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Federal Court
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Cour fédérale
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Date: 20091110
Docket: IMM-3538-09
Citation: 2009 FC 1152
Montréal,
Quebec,
November 10, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
MIGUEL
ALFONSO SAMUELS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by the
Minister of Public Safety and Emergency Preparedness (the “Minister”) pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”), for judicial review of an order of Louis
Dubé, member of the Immigration Division (the “Tribunal”) dated June 29, 2009
to release Miguel Alfonso Samuels (the “Respondent”) from detention (the “Release
Order”).
BACKGROUND FACTS
[2]
The
Respondent was born in Panama, but the lived for 39 years
in Jamaica. He is a citizen of both
countries. He came to Canada in 1991 and became a
permanent resident.
[3]
In 1991 or
1992, the Respondent first showed symptoms of mental illness. By September
1992, he was diagnosed as having schizophrenia.
[4]
Since in
1993, the Respondent’s criminal convictions have been so many that no-one seems
able to count them anymore. Five times he was convicted for sexual assault; six
or seven times for assault; six times for theft under $5000; twice for
fraudulently obtaining transportation; twice for mischief under $5000; twice
for failing to comply with probation orders; and once each for common nuisance
and for possession of property obtained by crime. In total, the Respondent has
27 or 30 criminal convictions, as well as over ten provincial convictions.
[5]
The
Respondent has been arrested frequently, both following his criminal and other
offences and pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Cutting short an almost
interminable story, I will only summarize his detention history since his last
criminal conviction on March 14, 2005.
[6]
The
respondent’s court detention pursuant to that conviction ended on April 23,
2005, and he was immediately placed in immigration hold.
[7]
He was
only released from immigration hold on October 12, 2006, under the Toronto Bail
Program, for which he would be supervised by Steven Sharp.
[8]
The
Toronto Bail Program withdrew its supervision of the Respondent in January
2007. Mr. Sharp explained that contrary to his release conditions, the
Respondent repeatedly left his residence unescorted. On January 8, 2007, he was
returned to his residence by a police officer. Moreover, he refused to take his
medication, sometimes feigning that he had done so. In short, “Mr. Samuels
[had] stopped cooperating and [was] not amenable to the services provided.”
Because of this, Mr. Sharp was of the opinion that public safety would be
a concern if the Respondent remained in the community.
[9]
He was
then re-arrested and returned to immigration hold, remaining in detention ever
since.
[10]
It must
further be noted that the Respondent has never had a fixed domicile in Canada; when not in detention, he
lived at shelters or with family. However, he has been banned from at least two
shelters, and his family, though supportive for a long time, became intolerant
of his behaviour and refusals to co-operate with them in 2007.
[11]
In April
2007, he was interviewed by Dr. Pierce, a forensic psychiatrist at the
Centre for Addiction and Mental Health, who determined that he was suffering
from schizophrenia or a similar illness. While schizophrenia can often be
successfully treated if the patient takes appropriate medication, the symptoms
are made worse by drug use, which appeared to be the Respondent’s case. Dr. Pierce
also indicated that the results of a screening test suggested that the
Respondent was likely to commit further sexual offences if given the
opportunity.
[12]
On June 2,
2009, a risk-assessment officer reached a positive decision on the Appellant’s
Pre-Removal Risk Assessment (PRRA). The Minister is now seeking a danger
opinion against the Respondent, which would lead to the Respondent’s removal
from Canada.
[13]
Following
the success of his PRRA application, the Respondent sought to be released from
detention.
[14]
In a
fairly brief oral decision, the Tribunal ordered the Respondent’s release on
June 29, 2009. The Tribunal noted that the Respondent became, by virtue of his
PRRA, a protected person. While a danger opinion was being sought, it was
likely to take a considerable time – and might yet turn out to be negative, so
that it “wouldn’t be fair” to keep the Respondent in detention. The Tribunal
noted that the respondent had “a pretty impressive criminal file,” but
concluded that “if there’s no removal in sight, [the Tribunal is] not
responsible to protect Canadian society anymore.” The Minister applied for
judicial review of that decision.
ISSUES
[15]
This
application raises two issues: first, whether the Tribunal had jurisdiction to
maintain the Respondent in detention notwithstanding the positive outcome of
his PRRA; and if so, second, whether the Tribunal failed to perform its
statutory duty to consider prescribed factors in coming to its decision.
ANALYSIS
1) Did the
Tribunal have jurisdiction to maintain the Respondent in detention?
