Date: 20071025
Docket: IMM-805-07
Citation: 2007 FC 1105
Montréal, Quebec, October 25, 2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JAMIN DARRYL SHELTON BELL
(a.k.a. OLUSEGUN BOLARINWA AIKULOLA)
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision of
member Yves Dumoulin (the member) of the Immigration and Refugee Board (IRB),
Immigration Division, dated February 13, 2007, which ordered the
release of the respondent subject to certain terms and conditions.
RELEVANT
FACTS
[2]
The
respondent arrived in Canada on June 18, 2003, seeking admission as a visitor
at the St‑Bernard-de-Lacolle port of entry.
[3]
On April
5, 2006, he was arrested and charged with shoplifting and obstruction. The
latter charge was laid after he identified himself to police with debit cards
and a health insurance card in the name of Martin Savaria; whereas, after
searching him, the police found an American driver’s licence in the name of
Jamin Darryl Shelton Bell, born October 7, 1982.
[4]
A
fingerprint check with American authorities revealed that the respondent was
known in the United States as Olusegun Bolarinwa Aikulola, born in Nigeria on
March 7, 1972, and that he had 15 other assumed names.
[5]
On August
29, 2006, a conditional release order was issued by the same member whose
decision is being challenged today. The conditions included the following:
You will also have to keep the peace.
Meaning if ever you’re convicted of any other infraction you’ll find yourself
back into detention. You will also not be within twenty kilometers of the
Canadian/U.S. border.
You will have to continue to help the
department in clarifying the identity.
[6]
On January
31, 2007, the respondent was arrested by Montréal police. This arrest was based
on two outstanding warrants. He told police that his name was Jamin Darryl
Shelton Bell, which resulted in a charge of obstruction of justice.
[7]
On
February 5, 2007, he pleaded guilty to the obstruction charge. It should be
noted that the two other charges involved events prior to the August 29, 2006,
conditional release order.
IMPUGNED DECISION
[8]
At the detention
review on February 13, 2007, the member concluded that the Minister’s efforts
to identify the respondent were not reasonable and that the respondent had not
breached the conditions because when the order was made on August 29, 2006, the
conditions to keep the peace and to not be convicted of any other offence did
not mean that he could not use the name that appeared on his release order.
Therefore, the member continued the conditional release order.
ISSUES
1. Does the applicant have standing?
2. Did the member
make an error in his decision of February 13, 2007, that warrants the
intervention of this Court?
STANDARD OF REVIEW
[9]
The issue
here is whether the member erred in interpreting the conditions in his order of
August 29, 2006, releasing the respondent. Accordingly, this is a
question of mixed fact and law, focused more on the facts, since the member had
to determine whether the respondent had breached one of the conditions in the
release order. Accordingly, the appropriate standard of review is patent
unreasonableness (Canada (Minister of Citizenship and Immigration) v.
Thanabalasingham, 2003 FC 1225, at paragraphs 57 and 58).
ANALYSIS
1. Does the applicant have standing?
[10]
The burden
is on the Minister of Citizenship and Immigration to establish that she has
standing to institute the proceedings since the issue of standing was raised in
response to her application for judicial review (Sierra Club of Canada v.
Canada (Minister of Finance), [1999] 2 FC 211, at paragraph 24).
[11]
Subsection
5 (2) of the Federal Courts Immigration and Refugee Protection Rules, SOR/93‑22
(the Rules) states as follows:
|
5 (2) Unless he or she is the applicant, the
Minister responsible for the administration of the Immigration and Refugee
Protection Act in respect of the matter for which leave is sought shall
be the respondent in an application for leave.
|
5
(2) Sauf dans le cas où il est lui-même le demandeur, le ministre chargé de
l’application de la Loi sur l’immigration et la protection des réfugiés
est, à l’égard de la mesure visée par l’autorisation recherchée, le défendeur
dans toute demande d’autorisation.
|
[12]
It is
clear from this subsection that the Minister has standing to challenge the
Immigration Division’s decision. In fact, the Minister was a party to the first
release decision dated August 29, 2006, which was interpreted in the
decision at issue in this case. Therefore, in my opinion, she is the Minister
responsible for the Act.
