Docket: IMM-3026-16
Citation:
2016 FC 880
Vancouver, British Columbia, July 27, 2016
PRESENT: The Honourable Mr. Justice Martineau
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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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JACOB DAMIANY
LUNYAMILA
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Respondent
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ORDER AND REASONS
[1]
This is a motion on behalf of the applicant, the
Minister of Public Safety and Emergency Preparedness [Minister], for an order of
the Court staying the order of Member King of the Immigration Division [ID] of
the Immigration and Refugee Board, dated July 14, 2016, releasing the
respondent, Mr. Jacob Damiany Lunyamila, from detention [the Release order],
pending final determination of the underlying leave and judicial review
application.
[2]
The respondent is not Canadian. He came from
Rwanda and claimed refugee status in 1994. From the date of his entry to
Canada, he has not had Rwandan documents. Be that as it may, in 1996, he was
determined to be a Convention refugee. Between 1999 and 2013, he incurred 54
criminal convictions, while several of the offences involved violence or
threats of violence. In 2012, following the issuance of a report pursuant to
subsection 44(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], the ID issued a Deportation order after determining the respondent
was inadmissible due to criminality under paragraph 36(2)(a) of the IRPA. In
2014, a Minister’s Delegate issued an opinion pursuant to paragraph 115(2)(a)
of the IRPA that the respondent posed a danger to the public in Canada and that
the risk to the Canadian public outweighed the risk of return and any
humanitarian and compassionate consideration [the Danger opinion].
[3]
The Canada Border Services Agency [CBSA] is
obliged by virtue of section 48 of the IRPA to remove the respondent as soon as
possible. From approximately May 2014 to March 2015, CBSA attempted to remove
the respondent from Canada and return him to Rwanda, but this proved to be
impossible due to the lack of proper travel documents issued by the Rwandan
authorities. As the respondent arrived in Canada without documentation, his
cooperation in requesting appropriate travel documents from Rwanda immigration
authorities was necessary, but not forthcoming.
[4]
The respondent has been in immigration detention
for immigration purposes most of the time since June 19, 2013 (except a brief
release of two days in September 2013 pursuant to a detention review order
which the respondent neglected to respect). According to uncontradicted
evidence on record, the respondent is a flight risk and a danger to public
safety. However, since January 1, 2016, he has been ordered to be released five
times by the ID on the basis, essentially, that detention had become
indefinite.
[5]
More particularly, at detention review hearings
held on January 5, 2016 and on February 2, 2016, ID Member Nupponen
ordered the release of the respondent on conditions. On March 1, 2016, ID
Member King again ordered the respondent's release from detention on conditions
(albeit not as stringent as the conditions imposed by Member Nupponen). The
Federal Court ordered all of the aforementioned release decisions stayed
pending final determination of the Minister’s application to judicially review
each of the release orders, as appears from the stay orders that were
respectively made by Mr. Justice Shore on January 8, 2016, Mr. Justice Noël on
February 16, 2016 and Mr. Justice Harrington on March 1, 2016.
[6]
Indeed, on March 3, 2016, following an expedited
hearing of the matter, Mr. Justice Harrington granted the judicial review of
the January and February 2016 release orders in files IMM-63-16 and IMM-502-16
and issued a stay of proceeding in the third file, IMM-913-16: Canada
(Minister of Public Safety and Emergency Preparedness) v Lunyamila, 2016 FC
288 [Lunyamila]. The net result was that the respondent was to remain in
detention in accordance with the stays of the release orders and until another
member of the ID would have conducted a fresh detention hearing and
reconsidered the matter in light of the reasons given by the Court in Lunyamila.
The judicial review proceeding with respect to the March 1, 2016 release
decision has been held in abeyance (File IMM-913-16) in view of the stay of
proceeding ordered by Justice Harrington which is still outstanding and has not
been lifted by the Court.
