Canada (Public Safety and Emergency Preparedness) v. Taino

Canada (Public Safety and Emergency Preparedness) v. Taino
Court (s) Database
Federal Court Decisions
Date
2020-03-25
Neutral citation
2020 FC 427
File numbers
IMM-1495-20
Notes
Digest
Decision Content
Date: 20200325
Docket: IMM-1495-20
Citation: 2020 FC 427
Toronto, Ontario, March 25, 2020
PRESENT: The Honourable Mr. Justice Diner
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Applicant
and
ANDREW JOHN TAINO
Respondent
JUDGMENT AND REASONS
[1] The Minister comes to this Court to challenge a decision of the Immigration Division [ID] which ordered Mr. Taino’s release from detention. For the Reasons set out below, I will grant the judicial review and return the matter to the ID. To be sure, I am mindful of issuing this decision amidst unprecedented times. Uncertainty abounds with the declaration of medical emergencies. Concerns are being raised about the safety of Ontario’s correctional institutions, including for immigration detainees. Given the situation, prior to issuing these Reasons, I convoked the parties for a teleconference to provide my decision, along with three messages about the next detention review, scheduled to take place later today before the ID.
[2] First, I asked that the two senior Department of Justice counsel representing the Minister immediately set about consulting their client, continue to work on finding a suitable residence and/or treatment program for Mr. Taino, and ensure that when he is released from detention, it is done safely and securely to protect not only the public, but also himself.
[3] Second, for the sake of continuity and efficiency, I will return the matter to the same ID Member, to the extent that she is available, which counsel agreed was the right approach. I note that the Member has handled the matter diligently and compassionately, including having patiently presided over six hearings in January and February 2020 and rendering a very thorough decision including a detailed analysis of the law, albeit one with which I disagree on certain points as outlined below. It is my hope that she can assist the parties to arrive at a suitable alternative to detention quickly, along with counsel.
[4] Third, should Mr. Taino’s case require any further judicial intervention from this Court, I will remain seized of the matter, another approach that counsel endorsed. My objective in doing so is that, with ongoing oversight, a speedy resolution will be reached by parties, based on the very able representation of their counsel in this judicial review. Any resolution will obviously have to be in accordance with the law and acceptable to the ID, such that Mr. Taino is released in a manner that will be closely monitored, with appropriate conditions to mitigate any danger to the public, which is the only basis upon which he remains in detention today.
[5] A brief background of the case follows.
I. Background
[6] Mr. Taino is a citizen of the Philippines. In 1997, at the age of 12, he entered Canada and obtained permanent residence [PR] at the time of entry. Mr. Taino, through the years, has been afforded numerous second chances, but has continued to commit crimes, based, it appears, on his drug addiction to methamphetamine (“crystal meth”). As a brief summary of the more grievous convictions and reprieves, Mr. Taino lost his PR status in 2010 after a criminal conviction for assault with a weapon led the ID to find him inadmissible for serious criminality. In 2012, a deportation order was issued against him. Mr. Taino successfully appealed that deportation order to the Immigration Appeal Division [IAD], which stayed the deportation for four years subject to terms and conditions. This stay was cancelled in 2017 after Mr. Taino was convicted of uttering threats and assault causing bodily harm in a violent domestic attack on his partner in front of her child, his two children, and his mother.
[7] In January 2018, Mr. Taino was arrested by the Canada Border Services Agency [CBSA] and placed in immigration detention on the ground that he was unlikely to appear for his removal. Mr. Taino then applied for a Pre-Removal Risk Assessment [PRRA], which concluded in April 2018 that he was at risk in the Philippines. Because he was only eligible for a limited PRRA on account of criminality, the matter was referred to National Headquarters for a balancing of the risk he faces in the Philippines against the danger he poses to the Canadian public.
[8] In August 2018, Mr. Taino was released from immigration detention on stringent terms and conditions, which included three sureties, house arrest, participation in drug rehabilitation and anger management programming, and a prohibition against engaging in activities that could result in a conviction. However, late one night in November 2018, Mr. Taino pointed a firearm at a woman in a Goodlife Fitness parking lot and tried to steal her car. This plot – to sell the car and use the proceeds to purchase drugs – was apparently conceived of with an acquaintance. Mr. Taino was convicted of robbery the following June and sentenced to 244 days in prison and 18 months’ probation.
[9] In December 2019, upon completion of his criminal sentence, he was transferred to immigration detention. This time, he was detained on the grounds that he was a danger to the public and that he was unlikely to appear for his removal. At both his first (48-hour) and 7-day detention reviews, the ID continued Mr. Taino’s detention. Both ID Members who decided these two December reviews found that Mr. Taino was a danger to the public and unlikely to appear for his removal and that the factors under section 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] did not justify release.