2.
Did the member make an error in his decision of February 13, 2007, that warrants
the intervention of this Court?
[14]
However, a
reading of the police report shows that when he was arrested, the respondent
told the officers that he had changed his name and that he had documents at
home to prove it. When the officers tried to obtain the documents, the respondent
replied that they were in a safety deposit box then said that they were at his
lawyer’s office. This information was clearly wrong. He also provided a false
address to the police.
[15]
Because
the documents were never provided and the police were unable to properly
identify the respondent, they recommended that an obstruction charge be laid
against the respondent.
[16]
It should
be noted that the conditional release order of August 29, 2006, was issued
under the name of D.S. Bell. The respondent also used this name on his
application for refugee status and when he married.
[17]
The
identity of the respondent had not been established at the time the order of
August 2006 was made. The member determined that he could not continue to
detain the respondent based on this factor because the Minister’s efforts to
clarify this point had not been reasonable. In fact, the Minister had waited
until the day before the hearing to verify the respondent’s identity.
[18]
The
applicant emphasizes the following paragraph from the impugned decision:
The condition was imposed in view of
avoiding involvement in the criminal activities of the type that had been
mentioned in that decision on the 29th of August. We were talking at the time
of the fact that in Quebec, you had been convicted of fraud, of threats and
uttering forged documents. And after reading again my decision, it was the
opinion then and it is still my opinion now that in my opinion it was clear
that when I imposed the condition keep the peace and do not get convicted of
any offences, that was in regards with do not get into any other criminal
activities of the nature for which you would already have been convicted in
Quebec.
[19]
This
paragraph is ambiguous at the very least: in fact, the member explains and goes
on to specify, if not distort, one of the conditions in his decision of August
29, 2006.
[20]
On August
29, 2006, the following conditions were imposed:
(1) Present himself or herself at
the time and place that an Officer or the Immigration Division requires him/her
to appear to comply with any obligation imposed on him/her under the Act.
(2) Provide the Department
with his/her address and advise the Department before any change in that
address.
(3) Report to an Officer at the Canadian Immigration Centre nearest
to his/her residence the first working day following his/her release and then
once a week thereafter.
(If the person concerned becomes a
protected person, an Officer may, in writing, cancel this condition, change the
reporting location or reduce the reporting frequency.)
(4) Keep the peace (do not get
convicted of any offenses).
(5) Not to be found within 20 km
of US-Canada border.
(6) Collaborate with CIC\CBSA to
clarify identity.
(7) If decide to leave, has to
inform CIC/CBSA of arrangement.
[21]
On reading
the fourth condition, “do not get convicted of any offenses”, it is difficult
to conclude, as the member did, that the offences referred to only involve
criminal activities of the same nature as those that the respondent had already
been convicted of.
[22]
Interpreted
in this way, the condition could lead to absurd results. For example, if the
respondent committed a crime similar to those he had already committed, such as
fraud, forgery, or using a false identity, he would have been returned to
detention. On the other hand, if he committed a violent crime for which
imprisonment is often the norm in the criminal courts, he would have been
released. This interpretation cannot logically be sustained.
[23]
It is
unfortunate that the member’s decision of August 29, 2006, did not specify the
type of offence referred to in the conditions. It appears he did not change
these conditions in his decision of February 13, 2007, which released the
respondent.
[24]
It seems
clear to me that the member’s decision releasing the respondent is patently
unreasonable and must be set aside. Accordingly, the matter will be remitted to
a different member for reconsideration in light of these reasons.
[25]
The
parties did not submit a question for certification.
JUDGMENT
THE COURT ORDERS:
- The application for judicial
review is allowed.
- The decision of the Board
member dated February 13, 2007, is set aside.
- The matter is
remitted to the Board so that a new hearing before a different member can be
held as soon as possible in light of these reasons.
“Pierre
Blais”
Mary
Jo Egan, LLB
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