Canada (Minister of Citizenship and Immigration) v. Ariyararthnam, 2002 FCT 48

Date: 20020117

Docket: IMM-5545-01

Neutral citation: 2002 FCT 48

BETWEEN:

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                     Applicant

                                                    - and -

                      SIVATHAKARAN ARIYARATHNAM

                                                                                                 Respondent

                                  REASONS FOR ORDER

DAWSON J.

[1]    At issue in this application for judicial review is whether an adjudicator under the Immigration Act, R.S.C. 1985, c. 31 ("Act") has jurisdiction to order that a hearing to review the reasons for continued detention, required pursuant to subsection 103(6) of the Act, be held at a location other than that where the detainee is being held.

THE FACTS

[2]    Mr. Ariyarathnam, a permanent resident of Canada, was detained by Canada Immigration on October 23, 2001 as a result of the issuance of two notices of inquiry issued pursuant to paragraph 27(1)(d) of the Act and paragraphs 27(1)(a) and 19(1)(c.2) of the Act. The notices of inquiry were based on reports which alleged that Mr. Ariyarathnam had been convicted of an offense for which a term of imprisonment of five years or more might be imposed, and that he was a member of the A.K. Kannan gang.

[3]    Mr. Ariyarathnam's 48-hour detention review hearing was commenced on October 25, 2001 and completed on October 30, 2001. That hearing was held at the Toronto East Detention Center. Mr. Ariyarathnam was not ordered released by the adjudicator and his seven-day review was scheduled to take place on November 1, 2001.

[4]    On November 1, 2001, Mr. Ariyarathnam's counsel applied to the Adjudication Division of the Immigration and Refugee Board ("IRB") to have the seven-day review hearing held at the IRB offices in Toronto rather than at the Toronto East Detention Centre. Consent was given to the review being held later than seven days following the expiration of the 48-hour period. The Minister filed submissions in opposition to this application. The application was granted on November 6, 2001 and the review hearing was scheduled to proceed at the office of the IRB on December 4, 2001.

[5]                 On November 22, 2001, a motion was made on behalf of the Minister for an order rescinding the adjudicator's decision. This application was supported by a statutory declaration completed by a police constable. Counsel for Mr. Ariyarathnam filed responding submissions which, among other things, indicated that the Toronto East Detention Center would not allow witnesses to attend detention review hearings held at the facility.

[6]                 On December 3, 2001, the Minister's application for an order rescinding the prior decision was denied and an order was made pursuant to Rule 18 of the Adjudication Division Rules, SOR/93-47 ("Rules") which required Citizenship and Immigration Canada to bring Mr. Ariyarathnam to the IRB offices in Toronto for his detention review hearing on December 4, 2001.

[7]                 On December 3, 2001, an order was issued by Rouleau J. of this Court staying that detention review so as to allow the Minister to argue a motion in this Court for an injunction prohibiting the Adjudication Division from holding Mr. Ariyarathnam's detention review outside of a secure facility. The injunction and leave to commence an application for judicial review of the adjudicator's decision of December 3, 2001, were granted on December 4, 2001 by Justice Rouleau.

[8]                 The hearing of the application for judicial review was heard on December 12, 2001.

THE ISSUE

[9]                 Three issues were raised by the Minister on this application for judicial review. The only issue which I have found it necessary to consider is whether an adjudicator has jurisdiction to order that a detainee's detention review hearing be held in a facility other than where the detainee is being held.

THE RELEVANT LEGISLATION AND RULES

[10]            Subsection 103(6) of the Act, which deals with the review of the reasons for continued detention, provides in material part:

[11]            Subsection 103(9) of the Act mandates, subject to some conditions, that the detention review be conducted in public. Subsection 103(9) states:

[12]            Subsections 103(10) and 103(11)are as follows:

[13]            Section 80.1 of the Act confers jurisdiction on the Adjudication Division of the IRB. An adjudicator is given all the powers and authority of a commissioner under Part I of the Inquiries Act, R.S.C. 1985, c. I-11. Paragraph 80.1(2)(a) of the Act specifically confers power to issue a summons requiring an appearance, while paragraph 80.1(2)(d) confers power on an adjudicator to do all things necessary to provide for the full and proper conduct of the proceedings.