[10] On January 7, 2020, however, Mr. Taino received a positive decision on his outstanding PRRA from the Case Management Branch of Immigration, Refugees and Citizenship Canada [IRCC]. As a result of this decision, IRCC advised that “the arrangements to enforce your removal from Canada have been suspended.” The removal order stands, but it has been stayed by operation of the law; it is presently unenforceable.
[11] On January 13, at Mr. Taino’s 30-day detention review, the Minister informed the ID Member of the positive PRRA decision. The Minister sought continued detention of Mr. Taino pending the formulation of an adequate release plan. The ID Member (who also adjudicated Decision under review) adjourned the hearing and sought submissions on the applicability of sections 7, 9 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[12] When the proceedings resumed on January 16, 2020, the Minister requested more time to draft the requested Charter submissions. Due to the statutory timeframes, the ID Member rendered a decision that day to continue Mr. Taino’s detention and scheduled an early detention review to address the Charter issues. In that January decision, the Member found that Mr. Taino was a danger to the public and that the section 248 factors marginally weighed in favour of continued detention.
[13] The hearings resumed on January 20 and continued for three different sittings thereafter, with concluding submissions from counsel on February 17, 2020. On February 28, the ID Member issued her decision ordering the Respondent’s release from immigration detention [Decision], which the Minister now challenges on judicial review.
II. Decision under Review
[14] The Member stated at the outset that, in addition to determining whether Mr. Taino constitutes a danger to the public, she must determine whether continuing his detention, when his removal from Canada cannot be enforced, would violate his rights under sections 7, 9 or 15 of the Charter. The Member concluded that while Mr. Taino constitutes a danger to the public, his ongoing detention infringes sections 7 and 9 of the Charter, and these infringements are not saved by section 1. She thus ordered his release under subsection 24(1) of the Charter, imposing four terms and conditions. A summary of her analysis is provided below.
A. Grounds for Detention and Danger to the Public
[15] The Member found that, although the Minister’s evidence was not the “best evidence” possible, the Minister had established that Mr. Taino is a danger to the public under paragraph 58(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act]. In making the determination that Mr. Taino is a danger to the public and that a ground for detention had been established, the Member considered the factors in section 246 of the Regulations. She noted that Mr. Taino has received multiple convictions involving violence or weapons and that he has admitted to a substance abuse issue for which he has not received adequate treatment. She also considered the PRRA’s assessment that Mr. Taino is a danger to the public but that the risk he would face upon removal should be given more weight.
B. Section 248 Factors
[16] Having found that there was a ground for detention, the Member introduced her section 248 analysis by commenting that “on a prima facie basis, given my findings below that Mr. Taino’s detention is arbitrary contrary to s. 9 of the Charter, I find that his ongoing detention also violates Charter s. 7” (at para 33).
[17] Regarding the reason for detention, the Member acknowledged that generally speaking, this paragraph 248(a) factor should be given substantial weight within the overall assessment when the individual is a danger to the public. However, given her finding that the government’s interest in detention is contrary to section 9 and thus arbitrary, she reasoned that the weight accorded to this factor is reduced in the circumstances. Even if this factor should be given substantial weight, she found that it did not outweigh the others.
[18] The Member then found that the length of detention under paragraph 248(b) – at the time, approximately two and a half months – was not insignificant and favoured release. Further, she found that the seven weeks since his stay of removal, which was more than half of his time spent in detention, had been unhinged from its immigration purpose and that the detention was unlawful.
[19] In terms of the anticipated length of detention pursuant to paragraph 248(c), the Member noted the Minister’s assertion that detention was sought only until a suitable alternative could be arranged. She also noted the Minister’s ongoing efforts to secure a position in the Salvation Army in-house drug rehabilitation program. However, the Member expressed concerns with the Minister’s failure to provide a precise timeline or concrete evidence of these efforts. She concluded that the detention’s arbitrary nature caused this factor to weigh significantly in favour of release, explaining that this factor has been interpreted in case law as an assessment of the length of time until removal and not until a suitable alternative can be arranged.
[20] On paragraph 248(d), the Member further found no evidence establishing any unexplained delays or lack of diligence, rendering this section 248 factor neutral.
[21] Regarding paragraph 248(e) alternatives to detention, the Member found no evidence of any, other than releasing Mr. Taino on his own recognizance. This factor thus favoured detention.
[22] Finally, regarding the best interests of the children under paragraph 248(f), while noting that it was not a particularly strong factor in this case, the Member found that it weighed in favour of release. She reasoned that although Mr. Taino is not the primary caregiver for his three minor children, there was some evidence that he has an ongoing relationship with them.
[23] She concluded that the section 248 factors weigh in favour of Mr. Taino’s release.
