Hemond v. Canada (Citizenship and Immigration)

Hemond v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-12-06
Neutral citation
2024 FC 1980
File numbers
IMM-5926-23, IMM-8969-22
Decision Content
Date: 20241206
Dockets: IMM-8969-22
IMM-5926-23
Citation: 2024 FC 1980
Ottawa, Ontario, December 6, 2024
PRESENT: Mr. Justice Norris
Docket: IMM-8969-22
BETWEEN:
FREDERIC JOSEPH HEMOND
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Intervener
Docket: IMM-5926-23
AND BETWEEN:
HOLLAND GEOFFREY WILLIAMSON RHODES
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Intervener
JUDGMENT AND REASONS
I. OVERVIEW [1] Does a detainee have the right not to testify in a detention review hearing conducted under section 57 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)? The Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) has not provided a consistent answer. Sometimes, members have held that detainees are compellable witnesses at detention reviews. In the view of some members, paragraph 127(c) of the IRPA obliges a detainee to answer any questions put to them at a detention review hearing, failing which they may be found guilty of an offence under section 128 of the IRPA and be subject to a fine, imprisonment, or both. Some members have also held that, if a detainee refuses to testify, an adverse inference can be drawn from this, effectively using the detainee’s silence as a make-weight on the side of the scale favouring continued detention. Other times, members have held that a detainee is not a compellable witness in a detention review; the detainee is entirely free to choose whether to testify. As the members who take this view also often observe, remaining silent risks leaving them with an incomplete picture of the factual circumstances of the case, which can be to the detainee’s detriment, but this is a risk the detainee is free to run.
[2] The applicants are foreign nationals who were arrested and detained under the IRPA. At their respective detention reviews, which were conducted by the same ID member, the member ruled that the applicants would be required to testify. Over the objections of their counsel, the member held that paragraph 127(c) of the IRPA obliged the applicants to answer the member’s questions. (This provision states that no person shall knowingly “refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.”) The applicants acceded to the rulings and answered the member’s questions. The member ordered the continued detention of both applicants. In doing so, he relied in part on information that had been elicited from the applicants during the detention review hearings.
[3] The applicants now apply under subsection 72(1) of the IRPA for judicial review of the decisions continuing their detention. They submit that the decisions should be set aside because the ID’s determination that they were required to testify is unreasonable. Since the applications raised common legal issues, they were ordered joined and are being determined together. The Canadian Association of Refugee Lawyers (CARL) was granted leave to intervene in both matters.
[4] There is no issue that the applications for judicial review are moot; at subsequent detention reviews, both applicants were released from detention. The applicants submit, however, that the Court should exercise its discretion to determine the applications on their merits in order to provide guidance on an important legal issue that is evasive of review. The respondent submits that the applications should be dismissed as moot. In the alternative, the respondent submits that the applications should be dismissed because the decisions under review are reasonable.
[5] For the reasons that follow, the applications for judicial review will be allowed. I am satisfied that the applications should be decided on their merits despite their mootness. I also agree with the applicants that the ID member’s decisions to require them to testify at their respective detention review hearings are unreasonable because they unjustifiably limited the applicants’ rights under section 7 of the Canadian Charter of Rights and Freedoms. As a result, the decisions continuing the applicants’ detentions must be set aside. In the circumstances, no other order is requested or required.
[6] The parties have proposed questions for certification under paragraph 74(d) of the IRPA. While I do not agree that the questions proposed by the parties meet the test for certification, I am satisfied that this matter does give rise to a certifiable question. This will be discussed further at the conclusion of these reasons.
II. BACKGROUND A. IMM-8969-22 [7] Mr. Hemond is a citizen of the United States. He came to the attention of the Canada Border Services Agency (CBSA) after he was arrested on September 3, 2022, by the Toronto Police Service following an alleged assault in a city park.
[8] While Mr. Hemond was in criminal detention, the CBSA wrote a report under subsection 44(1) of the IRPA alleging that he is inadmissible to Canada under paragraph 41(a) of the IRPA (non-compliance with the Act) for having failed to present himself for examination on entry to Canada. The CBSA alleged that Mr. Hemond had entered Canada illegally on a freight train via the Vermont/Quebec border about a month earlier.
