Canada (Public Safety and Emergency Preparedness) v. Lunyamila

Canada (Public Safety and Emergency Preparedness) v. Lunyamila
Court (s) Database
Federal Court Decisions
Date
2018-02-23
Neutral citation
2018 FC 211
File numbers
IMM-4585-17, IMM-5071-17, IMM-5539-17
Decision Content
Date: 20180223
Dockets: IMM-5071-17
IMM-4585-17
IMM-5539-17
Citation: 2018 FC 211
Ottawa, Ontario, February 23, 2018
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Applicant
and
JACOB DAMIANY LUNYAMILA
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] These are applications for judicial review by the Minister of Public Safety and Emergency Preparedness [Minister] of three Orders of three different members of the Immigration and Refugee Board of Canada, Immigration Division [ID], dated October 30, 2017 [October Order], November 27, 2017 [November Order], and December 21, 2017 [December Order], in which it was ordered that the Respondent be released from immigration detention [collectively, the Release Orders]. These three applications were heard together on February 5, 2018, in Vancouver.
[2] The issue before the Court is whether these decisions are reasonable. The Respondent has been in continuous immigration detention since September 2013. This is the third time this Court is called upon to assess the reasonableness of decisions taken by the ID to release the Respondent from detention during that period of time. On the first two occasions, these decisions, taken over the course of seven detention reviews held by various ID members between the months of January and September 2016, were found to be unreasonable, the paramount considerations being that the Respondent had up until that point refused to cooperate with a validly issued order for his removal from Canada, was unlikely to appear for his removal and was a danger to the public, and that the conditions set forth for his release in each case would not have addressed either the danger or the flight risk he posed (Canada (Public Safety and Emergency Preparedness) v Lunyamila, 2016 FC 289 (Justice Harrington) [Lunyamila I] and Canada (Public Safety and Emergency Preparedness) v Lunyamila, 2016 FC 1199 (the Chief Justice) [Lunyamila II]).
[3] In Lunyamila II, the Chief Justice certified a question. In a decision released on January 19, 2018, the Federal Court of Appeal declined to answer that question, being of the view that it was not “sufficient to give this Court jurisdiction to decide the appeal” (Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 53 [Lunyamila FCA]). Therefore, it dismissed the appeal brought by the Respondent.
[4] The day following the hearing of the present judicial review applications, that is on February 6, 2018, counsel for the Minister advised the Court that subsequent to the detention review held in January 2018, the ID ordered that the Respondent be detained. Accordingly, she sought leave to file written submissions regarding the mootness issue arising from that development. Leave was granted and both parties filed written submissions. Although the parties disagree on whether the present case is moot, they both urge the Court, as contemplated by Borowski v Canada (Attorney General), [1989]1 SCR 342 [Borowski], to exercise its discretion to decide the matter on the merits, even if I were to conclude that the matter is now moot, as there is still an adversarial relationship between the parties.
[5] Borowski sets out a two-step process for determining whether an issue is moot. The first step consists of determining whether there remains a live controversy between the parties. I agree with the Minister that the latest detention order supersedes the Release Orders that are the subject the present judicial review applications, resulting in these Release Orders no longer having any effect and in the Court’s decision on these applications having no direct impact on the Respondent’s continued detention (Canada (Public Safety and Emergency Preparedness) v Ali, 2016 FC 661 at para 29). Therefore, I am satisfied that no live controversy between the parties subsists regarding the impugned Release Orders and that the issues raised in the underlying applications are, as a result, moot.
[6] The second step of the Borowski test requires the Court to decide, if the issue is moot, whether to exercise its discretion to hear the matter in any event. In exercising that discretion, the Court must have regard to the following factors: (i) the existence of an adversarial relationship between the parties; (ii) concern for judicial economy; and (iii) awareness of the Court’s proper law-making function (Borowski, at paras 31, 34 and 40).
