Docket: IMM-7149-11
Citation: 2011 FC 1177
Ottawa, Ontario, October 18, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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MOE ZAW ZAW
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
An
inappropriate decision by a decision-maker can set into motion a danger to the
public and, thus, to its children.
[2]
The
Respondent has been convicted of sexual crimes, having taken place for a period
of almost five years in regard to a child.
[3]
The
evidence from a parole officer was that the Respondent intended to live with Mr. Aung Saw, who is a
parent of two young daughters whereas the Respondent had told a parole officer
that Mr.
Aung Saw was a single
man, living alone. On September 12, 2011, a previous decision-maker had
determined that the Respondent should not be released from detention given that
he intended to reside with a father of two young daughters. One of the
conditions of this most recent October 13, 2011 Release Order is that the
Respondent is not to be granted unsupervised access to females younger than 18
years of age and the evidence clearly demonstrated that, in fact, upon release,
the Respondent would have resided with females younger than 18 years of age.
[4]
As
specified by the previous first-instance decision-maker, on August 15, 2011,
the Respondent was involved in repeated sexual abuse while he was in a position
of authority with an accorded level of trust. The situation, as was described
in the decision of September 12, 2011, was one which endangers victims and
leads to serious emotional and psychological trauma.
[5]
Due
to a lack of discernment, a child is handicapped by ill-will in its regard, as
was so clearly explained in an essay on security for children by Dr. Janusz
Korcak, prime defender of children, often cited by the United Nations as the
source of inspiration and initiator of the International Convention on the
Rights of the Child to which Canada is a party.
[6]
By
corollary, the recent conclusion in the judgment of R v Woodward, 2011
ONCA 610, [2011] OJ No 4216, dated September 26, 2011, rendered by Justice
Michael Moldaver, states:
[76] … the focus … should be
on the harm caused to the child by the offender's conduct and the life-altering
consequences that can and often do flow from it. While the effects of a
conviction on the offender and the offender's prospects for rehabilitation will
always warrant consideration, the objectives of denunciation, deterrence, and
the need to separate sexual predators from society for society's well-being and
the well-being of our children must take precedence.
[7]
If
the Respondent is released from detention, the safety of the Canadian public will
be put at risk. The Respondent is a serious criminal and a danger to the
public. It is incumbent for the decision-maker to ask himself if this decision
is good for children. If it puts children at risk, the answer is evident.
II. Background
[8]
The
Applicant seeks a stay of the Order of a Member of the Immigration Division of
the Immigration and Refugee Board [Board], dated October 13, 2011, wherein the
Member ordered that the Respondent be released from detention on terms and
conditions considered questionable.
[9]
The
Respondent is a citizen of Myanmar. The Respondent was detained by the Canadian
Border Services Agency [CBSA]. The Respondent has had the following detention
review hearings:
a. the 48-hour
detention review hearing on August 8, 2011;
b. the 7-day detention
review hearing on August 15, 2011;
c. the first
30-day detention review hearing on September 12, 2011; and
d. the second
30-day detention review hearing on October 13, 2011.
[10]
The
Respondent’s detention has been reviewed as set out in the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[11]
In the October decision, the Member released the
Respondent on terms and conditions and did not require a cash bond to be posted
[Release Order].
[12]
The Court agrees with the position of the
Applicant that the Respondent should not have been released as he represents a
danger to the public.
III. Issue
[13]
Has
the Applicant met the tri-partite test for warranting a stay of the October 13,
2011 Release Order made with respect to the Respondent?
Test for Granting a Stay
[14]
The
Supreme Court of Canada has established a tri-partite test for interlocutory
injunctions: (i) a serious question to be tried; (ii) whether the litigant who
seeks the interlocutory injunction would, unless the injunction is granted,
suffer an irreparable harm; and (iii) the balance of convenience, in terms of
which of the two parties will suffer the greater harm from the granting or
refusal of an interlocutory injunction pending a decision on the merits (Toth v Canada (Minister
of Employment and Immigration) (1988), 86 NR 302 (FCA); RJR- MacDonald Inc v
Canada (Attorney General), [1994] 1 S.C.R. 311).
