Date: 20100615
Docket: IMM-6634-09
Citation: 2010 FC 647
Ottawa, Ontario, June 15, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicants
and
HAMID
REZA PANAHI-DARGAHLOO
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of the Immigration Division of the Immigration and Refugee Board (the Board)
ordering the respondent released from detention on certain terms and
conditions.
[2]
The
applicant requests that the decision of the Board be set aside.
Background
[3]
The
respondent is a citizen of Iran who arrived in Canada in 1998. He
was found to be a Convention refugee in 1999. His application for permanent
resident status received in 1999 was refused in 2002 because of criminal
convictions.
[4]
The
respondent has amassed several criminal convictions, nineteen in all, beginning
in 2000, and has been detained by the Canadian Border Services Agency (CBSA)
intermittently between July 2004 and June 2007 and continuously since July of
2007. A deportation order was issued against him in March of 2004 pursuant to paragraph
36(1)(a) of the Act by reason of serious criminality.
[5]
The
history of the respondent’s criminal offences is as follows:
-
November
15, 2000: Convicted of theft under $5,000 and received a suspended sentence
and prohibition for one year.
-
May
22, 2001: Convicted of:
·
impaired
driving and received a $600 fine, six months probation and prohibited to drive
for one year;
·
two
counts of theft under $5,000;
·
two
counts of failure to attend Court;
·
assault;
·
failure
to comply with probation order; and
·
theft
over $5,000 and was sentenced to one day concurrently for each charge and time
served 128 days.
-
December
5, 2002: Convicted of theft under $5,000 and received a suspended sentence plus
18 months of probation and two days pre-sentence custody.
-
February
9, 2004: Convicted of failure to comply with recognizance and failure to comply
with a probation order and sentenced to 42 days in custody and two years probation.
-
May
27, 2004: Convicted of:
·
impaired
driving (driving over 80 MGS);
·
threatening
bodily harm and received 60 days in jail;
·
possession
of stolen property over $5,000;
·
theft;
·
possession
of stolen property under $5,000, failure to comply with recognizance and
assault.
-
August
29, 2005: Convicted of robbery and use of a firearm during the commission of an
offence and was sentenced to six months in jail.
-
November
1, 2006: Convicted of theft at a liquor store.
[6]
By
way of an explanation for his conduct, respondent’s counsel submitted to the Board
that the respondent was physically and mentally abused by his father and as a
result, has become a cocaine addict and an alcoholic.
[7]
The
history of his immigration detentions is as follows:
-
July
13, 2004: Detained based on a warrant for his arrest. Released after eight days
on July 21, 2004.
-
2004:
Request for a danger opinion from the Minister was initiated.
-
December
29, 2005: Detained.
-
March
27, 2006: Released when his sister posted bond and the Toronto Bail Program
offered supervision.
-
November
2, 2006: Detained. Note: After serving his sentence for the November 1, 2006
theft above, he became subject to detention under the Act. The above conviction
also violated the terms of the release order from his previous detention.
-
May
25, 2007: Released on a $10,000 bond and with other conditions.
-
June
15, 2007: Taken back into custody after bondsperson withdrew supervision.
[8]
On
December 13, 2006, the Minister’s delegate signed a danger opinion pursuant to
paragraph 115(2)(a) of the Act, allowing the Minister to enforce the 2004
deportation order notwithstanding his status as a protected person. The only
impediment to removal was the issuance of a travel document. Despite many
discussions with officials from the Iranian Embassy during 2007, no travel
document was obtained. Iranian officials indicated that Iranian law prohibits
the return of nationals by force. CBSA officials apparently accepted this
position. The respondent did not wish to be returned to Iran and what is
more, felt he would be at risk if he returned. Therefore, he has refused to
sign a document indicating he wishes to return to Iran.
[9]
For
the respondent’s detention review conducted on December 11, 2009, a new
bondsperson was proposed. Continued detention after previous reviews by the
Board had been on the basis that the respondent poses a danger to the public as
understood by paragraph 58(1)(a) of the Act. These conclusions were supported
by the respondent’s 2001 and 2004 assault charges, his 2005 armed robbery
charge and the 2006 danger opinion as well as the impaired driving charges.