[7] Here, and although Lunyamila I and Lunyamila II already provide significant and authoritative guidance to the ID in reviewing the Respondent’s detention, I agree with the parties that I should decide the present matter on its merits even though it is moot considering that there is still an adversarial relationship between them, that the issues raised in the present matter are more likely than not, given the case history, to arise again, and that the Respondent has now spent more than 55 months in continued detention, including more than 15 months since Lunyamila II was rendered. This case offers the Court an opportunity to reaffirm the core legal principles set out in Lunyamila I and Lunyamila II and apply them to what is inherently an evolving situation.
II. Background
A. The Respondent’s Immigration History in Canada
[8] Lunyamila FCA provides this useful summary of the Respondent’s immigration history in Canada:
[13] The [Respondent] came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.
[14] In the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.
[15] Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.
[16] Until January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.
[17] Following the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canadian Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.
[18] Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.
[19] In November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.
[20] The CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.
[21] Mr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.
(Headings omitted)
[9] To the Federal Court of Appeal’s summary of the Respondent’s history, I would add that the Respondent has obtained a total of 54 criminal convictions, which include, but are not limited to, one conviction for carrying a concealed weapon, 10 for assault, 4 for uttering threats, 22 for theft under $5,000, and one sexual assault conviction for non-consensual touching. He also has 13 convictions for failing to appear in court and failing to comply with orders, terms and recognizances. The Vancouver Police Department described the Respondent as “a chronic offender, a persistent criminal who causes significant societal harm” (Lunyamila I, at para 3).
[10] Furthermore, and of relevance to the conditions attached to the Release Orders, the Respondent was homeless for 12 years prior to his detention. During that time, he sometimes stayed at the Union Gospel Mission [UGM], a drop-in shelter which runs a number of community based programs, including substance abuse recovery programs, and claims to be familiar with the facility and its staff. In fact, one of his assault conviction results from an altercation with another, female, UGM resident and a condition of his probation order was that he was no longer permitted to attend the premises.
B. The January and February 2016 Release Orders: Lunyamila I
[11] On January 5, 2016, Member Nupponen ordered the Respondent’s release because even if he did cooperate with Canadian Border Services Agency [CBSA] and signed the required documents, it was highly speculative that he could be deported because he lacked the requisite identity documents, leading to a conclusion of indefinite detention. Member Nupponen further concluded that the Respondent no longer presented the same risk to the public as he had been sober for two years and had taken anger management classes. On February 2, 2016, Member Nupponen again released the Respondent, as there were no reasons to depart from his previous decision. He downplayed the evidence of the Respondent’s violent reaction when informed that his release had been stayed by order of this Court, concluding that it was a reasonable reaction of frustration.
[12] As indicated at the outset of these Reasons and in the case summary provided in Lunyamila FCA, these two release orders were held to be unreasonable. With respect to the January 5, 2016 decision, the Court found that the conclusion reached by Member Nupponen was not supported by the record. The Respondent was convicted of violent assaults, including sexual assault, and nothing in the record indicated that the Respondent’s enforced abstinence while in detention would lead to sobriety in the future. There was no evidentiary basis either supporting a conclusion that he would comply with the conditions of his release and report regularly.
[13] In reviewing the February 2, 2016 decision, the Court reached the same conclusion as in the previous decision, but added that the Member’s consideration of the Respondent’s reaction when informed of the stay of the January 5, 2016 decision was unreasonable as the Respondent’s agitation and aggressive reaction suggested that he did not have his anger issues under control and continued to be a danger to the public.
C. The Release Orders of March, July, August and September 2016: Lunyamila II
[14] On March 1, March 31, July 14, August 11, and September 16, 2016, the Respondent was released from immigration detention by the ID yet again. On March 1, Member King concluded that the Respondent could not be removed without Rwandan identity documents, something he has not had since arriving in Canada and was extremely unlikely to obtain. As such, maintaining the Respondent’s detention would be to maintain detention indefinitely, contrary to several of his Charter rights. On March 31, Member McPhalen also concluded that detention had become indefinite, breaching the Respondent’s Charter rights.