Respondent’s
Submissions
[16]
The
Respondent argues that the Tribunal could not but release him, because it had
no jurisdiction to keep in detention since he became, as a result of a
successful PRRA application, a protected person.
[17]
The
Respondent is relying on s. 58 of the IRPA, which provides that :
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Release — Immigration
Division
58. (1) The
Immigration Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an
admissibility hearing, removal from Canada, or at a proceeding that could lead to the
making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into
a reasonable suspicion that they are inadmissible on grounds of security or
for violating human or international rights; or
(d) the Minister is of the opinion that the
identity of the foreign national has not been, but may be, established and
they have not reasonably cooperated with the Minister by providing relevant
information for the purpose of establishing their identity or the Minister is
making reasonable efforts to establish their identity.
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Mise en liberté par la
Section de l’immigration
58. (1) La
section prononce la mise en liberté du résident permanent ou de l’étranger,
sauf sur preuve, compte tenu des critères réglementaires, de tel des faits
suivants :
a) le
résident permanent ou l’étranger constitue un danger pour la sécurité
publique;
b) le
résident permanent ou l’étranger se soustraira vraisemblablement au contrôle,
à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le
ministre d’une mesure de renvoi en vertu du paragraphe 44(2);
c) le
ministre prend les mesures voulues pour enquêter sur les motifs raisonnables
de soupçonner que le résident permanent ou l’étranger est interdit de territoire
pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux;
d) dans
le cas où le ministre estime que l’identité de l’étranger n’a pas été prouvée
mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en
fournissant au ministre des renseignements utiles à cette fin, soit ce
dernier fait des efforts valables pour établir l’identité de l’étranger.
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Detention — Immigration
Division
(2) The Immigration Division
may order the detention of a permanent resident or a foreign national if it
is satisfied that the permanent resident or the foreign national is the
subject of an examination or an admissibility hearing or is subject to a
removal order and that the permanent resident or the foreign national is a
danger to the public or is unlikely to appear for examination, an
admissibility hearing or removal from Canada.
…
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Mise en détention par la
Section de l’immigration
(2) La section peut ordonner
la mise en détention du résident permanent ou de l’étranger sur preuve qu’il
fait l’objet d’un contrôle, d’une enquête ou d’une mesure de renvoi et soit
qu’il constitue un danger pour la sécurité publique, soit qu’il se soustraira
vraisemblablement au contrôle, à l’enquête ou au renvoi.
…
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[18]
The Respondent submits that pursuant to paragraphs 232(d)
and 232(e) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”), the effect of his
positive PRRA is to stay the removal order issued against him. The Regulations
provide that:
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232. A removal order is stayed when a person is notified … that they
may make an application [for a PRRA], and the stay is effective until the
earliest of the following events occurs
…
(d) if a decision to allow the
application for protection is made under paragraph 114(1)(a) of the
Act and the person has not made an application within the period provided
under subsection 175(1) to remain in Canada as a permanent resident, the
expiry of that period;
(e) if a decision to allow the
application for protection is made under paragraph 114(1)(a) of the
Act, the decision with respect to the person's application to remain in Canada as a permanent
resident is made…
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232. Il est sursis à la mesure
de renvoi dès le moment où le ministère avise l’intéressé […] qu’il peut
faire une demande [pour un examen de risques avant-renvoi]. Le sursis
s’applique jusqu’au premier en date des événements suivants :
…
d)
s’agissant d’une personne à qui l’asile a été conféré aux termes du
paragraphe 114(1) de la Loi et qui n’a pas fait sa demande de séjour au
Canada à titre de résident permanent dans le délai prévu au paragraphe
175(1), l’expiration du délai;
e)
s’agissant d’une personne à qui l’asile a été conféré aux termes du
paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au
Canada à titre de résident permanent…
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[19]
Since
subsection 48(1) of the IRPA provides that “[a] removal order is
enforceable if it has come into force and is not stayed,” a stayed removal is
unenforceable. The Respondent argues that since the removal order issued against
him is unenforceable, he is not “subject to a removal order” for the purposes
of subsection 58(2) of the IRPA, and therefore the Tribunal could not
continue his detention and had release him.
Minister’s
Submissions
[20]
The Minister argues that the Tribunal did have jurisdiction to
keep the Respondent in detention.
[21]
The Minister submits the provisions of s. 58 of the IRPA
and the relevant regulations contain all the criteria applicable to detention
and release by the Tribunal. According to the Minister, “[a]s long as the
section 58 statutory and regulatory criteria are properly considered, detention
or release may be ordered, that latter with any appropriate conditions.”