[10]
The
respondent sought judicial review of an October 2008 detention decision which,
besides finding the respondent a danger to the public, found that the
respondent was responsible for his own detention by failing to sign a document
stating that he wished to return to Iran. In Panahi-Dargahlloo
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1114, [2009]
F.C.J. No. 1670 (QL), Mr. Justice Mandamin set aside the detention decision
because the length of the respondent’s detention, his status as a Convention
refugee and his substantial compliance with CBSA had not been adequately
considered.
The Board’s Decision
[11]
The
Board concluded that with the right measures in place, the respondent would not
pose a danger to the public. The charges and the danger opinion were all at
least three years in the past. Even though the respondent had demonstrated a
lack of rehabilitation evidenced by subsequent charges, the latest offence was
also three years ago. The circumstances related to the respondent’s past
dangerous conduct related to a period when he was working in night clubs and
abusing cocaine and alcohol. Since that time, he has availed himself of
psychiatric treatment and substance abuse programs. The degree to which these
programs have been effective has not yet been tested in the community.
[12]
The
Board’s conclusion on the respondent’s risk of flight primarily turned on the
respondent’s demonstrated willingness to comply with the CBSA removal process
in 2007. The Board considered that his refusal to state that he wished to
return to Iran was partly
justified by his status as a refugee and his well founded fear of persecution.
The Board also considered the respondent’s assurances to the new bondsperson
that he would obey immigration instructions, but overall concluded that he was
a flight risk was within the meaning prescribed in paragraph 58(1)(b) of the
Act.
[13]
In
considering alternatives to detention, the Board considered the Ministers’
submission that the respondent’s release in May of 2007 had been on the
strength of a misrepresentation regarding the respondent’s relationship with
the bondsperson. Since the CBSA had elected not to press charges against the
respondent under the Act for the misrepresentation, nor had it disclosed all of
its information regarding the matter, the Board would not conclude that there
had been a misrepresentation. The Board also considered that the respondent had
complied with the release order accompanying his last release and the two and a
half years which had elapsed since then. Finally, the Board considered the
adequacy of a new bondsperson for the respondent and the adequacy of the
quantum of the bond ($5,000) given the bondsperson’s modest financial means.
The Board’s conclusion was that the respondent should be released with
conditions that he attend substance abuse treatment and enroll in Alcoholics Anonymous.
Issues
[14]
The
issues are as follows:
1. What is the
standard of review?
2. Was the Ministers’
counsel denied procedural fairness in the hearing?
3. Was the Board’s
ultimate decision unreasonable?
Applicants’ Written Submissions
[15]
Parties
in a Board proceeding have a right to be heard. Procedural rights are enhanced
in more judicial like decisions such as these. The Board in its reasons
mentioned three treatment programs for the respondent, but did not see that the
prospect of these programs was raised at the hearing, preventing the Ministers’
counsel from making submissions with respect to their appropriateness. Given
the opportunity, counsel would have submitted that some of the programs had not
worked in the past.
[16]
The
applicants also submit that there was no notice that the misrepresentation at
the May 2007 release hearing would be challenged. The issue was not discussed
at the hearing, yet the Board found that the Ministers had not met the burden
of proving the alleged misrepresentation. Had the Board member indicated his
difficulty with the matter, the Ministers had evidence they could have
submitted.
[17]
Finally,
the applicants submit that it was unfair for the Board not to give notice that
it would be considering and questioning the strength of the danger opinion. In
previous reviews, including one by the same member, it had not been in
question.
[18]
The
decision does not meet the standard of reasonableness says the applicants. The
Board determined that the respondent was a flight risk because of his refusal
to sign the voluntary return document and because the new bondsperson did not
give assurances that she could get him to appear for removal. Yet the Board
determined that he should be released to her. Given his continued refusal to
sign the document, it is clear that on a balance of probabilities, removal will
not occur. The respondent has chosen to frustrate removal at a point in time
when he has no right to remain in Canada.
[19]
The applicants
also say that the Board proceeded on the basis that there had been many new
developments in the respondent’s case. In reality, the respondent’s conversion
to Christianity, his treatment programs and his length of time in custody had
all been considered in his previous review which had denied his release. The
only change in December of 2009 was a new bondsperson and the fact that his
length of detention was one month longer, yet the Board came to radically
different conclusions with acknowledging the previous reasons.