[15] On June 16, Member Ko concluded that the Respondent’s detention should be maintained based on new information being pursued by CBSA which raised additional questions as to the Respondent’s identity, notably that he may be Tanzanian, not Rwandan. At the next detention review held on July 14, Member King disagreed with Member Ko’s assessment of the new information and ordered the Respondent’s release. Member King concluded that the information was not new as the Minister received the information in 2013, but only recently decided to incur the costs associated with pursuing it. Furthermore, Member King found that the fact that the Respondent is a danger to the public and a flight risk and has failed to cooperate in efforts to remove him was insufficient to support the Respondent’s ‘indefinite’ detention.
[16] On August 11, Member Rempel released the Respondent, concluding that detention had become indefinite and that conditions could be imposed to reduce the risk to the public to a level that no longer justified continued detention. Member Rempel concluded that CBSA was unlikely to successfully confirm the Respondent’s Tanzanian identity and that the Respondent presented less of a danger than when he entered immigration detention. The conditions of release included acceptance at a residential drug and alcohol treatment program, abstaining from consuming alcohol and refraining from activities which would result in a conviction under an Act of Parliament.
[17] On September 16, Member Cook ordered the Respondent released from detention based on similar reasons as the previous release order. Member Cook noted that the Respondent’s case was in a stalemate in large part due to his failure to cooperate but that cooperation would not guarantee removal because the Respondent also lacked the identity documents that Rwanda appeared to require. Member Cook imposed conditions similar to those imposed by Member Rempel, though he added the requirement that the Respondent make efforts to enroll in and complete a community-based violence prevention program.
[18] These decisions were all found to be unreasonable by the Chief Justice in Lunyamila II. The Chief Justice framed the fundamental issue raised by the applications before him as “how to resolve the tension between, on the one hand, an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and on the other hand, the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (Lunyamila II at para 1). He held that this tension had to be resolved in favour of continued detention where such refusal to cooperate “has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public” or who is “unlikely to appear for removal from Canada” (Lunyamila II at para 2).
[19] To hold otherwise, warned the Chief Justice, would enable such a detainee “to simply produce, or contribute to producing, a ‘stalemate,’ for the purposes of ultimately obtaining his release from detention” and, therefore, “manipulate our legal system in order to avoid the execution of a validly issued removal order”, something, the Chief Justice stated, that runs contrary to the scheme of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] and which the Respondent appears to be attempting to do (Lunyamila II at para 3).
[20] The Federal Court of Appeal, in Lunyamila FCA, summarized as follows the Chief Justice’s findings regarding the unreasonableness of Member Cook’s section 248 analysis of September 16, 2016, which equally apply to the other four release orders examined by the Chief Justice:
[39] The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.
[40] The application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.
[41] The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated, be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.
[21] The Chief Justice also determined that it was unreasonable to conclude that the Respondent presented less of a danger than when he entered detention given recent violent outbursts (Lunyamila II at para 73).
[22] Subsequent detention review hearings, between October 2016 and October 2017, maintained the Respondent’s detention until the Release Orders that are subject to the present judicial review.
III. Impugned Decisions
A. The October Order (Member McPhalen)
[23] The October Order released the Respondent subject to certain terms and conditions including residing at the UGM, reporting weekly to CBSA, enrolling in and completing the UGM’s Alcohol and Drug Recovery Program [Program], completing a violence prevention program, keeping the peace, and various requirements that would facilitate obtaining travel documents for him.
[24] The hearing, which was first held on October 24, 2017, was adjourned to permit the Respondent’s Designated Representative to come up with a more fleshed out alternative to detention such as a facility that would have a bed available to him on release.
[25] When the hearing resumed on October 30, the Minister’s counsel raised the issues that were the basis of the Chief Justice’s decision in Lunyamila II, namely that the proposed facility needed to have safeguards in place to protect staff and other residents, and that there had to be measures in place to keep the Respondent in the facility or alert CBSA if he left the facility.
[26] Despite being cognizant of the Chief Justice’s decision in Lunyamila II and concluding that the Respondent was a flight risk, was unlikely to report for removal and continued to pose a threat to the public, Member McPhalen found that it was unlikely that the Respondent would attack someone living or working at the facility to which he was released as his level of violence was at the lower end of the spectrum.
