Docket: IMM-1223-16
Citation:
2016 FC 423
Fredericton, New Brunswick, April 19, 2016
PRESENT: The Honourable Mr. Justice Bell
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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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MAITHAM AZIZ
ALZEHRANI
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Respondent
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ORDER AND REASONS
(Delivered orally from the Bench on April
11, 2016)
[1]
This is a continuation of the hearing held in
Vancouver, British Columbia, on March 31, 2016, in which the Minister seeks a
stay of the Order of Member King of the Immigration Division in which he released
the respondent from detention on March 22, 2016. On March 31, 2016, I granted
an interim order for a stay until today’s date or until further order of the
Court.
[2]
I have reviewed the materials submitted by the
parties and I have carefully considered the conjunctive tripartite test set out
in RJR MacDonald Inc v Canada [1994]1 SCR 311 [RJR MacDonald] and
as further elaborated upon by the Federal Court of Appeal in Toth v Canada
(Minister of Employment & Immigration) (1988) 86 NR 302 [Toth].
[3]
I am fully cognizant of the fact that, on this
application for a stay, it is not my responsibility to determine the outcome of
the application for judicial review, but merely to assess the tripartite test
in RJR MacDonald and Toth.
[4]
Prior to addressing the fundamental elements of
the tripartite test, I consider it appropriate to set out the context. Mr.
Maitham Aziz Alzehrani, hereinafter referred to as Mr. Alzehrani, is a 44-year
old citizen of Iraq who entered the United States in 1994. In 1997 he was
convicted in the United States for domestic battery for which he was sentenced
to two years’ probation. According to police reports, this battery occurred
while he was attempting to forcibly remove his girlfriend from their
apartment. Less than a week later Mr. Alzehrani followed his girlfriend to
work and forcibly pulled her out of her friend’s vehicle and pulled her into
his car.
[5]
Later, while on probation for kidnapping,
unlawful restraint, and domestic battery, Mr. Alzehrani committed a sexual assault.
He was convicted in 1998 for this assault, which constituted forceful
intercourse with his roommate after the victim’s husband and the respondent’s
wife had left for work and while the victim’s three young children were in the
home.
[6]
Upon being released from prison for that sexual
assault, Mr. Alzehrani made his way to Canada, where on December 18, 2003, he
was ordered deported from this country for serious criminality. Despite the
deportation order, there is no evidence on the record that he voluntarily
removed himself from Canada.
[7]
Having chosen to remain in Canada after December
18, 2003, approximately one year later Mr. Alzehrani was charged with a sexual
assault that occurred on Canadian soil. This charge and subsequent conviction
was for forcing his girlfriend’s friend to have sexual intercourse with him
after having given her two ecstasy pills and following her to the bathroom of his
residence. While not wishing to embark upon all the details, the record before
me demonstrates that the respondent continued to force the victim to have
sexual intercourse with him despite both the victim and Mr. Alzehrani’s
girlfriend telling him to stop and his girlfriend attempting to pull the
respondent off the victim. He was found guilty of that offence on February 14,
2007, and sentenced to serve 78 months of imprisonment.
[8]
Unfortunately for the Canadian public, while Mr.
Alzehrani was on bail for the sexual assault, he chose to become involved in a
human smuggling operation contrary to section 117 of the Immigration and
Refugee Protection Act, SC 2001, c 27.
[9]
I note, to this point in my analysis, that Mr.
Alzehrani committed a sexual assault in the United States while on probation
and obviously under an order prohibiting him from committing any crimes. He
failed to respect a deportation order from Canadian authorities, and he
committed the offence of human smuggling again while on bail for sexual assault
and hence during a time period when he was ordered not to break the law, which should
be understood in any event.
[10]
While in prison, Mr. Alzehrani saw no necessity
to seek treatment programs for sexual offenders. In fact, the record before me
indicates that not only did he not see the necessity, he refused to participate
in such programs. Because of his refusal to participate, he remained in prison
until warrant expiry, which I understand to be on or about February 16, 2016.
[11]
The Immigration Division held, as it is required
to do, detention reviews on February 16, February 23 and March 22, 2016. The
Immigration Division ordered Mr. Alzehrani to remain in detention as a result
of the first two reviews. At the conclusion of the third review, Mr. Alzehrani
was ordered released upon conditions, and I might add that they appear to be
stringent conditions.
[12]
One aspect of those conditions, however, bears
mentioning. Because of Mr. Alzehrani’s requirement to serve his sentence until
warrant expiry, and the obvious inability of the authorities to reintegrate him
gradually into the community with appropriate courses and therapies while in
prison, the RCMP sought an order under Section 810.2 of the Criminal Code for
continued supervision of Mr. Alzehrani. The possibility of this order figured
significantly in the decision making of the Member or the Members at both the
February 23, 2016, and the March 22, 2016 detention reviews.