Respondent’s Written Submissions
[20]
The
respondent submits that the decision, read as a whole, is reasonable. The
decision also conforms with this Court’s direction in Panahi-Dargahlloo above.
While the applicants disagree with the decision, that is not a basis for
judicial intervention. The Board did not ignore evidence of previous
non-compliance with past orders, but reasonably found that the new evidence of
rehabilitation, the length of detention and the new bondsperson outweighed
other factors.
[21]
Specifically,
it was not unreasonable for the Board to find that the new bondsperson was
suitable despite her inability to guarantee the respondent’s appearance for
removal. The test for suitability is not 100% assurance.
[22]
Moreover,
the respondent’s status as a protected person was legitimately factored by the
Board. It gives him a legitimate reason not to sign a document saying that he
is voluntarily returning to Iran. The implication of the applicants’
argument is that indefinite detention is reasonable even though that is
contrary to section 7 of the Charter. Overall, the decision was not radically
different from previous decisions. It only differed in a few areas which were
thoroughly explained.
[23]
The
respondent submits that there was no breach of procedural fairness. The
mentioned treatment programs should not have been a surprise to the applicants.
The Salvation Army program has been proposed in many detention reviews and in a
previous review regarding the respondent.
[24]
Nor
was there a breach of fairness in the Board’s conclusion that the Ministers had
not proven the alleged misrepresentation. The Ministers’ counsel has made
submissions about the alleged misrepresentation since June of 2007, but has
never provided sufficient evidence in support. Yet, never in that time has an
adjudicator concluded that a misrepresentation occurred. Rather, they have just
noted the allegation, perhaps because it had not been an important issue. It
was open to the Board to find that the applicants had not discharged their
burden.
Analysis and Decision
[25]
Issue
1
What is the standard of
review?
While the standard of review
for most questions of law is correctness, the standard of review for questions
of fact and for questions of mixed fact and law is reasonableness as set out in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, [2008] S.C.J. No. 9 (QL). The parties agree that the ultimate
decision of the Board is subject to review against the standard of
reasonableness.
[26]
The
standard of review on the question of a breach of procedural fairness is
correctness.
[27]
Issue
2
Was the Ministers’ counsel
denied procedural fairness in the hearing?
It is trite that although the
components of the duty of fairness will vary with the context, one of the most
basic elements of natural justice is the right to be heard and to know the case
one has to meet (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, 174 D.L.R. (4th) 193, [1999] S.C.J. No. 39 (QL), Charkaoui v.
Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326).
[28]
Regardless
of the level of procedural fairness determined by assessing the factors in Baker
above, the duty of fairness owed to the Ministers’ counsel in the context of a
detention review hearing clearly included the right of the Ministers’ counsel
to have notice of and make submissions on all material aspects of the decision.
Whether the Ministers were indeed prevented from meaningful participation and
submissions on the factors the Ministers raised is within this Court’s
expertise to determine.
[29]
The
applicants’ first complaint is that while treatment programs for the respondent
were referred to generally during the hearing, the applicants were not advised
of the specific programs the Board eventually required the respondent to attend
in the release order.
[30]
The
Board began the hearing by discussing the new bondsperson and what had been
gleaned at her interview. This new bondsperson constituted the primary aspect
of the respondent’s alternative to a detention proposal.
[31]
Next,
the Ministers’ counsel presented her submissions. With respect to the
respondent’s proposal, she did not discuss specific rehabilitation programs,
only mentioning that previous release orders for the respondent had had
components of rehabilitation:
…or both release orders had components of
rehabilitation, however they have not had favourable influences on his
behaviour as he finds himself in detention once again due to his non-compliance.
[32]
Accordingly,
the Ministers’ submissions with respect to the respondent’s proposal focused on
the non-suitability of the new bondsperson and not on specific treatment
programs since none had been suggested. As she stated later with respect to the
amount of the proposed bond:
Therefore, the Minister feels that this
amount does not offset concerns, but of course there is also the concern that
there’s no component being proposed today to address substance abuse issues, or
to address the need for rehabilitation.