[9] On September 6, 2022, Mr. Hemond was released on bail on the criminal charge. He was then transferred to the custody of the CBSA and placed in immigration detention.
[10] Mr. Hemond’s 48-hour detention review was held on September 8, 2022. During the hearing, over the objection of Mr. Hemond’s counsel, the member ruled that Mr. Hemond was a compellable witness and was required to answer the member’s questions. Mr. Hemond answered the questions the ID member put to him. The member then asked counsel if they had any questions “arising out of” his. Counsel for Mr. Hemond asked him a single question (whether, if released, he would appear at his admissibility hearing or any other immigration proceeding). Counsel for the Minister then questioned Mr. Hemond about whether he had made arrangements to return to the United States yet and whether he had a criminal record in the United States. In ordering Mr. Hemond’s continued detention, the member relied, in part, on information that had been elicited from him during the detention review hearing.
[11] On September 13, 2022, Mr. Hemond filed the present application for leave and for judicial review challenging the 48-hour detention review decision.
[12] Mr. Hemond’s 7-day detention review was held on September 14, 2022, before a different member of the ID. He was ordered released. That release order was executed and Mr. Hemond is no longer detained. In fact, it appears that he is no longer in Canada, having returned to the United States.
B. IMM-5926-23 [13] Mr. Rhodes is also a citizen of the United States. He has a history of repeated entries to and removals from Canada dating back to 2018. For present purposes, it suffices to note that he came to the attention of the CBSA again on March 29, 2023, after he had been arrested and criminally charged in Toronto. After being granted bail on his criminal charges, on April 6, 2023, Mr. Rhodes was transferred to the custody of the CBSA and placed in immigration detention. A deportation order was issued on the same date.
[14] Mr. Rhodes’s 48-hour detention review took place on April 11, 2023. The ID member ordered his continued detention.
[15] Mr. Rhodes’s 7-day detention review took place on April 17, 2023, before a different ID member. During the hearing, over the objection of his counsel, the member ruled that Mr. Rhodes was a compellable witness. The member then told Mr. Rhodes he was “calling [him] as a witness to give evidence at this detention review.” Mr. Rhodes agreed to answer the member’s questions. After concluding his questioning of Mr. Rhodes, the member asked counsel for Mr. Rhodes and counsel for the Minister if they had any questions for him. Both did. Mr. Rhodes answered all the questions that were put to him. In ordering Mr. Rhodes’s continued detention, the member relied, in part, on information that had been elicited from him during the detention review hearing.
[16] On May 10, 2023, Mr. Rhodes filed the present application for leave and for judicial review challenging the 7-day detention review decision.
[17] Subsequently, on July 21, 2023, the ID ordered that Mr. Rhodes be released from detention on terms and conditions. After he was released, Mr. Rhodes failed to report as required and a warrant for his arrest was issued. The warrant was executed on or about March 9, 2024, and Mr. Rhodes was placed back in immigration detention. His detention was continued after his 48-hour detention review, which took place on March 12, 2024. No information about his status since then has been provided to the Court.
III. PRELIMINARY ISSUE: SHOULD THE APPLICATIONS BE DISMISSED AS MOOT? [18] The doctrine of mootness “reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard” (Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 17).
[19] As is well known, when the issue of mootness is raised, the analysis proceeds in two stages. The first question is whether a live controversy remains that affects or may affect the rights of the parties. If a live controversy remains, the matter is not moot and, other things being equal, it should be decided on its merits. On the other hand, if no live controversy remains, the proceeding is moot. This triggers the second stage of the inquiry. At that stage, the court considers whether it should exercise its discretion to decide the matter on its merits despite its mootness (Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 353-63; Democracy Watch v Canada (Attorney General), 2018 FCA 195 at para 10).
[20] As already noted, there is no issue that the present applications for judicial review are moot. The decisions under review have been superseded by subsequent orders of the ID, whether release orders, detention orders, or both. When these applications for judicial review were commenced, there was a tangible and concrete dispute between the parties over whether the detention orders under review should be upheld or set aside. With the release of the applicants pursuant to subsequent orders of the ID (and, in the case of Mr. Rhodes, with his subsequent arrest and detention), the substratum of the judicial review applications has disappeared (Borowski, at 357). A decision on the reasonableness of the detention orders under review would have no practical effect for the parties because those orders no longer have any legal force.