C. Charter Analysis
[24] The Member went on to explain why she had concluded, as noted at the outset of the Decision, that the detention was unlawful. The Member determined that the first step of the two-step inquiry – whether he was detained – was clearly established. She thus proceeded to analyse whether this detention is “arbitrary” under section 9 of the Charter, noting that any unlawful detention, by definition, is arbitrary.
[25] The Member concluded that in this case, Mr. Taino’s detention is arbitrary, finding support for this conclusion in the legislative scheme as well as recent case law. First, regarding the legislative scheme, the Member concluded that the detention-related provisions of the Act require that a person be subject to a removal order or a process that could lead to a removal order before permitting the use of detention. She found that there is no “free-standing immigration authority to detain any permanent resident or foreign national in Canada that might be dangerous.” She also found that, in practice, the detention review process is structured upon the assumption that the detained person is the subject of removal efforts or a proceeding that could result in a removal order, having examined both subsections 55(1) and 58(2) of the Act.
[26] Turning to the case law, the Member considered jurisprudence cited by the Minister for the proposition that detention may be warranted even where a removal order is stayed. The Member found these decisions persuasive but not determinative, distinguishing them on the basis that the applicants in those cases had not yet received a final PRRA determination and that the decisions did not squarely address the Charter issue of whether the detention is arbitrary. The Member placed greater weight on more recent case law in which the provincial and federal courts specifically engaged with the section 9 Charter implications of immigration detention when that detention has become “unhinged” from the removal process. The Member found that these cases stand for the proposition that a detention becomes unlawful once it lacks an immigration control purpose. The Member concluded that the absence of an enforceable removal order was sufficient to determine that Mr. Taino’s detention is arbitrary, breaching section 9 of the Charter. The Member accordingly found it unnecessary to assess whether Mr. Taino’s section 15 Charter rights were also infringed.
[27] Finally, the Member found that, since no submissions were provided to suggest otherwise, the section 9 breach is not justified under section 1 of the Charter. The Member found that the appropriate remedy in the circumstances was to order Mr. Taino’s release pursuant to subsection 24(1) of the Charter.
D. Terms and Conditions
[28] The Member imposed four terms and conditions, which essentially require Mr. Taino to report to and update CBSA of any changes in status or address and to comply with obligations under the Act (they are listed in full in the last section of these Reasons). The Member noted that no alternatives to detention had been presented that would offset the risks posed by Mr. Taino. At the same time, she rejected the Minister’s position that Mr. Taino could not be released until a suitable alternative existed, holding that this would allow the Minister to continue the unlawful detention. She added that Mr. Taino has another year of criminal probation and thus remains subject to its terms and conditions.
III. Issues
[29] The Minister argues that the Member’s Decision was fundamentally flawed in numerous respects, rendering it unreasonable. I will only focus on three of the issues raised which render the Decision unreasonable, with the objective of providing the necessary guidance to having the matter resolved soon, with Mr. Taino being released on acceptable conditions, at least given the current circumstances.
[30] First, the Minister argues that the Member misinterpreted the law, including the immigration legislation and Charter, along with the relevant jurisprudence, in finding the detention to be unlawful for arbitrariness in violation of section 9 of the Charter.
[31] Second, the Minister contends that the Member predetermined the outcome of section 248 of the Regulations by unreasonably engaging in an unnecessary Charter analysis, rather than simply making a determination under the relevant statutory provisions in the existing administrative scheme.
[32] Third, the Minister argues that by fashioning an inappropriate remedy through inadequate release conditions, the ID erred in releasing Mr. Taino prematurely.
[33] These errors, the Minister argues, independently and collectively render the Decision unreasonable, such that Mr. Taino should remain in detention subject to the outcome of his next detention review, which is currently set to take place later today. I agree, for the reasons that follow, that the Minister has met his burden in this judicial review, namely that these three shortcomings are sufficiently central and significant to render the Decision unreasonable.
IV. Standard of Review
[34] To my knowledge, this is the first judicial review of an immigration detention review decision since the release of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Vavilov clarified the standard of review framework for administrative decisions. I note that prior to Vavilov, reasonableness applied to the review of the merits of ID detention review decisions (see, for example, Canada (Public Safety and Emergency Preparedness) v Hamdan, 2019 FC 1129 at para 31, and Canada (Public Safety and Emergency Preparedness) v Arook, 2019 FC 1130 at para 24).