[33]
Next,
the respondent’s counsel presented and discussed the rehabilitation programs
the respondent had participated in while in jail, namely AA and psychiatric
therapy. With respect to rehabilitation programs upon release, counsel made the
following submission:
He has actually spoken to several
agencies about intake with respect to his continued alcohol treatment, and many
of those programs are out programs where he would actually have to sign up with
them after he has been released. Several have refused to actually do intakes
for inmates, but this Alcoholics Anonymous is a program that Mr.
Panahi-Dargahloo is committed to, and is ready to follow through on – on his
release.
And later:
I am proposing today that a condition of
his release be that within a certain period of time, and maybe days or may be a
week or two period, after his release that he shows evidence of being involved
or signed up with a comprehensive alcohol treatment program and AA group.
[34]
When
given the chance to reply on this matter, the Ministers’ counsel stated:
Counsel does indicate that Mr.
Panahi-Dargahloo has an alcohol and drug addiction, and he realizes that he
will always have this. This further substantiates the Minister’s concern that
this will be an ongoing problem for him, and the Minister’s view is that the
requirement that he enrol simply in an alcohol program, of which he have [sic]
no details of what his requirements would be; how he’d be tested; how often he
would have to go; whether it’s an in-treatment, and those sorts of things, and
nothing to address the drug addiction that counsel has brought up. That is
lacking in the alternative and that is a concern to the Minister as according
to counsel that motivates much of his criminality.
[35]
The
order for release added as conditions that the respondent enroll in the
Salvation Army’s Turning Point program within two weeks, provide proof of enrollment
and to remain in good standing, then to enroll in the Harbour Light program and
remain in good standing there until completion.
[36]
In
the Board’s reasons, it was mentioned that these two programs were considered
as conditions in the respondent’s May 2007 release and that the Board who had
released the respondent had been under the reasonable view that danger to the
public and flight risk could be adequately offset by means of a supervisory
bondsperson and community substance abuse treatment.
[37]
In
my view, the Ministers’ counsel was offered a meaningful opportunity to present
submissions on the issue of rehabilitation programs.
[38]
As
Mr. Justice Mandamin noted in Panahi-Dargahlloo above, at paragraph 25,
citing Canada (Minister of Citizenship and Immigration) v. Thanabalasingham,
2004 FCA 4, [2004] 3 F.C.R. 572, detention reviews are not de novo
hearings nor are they without regard to the previous hearings. Conclusions made
at previous detention reviews become part of the overall record before the
current decision maker. Moreover, they remain part of the record, even if not
mentioned at the most previous review.
[39]
As
such, the Ministers’ counsel should not have been completely surprised by the
Salvation Army’s Turning Point program followed by the Harbour Lights program.
These programs were put forth and discussed in his April 2008, April 2007,
December 2006 and November 2006 review hearings.
[40]
To
the extent that the Ministers’ counsel was able to voice her objections to the
suitability and potential for success of unspecified rehabilitation programs,
she was given a meaningful opportunity to be heard.
[41]
If
the Ministers had requested the specifics of the rehabilitation program being
considered in order to make submissions on it, the Board may be required to
offer the Ministers that opportunity. That did not occur here.
[42]
The
Board requires procedural flexibility in its decision making process. It need
not provide court-like fairness procedures. In the circumstances, the Board was
entitled to hear the Ministers’ reservations about the success of
rehabilitation programs in general. It did so. If, as was the case, the Board
ends up concluding that other factors outweigh those concerns, the Board has
sufficient authority and flexibility to fine tune proposals for alternatives to
detention with details, unless the Ministers bring to the Board’s attention
some reason why the Ministers ought to have the opportunity to make submissions
on those details.
[43]
The
applicants’ second complaint is that the Board, in its reasons, held that the
Ministers had not met the burden of proof with respect to the allegations that
the respondent had made a misrepresentation. The matter was only briefly
mentioned by the applicants at the hearing, apparently under the belief that it
need not be proved.
[44]
In
my view, there was no breach of procedural fairness here. As noted, the record
from all previous detention reviews constitutes the starting point for each new
detention review. No previous detention review decision had validated the
allegation against the respondent or found that it was meritorious. The CBSA
had long since abandoned its pursuit of charges against the respondent for the
incident and the allegation remained on the record as simply that; an
allegation. Therefore, the Ministers could not be under any reasonable
assumption that its burden of proving the misrepresentation had been met.