[21] Even though the applications for judicial review are moot, the applicants ask me to exercise my discretion to determine them on their merits. As I have already said, I am satisfied that I should do so.
[22] In Borowski, the Supreme Court of Canada formulated guidelines for the exercise of the Court’s discretion to hear and determine a matter despite its mootness. Three factors were identified: (1) whether there is still an adversarial context; (2) the concern for judicial economy; and (3) whether deciding the matter on its merits would be consistent with the court’s adjudicative role (at 358-63). The Supreme Court emphasized that this list is not exhaustive; “more than a cogent generalization is probably undesirable because an exhaustive list would unduly fetter the court’s discretion in future cases” (at 358). Further, the application of these factors is not a “mechanical process” and the factors may not all support the same result or bear the same weight in a given case (at 363). The ultimate question is whether it is in the interests of justice to address a matter that is moot (Doucet-Boudreau, at para 17).
[23] In the present cases, the first Borowski factor favours deciding the applications on their merits. There is no question that an adversarial context is still present. The parties continue to be fully engaged and both sides have advanced their positions on the merits of the judicial review applications very ably.
[24] The second Borowski factor also favours deciding the applications on their merits. Indeed, in my view, it strongly favours doing so.
[25] The jurisprudence recognizes that it can be an effective use of judicial resources to decide a moot case on its merits when it raises an important issue that is evasive of review: see Mission Institution v Khela, 2014 SCC 24 at para 14; R v Oland, 2017 SCC 17 at paras 17-18; R v Myers, 2019 SCC 18 at paras 13-14; and R v Penunsi, 2019 SCC 39 at paras 10-11.
[26] As with judicial interim release under the Criminal Code, issues relating to detention under the IRPA are evasive of judicial review due to the inherently temporary nature of detention orders (Fomenky v Canada (Public Safety and Emergency Preparedness), 2018 FC 1160 at para 28; Jama v Canada (Attorney General), 2022 FC 37 at para 65). Decisions affecting immigration detainees can also be evasive of review while there is still a live controversy because detainees may be removed from Canada before the matter can be heard. For example, in Brown v Canada (Citizenship and Immigration), 2020 FCA 130, which concerned a challenge to the constitutionality of the IRPA detention review regime under sections 7 and 9 of the Charter, the Federal Court of Appeal noted that the application judge had raised the issue of whether the challenge was moot given that Mr. Brown had been removed from Canada to Jamaica by the time of the hearing. The application judge exercised his discretion to decide the constitutional issues raised in the case despite the fact that it had likely become moot due to Mr. Brown’s removal to Jamaica. The Federal Court of Appeal stated: “No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion” (at para 7). Likewise, in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which concerned the availability of habeas corpus for immigration detainees, Mr. Chhina had been removed from Canada by the time the matter reached the Supreme Court of Canada. Justice Karakatsanis observed: “Given the importance of clearly delineating the exceptions to habeas corpus, it is appropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to this Court doing so” (at para 15).
[27] Transcripts of detention review hearings filed by the applicants demonstrate that different ID members have taken diametrically opposing views concerning whether a detainee is a compellable witness. Indeed, Mr. Rhodes himself was told two different things by two different members. The member presiding over his 48-hour detention review explained that it was up to him whether to testify or not while the member presiding over his 7-day detention review told him he was required to answer the member’s questions.
[28] IRB Chairperson Guideline 2: Detention (last amended April 2021) does not offer any guidance beyond stating that both parties “have the right to present relevant evidence at a detention review” and that members “should ensure that the person concerned understands and has an opportunity to testify, present evidence and counter the Minister’s evidence, including by presenting their own sworn testimony, calling witnesses, and/or cross-examining the Minister’s witnesses” (at para 7.3.1). The issue of compellability is not addressed, one way or the other. A policy and procedure manual prepared by the Government of Canada, ENF-3 Admissibility Hearings and Detention Reviews (last updated March 3, 2022), states that the compellability of the person concerned “has not been definitively resolved for detention reviews” (at para 7.10).