[13]
The prospect of the Section 810.2 Order
constituted part of the reasons why the Immigration Division concluded on March
22, 2016, that Mr. Alzehrani should be released. In fact, Mr. Alzehrani,
through his counsel, told the Member of the Immigration Division on March 22, 2016,
and I quote:
Mr. Alzehrani just mentioned that he’s going
back to court on the 31st of March. His plan on that day, as I understand it,
is to consent to the 810 application and to continue putting himself subject to
the very strict conditions that my friend mentioned in her submissions.
[14]
As is evident, that Section 810 hearing was
scheduled to be held on March 31, 2016. There can be no doubt that that Section
810.2 hearing was considered by the Member in reaching her decision.
[15]
For one reason or another, Mr. Alzehrani did not
appear at the March 31, 2016 hearing. That hearing was then scheduled for
April 7, 2016. On April 7, the Section 810.2 matter was adjourned to another
date in April. Mr. Alzehrani did not consent to the Section 810 application as
he had undertaken to do before the Immigration Division Member on March 22,
2016.
[16]
In her decision, Member King of the Immigration
Division framed the issue in the following terms:
The reference has been made to you as being
an untreated sex offender, but the point of detention under the Immigration and
Refugee Protection Act is not to detain you for past offences as punishment but
rather to determine whether you’re likely to pose a present or future danger to
the public if released […]
[17]
That was the question. Her answer then is as
follows:
[…] and with the degree of supervision
that’s going to be in place in your case I really can’t see that there is much
risk of that occurring. Your freedom will be quite seriously restricted under
these conditions.
[18]
And on the previous page to that quote the
Member said as follows:
The alternative here is really very
stringent. I’m looking at Exhibit C-2. You will have the 810 Provincial Coordinator
monitoring you, monitoring your place of residence.
[…] There are no-contact orders in place
with respect to any of the victims of your offences.
[…]
You are to immediately advise your bail
supervisor of all close or intimate relationships.
[…]
You’re on strict abstinence conditions with
respect to alcohol or controlled substances.
[19]
I now turn to the tripartite test and consider:
(1) whether the Minister has made out a serious issue to be tried; (2) whether
there is irreparable harm; and (3) whether the balance of convenience favours
the granting of the order sought.
[20]
In my respectful view, the Minister has made out
a case for a serious issue. Member King diverges from the two previous members
with respect to the issue of Mr. Alzehrani’s release without, in my view,
providing sufficient reasons.
[21]
More importantly, however, I am of the view the
Minister has established a serious issue to be tried solely on the basis of the
conclusion that the danger to the public has been mitigated to the extent she
claims. I say that for the following reasons.
[22]
First, her conclusion presumes Mr. Alzehrani has
respected his undertaking to consent to the Section 810.2 Order on March 31,
2016. Not only did he not consent to that Order on March 31 he did not
do it on April 7, 2016, and we do not know when, if ever, he is going to
consent.
[23]
Second, much of Member King’s decision is based
upon undertakings by Mr. Alzehrani. Those undertakings include such things as
no-contact orders, notifying bail supervisors if he has an intimate
relationship with someone, abstaining from alcohol and controlled substances,
and others. The fact these personal undertakings by Mr. Alzehrani figure in her
analysis without any assessment of the failure by Mr. Alzehrani to respect his
undertakings to the Court and to respect Canadian laws as they relate to
committing sexual assaults while on probation, committing human smuggling while
on bail, and failing to respect a deportation order from Canadian authorities,
causes me to conclude that the Minister raises a serious issue to be tried with
respect to the danger this man poses and the failure by Member King to put in
the balance Mr. Alzehrani’s failure to respect the laws when she concludes that
“there is not much risk” of him not respecting the terms of release.
[24]
I therefore conclude that the Minister has
established a serious issue to be tried.
[25]
With respect to the issue of irreparable harm,
my view is that the Minister has established there is a serious risk to the
Canadian public should Mr. Alzehrani be released. There is also a serious risk
to the credibility of the Canadian Immigration system should Mr. Alzehrani be
released pending the conclusion of the judicial review application or until
further order of the Court. The Minister has the responsibility to remove Mr.
Alzehrani, just as Mr. Alzehrani had a responsibility to leave the country in
2003 but yet he remains here. This is one of those cases where the issue of
irreparable harm clearly follows the serious issue to be determined.
[26]
Given Mr. Alzehrani’s demonstrated lack of
respect for the law, and given Member King’s failure to put in the balance his
failure to respect terms of previous releases, it is evident that the balance
of convenience favours the continued detention of Mr. Alzehrani.
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