Date: 20100416
Docket: IMM-3719-09
Citation: 2010 FC 392
Ottawa, Ontario, April 16, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ANDREA
J. WALKER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Immigration Division of the Immigration and Refugee Board of Canada dated July
10, 2009 wherein it was ordered that the applicant remain in detention.
[2]
Although
the applicant has had several detention review hearings since the July 10, 2009
date which have resulted in his continued detention, he has chosen to seek judicial
review of that
decision, arguing that the Board made
several errors in assessing his case and asserting that his rights under
sections 7 and 12 of the Canadian Charter of Rights and Freedoms have
been violated.
[3]
These
are my reasons for determining that the application will be allowed.
Background
[4]
Mr.
Walker, the applicant, is not a Canadian citizen or a permanent resident.
[5]
The
applicant was arrested, charged and found guilty of possession of crack cocaine
in September, 2006. Through this criminal conviction, he was brought to the
attention of Canadian immigration authorities and was found to be criminally
inadmissible to Canada.
[5]
[6]
The
applicant has been held on an immigration warrant since September 20, 2006 and
has been granted periodic detention reviews in accordance with the IRPA.
[7]
The
applicant claims to be an American citizen born in the State of Delaware. Following
his arrest and detention, he was interviewed by American officials with a view
to arrangements being made for his deportation to that country. He had in his
possession a Delaware birth
certificate and a United States passport. U.S. officials have determined that
the applicant is not a U.S. citizen.
[8]
According
to a U.S. State Department memorandum in the record, it was noted that the
applicant spoke with a “thick Caribbean or French sub-Saharan
accent,” that he appeared older than
the 33 years of age claimed in his birth
certificate, and that there were no records of earnings for him in US social
security databases. He was unable or unwilling to provide verifiable details
of where he purports to have lived in the U.S. as a child
and youth. As an adult, he claims to have worked in the merchant marine “all
over the world”. The applicant has acknowledged using an alias, and admitted
to another conviction for a drug offence in the U.S. under a
different name. He is fluent in French, an ability for which he has offered
various implausible explanations.
[9]
Canadian
officials share the view of their U.S. counterparts that the
applicant is not whom he claims to be. They have made numerous attempts to
ascertain the applicant’s identity, including contacting Haitian authorities
with the applicant’s finger prints and making inquiries as to whether he could
be a citizen of an African country. Without the applicant’s cooperation, immigration
officials have not been successful in confirming the applicant’s identity.
[10]
The
applicant has been detained for three years on the ground that he is unlikely
to appear for immigration proceedings.
[11]
At
issue is the July 10, 2009 decision ordering that the applicant remain in
detention. Since then, the applicant has had several more detention review
hearings. Every 30 days, another detention review hearing takes place and
another detention decision is rendered.
Decision Under Review
[12]
In
the detention review under consideration, the applicant’s 38th
review, the member determined that the applicant’s continued detention was
required.
[13]
The
member noted that detention in this case is pursuant to paragraph 58(1)(b) of
the IRPA and is maintained in order to ensure compliance. It was stated that a
person is released normally when an alternative to their detention is put
forward that ensures their compliance. The member accepted that indefinite detention
under the IRPA can, in some cases, amount to a violation of section 7 and
section 12 of the Charter.
[14]
Noting
that he was not in a position to go behind the decision of the U.S. Government
finding that the applicant was not a U.S. citizen, the member accepted that
decision as the most persuasive evidence that the applicant is not a national
of the U.S. and is being
untruthful with regards to his identity.
[15]
Under
section 7 of the Charter, the member found that an argument could be
made if the applicant had revealed his true identity and was fully cooperating
with obtaining travel documents. The member was of the view that the applicant
purposely hid his true identity to prevent his removal from Canada and has done
so for the past three years. The member further found that the applicant
demonstrated quite clearly that he was unwilling to comply with the removal
order which has been issued against him. As such, the grounds of detention
that he is a flight risk are firmly established.