[29] As things currently stand, the legal rights of a detainee at a detention review appear to depend entirely on the identity of the presiding ID member and, as a result, can vary from one detention review to the next. From a rule of law perspective, this is a highly unsatisfactory state of affairs. As already noted, by their very nature, the ID’s determinations in detention review hearings are evasive of review. The inconsistency in the ID’s approaches to whether a detainee is a compellable witness warrants the expenditure of the necessary resources to decide these cases on their merits despite the fact that they are moot.
[30] The respondent submits that it would be more appropriate to wait for the issue to recur so that another litigant can then bring an expedited application for judicial review and have the matter determined before it becomes moot. I do not agree. While expedited applications for judicial review certainly have their place (especially in the detention review context), I do not see how it would be in the interests of justice to insist that the legal issues raised by the present applications be decided under such exigencies when it is not necessary to do so. Moreover, the present applications were fully briefed by the parties and have now been heard by the Court. If they were to be dismissed as moot at this stage, all of the resources already expended by the parties and by the Court would be thrown away. This would not promote either judicial economy or the interests of justice.
[31] Finally, the third Borowski factor does not weigh against deciding these applications on their merits. The Supreme Court held that a court “must demonstrate a measure of awareness of its proper law-making function” and “must be sensitive to its role as the adjudicative branch in our political framework” (Borowski, at 362). The Court continued: “Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch” (ibid.). The danger of such an intrusion was clear in Borowski, which concerned a moot challenge to the constitutionality of legislation governing abortion. There is no such danger here. The issues and arguments raised by the applicants do not invite the Court to stray into the sphere of the legislature or the executive; rather, they fall squarely within the purview of the Court sitting in judicial review of decisions of the ID.
[32] For these reasons, I agree with the applicants that the applications for judicial review should be determined on their merits.
IV. STANDARD OF REVIEW [33] The parties submit that the ID’s decisions should be reviewed on a reasonableness standard. Given how the applications for judicial review have been framed, and subject to what follows, I agree.
[34] The applicants accept that the ID has a discretionary power to compel testimony from a detainee. However, they submit that, in exercising this discretion, the ID must balance the protections guaranteed to a detainee by section 7 of the Charter against the objectives of the IRPA. As will be discussed below, the protection at issue here can be characterized in different ways but the fundamental premise of the applicants’ argument is that section 7 guarantees an immigration detainee the right not to be required to testify at a detention review, whether by the ID member or by Minister’s counsel. The applicants submit that the decisions under review are unreasonable because they fail to strike a proportionate balance between this right and the statutory objectives. In presenting their applications for judicial review in this way, the applicants draw on the analytical framework established in Doré v Barreau du Québec, 2012 SCC 12 at paras 55-56; see also Loyola High School v Quebec (Attorney General), 2015 SCC 12 at paras 35-42, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 57-59.
[35] Under the Doré framework, a preliminary issue is whether a decision under review engages the Charter by limiting its protections: see Doré, at para 57; Loyola, at para 39; Trinity Western, at para 60; and Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 at paras 61-67. If the decision does not limit Charter protections, that is the end of the analysis; there is no need to engage in the balancing exercise described in Doré and the cases that follow it.
[36] Here, there is no issue that section 7 of the Charter applies to detention review hearings or that those proceedings must be conducted in accordance with the principles of fundamental justice. The applications turn on the whether the principles of fundamental justice governing detention review hearings under the IRPA entail that a detainee cannot be required to testify. If they do, the protections of section 7 would be limited by requiring a detainee to testify. The reasonableness of the ID’s decisions to require the applicants to testify would then depend on whether the ID proportionately balanced the Charter protection with the statutory objectives. On the other hand, if the principles of fundamental justice do not protect an immigration detainee from being required to testify, the decisions requiring the applicants to testify would not limit the protections of section 7 and, as a result, there would be no need to engage in any balancing under the Doré framework.