[45]
As
it turned out, when the Board made its decision, the fact that the allegation
had not been proved was something that it mentioned. The Board was entitled to
do this simply by consulting the record and was not required to give notice and
call another hearing with respect to the matter.
[46]
The
Ministers appear to be arguing that if the adjudicator finds evidence in
support of a submission lacking, then he or she has an obligation to stop the
proceedings in order to give counsel an opportunity to provide better evidence.
There is absolutely no authority for this submission.
[47]
Finally,
the applicants complain that the Board in its reasons, seemed to question the
strength or validity of the danger opinion, yet did not provoke discussion of
the matter at the hearing.
[48]
Again,
I do not find that this amounted to a breach of procedural fairness. Of course,
the danger opinion was valid and as it had not been challenged by the respondent
by way of judicial review, must stand. I do not read the Board’s reasons as
questioning the validity of the danger opinion. The Board merely noted that the
opinion itself had not been disclosed to him and that in any event, the period
of time in which it had been rendered was a time in which the respondent had
been abusing drugs and alcohol. This was contrasted with the respondent’s
current state of rehabilitation. I would not allow judicial review on this
ground.
[49]
Issue
3
Was the Board’s ultimate
decision unreasonable?
In Dunsmuir above, the
Supreme Court of Canada stated as follows, concerning the role of a court on
judicial review at paragraph 47:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[50]
And
in Canada (Citizenship
and Immigration) v. Khosa 2009 SCC 12 at paragraph 59, the Court stated:
Reasonableness
is a single standard that takes its colour from the context. One of the
objectives of Dunsmuir was to liberate judicial review courts from what
came to be seen as undue complexity and formalism. Where the reasonableness
standard applies, it requires deference. Reviewing courts cannot substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within "a range of possible, acceptable outcomes
which are defensible in respect of the facts and law" (Dunsmuir, at
para. 47). There might be more than one reasonable outcome. However, as long as
the process and the outcome fit 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.
[51]
It
is obvious from this jurisprudence that this Court, on review, is not to
substitute its own views if the tribunal’s decision falls within a “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[52]
I
am of the view that the adjudicator’s decision in this matter fell within the
range of possible, acceptable outcomes based on the facts and the law of the
case. I would note that the Board is to be afforded significant deference with
respect to its factual findings.
[53]
I
will proceed by dealing with each of the alleged errors which the applicants
say render the decision unreasonable.
[54]
The
applicants say it was unreasonable for the Board to conclude that there was
only a reasonable chance that removal will not be affected, given the
respondent’s refusal to sign the necessary document.
[55]
On
reading the decision, it is clear that the Board understood the stalemate
facing the CBSA, namely, Iranian officials insistence that the respondent sign
a document indicating that his return was voluntary and the respondent’s
refusal to sign the document. So long as the stalemate continues, there is no
chance that removal to Iran can be affected. The decision, however,
contemplated that even if the travel document stalemate was overcome, there
remained a possibility that the respondent would not cooperate and that the
bondsperson could not guarantee he would appear for removal. This was not an
unreasonable conclusion.
[56]
Second,
the applicants say the Board ignored the evidence of non-compliance with past
release orders. The Board did mention that the respondent’s arrest in September
of 2006 was a contravention of the release order. However, in paragraph 11, the
Board followed that by stating:
This is indicative of lack of
rehabilitation up to that point. Since that time, he has availed himself of
psychiatric treatment, alcohol abuse programs and religious counselling.
[57]
This
was not a mischaracterization of the events. The respondent had been ordered to
undertake treatment in his 2006 release, but had not done so. Thus, it was fair
for the Board to comment later that the degree to which these programs have
proven effective to rehabilitation has not yet been tested in the community.
[58]
The
applicants rely on my decision in Canada (Minister of
Citizenship and Immigration) v. Kamil, 2002 FCT 381. I would
point out that that decision dealt with a person who refused to sign an
application for his travel document. In the present case, the respondent has
signed his application for a travel document to Iran but the Iranian government
will not give him the travel document unless he signs a paper stating that he
will voluntarily return to Iran. As well, the period of detention for the
applicant in Kamil was four months, while here the respondent was in
detention for about 37 months according to the Board’s decision.