[7]
Indeed, there was a detention review hearing on
March 31, 2016 before ID Member McPhalen. For the fourth time, the ID Member
ordered the respondent's release from detention. In addition to certain
standard terms and conditions, Member McPhalen placed additional conditions on
the respondent's release, including that he “complete a
statutory declaration stating his willingness to return to Rwanda”,
which the respondent refused to sign. Madam Justice Kane ordered a stay of
Member McPhalen’s aforementioned release decision on April 20, 2016. The leave
application file with respect to the March 31, 2016 release decision (IMM-1378-16)
is ready for determination by the Court as the applicant and respondent
memoranda have been filed and there has been no reply.
[8]
In the meantime, the ID informed counsel that in
light of the order staying the March 31, 2016 release order “pending a final determination of the application for
judicial review” in file IMM-1378-16, “the ID
will not hold the detention review that is currently scheduled for April 25,
2016 and will not hold a hearing until the application for judicial review of
the March 31, 2016 decision is finally disposed of”. On June 10,
2016, Justice Kane issued the following oral directions:
My order of April 20, 2016 staying the
release Order dated March 31, 2016 does not change the operation of subsection
57(2) of the Immigration and Refugee Protection Act. The Order stays
only the decision of March 31, 2016 pending the final determination of the
application for judicial review of that decision.
The last paragraph of the Order, notes the
next scheduled statutory review of his detention on April 28, 2016. The
paragraph was not meant to suggest that this, and subsequent statutory reviews
not occur.
[9]
While those four release orders were stayed by
the Court, a statutory review of the continuous detention effectively took
place for a fifth time in 2016. However, contrary to the findings earlier made
by three other ID Members, on June 6, 2016, ID Member Ko found that the respondent’s
ongoing detention was not, in fact, indefinite, and accordingly ordered the respondent’s
continued detention. In her reasons, Member Ko referenced, inter alia,
new evidence from a linguistic analysis demonstrating that the respondent may
be of Tanzanian descent and that additional steps were being taken by the
Minister in an effort to confirm his identity, including a forthcoming “on the ground” investigation in Tanzania. She ordered
that the next detention review be conducted on July 14, 2016. The decision of
Member Ko was not challenged by the respondent, apparently for lack of
financial resources.
[10]
On July 14, 2016, ID Member King heard the
matter and made the Release order whose reasonableness is attacked by the
Minister in the herein judicial review proceeding. Member King disagreed with
ID Member Ko’s decision. Member King reached a similar conclusion as herself
and Member Nupponen and McPhalen had arrived at in four of the five previous
detention reviews conducted in 2016. She concluded that contrary to section 7
of the Canadian Charter of Rights and Freedoms [Charter], and as
those rights are expressed in section 248 of Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations], the continuous
detention of the respondent has become indefinite despite the efforts made by
the Minister and the lack of cooperation by the respondent.
[11]
Member King thus ordered the respondent’s
release from detention on what can be termed as “habitual conditions” of
release, that is: the respondent must present himself at the date, time and
place that a CBSA officer requires him to appear to comply with any obligation
imposed on him under IRPA, in his being removed if necessary; that the
respondent is to provide the CBSA prior to release, with his residential
address and advise CBSA in person of any change in address before making any
change; that he is to report to an officer of the CBSA office within 48 hours
of his release; that he report once a week; that if there is a stay by the
Court of the Release order and if another detention review hearing is required,
it will be held before the ID in August 11, 2016, at 11 o’clock. On the other
hand, Member King refused to order the additional conditions of release
proposed by the CBSA’s representative or previously included in the release
orders earlier made in February and March 2016 by Members Nupponen and
McPhalen.
[12]
The respondent is still in detention today. On
July 14, 2016, on an urgent basis, after a review of the materials and letter
filed at that time on behalf of the Minister, Mr. Justice Russell granted an
interim stay of the Release order and directed that the matter be decided by
the undersigned judge after hearing the parties in Vancouver, B.C. on July 26,
2016.