[22]
In the Minister’s view, par. 58(1)(a) of the IRPA
authorized the Tribunal to order the Respondent’s detention if it found – as
the Minister submits it ought to have – that the Respondent is a danger to the
public. As the criteria set out in the several paragraphs of subs. 58(1), are
not cumulative, it matters not whether the Respondent is the subject of a
removal order.
[23]
Be
that as it may, the Respondent is still subject to the removal order issued on
April 15, 2004, the positive decision on his PRRA application notwithstanding.
The Minister submits that the effect of that decision is “simply protection
under subs. 115(1) of the IRPA against refoulement to a country where he
would be at risk.” While the positive PRRA decision was a factor that the
Tribunal had to consider, it was not the only one. It neither granted the
Respondent permanent residence nor voided the removal order. The Minister relies
on s. 51 of the IRPA, pursuant to which “[a] removal order that has not
been enforced becomes void if the foreign national becomes a permanent
resident,” which the Respondent is not.
[24]
Therefore,
the removal order against the Respondent still exists, though its execution is
stayed, pursuant to the Regulations, until a review of the Respondent’s
application for permanent residence. Such review will not be concluded before a
decision on the danger opinion regarding the Respondent, which the Minister is
seeking.
[25]
The
Minister submits that finding that the Tribunal lacked jurisdiction to detain
the Respondent would mean that “where a permanent resident or a protect person
becomes subject to a removal order that cannot yet be executed the [Immigration
Division] has no legal authority to detain or release the person with
conditions.” Such an interpretation of the IRPA would fly in the face of
Parliament’s objectives, notably the safety of Canadians, and such a result
would be absurd.
Analysis
[26]
As
stated above, the parties agree that a positive PRRA is a stay of a removal
order issued against a refugee claimant. They differ as to whether a person a
removal order against whom is stayed is still “subject to a removal order” for
the purposes of subsection 58(2) of the IRPA. The Minister argues that
he or she is, since the stay does not void the removal order – only a grant of
permanent residence does. The Respondent submits that under a purposive
interpretation of subsection 58(2) consistent with the respect of the Canadian
Charter of Rights and Freedoms, and of its guarantee of liberty a removal
order that is unenforceable is irrelevant.
[27]
I
agree with the Minister. A removal order that is stayed is not void. Although
it cannot be executed pending a ruling on a protected person’s application for
permanent residence or the passing of the deadline to file such an application,
it still exists and is valid and, in my opinion, the person against whom it was
issued is still “subject to it.”
[28]
The
Respondent is, in effect, asking the Court to read the exclusion of stayed
removal orders into subsection 58(2), which would then provide (in the part
relevant to this case) that “[t]he 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 subject to an enforceable
removal order and that the permanent resident or the foreign national is a
danger to the public…”
[29]
I
am not persuaded by the Respondent’s submission that this reading in is
necessary to ensure that the provision complies with the Charter.
Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have
his detention reviewed every 30 days. The purpose of these reviews is to take
into account any new events in the Respondent’s case. The Immigration Division
must, pursuant to section 248 of the Regulations, consider the
anticipated length of his future detention and the existence of alternatives to
detention. In my view, these elements confirm that the statutory scheme created
by Division 6 of the IRPA and the Regulations already reflects
concerns associated with the Charter.
[30]
I
add that the Charter’s guarantee of the right to liberty is not absolute;
the Charter only prohibits deprivations of liberty inconsistent with
principles of fundamental justice. The Respondent makes no submissions on
whether detention for a limited (though admittedly potentially significant)
period, of a person who is a danger to the public is in fact inconsistent with
such principles. In the absence of any debate on this point, I do not think it
this Court’s role to re-write the statute in the way suggested by the
Respondent.
[31]
I
find that the Tribunal had jurisdiction to order the continued detention of the
Respondent, if it was satisfied that he was a danger to the public.
2) Did the Tribunal fail to
perform its statutory duties?
[32]
The
Minister argues that the Tribunal failed to perform its statutory duty to
assess factors which the IRPA and the Regulations mandate it to
take into account in ordering the detention or release of a person.
[33]
The
Respondent does not directly reply to this argument, but submits that “the
decision, reasons and release order must be looked at in their entirety.” Given
that the Respondent is a protected person and that a danger opinion will not be
issued before long, the Tribunal’s decision to release the Respondent on
conditions is reasonable.