[27] Member McPhalen further concluded that even if the Respondent fully cooperated, it was unlikely that removal would ever occur given the results of CBSA’s attempts at locating information on - and identification of - the Respondent through Rwandan consular services and given that the Tanzanian alternative was a “dead end”, as CBSA had exhausted their efforts to establish whether removal to that country was possible. As for the United Nations High Commissioner for Refugees [UNHCR] option, Member McPhalen found that the delay in requesting that the Respondent sign the consent form requested by the UNHCR was unacceptable given that he had been in detention for four years. Accordingly, that option shall not be a bar to the Respondent’s release. These were, in Member McPhalen’s view, clear and compelling reasons for coming to a different conclusion than other ID members had since Member Cook’s decision of September 16, 2016.
[28] Member McPhalen conceded that the conditions imposed on the Respondent’s release did not reduce the flight risk or the danger to the public, but held they were the best that could be imposed in the circumstances.
B. The November Order (Member King)
[29] The November Order adopted the reasons for the October Order and released the Respondent from detention subject to the exact same conditions. Member King found that there was no clear and compelling reason to depart from Member McPhalen’s Order as the Minister’s argument that a stronger alternative to detention is needed is an argument for something that cannot be accomplished, in part because the ID does not have jurisdiction to impose the types of conditions imposed by provincial courts in criminal cases. Member King further stated that given the Respondent has never had identity documents and that it was now clear that he could not be removed to Rwanda without them, his refusal to sign documents could hardly be characterized in these circumstances as a lack of cooperation. The same could be said, she added, with respect to Tanzania as denying citizenship of a country one is not a citizen of cannot properly be characterized as non-cooperation.
C. The December Order (Member Cook)
[30] The December Order released the Respondent subject to conditions quite similar to those attached to the October and November Orders, with variations such as signing a consent allowing the UGM to inform CBSA if the Respondent leaves the facility for any reason or fails to follow directions, applying for the Program and enrolling in a community-based violence prevention program, both at the Respondent’s first opportunity rather than within two weeks of release. Member Cook also expanded the scope of the condition relating to documentation to complete prior to release.
[31] On detention, Member Cook did not consider that there were any reasons to depart from the previous two decisions. Although he found that, on a balance of probabilities, the Respondent did pose a danger to the public and did present a flight risk if released, and that therefore, the Minister had made out a prima facie case for detention, Member Cook determined that the factors set out in section 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] weighed in favour of releasing the Respondent primarily because there was little confidence in the fact that the Respondent’s removal would actually occur, be it to Rwanda, Tanzania or any other country, as the only change in that respect from the previous hearing was that the Respondent had signed the UNHCR consent form. Therefore, the first factor of the section 248 analysis – the reason for detention – which Member Cook identified as being removal from Canada, weighed in favour of the Respondent’s release.
[32] As to the second section 248 factor – length of detention - Member Cook also held that it favoured the Respondent’s release, even if the detention was attributable to the fact that the Respondent is a danger to the public and a flight risk and that a portion of it was attributable to his lack of cooperation. He noted in that regard that long term detention is acceptable if it is going to ultimately lead to removal, something unlikely to occur in the case of the Respondent.
[33] Member Cook then considered whether there were any factors that could assist in determining how long the detention was likely to continue. He held that the Minister could not provide an estimate for when the Respondent might be removed and that, therefore, the Respondent’s removal was illusory and his detention, indefinite. This, he stated, also favoured the Respondent’s release. After acknowledging that the Responded had, in the past, withheld cooperation, Member Cook concluded that there were no unexplained delays or lack of diligence on the part of either party that could explain why removal was delayed. Even a lack of cooperation on the part of the Respondent could not affect the removal process at this time, he added, because even with the Respondent’s signature, the Minister was not confident he would obtain a travel document.
[34] Finally, Member Cook examined the existence of alternatives to detention, holding that release to the UGM program was the best alternative available although it would not mirror “a lot of what the Chief Justice wants to see”, which he found “[not to be] realistic for someone that doesn’t have a current link to the criminal justice system” (December Order, Certified Tribunal Record [CTR] at 2243). In discussing the UGM alternative, Member Cook took a more nuanced approach to the Respondent’s danger to the public, noting the lack of significant institutional issues such as fights or physical alterations during his five years in detention, and concluding that if steps were taken to deal with the Respondent’s anger and addiction he would not pose much risk to public safety.