IV. Relevant Legislative Provisions
[15]
The
criteria for release from immigration detention are set out in subsection 58(1) of the IRPA,
which states:
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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.
[Emphasis added].
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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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[16]
The Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations] set
out the factors to be considered in determining whether a person is unlikely to
appear for removal from Canada as well as whether the person is a danger to the
public or is a foreign national whose identity has not been established (Regulations
244-247).
[17]
Regulations 245 addresses the issue
of flight risk and sets out the following factors for consideration:
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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.
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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.
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[18]
Regulations 246 addresses the issue
of danger to the public and sets out the following factors for consideration:
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(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).
[Emphasis added].
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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).
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[19]
Regulations 248 sets out the
following factors to be considered before a decision is made on detention or
release in the case where it is determined that there are grounds for
detention:
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(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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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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V. Analysis
[20]
New
documentary evidence was presented at the detention review of October 13, 2011
on the issue of the Applicant’s danger to the public.
A. Serious Issue
[21]
The
threshold test for a serious issue is low. In the face of overwhelming evidence,
the Respondent is a danger to the public and a serious issue has been raised (RJR-
MacDonald, above).
[22]
In Canada
(Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4,
[2004] 3 FCR 572 (CA), Justice Marshall Rothstein stated:
[11] Credibility of the
individual concerned and of witnesses is often an issue. Where a prior decision
maker had the opportunity to hear from witnesses, observe their demeanour and
assess their credibility, the subsequent decision maker must give a clear
explanation of why the prior decision maker's assessment of the evidence does
not justify continued detention. For example, the admission of relevant new
evidence would be a valid basis for departing from a prior decision to detain.
Alternatively, a reassessment of the prior evidence based on new arguments may
also be sufficient reason to depart from a prior decision.
[12] The best way for the
Member to provide clear and compelling reasons would be to expressly explain
what has given rise to the changed opinion, i.e. explaining what the former
decision stated and why the current Member disagrees.
[13] However, even if the
Member does not explicitly state why he or she has come to a different
conclusion than the previous Member, his or her reasons for doing so may be
implicit in the subsequent decision. What would be unacceptable would be a
cursory decision which does not advert to the prior reasons for detention in
any meaningful way.
(Reference is also made to Canada (Solicitor
General) v Oraki, 2005 FC 555; Canada (Minister of Citizenship and Immigration)
v Sittampalam, 2004 FC 1756, 266 FTR 113; Canada (Minister of Public
Safety and Emergency Preparedness) v Welch, 2006 FC 924, 297 FTR 58).
[23]
The
Member erred by failing to clearly explain why the prior assessment of the
evidence did not justify continued detention, what had given rise to the
changed opinion and why the newest evidence from the parole officer respecting
the Respondent’s risk to the community did not support a further 30-day
detention.
[24]
The
evidence from the parole officer indicated a misrepresentation regarding the
living conditions of the person with whom the Respondent had indicated he would
be residing upon his release, namely Mr. Aung Saw. The parole officer indicated in her letter
that the Respondent had advised her that he intended to live with a person who
was single, living alone and could provide him with employment; the member
presiding at the September 12, 2011 detention review hearing had evidence that Mr.
Aung Saw lived with two very young daughters and specifically noted that it would
be inappropriate for the Respondent to reside with Mr. Aung Saw because it
would be a violation of the Respondent’s parole conditions to do so. In light
of the Respondent’s convictions for sexual contact with a child and sexual
counseling of a child and his failure to satisfactorily complete the sexual
offender treatment programming, the Member’s terms and conditions do not go far
enough in ensuring that the Canadian public is protected from the Respondent.
[25]
On
consideration of all of the above factors and based on all of the evidence
before the Member, no alternative exists to detention as it was clear from the
evidence before the Immigration Division that the respondent was a danger to
the public.
B. Irreparable Harm
[26]
The
Applicant will suffer irreparable harm if the Respondent is released from
detention. The Respondent’s release from detention is contrary to the
legislative objectives set out in the IRPA, particularly the objectives
of protecting the safety of Canadians and maintaining the security of Canadian
society.