[59]
Section
248 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 states:
|
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.
|
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.
|
[60]
The
Board’s decision reads in part as follows at paragraph 17:
It is a statement of his willingness to
comply with Canadian law, not that he would prefer not to return. Although I am
of the view that his conduct engages Regulation 248(d) on the grounds that his
lack of diligence has not been adequately explained, I give less weight to his
non-compliance in this case than I would if he were not a protected person and
the issue were one of a travel document, not willingness to return, given his
well-founded fear of persecution. Although his explanation mitigates somewhat,
it is not a complete answer. The Respondent has not been cooperative and has
not acted diligently in facilitating his removal. He is not entitled to
circumvent Canadian legal processes because he disagrees with the result.
However, the fact that he has been otherwise cooperative and refuses to sign a
document agreeing to return to persecution lessens the public policy rationale
for lengthy detention for the purpose of encouraging compliance with a lawful
Removal Order. This view is consistent with Justice Mandamin’s statement that
length of detention must be considered in the light of a number of factors,
including the fact that he is a Convention refugee.
[61]
In
Panahi-Dargahloo above, Mr. Justice Mandamin stated as follows at
paragraph 47:
Section
248 adds the length of detention as a consideration after determining the
likelihood the detainee will appear for removal. The length of the Applicant's
detention has to be considered against other factors besides his refusal to
sign the letter required by Iranian authorities. This would include his status
as a Convention refugee, the fact he reported to Immigration Officials during
his last release, the passage of time since his last criminal conviction,
whether or not the Applicant had an opportunity to receive rehabilitative
treatment for his addictions while in the GTEC and the fact he has support in
his rehabilitation proposal.
I agree with the statements of Mr. Justice
Mandamin.
[62]
A
review of the Board’s decision does not satisfy me that the Board used the
respondent’s length of detention as a factor to justify his release from
detention. The Board member determined that this factor did not favour the
respondent but went on to weigh the other factors against this negative factor
and came to the conclusion that those other factors outweighed the negative
subsection 248(d) finding so as to allow his release from detention. The Board
member took into consideration the existence of a supervisory bondsperson and
the treatment the respondent undertook while in detention. I can find nothing
unreasonable in the Board member’s assessment.
[63]
As
a result, the application for judicial review must be dismissed.
[64]
The
applicants submitted the following proposed serious question of general
importance for my consideration for certification:
When a Convention Refugee with a Danger
Opinion refuses to cooperate in obtaining a travel document to effect removal,
does the continued detention, which is subject to a regular and meaningful
detention review process, remain lawful?
[65]
I
am not prepared to certify this question as it would not be determinative of
this case. The Board member made no finding with regard to the lawfulness of
the respondent’s detention.
JUDGMENT
[66]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27
|
57.(1) Within 48 hours after a permanent
resident or a foreign national is taken into detention, or without delay
afterward, the Immigration Division must review the reasons for the continued
detention.
(2) At least
once during the seven days following the review under subsection (1), and at
least once during each 30-day period following each previous review, the
Immigration Division must review the reasons for the continued detention.
(3) In a
review under subsection (1) or (2), an officer shall bring the permanent
resident or the foreign national before the Immigration Division or to a
place specified by it.
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.
(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.
(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.
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57.(1)
La section contrôle les motifs justifiant le maintien en détention dans les
quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs
délais par la suite.
(2)
Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans
les sept jours suivant le premier contrôle, puis au moins tous les trente
jours suivant le contrôle précédent.
(3)
L’agent amène le résident permanent ou l’étranger devant la section ou au
lieu précisé par celle-ci.
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.
(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.
(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.
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The Immigration
and Refugee Protection Regulations, SOR/2002-227
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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
(a) is
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) of the Act;
(b) is a
danger to the public; or
(c) is a
foreign national whose identity has not been established.
245. For the purposes of paragraph 244(a),
the factors are the following:
(a) being a
fugitive from justice in a foreign jurisdiction in relation to an offence
that, if committed in Canada, would constitute an offence under an
Act of Parliament;
(b) voluntary
compliance with any previous departure order;
(c) voluntary
compliance with any previously required appearance at an immigration or
criminal proceeding;
(d) previous
compliance with any conditions imposed in respect of entry, release or a stay
of removal;
(e) any
previous avoidance of examination or escape from custody, or any previous
attempt to do so;
(f)
involvement with a people smuggling or trafficking in persons operation that
would likely lead the person to not appear for a measure referred to in
paragraph 244(a) or to be vulnerable to being influenced or coerced by an
organization involved in such an operation to not appear for such a measure;
and
(g) the
existence of strong ties to a community in Canada.