[37] I agree with the applicants that, when the question is whether an administrative decision limits the protections of a Charter right, there cannot be a range of reasonable outcomes: either the decision limits the protections or it does not. There can be only one answer and it is the reviewing court’s responsibility to provide it (subject to any appeal, of course). I do not understand the respondent to suggest otherwise. In my view, this approach is consistent not only with the Doré framework but also with the Supreme Court’s recent statements concerning how a court should approach constitutional questions on judicial review: see Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 55-56; see also Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, 2024 SCC 13 at para 45 (per Jamal J) and paras 94-97 (per Côté J); and York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at paras 62-71. Whether a limit on a Charter right is proportionate and justified under the Doré framework is a separate question.
[38] In sum, the standard of review is reasonableness because the ultimate issue is whether the decisions under review are reasonable in the sense just discussed. To establish that the decisions under review are unreasonable, the applicants must first establish that the decisions limited protections guaranteed by section 7 of the Charter. If the Court finds that this is the case, it must then consider whether, as the applicants contend, the decisions are unreasonable because they do not reflect a proportionate balancing of the Charter protections at play with the statutory objectives.
V. ANALYSIS A. The statutory scheme for detention reviews under the IRPA [39] Section 57 of the IRPA provides as follows:
Review of detention
Contrôle de la détention
57 (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.
57 (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite.
Further review
Comparutions supplémentaires
(2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.
(2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent.
Presence
Présence
(3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.
(3) L’agent amène le résident permanent ou l’étranger devant la section ou au lieu précisé par celle-ci.
[40] Under subsection 58(1) of the IRPA, a detainee shall be released from detention unless the ID is satisfied that one or more of the grounds for detention identified in paragraphs (1)(a) to (e) have been established. Subsection 58(1) states:
Release — Immigration Division
Mise en liberté par la Section de l’immigration
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
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) they are a danger to the public;
a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique;
(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);
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) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality;
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, pour atteinte aux droits humains ou internationaux, pour sanctions ou pour grande criminalité, criminalité, criminalité transfrontalière ou criminalité organisée;
(d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — 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; or
d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — 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;
(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.
e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.
[41] In Brown, the Federal Court of Appeal found that the meaning of subsection 58(1) is clear: “detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default” (at para 32).
[42] The prescribed factors referred to in subsection 58(1) are found in sections 244 to 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR). These provisions identify the factors to be taken into consideration when assessing flight risk (section 245), danger to the public (section 246), and whether identity has not been established (section 247). Under the heading “Other Factors”, section 248 provides as follows:
Other factors
Autres critères
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:
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) the reason for detention;
a) le motif de la détention;
(b) the length of time in detention;
b) la durée de la détention;
(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;
c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps;
(d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé;
(e) the existence of alternatives to detention; and
e) l’existence de solutions de rechange à la détention;
(f) the best interests of a directly affected child who is under 18 years of age.
f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.
[43] Subsection 58(3) provides that, if the ID orders a detainee’s release, “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.”
[44] Summarizing the import of these provisions, the Court of Appeal stated in Brown:
The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release.
(Brown, at para 37)
[45] The Court of Appeal added the following about the legal burden on the Minister:
The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.
(Brown, at para 118)
[46] The Court of Appeal also held that, under the statutory scheme, the legal burden never shifts onto the detainee. At most, the detainee may be faced with “the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome” because introducing evidence in favour of release could be in the detainee’s interest when the evidence establishes a ground for detention and suggests that detention is justified under section 248 of the IRPR (Brown, at para 121). To be clear:
The legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.
(Brown, at para 122)
[47] The fact that the legal burden never shifts from the Minister was one of the key reasons why the Court of Appeal concluded in Brown that the detention review scheme is consistent with section 7 of the Charter.
B. The ID’s power to compel witness testimony [48] The applicants accept that the ID has the power to compel witness testimony. They submit that this power is conferred by section 165 of the IRPA. This provision states that members of the ID (among others) “have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.” Section 4 of the Inquiries Act, RSC 1985, c I-11 provides:
Powers of commissioners concerning evidence
Audition de témoins
4 The commissioners have the power of summoning before them any witnesses, and of requiring them to
4 Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de :
(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and
a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile;
(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.
b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés.