[27]
The
Respondent has been convicted of sexual crimes against children. The evidence
from a parole officer was that the Respondent intended to live with Mr. Aung Saw, who is
a parent of two young daughters whereas the Respondent had told a parole
officer that Mr. Aung Saw was a
single man, living alone. On September 12, 2011, a decision-maker had
determined that the Respondent should not be released from detention given that
he intended to reside with a father of two young daughters. One of the
conditions of this most recent October 13, 2011 release order is that the
Respondent is not to be granted unsupervised access to females younger than 18
years of age.
[28]
As
was stated by the first-instance decision-maker, on August 15, 2011, the
Respondent was involved in repeated sexual abuse while he was in a position of
authority and had a level of trust. This is considered to be a situation that
leads victims to have serious emotional and psychological trauma.
[29]
If
the Respondent is released from detention, the safety of the Canadian public
will be put at risk. The Respondent is a serious criminal and a danger to the
public. It is incumbent for the decision-maker to ask himself is this decision
good for children. If it puts children at risk, the answer is evident.
[30]
If
the Respondent is released, this application for leave and judicial review will
become moot, thereby depriving the Applicant of the opportunity to determine
the legality of the Member’s Order. This will constitute irreparable harm.
C. Balance
of Convenience
[31]
The
third part of the tripartite test has also been met, insofar as the balance of
convenience favours the Applicant.
[32]
The
public interest is to be taken into consideration and weighed together with the
interests of private litigants (Manitoba (Attorney General) v Metropolitan
Stores Ltd, [1987] 1 S.C.R. 110).
[33]
The
balance of any inconvenience which the Respondent may suffer as a result of his
continued detention until his next scheduled detention review hearing or until
the Court disposes of the underlying application for leave and for judicial
review does not outweigh the public interest which the Applicant seeks to
maintain in the application of the IRPA.
[34]
Important
factors to consider under this branch of the test include all the circumstances
that led to the Respondent’s criminal history and his continued detention,
evidence of his lack of truthfulness respecting the living conditions to which
he would be going upon release from detention and is a danger to the public.
[35]
In Dugonitsch
v Canada (Minister of Employment and Immigration) (1992), 53 FTR 314,
[1992] FCJ No 320 (TD) (QL/Lexis), Justice Andrew MacKay stated:
Absent evidence of irreparable
harm, it is strictly speaking unnecessary to consider the question of the
balance of convenience. Nevertheless, it is useful to recall that in discussing
the test for a stay or an interlocutory injunction in the Metropolitan Stores
case Mr. Justice Beetz stressed the importance of giving appropriate weight to
the public interest in a case where a stay is sought against a body acting
under public statutes and regulations which have not yet been determined to be
invalid or inapplicable to the case at hand. That public interest supports the
maintenance of statutory programs and the efforts of those responsible for
carrying them out. Only in exceptional cases will the individual's interest,
which on the evidence is likely to suffer irreparable harm, outweigh the public
interest. This is not such an exceptional case.
VI. Conclusion
[36]
For
all of the above reasons, the Release Order, dated October 13, 2011, is stayed
until the Respondent’s next statutorily required detention review or until this
Court concludes on the matter of the Applicant’s application for leave and for
judicial review.
JUDGMENT
THIS COURT
ORDERS that the Release Order of the Member
of the Immigration Division of the Immigration Refugee Board, dated October 13,
2011, be stayed until the Respondent’s next statutorily required detention
review or until this Court has had an opportunity to conclude with the
Applicant’s application for leave and for judicial review
Obiter
It is
recommended, further to the representations and expressed interests of the
self-represented Respondent (who chose to be self-represented), a practicing
Buddhist, that he receive the Buddhist scriptures as well as Buddhist
meditation material from the well known author, S.N. Goenka (a former
citizen of the then Burma) such as any of the following: The Discourse
Summaries: Satipatthana Sutta Discourses (Talks from a Course in
Mahasatipatthana Sutta); The Caravan of Dhamma; Meditation Now
(Inner Peace through Inner Wisdom) and, if possible, that the Respondent and
those detaining him be able to view the film “Doing Time Doing Vipassanna”
which exemplifies evidence of the largest measure of the taking of stock of
one’s previous behaviour, or the taking of one’s ethical temperature, by those
who have gone through the Vipassanna program of S.N. Goenka.
“Michel
M.J. Shore”
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