[14]            Subsection 80.1(3) of the Act provides that adjudicators shall sit at the times and at the places in Canada that are considered necessary by the Chairperson for the proper conduct of their business.

[15]            Proceedings in the Adjudication Division are subject to the Rules. Relevant provisions are as follows:

THE ADJUDICATOR'S DECISION

[16]            In concluding that the detention review hearing should be held at the offices of the IRB, and that his prior decision should not be set aside, the adjudicator noted that:

·            Counsel has the right to call relevant witnesses at detention review hearings, and the person concerned has the right to be present for their testimony.

·            Detention review hearings are to be conducted in public. Subsection 103(9) of the Act simply emphasizes the right of a detention facility to make members of the public comply with institutional rules. Where the institutional rules significantly impede the public nature of a hearing, the hearing should be scheduled to take place at some other location.

·            Rule 7 deals with inquiries not detention review hearings. The effect of Rule 30 is that someone detained in say Toronto can not apply under Rule 7 to have their detention review conducted in Vancouver.

·            It is self-evident that conducting hearings involving detainees at detention facilities is a more secure method of conducting hearings than bringing detainees to IRB hearing rooms, but this argument applies equally to court proceedings and courts do not routinely conduct hearings in jails.

·            Citizenship and Immigration Canada is not entitled to choose the location of hearings.

·            Appropriate security would be in place at the IRB premises.

ANALYSIS

(i) Did the adjudicator have jurisdiction to order that a detainee's detention review hearing be held in a facility other than where the detainee is being held?

[17]            Adjudicators enjoy broad powers under section 80.1 of the Act. In the usual course this would include power in the Chair of the Adjudication Division to set the places where adjudicators sit, and power in an individual adjudicator to specify where in a particular place a hearing would be held.

[18]            All of those powers must, however, be exercised in accordance with the Act and Rules. Section 103 of the Act confers specific jurisdiction upon an adjudicator to review reasons for continued detention. I accept the Minister's submission that subsection 103(9) of the Act provides some evidence of Parliament's intent that a detention review is to take place in the facility where a person is detained. This is because otherwise it would not have been necessary to make the right of public review subject to the rules of the detention facility.

[19]            The respondent submits, and the adjudicator accepted, that the effect of subsection 103(9) is simply that members of the public must comply with the rules of the detention facility. Therefore it is submitted by the respondent that where the rules of a facility significantly impede the public nature of a hearing it follows that the hearing should be scheduled elsewhere.

[20]            With respect, this submission does not accord with the plain meaning of the language of Parliament as found in subsections 103(9), (10) and (11) of the Act. Those subsections show that Parliament did not provide an absolute right to a public hearing. Rather, Parliament's language reflects an intent that in the normal course, review hearings are to be open to the public, subject to the rules of the detention facility and the need to ensure confidentiality. Those rules, or the need to ensure confidentiality, may vitiate the right to a public hearing.

[21]            Having said that, Parliament could have more clearly expressed its intent that review hearings be held at the detention facility. I therefore turn to the Rules for further illumination of Parliament's intent.

[22]            The Rules in the definition of "person concerned" contemplate two types of proceeding before the Adjudication Division. The first is an inquiry held pursuant to the Act. The second is a review of the reasons for continued detention.

[23]            In speaking of proceedings before an adjudicator, the Rules speak of both conferences and hearings (see for example Rules 7, 8 ,9, 10, 11, 13, and 18 dealing with such things as change of venue, adjournments and postponements, the language of a hearing, interpreters, disclosure of expert testimony, and securing the attendance at hearing of a person in detention). "Conferences" are a pre-hearing procedure governed by Rule 12.