[34]
Section 244 of the Regulations
provides that factors set out in the following sections “shall be taken into
consideration when assessing whether a person … (b) is a danger to the public” [my
emphasis] pursuant to subs. 58(1) of the IRPA.
[35]
The relevant
provisions of the Regulations are sections 246 and 248, which provide
that:
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246. For the purposes of paragraph 244(b), the
factors are the following:
…
(d)
conviction in Canada under an Act of Parliament for
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246. Pour l’application de l’alinéa 244b), les
critères sont les suivants :
…
d) la
déclaration de culpabilité au Canada, en vertu d’une loi fédérale, quant à
l’une des infractions suivantes :
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(i) a sexual
offence, or
(ii) an offence involving violence or
weapons;
…
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(i) infraction
d’ordre sexuel,
(ii) infraction
commise avec violence ou des armes;
…
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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;
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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;
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(d) any unexplained delays or
unexplained lack of diligence caused by the Department or the person
concerned; and
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d) les retards inexpliqués ou le manque inexpliqué
de diligence de la part du ministère ou de l’intéressé;
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(e) the existence of
alternatives to detention.
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e) l’existence de solutions de rechange à la
détention.
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[36]
As the
Minister points out, the Tribunal seems to have been oblivious to these factors
or at any rate to most of them, the length of time of past and future detention
being an obvious exception.
[37]
While the
Tribunal recognized that the Respondent has “a pretty impressive criminal
file,” it did not note, and seems not to have considered the implications of,
the fact that this criminal file included multiple convictions for sexual
offences and other offences involving violence.
[38]
The
Tribunal failed to exercise its statutory duty, which is an error of law, and
its decision must be quashed.
[39]
In view of
this conclusion, it is unnecessary for me to consider the other issues raised
by the Minister.
[40]
The
Tribunal’s order releasing Mr. Samuels is quashed, and his release
application will be heard by a differently constituted panel of the Immigration
Division.
SERIOUS
QUESTION OF GENERAL IMPORTANCE
[41]
The
Minister asked the Court to certify that this case involves a serious question
of general importance, in conformity with par. 74(d) of the IRPA,
if it found that the Tribunal lacked jurisdiction to continue the Respondent’s
detention or to impose conditions on his release.
[42]
The
Minister proposes that the question be worded as follows:
Where a foreign national who is detained
or released on conditions is under a removal order that cannot be executed
pending an immigration process and receives a positive PRRA, does the
Immigration Division have the statutory authority under the IRPA to detain the
foreign national or to release the foreign national on conditions, or otherwise
to continue the release of the foreign national on conditions?
[43]
The
Minister submits that this question meets the well-known criteria set out by
the Fedral Court of Appeal in Canada (Minister of Citizenship and
Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No.
1637 (QL), in that it transcends the interests of the parties to this case and
would be dispositive of the appeal.
[44]
The
Respondent also submits that this case raises an important question, but
suggests that it be reworded as:
Does the Immigration Division retain
jurisdiction to detain a foreign national once the foreign national has been
found to be a refugee or a protected person?
[45]
I
agree that this is a serious issue of general importance. The terms “subject to
a removal order” in s. 58 of the IRPA are ambiguous, because it is not
clear whether the removal order must be enforceable or not. On the one hand,
the statute does not expressly provide that it must; on the other, a removal
order may be unenforceable, and the foreign national may remain in detention,
for lengthy periods of time merely because he has been found by an
administrative officer, on a balance of probabilities, to constitute a danger.
This ambiguity must be resolved not only for the benefit of the parties, but
also for that of any other foreign national who becomes a protected person
while detained or released on conditions by the Immigration Division.
[46]
Therefore
I certify that the following question is serious and of general importance, so
that an appeal from this decision may be made pursuant to paragraph 74(d)
of the IRPA:
Does the Immigration Division
retain jurisdiction to detain a foreign national once the foreign national has
been found to be a refugee or a protected person?
JUDGMENT
THIS COURT ORDERS that:
The
application for judicial review is granted, the decision of the Tribunal is quashed,
and the matter is referred for re-determination for a differently constituted
panel of the Immigration Division.
The following
question is certified as serious and of general importance, so that an appeal
may be made from this decision pursuant to paragraph 74(d) of the Immigration
and Refugee Protection Act:
Does the Immigration Division
retain jurisdiction to detain a foreign national once the foreign national has
been found to be a refugee or a protected person?
“Danièle Tremblay-Lamer”
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