[16]
The
member also found that the applicant’s detention was not indefinite. It was
stated that if the applicant was to reveal his true identity and work with the
authorities to get a travel document, then his removal could possibly be
administered. In this case, it was found that the applicant has the power to
make a decision, cooperate with the authorities, and shorten the length of time
in detention. By not cooperating, the delay which is being caused – and the
increased time in detention - rests with the applicant, and this factor was
found not to favour his release from detention.
[17]
The
member also noted that even as the applicant does not cooperate, he still has
liberty rights. However, the primary concern of the member when issuing a
release order for someone who is in detention as a flight risk is to ensure
compliance. In this case, it was found that the applicant is in front of the
Immigration Division without clean hands and is the primary cause of his
lengthy period of time in detention.
[18]
Given
the level of non-compliance exhibited by the applicant, the member did not
believe that imposing the condition of electronic monitoring proposed by
counsel would be enough to ensure compliance.
[19]
The
member found that the applicant has no intention of ever being removed from Canada. It was
determined that the applicant could remove the electronic monitoring bracelet
at any time if he wished and thwart the Canada Border Services Agency’s (CBSA)
attempts to remove him.
[20]
As
such, the member found the alternative of electronic monitoring insufficient to
ensure compliance.
Issues
[21]
In
this case, while sections 7 and 12 of the Charter have been invoked, there
is an insufficient factual record on which to determine whether these
provisions have been infringed or whether the infringement would be justified
under section 1: Mackay
v. Manitoba, [1989] 2
S.C.R. 357, [1989] S.C.J. No. 88, at pages 361 and 362. It is also
well-established that the Court should avoid making any unnecessary
constitutional pronouncement when the matter may be otherwise disposed of: Tremblay
v. Daigle, [1989] 2 S.C.R. 530, [1989] S.C.J. No. 79, at page 571.
[22]
Thus,
in my view, the sole issue is whether the Immigration Division member erred as
a matter of administrative law when he ordered the applicant’s continued
detention on July 10, 2009?
Analysis
[23]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9, the Supreme Court of Canada abandoned the patent
unreasonableness standard leaving only two standards of review, correctness and
reasonableness. The Supreme Court also held that a standard of review analysis
need not be conducted in every instance. Where the standard of review
applicable to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review.
[24]
As
Justice Mandamin explained in Panahi-Dargahlloo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1114, [2009] F.C.J. No. 1670, at
paras. 21-22, I am also of the view that detention review decisions are
fact-based decisions which attract deference. As such, the standard of review
is reasonableness. For questions of law, the standard is correctness.
21 In
Canada (Minister of Citizenship and
Immigration) v. Thanabalasingham, 2003 FC 1225 at paras. 38 to 59, Justice Gauthier
considered the standard of review for immigration detention reviews by the
Immigration Division. She conducted a pragmatic and functional analysis and
found the standard of patent unreasonableness applied. Justice Rothstein
writing for the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v.
Thanabalasingham, 2004 FCA 4, at para. 10 (Thanabalasingham
FCA) confirmed that detention review decisions are fact-based decisions which
attract deference.
22 Other
than questions of law, the standard of review applicable to this case is that
of reasonableness.
[25]
The
Immigration Division’s analysis is central to its role as a trier of fact. As
such, the Division’s findings are to be given significant deference by the
reviewing Court. The Division’s findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, above, at para. 47.
[26]
In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the Immigration Division and its
outcome fits comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[27]
In
this case, I am of the opinion that the member erred as he did not consider the
question of the length of detention choosing instead to focus on the cause for
the continuing detention: Panahi-Dargahlloo, above, at para. 49.
[28]
In
Sahin v. Canada (Minister of Citizenship and Immigration) (T.D.), [1995]
1 F.C. 214, [1994] F.C.J. No. 1534, Mr. Justice Rothstein listed four factors
that may trigger section 7 of the Charter in such a case. At paragraph
30, he states the second factor entitled “length of time in detention and
length of time detention will likely continue:”
30 I
expect that as precedents develop, guidelines will emerge which will assist
adjudicators in these difficult decisions. To assist adjudicators I offer some
observations on what should be taken into account by them. Both counsel for the
applicant and respondent were helpful in suggesting a number of considerations.