D. Stays
[35] Each of these three Release Orders were stayed by the Court, pending judicial review.
IV. Issues and Standard of Review
[36] These applications raise two issues:
(a) Is the ID’s consideration of the factors prescribed by section 248 of the Regulations reasonable?
(b) Are the release conditions imposed in each case reasonable?
[37] The applicable standard of review of the ID’s detention review decisions, which are decisions of mixed fact and law, is reasonableness (Ahmed v Canada (Citizenship and Immigration), 2015 FC 792 at para 18; Lunyamila II at para 20). This is not disputed by the parties. It is trite law that this standard is met where the impugned decision fits comfortably with the principles of justification, transparency and intelligibility and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
V. Analysis
A. The Parties’ Positions
[38] The Minister argues that the Release Orders are unreasonable because the section 248 factors were not properly considered as each ID Member treated the length of detention as indeterminate without considering that if efforts made by CBSA pan out, the Respondent will be removed. The Minister further contends that the ID Members failed to consider that there was no reasonable justification for the Respondent’s continued failure to cooperate with his removal, which is not limited to his refusal to sign forms but also includes his refusal to provide straightforward or non-evasive answers to questions pertaining to his family or contacts in Tanzania or Rwanda. Particular to the December Order, the ID also misidentified the reason for detention, stating that it was in order to deport the Respondent.
[39] The Minister also submits that the conditions of release are unreasonable because they failed to mitigate the risks in a reasonable manner. Notably, each of the release plans does not address the Chief Justice’s concerns raised in Lunyamila II, as it is not clear that the UGM can manage the risks associated with the Respondent, including the one related to the fact the UGM premises are located near an elementary school. Furthermore, based on discussions at the December hearing, the Minister adds that it is unlikely that the Respondent would be accepted into the Program given that he is not currently struggling with alcohol and drugs and has a history of violence targeting women.
[40] Finally, the Minister alleges that the ID did not consider evidence that the UGM is unsuitable because the Respondent has previously been subject to a probation order specifically barring him from the UGM.
[41] The Respondent argues that all three Release Orders are reasonable because the ID in each case clearly considered and weighed each of the section 248 factors. The issue of the Respondent’s lack of cooperation was dealt with by making his signing of documents a precondition to release. Furthermore, for the October Order, Member McPhalen had clear and compelling reasons for coming to a different conclusion from that of previous review hearings as it was obvious to him that the Respondent could not be removed to Rwanda even if he did sign the required applications as he had no identity documents. Finally, the Respondent submits that the Release Orders are reasonable because they are clear and intelligible.
[42] According to the Respondent, the terms and conditions of release are also reasonable because they impose the best alternative to detention available to the ID. Furthermore, the Respondent’s criminal convictions are related to alcohol and, given his enforced sobriety while in immigration detention, the Respondent will likely be able to address his substance abuse problems through the Program. The Respondent further submits that the terms and conditions of release will permit CBSA to continue its removal efforts as the Respondent is required to check in on a weekly basis or whenever CBSA considers appropriate.
B. The Applicable Legal Principles
[43] Pursuant to sections 34 to 37 of the Act, a foreign national may be inadmissible and liable to removal from Canada on grounds of security, violation of international criminal or humanitarian law, criminality, serious criminality or organised criminality. A removal order may therefore be issued against a foreign national found to be inadmissible to Canada. According to section 48 of the Act, such order becomes enforceable “as soon as possible” once it comes into force, unless it is stayed. When there are reasonable grounds to believe that such individual is a danger to the public or unlikely to appear for removal, section 55 of the Act provides for his/her arrest and detention.
[44] When a foreign national is detained under the Act, section 57 provides that his/her detention must be reviewed within 48 hours of the arrest and then within 7 days, and then every 30 days thereafter. This is what has occurred in the Respondent’s case.
