F.C.R. 572, Madam Justice Gauthier was found, at paragraph 24, to have applied the proper standards of review to the findings of the Board. Those standards were subsequently applied by my colleague Mr. Justice Blais in his decision with respect to Mr. Sittampalam, reported at [2004] F.C.J. No. 2152 (see paragraphs 10 and 11).
[18] Those are the standards of review I shall apply.
APPLICATION OF THE STANDARD OF REVIEW TO THE DECISION OF THE BOARD
[19] In Thanabalasingham, supra, the Federal Court of Appeal considered the nature of the detention review hearing before the Board and articulated the following principles. First, a detention review is not, strictly speaking, a de novo hearing. The record before the Board continues to be built at each hearing and the Board is expected to take into consideration the reasons for previous detention orders. Second, the Board must decide afresh at each hearing whether continued detention is warranted. Third, where a member chooses to depart from prior decisions of the Board, clear and compelling reasons for doing so must be set out. Fourth, the onus is always on the Minister to demonstrate that there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must provide some evidence or risk his or her continued detention.
[20] During oral argument, I did not understand counsel for Mr. Sittampalam to argue that those principles had been violated by the Board. Rather, the focus of her argument was that the Board erred in reaching its conclusion by ignoring relevant evidence and by making findings that were not supported by the evidence.
[21] In that regard, the Board found Detective Constable Fernandes to be a credible witness. However, having carefully reviewed the transcript of his testimony, I accept the submission of Mr. Sittampalam's counsel that the Board made no reference to Detective Constable Fernandes' evidence that:
• he had previously testified that the AK Kannon has virtually become defunct and inactive. At the time of the hearing at issue, he testified that "occurrences have cropped up [...] sporadically and for the most part we don't hear too much about the AK Kannon gang". Only two recent incidents were cited in which single members of the AK Kannon gang were involved;
• a number of members of the AK Kannon had been arrested in October of 2001, including "[q]uite a few" of its core members. Some had subsequently been released on condition that they not associate with anyone from the gang, and the police had not heard any reports of that condition having been breached;
• the lack of activity on the part of the AK Kannon gang was equally consistent with the gang having fallen apart as with the fact of Mr. Sittampalam's continued detention;
• for a period of time prior to his detention, Mr. Sittampalam had been trying to leave the gang;
• if Mr. Sittampalam was released, detective Constable Fernandes did not think he would go back and start the AK Kannon again;
• Mr. Sittampalam had told the Constable that he was not involved in violence anymore; his only involvement was in debit and credit card fraud;
• a lot of gang members had told the Constable that they were out of violence and into fraud;
• with respect to the prior attempts on Mr. Sittampalam's life, one of the people involved had been deported to Sri Lanka and others are in custody on other serious matters. This explained why there was no word on the street about the existence of any continued threat against Mr. Sittampalam.
[22] This evidence was clearly relevant to the issue of whether the length of Mr. Sittampalam's detention was such as to cause the danger to the public to dissipate. The Board relied upon Detective Constable Fernandes' evidence that the AK Kannon gang was not active because its leader was in jail, yet failed to mention his further evidence that its inactivity was equally consistent with the gang having fallen apart.
[23] In view of the quantity and relevance of the evidence of Detective Constable Fernandes that the Board did not mention, I have been persuaded that the Board's findings of fact relevant to the issue of danger were made without regard to the evidence before it, and so were patently unreasonable.
[24] This is not to say that the Board's conclusion was not open to it upon a proper evaluation and analysis of the evidence. The finding was simply not supported by the Board's analysis of the evidence.
[25] It follows that the application for judicial review will be allowed.
[26] Counsel posed no question for certification if the case was decided on this basis. I agree that no question of general importance arises and no question will be certified.
ORDER
[27] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Board dated February 22, 2005 is hereby set aside.
2. This matter is remitted for redetermination by a differently constituted panel of the Board.
"Eleanor R. Dawson"
Email this Content