The following list, which, of course, is not exhaustive of all considerations,
seems to me to at least address the more obvious ones. Needless to say, the
considerations relevant to a specific case, and the weight to be placed upon
them, will depend upon the circumstances of the case.
…
(2) Length of time in detention and length of time detention will
likely continue. If an individual has been held in detention for some time as in
the case at bar, and a further lengthy detention is anticipated, or if future
detention time cannot be ascertained, I would think that these facts would
tend to favour release. [My Emphasis]
[29]
This
second factor enumerated by Justice Rothstein is now reflected in section 248
of the Regulations. Section 248 requires the member, after finding that there
are grounds for detention, to consider the length of detention and alternatives
to detention. In this case, Member Adamidis considered the proposed alternative
to detention in this case, an electronic monitoring bracelet, and found Mr.
Walker’s proposal inadequate: Panahi-Dargahlloo, above, at para. 46.
[30]
I
accept the respondent’s submissions that the applicant is not whom he claims to
be and that he has been uncooperative in refusing to reveal his true identity,
that his detention has been caused by his failure to reveal his true identity,
and that to find the member’s decision unreasonable in this case could be said
“to encourage deportees to be as uncooperative as possible as a means to
circumvent Canada’s refugee and immigration system:” Canada (Minister of
Citizenship and Immigration) v. Kamail, 2002 FCT 381, [2002] F.C.J. No.
490, at para. 38.
[31]
However,
section 248 of the Regulations adds the length of detention as a consideration to
be taken into account even if the person detained is considered to be a flight
risk, as in this case. The length of the applicant's detention has to be
considered against other factors besides his refusal to cooperate with
Immigration Officials and to reveal his true identity. These other factors
would include the immigration status of the applicant, the fact that this was the
38th detention review, the passage of time since his last criminal
conviction, etc. I am of the view from a close reading of the member’s reasons
that the 3-year detention of the applicant was not considered against these factors:
Panahi-Dargahlloo, above, at para. 50.
[32]
Reaching
a conclusion similar to that of my colleague Justice Mandamin in Panahi-Dargahlloo,
above, at para. 51, I find that the member's failure to consider the length of
the applicant’s detention in his assessment of whether or not to continue with
detention was unreasonable and outside of the range of possible and acceptable outcomes: Dunsmuir, above, at para. 47.
[33]
As
I find the decision to be unreasonable, it is open to this reviewing court to
substitute its own view of a preferable outcome: Dunsmuir, above, at
para. 47; Khosa, above, at para. 59. Accordingly, this application will
be allowed.
[34]
The
parties were given an opportunity to propose questions for certification. As
set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts
Immigration and Refugee Protection Rules / SOR 93-22, as amended, there can
be no appeal of this decision if the Court does not certify a question. In Zazai v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, the
threshold for certification was articulated by the Federal Court of Appeal as:
"is there a serious question of general importance which would be
dispositive of an appeal" (paragraph 11).
[35]
In Kunkel
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para.
8, citing its 2006 decision
in Boni v. Canada (Minister of Citizenship and
Immigration), 2006 FCA
68, [2006] F.C.J. No. 275, at para.10, the Federal Court of Appeal determined
that a certified question must lend itself to a generic approach leading to an
answer of general application. That is, the question must transcend the
particular context in which it arose.
[36]
The
applicant submitted the following question for certification:
Where identity cannot be
established, can a person be indefinitely detained?
[37]
The
respondent opposes certification of this question on the ground that it does
not arise from the facts of this case as the applicant has not been
indefinitely detained and the question would not be dispositive of an appeal. The
respondent does not propose a question for certification.
[38]
I
agree with the respondent that on the facts of this case it has not as yet been
determined that the applicant is being indefinitely detained. I am also of the
view, as indicated above, that the question would not be dispositive of an
appeal in this matter on Charter grounds as an adequate foundation has
not been established. Accordingly, I decline to certify the question.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that this application
is allowed and the matter is remitted to the Board for consideration by a
differently constituted panel. No question is certified.
“Richard
G. Mosley”
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