[24]            I take from the use of the more generic word "hearing" an intent that the Rules are generally intended to apply to both inquiries and detention review hearings.

[25]            It follows that, subject to Rule 30, Rule 7 would apply to detention review hearings.

[26]            In so concluding, I have noted that in Rule 7(4) where an application to have a conference or hearing held at a place other than that which has been set is granted, "the file relating to the inquiry" is to be transferred to the appropriate registry. It is argued that this evidences an intent that Rule 7 only apply to inquiries, and not to detention review hearings.

[27]            While the Rules are not a model of clarity, I prefer the view that but for Rule 30, Rule 7 would apply to detention review hearings because of the general reference to "hearing" in Rule 7(1) and because, if so limited, there would have been no need for Rule 30. Given that proceedings before the Adjudication Division relate to either inquiries or detention review hearings, and that Rule 30 makes Rule 7 not applicable to detention review proceedings, it follows that the only type of file which might have to be transferred is that relating to an inquiry.

[28]            It remains to consider whether Rule 7 only applies to a change of venue which requires that the person concerned's file be transferred to another registry office, and not to what the respondent refers to as "a different place within the same venue". The respondent relies on the jurisprudence on change of venue to argue that this term is used to refer to requests to move a hearing to another court district, and not to a request to move a hearing from a detention centre to the IRB. It is argued that in the present case the respondent was not seeking a change of venue, but only "to have his hearing held at a different place within the same venue" [underlining added].

[29]            It is of some significance, in my view, that the word "venue" is not found in Rule 7, but only in the section heading.

[30]            Rule 7 in its body refers to an application to have a conference or hearing "held at a place other than that which has been set". The use of the word "place" is consistent with the wording found in subsection 80.1(3) of the Act which provides that adjudicators shall sit in such places as are considered necessary, and the wording in Rule 28(1(b) which requires a senior immigration officer to notify the Adjudication Division of the "place of detention" of a person concerned where the reasons for continued detention must be reviewed. I do not find in the plain meaning of the wording of Rule 7(1) and the use of the word "place" an intent that an application to have a hearing held at an alternate place is limited to an application to move the hearing to a different city.

[31]            To the extent that Rule 7(4) contemplates transfer of a file to the registry of the place where the hearing is to be held, I note that Rule 3 permits the establishment of one or more registry offices. Given that the Rules contemplate the possibility of only one registry I conclude that Rule 7(4) was inserted out of an abundance of caution to secure the proper administration of a file, and not to evidence an intent to limit the effect of the plain words used in Rule 7(1).

[32]            Having concluded that Rule 7 applies to any application to change the location of a hearing, there remains to consider the effect, if any, of Rule 18. It is argued that Rule 18 permits an adjudicator to order that a detainee be taken out of the detention facility for a review hearing. Rule 18 was so relied upon by the adjudicator in the present case.

[33]            To the extent that there is any conflict between Rule 18 and the more specific provisions of subsection 103(9) of the Act and Rule 30, in my view those provisions should prevail over the general provision found in Rule 18. Moreover, Rule 18 can be given a meaning consistent with my interpretation of subsection 103(9) of the Act and Rule 7 in that Rule 18 can be read to mean that an adjudicator can order that a detained person be brought to a conference or hearing within the detention facility.

[34]            While the applicable legislation and rules are not, as I have noted, a model of clarity, for these reasons I have concluded that the adjudicator lacked jurisdiction to order that Mr. Ariyarathnam's detention review hearing be held at the IRB and not at the detention facility.

[35]            This conclusion makes it unnecessary for me to consider the remaining issues raised by the Minister.

[36]            There are however two other issues which in my view require comment.

(ii) The Tribunal Record

[37]            The affidavit filed in support of the Minister's application for judicial review contains as an exhibit what are said to be the Minister's submissions to the Adjudication Division. However, the tribunal record filed at hearing reflects that much of the material said to have been submitted was not before the adjudicator. The affidavit filed on behalf of the respondent in opposition to this application for judicial review notes that portions of what are said to be the minister's submissions were not served upon the respondent.