[13]
I have considered the totality of the evidence
submitted by the two parties, as well as the representations by counsel. The
test for the granting of a stay is well known. As set out in RJR-MacDonald
Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 and as articulated by the
Federal Court of Appeal in Toth v Canada (Minister of Employment and
Immigration) (1988) 86 NR 302 (FCA), the applicant has to satisfy the Court
that all three of the following conditions are met: there is a serious issue
raised; the applicant will suffer irreparable harm; the balance of convenience
favours the applicant.
[14]
I have decided to allow the present motion and
grant a stay in this case.
[15]
First, I am satisfied that the Minister has
established one or more serious issues, being notably:
i.
Member King allegedly made reviewable errors in
determining that the respondent’s detention had become indefinite and this
constituted a breach of section 7 of the Charter, and in dismissing the
evidence relevant to the factors mentioned in section 248 of the Regulations
advanced by the Minister and also with respect to the continuous efforts of the
Minister to establish the respondent’s identity and the new steps taken with
the authorities of Tanzania;
ii.
Member King allegedly failed to provide clear and
compelling reasons for deviating from the June 16, 2016 decision of Member Ko;
iii.
Considering the danger to the public, Member
King allegedly failed to impose reasonable terms and conditions of release,
including that the respondent not engage in any activity that results in a
conviction under any Act of Parliament, that he complete a statutory
declaration and cooperate with the CBSA with respect to the identity
information on documents required to obtain travel documents to Rwanda, and
that he comply with any reasonable condition with respect to his alcohol
problem and directly in relation with the risk of violence and previous
criminal convictions.
[16]
Secondly, I am also satisfied that the Minister
has established with clear and convincing non-speculative evidence that it
would constitute irreparable harm to release the respondent at the present time
on the minimal terms and conditions currently included in the Release order of
July 14, 2016. The irreparable harm arises from the fact that the Minister has
presently serious concerns with respect to the danger to the public related to
the respondent, and that the minimal conditions of the Release order do not
address same.
[17]
Thirdly, the balance of convenience rests with
the Minister. The respondent shall continue to have his regular detention
reviews and the Minister will continue his investigation. If the Minister’s
concerns are satisfactorily addressed during the future detention review
hearing that is supposed to take place before the ID on August 11, 2016, the
respondent shall be released from detention considering that the present
conditions of release already address the issue of flight risk (e.g. weekly
reporting obligations).
[18]
Indeed, the respondent is entitled to a
detention review every 30 days whether or not a stay of the release order is
granted by this Court. In Canada (Minister of Citizenship and Immigration) v
Thanabalasingham, 2004 FCJ No 15, the Federal Court of Appeal provided
guidance with respect to this issue. Writing for the Court, Rothstein J.A. (as
he then was) noted:
At each detention review made pursuant to
sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001,
c. 27, the Immigration Division must come to a fresh conclusion whether the
detained person should continue to be detained. Although an evidentiary burden
might shift to the detainee once the Minister has established a prima facie
case, the Minister always bears the ultimate burden of establishing that the
detained person is a danger to the Canadian public or is a flight risk at such
reviews. However, previous decisions to detain the individual must be
considered at subsequent reviews and the Immigration Division must give clear
and compelling reasons for departing from previous decisions.
[19]
In view of the uncertainty or confusion apparently
created by the wording of the stay orders previously made by my colleagues, I
have decided to use wording similar to that of Mr. Justice Zinn’s stay order in
Canada (Citizenship and Immigration) v B479, 2010 FC 1227 at para 30.
Accordingly, the stay granted today by the Court shall be granted until the
earlier of either the final determination of the Minister’s application for
leave and judicial review or an order of a Member of the ID releasing the
respondent from detention following a statutorily required review hearing.
[20]
I can only urge the parties to take appropriate
steps to have this matter heard on the merits expeditiously, and as it may be
proper, decided at the same time and by the same judge who will hear the other
judicial review applications that are presently pending and raise a set of common
issues, as the case may be.
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