[45] The decision to release or continue detaining stems from a premise that individuals ought not to be detained. Therefore, the ID is required to release a foreign national from immigration detention unless the Minister makes a prima facie case for detention by demonstrating, as provided for under subsection 58(1) of the Act, that the foreign national is one of the following:
he is a danger to the public;
he is unlikely to appear for his 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);
his identity has not been, but may be, established and he has not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing his identity or reasonable efforts to establish his identity have been made by the Minister;
[46] Once the Minister has made the case for detention, the onus shifts to the foreign national to provide the grounds for release (Canada (Citizenship and Immigration) v John Doe, 2011 FC 974 at para 4 [John Doe]). When determining whether the individual concerned should be released or remain in detention, the ID must consider the factors listed at section 248 of the Regulations:
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; and
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.
e) l’existence de solutions de rechange à la détention.
[47] When the ID determines that the section 248 factors, when considered, favours releasing the detainee, subsection 58(3) of the Act permits the ID to impose on the release “any conditions it considers necessary”.
[48] In considering these factors, the same weight need not be given to each of them. They must rather be considered as a whole, and the reasons for detention will affect how each factor should be weighed and assessed (Shariff v Canada (MPSEP), 2016 FC 640 at para 36; Sahin v Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1534 (QL) at para 30 [Sahin]). This is key in the present case where the Respondent is in detention because he was found to be a danger to the public and a flight risk. As the Chief Justice emphasized in Lunyamila II,
[85] That said, it bears emphasizing that where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention. This is even more so when it appears that conditions of release that would virtually eliminate the danger to the public posed by the detainee on a day-to-day basis have not been identified. In such circumstances, and where the detainee is also largely responsible for the length of his detention, by virtue of his failure to fully cooperate with the Minister’s efforts to remove him from Canada, there would be three factors under s. 248 that strongly weigh in favour of continued detention.
[49] These factors do not exist in a vacuum; they must be considered within the context of the broader legislative scheme created by the Act and Regulations. The Act’s objective clearly indicates a preoccupation with protecting the safety of Canadians, as contemplated by subsections 3(1)(h) and (i) and 3(2)(g) and (h), and both the Act and Regulations contain numerous provisions which aim at furthering these objectives, including those in play in the present case.
[50] The context in the present case has changed little since the previous orders releasing the Respondent from immigration detention were reviewed by this Court. In reviewing those release orders, the Chief Justice summarized the legislative context and the circumstances leading to a detainee’s release or continued detention when that detainee is a danger to the public or a flight risk and has not cooperated with the Minister’s efforts to remove him:
[59] In my view, the scheme of the IRPA and the Regulations contemplates that persons who are a danger to the public or a flight risk and who are not cooperating with the Minister’s efforts to remove them from this country, must, except in exceptional circumstances, continue to be detained until such time as they cooperate with their removal. Exceptional circumstances would be warranted, because it will ordinarily be very difficult to formulate terms and conditions of release that will eliminate, or virtually eliminate, the danger to the public presented by the individual. Thus, it ordinarily would be difficult to avoid exposing the general public to some risk by releasing the detainee. However, this might be justified in an exceptional circumstance, such as where there have been unexplained and very substantial delays by the Minister that are not attributable to the detained person’s lack of cooperation or to an unwillingness on the part of the Minister to incur substantial costs that would be associated with pursuing non-speculative possibilities for removal.
[51] As the Chief Justice explains at paragraph 66 of Lunyamila II, taking these public safety and security considerations into account when interpreting and weighing the factors listed in section 248 of the Regulations makes certain guiding principles evident:
i. Where the reason for continued detention is that a person poses a danger to the public, “there is a stronger case for continuing a long detention” (Sahin at para 30). Indeed, where the person is a danger to the public on grounds of serious criminality, as contemplated by paragraph 115(2)(a), the scheme of the [Act] and the Regulations imply that this factor should be given very considerable weight.
ii. Where an individual has been in detention for some time and a further lengthy detention is anticipated, or if the extent of future detention time cannot be ascertained, these facts ordinarily would tend to favour release (Sahin, above). However, where, as in