[38]            I considered whether the application for judicial review should be allowed on the ground that the adjudicator did not have before him the full extent of the Minister's submission. However, there was no direct evidence before me that the missing material was ever filed with the tribunal. The affidavit filed on behalf of the Minister, sworn on information and belief by someone other than counsel with carriage of the matter, simply attaches copies of the "submissions to the Adjudication Division", without providing proof of filing. The missing material was not served on the respondent's counsel as required by Rule 22(1) which sheds further doubt on whether the material was actually filed and served. Additionally, the missing material may substantially be characterized as evidence backing up statements made in the declaration filed on the Minister's behalf on the application for reconsideration. That declaration was before the adjudicator. As such, the substance of the Minister's submission was before the adjudicator.

[39]            In view of the lack of evidence that the missing material was in fact filed, and the fact that I was not pointed to material evidence which was not contained in the material before the adjudicator, I would not have set aside the adjudicator's decision on that basis.

(iii) The Need for a Full and Fair Hearing

[40]            This application for judicial review was argued and then adjourned sine die for the purpose of affording to the parties the opportunity to agree upon a mechanism for providing a full and fair hearing where witnesses could be called at the detention facility. If suitable arrangements could not be made either party was permitted to request in writing that a decision be rendered on the application for judicial review.

[41]            Such request was made by Mr. Ariyarathnam's counsel who noted in her correspondence that:

[The adjudicator] started the detention review and made the decision not to continue because the facilities are inadequate. We were in a small office. [The adjudicator], myself and the case presenting officer shared one desk. As I was the last at the desk, I had little room to put the file, documents and case law, so I had to keep most of it on my knee. There were three chairs and although we asked for more chairs, the jail guard said we could not have them. It was possible to bring in one witness at a time, but the witness and the interpreter had to stand as there was no place for them to sit. Mr. Ariyarathnam was not present with us in the hearing room. He was in the next room and we could see part of his face through a narrow grill in the wall. I could not communicate with him during the hearing because I was not near that wall and if I wanted to consult with him everyone in the room would hear our conversation. In addition to the above problems, the door to the room could not be closed and as the room is close to the visiting area there was a lot of noise interfering with the hearing. Visitors were delivering clothes to prisoners right outside of the room. The Adjudicator must use a portable tape recorder which is not the best equipment for taping a hearing in any event. With the noise outside the room, it is likely not possible to get a good tape of the hearing.

[The adjudicator] decided that the facilities were inadequate and I must say that I shared his concerns. The hearing continued for probably over a half hour before it was adjourned. As it is a complicated hearing, had it continued it would have meant that the witness, Mr. Ariyarathnam's father in law and the interpreter would have had to continue standing through the entire hearing. This is difficult for anyone but for the interpreter it created an additional problem as he was unable to make notes for the purpose of translation as he had no place to put paper in order to write as the hearing continued.

[42]            No response was made to that correspondence by counsel for the Minister.

[43]            It is difficult to imagine circumstances which of themselves would justify the refusal of a guard to provide a chair for a witness or an interpreter at a hearing.

[44]            It seems to me that if, as I have concluded, the Act and Rules require a review hearing to be held at a detention facility, then proper facilities must be provided for such hearing. The inadequacy of facilities does not, in my view, justify holding a review hearing at a location other than that contemplated by the Act. However, without deciding the point, inadequate facilities or unreasonable rules of a detention facility might well, in an appropriate case, give rise to other remedies.

[45]            Counsel are given seven days from the date of service of these reasons upon them to serve and file submissions with respect to the certification of a question. An additional period of three days from the date of service of those submissions will be provided to the opposite party so that either party may serve and file reply submissions on the issue of certification.

[46]            Thereafter an order will issue allowing the application for judicial review and setting aside the decision of the adjudicator dismissing the applicant's motion for reconsideration.

"Eleanor R. Dawson"

                                                                                                                              Judge                          

Ottawa, Ontario

January 17, 2002