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).
247.(1) For the purposes of paragraph
244(c), the factors are the following:
(a) the
foreign national's cooperation in providing evidence of their identity, or
assisting the Department in obtaining evidence of their identity, in
providing the date and place of their birth as well as the names of their
mother and father or providing detailed information on the itinerary they
followed in travelling to Canada or in completing an application for a travel
document;
(b) in the
case of a foreign national who makes a claim for refugee protection, the
possibility of obtaining identity documents or information without divulging
personal information to government officials of their country of nationality
or, if there is no country of nationality, their country of former habitual
residence;
(c) the
destruction of identity or travel documents, or the use of fraudulent documents
in order to mislead the Department, and the circumstances under which the
foreign national acted;
(d) the
provision of contradictory information with respect to identity at the time
of an application to the Department; and
(e) the
existence of documents that contradict information provided by the foreign
national with respect to their identity.
(2)
Consideration of the factors set out in paragraph (1)(a) shall not have an
adverse impact with respect to minor children referred to in section 249.
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.
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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 :
a) du risque
que l’intéressé se soustraie vraisemblablement au contrôle, à l’enquête, au
renvoi ou à une procédure pouvant mener à la prise, par le ministre, d’une
mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
b)
du danger que constitue l’intéressé pour la sécurité publique;
c) de la
question de savoir si l’intéressé est un étranger dont l’identité n’a pas été
prouvée.
245.
Pour l’application de l’alinéa 244a), les critères sont les suivants :
a)
la qualité de fugitif à l’égard de la justice d’un pays étranger quant à une
infraction qui, si elle était commise au Canada, constituerait une infraction
à une loi fédérale;
b) le fait de
s’être conformé librement à une mesure d’interdiction de séjour;
c) le fait de
s’être conformé librement à l’obligation de comparaître lors d’une instance
en immigration ou d’une instance criminelle;
d) le fait de
s’être conformé aux conditions imposées à l’égard de son entrée, de sa mise
en liberté ou du sursis à son renvoi;
e)
le fait de s’être dérobé au contrôle ou de s’être évadé d’un lieu de
détention, ou toute tentative à cet égard;
f)
l’implication dans des opérations de passage de clandestins ou de trafic de
personnes qui mènerait vraisemblablement l’intéressé à se soustraire aux
mesures visées à l’alinéa 244a) ou le rendrait susceptible d’être incité ou
forcé de s’y soustraire par une organisation se livrant à de telles
opérations;
g)
l’appartenance réelle à une collectivité au Canada.
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).
247.(1)
Pour l’application de l’alinéa 244c), les critères sont les suivants :
a) la
collaboration de l’intéressé, à savoir s’il a justifié de son identité, s’il
a aidé le ministère à obtenir cette justification, s’il a communiqué des
renseignements détaillés sur son itinéraire, sur ses date et lieu de
naissance et sur le nom de ses parents ou s’il a rempli une demande de titres
de voyage;
b)
dans le cas du demandeur d’asile, la possibilité d’obtenir des renseignements
sur son identité sans avoir à divulguer de renseignements personnels aux représentants
du gouvernement du pays dont il a la nationalité ou, s’il n’a pas de
nationalité, du pays de sa résidence habituelle;
c)
la destruction, par l’étranger, de ses pièces d’identité ou de ses titres de
voyage, ou l’utilisation de documents frauduleux afin de tromper le
ministère, et les circonstances dans lesquelles il s’est livré à ces
agissements;
d) la
communication, par l’étranger, de renseignements contradictoires quant à son
identité pendant le traitement d’une demande le concernant par le ministère;
e) l’existence
de documents contredisant les renseignements fournis par l’étranger quant à
son identité.
(2)
La prise en considération du critère prévu à l’alinéa (1)a) ne peut avoir
d’incidence défavorable à l’égard des mineurs visés à l’article 249.
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.
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