[49] I agree with the applicants that these provisions are the source of the ID’s power to require a witness to testify, whether at the behest of a party or at the member’s own behest. Justice Barnes reached the same conclusion in B095 v Canada (Citizenship and Immigration), 2016 FC 962 at para 21, and in Bruzzese v Canada (Public Safety and Emergency Preparedness), 2016 FC 1119 at para 13; see also Suresh v Canada (Public Safety and Emergency Preparedness), 2017 FC 28 at para 70. I also agree with the applicants that, in their detention review hearings, the ID member erred in relying on the combined operation of paragraph 127(c) and section 128 of the IRPA as the authority to compel them to testify. Setting aside for the moment the question of whether the applicants were compellable at all, these provisions do not confer any authority on the ID to require a witness to testify. Rather, they provide an enforcement mechanism for when a witness who is legally required to answer questions at an examination or at a proceeding under the IRPA refuses to do so. This is a separate matter from the power of the ID to require a witness to testify in the first place. That power is conferred by section 165 of the IRPA. The respondent does not suggest otherwise.
[50] The applicants accept that, if an immigration detainee elects to testify at their detention review hearing, they can be questioned by Minister’s counsel and by the ID member. They also accept that, at least in principle, a detainee is a compellable witness at their detention review hearing, whether at the behest of counsel for the Minister or, as occurred in their own cases, at the behest of the ID member. There is no explicit reference in the IRPA to the compellability of witnesses at the ID (Suresh, at para 70). In this respect, the ID may be contrasted with the Refugee Protection Division (RPD), which is expressly granted the power to “question the witnesses, including the person who is the subject of the proceedings” (IRPA, paragraph 170(d.1)). Thus, while there is nothing in the governing statutory provisions that expressly authorizes the ID to require a detainee to testify, neither is there anything that prohibits this. The difficult question, and the determinative issue in these applications, is whether section 7 of the Charter constrains the exercise of the ID’s power to require a detainee to testify at a detention review hearing. I turn to this now.
C. Does section 7 of the Charter constrain the ID’s power to compel testimony from a detainee? [51] Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[52] Since liberty is at stake in a detention review under the IRPA, there is no issue that section 7 of the Charter is engaged (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at paras 12-13 and 18). Consequently, any deprivation of liberty brought about by a detention review must be in accordance with the principles of fundamental justice.
[53] While accepting, as it must, that detention review hearings engage the protections of section 7, the respondent submits that the applicable principles of fundamental justice must be determined contextually. According to the respondent, the principles and values the applicants draw upon to support their challenge to the ID’s decisions are inapplicable to detention review proceedings under the IRPA. The respondent submits that the proposition that an immigration detainee has a Charter right not to be required to testify in a detention review hearing should, therefore, be rejected.
[54] There is no question that the demands of fundamental justice must be determined contextually. I am not persuaded, however, that a principle of fundamental justice that protects detainees from testimonial compulsion in detention review hearings is incompatible with the IRPA context, as the respondent contends. On the contrary, as I will explain, it is required because of what is at stake in a detention review under the IRPA – the detainee’s liberty.
[55] In advancing their challenge to the ID’s decisions, the applicants submit that the principles of fundamental justice include a right to silence when one is under the coercive control of the state. In the criminal law context, this is indisputable. Section 7 provides that a detained person has the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent (R v Hebert, [1990] 2 SCR 151 at 181). However, while I agree with the applicants that the fundamental values articulated in the jurisprudence dealing with the right to silence are germane to the present applications, I am not convinced that the right to silence discussed there is entirely apposite here. This is because that jurisprudence concerns situations where state agents (usually the police) seek to question the detained person to further an investigation. The protections of the Charter in such situations address the detainee’s unique vulnerabilities when being questioned by state authorities, vulnerabilities the state can exploit to further its interests, usually contrary to the detainee’s interests.
[56] This is reflected in the analysis in Hebert. Justice McLachlin (as she then was) observed: “The state has the power to intrude on the individual’s physical freedom by detaining him or her. The individual cannot walk away. This physical intrusion on the individual’s mental liberty in turn may enable