[35] I do not see anything in the Vavilov framework as requiring a change in approach. Vavilov’s presumption of reasonableness applies to Mr. Taino’s release since the Member was interpreting her home statute (Vavilov at para 25). Furthermore, these circumstances do not raise any constitutional questions, general questions of law of central importance to the legal system, or questions related to the jurisdictional boundaries between administrative bodies that would overcome this presumption in favour of a correctness review (Vavilov at para 53). In short, the question this Court must now answer is whether the Member’s Decision was reasonable. Shortly after the issuance of Vavilov, Justice Rowe cogently summarized the principle of reasonableness in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, where he wrote (at paras 31-33):
A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on . . . are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
V. Analysis
A. Was the Member’s Interpretation of the Law Reasonable?
[36] The fact at the heart of the Member’s Decision is the decision under subsection 112(3) of the Act granting Mr. Taino a positive, albeit restricted, PRRA decision. The Minister argues that in concluding that Mr. Taino’s detention under an unenforceable removal order was arbitrary contrary to section 9 of the Charter, the Member erred in a plain reading of the law, as well as her interpretation of the jurisprudence. Mr. Taino counters that the Member’s interpretation was not only reasonable, it was also correct.
[37] In Vavilov, the Supreme Court instructs that we use the modern approach to statutory interpretation as articulated by Professor Driedger in Construction of Statutes (2nd ed. 1983). That is, we are to read the words of a statute in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act, along with the intention of Parliament (at para 117). I cannot reconcile the Member’s conclusion that the Minister lacks legal authority to seek continued detention where there is no enforceable removal order with a plain reading of the law within the context of the scheme and objective of the Act. Subsection 58(2) states:
58(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
58(2) La section peut ordonner la mise en détention du résident permanent ou de l’étranger sur preuve qu’il fait l’objet d’un contrôle, d’une enquête ou d’une mesure de renvoi et soit qu’il constitue un danger pour la sécurité publique, soit qu’il se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi.
[38] The enforceability of a removal order is not a prerequisite to detention, particularly when this provision is contrasted with section 48, which defines the concept of an enforceable removal order:
48(1) A removal order is enforceable if it has come into force and is not stayed.
48(1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.
(2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être exécutée dès que possible.
[39] The legislation thus specifically distinguishes between a removal order that is enforceable and one that is not. Other sections of the immigration legislation which specify “enforceable” removal orders include sections 206, 209, 215, 222, 224, 250, 273, 274 and 276 of the Regulations. The legislation does not include a requirement that a removal order be enforceable in order to effect detention. Rather, it simply requires the existence of a valid order. Certainly, detention is permitted, and sometimes occurs, in other contexts where removal orders are not enforceable, such as for pending refugee and PRRA claimants, if there are underlying concerns, including identity, flight risk, or danger.
[40] Going back to an ordinary reading of the statute in Mr. Taino’s situation, the Tribunal can keep an individual detained, having taken into account the prescribed factors, if s/he is a danger to the public. We must assume that Parliament deliberately chose not to make such a distinction in section 58. Therefore, the mere existence of a removal order, along with a danger opinion, may suffice to justify continued detention, after consideration of the section 248 factors that incorporate Charter section 7 considerations (see discussion of those factors below).
[41] Recognizing that Vavilov reminded reviewing courts tasked with deciding whether an interpretation of a statutory provision was reasonable that they are not to conduct a “de novo analysis of the question or ‘ask itself what the correct decision would have been’” (at para 116), this approach does not permit reading in new language that changes the meaning of the home statute. As I will explain, the reading in of the term “enforceable” removal order that occurred in this case had already been rejected by two prior decisions of this Court.
[42] Turning to the Member’s analysis, which was significant, spanning paragraphs 56-65 of her Decision, she wrote at paragraphs 59 and 62:
Section 58(2) of the IRPA, which provides the Immigration Division authority to detain somebody who is not already in detention, similarly only authorizes detention of a person who is the subject of an examination or an admissibility hearing or the subject of a removal order. As such, the legislative scheme makes it a mandatory prerequisite to the use of immigration detention that the person being detained is the subject of a removal order or a process that could result in a removal order being issued against them, regardless of who is initiating a person’s detention.
…
While it is true that in s. 58(1)(b) of IRPA that there is no explicit reference to removal, as set out above, the legislative scheme does not permit the detention of a person for immigration purposes unless there is a removal order in existence or a process that could lead to a removal order being made. As a result, there is no free-standing immigration authority to detain any permanent resident or foreign national in Canada that might be dangerous. If a foreign national or permanent resident is not inadmissible or subject to a proceeding that could result in them being inadmissible, they cannot be detained by immigration authorities regardless of how dangerous they might be.
[43] The Member makes valid and entirely reasonable findings and I agree with her on these principles of statutory interpretation. Where we depart, however, is her conclusion that immigration detention must remain hinged to an ongoing removal process and that, once it becomes unhinged from that process, such as in this case with a positive (restricted) PRRA, a person’s detention will automatically become arbitrary contrary to section 9 of the Charter. She writes at paragraph 64:
It is also worthwhile noting that, practically speaking, the Canadian detention review process is structured upon the assumption that the detained person is the subject of removal efforts or a proceeding that could result in a removal order. This is perhaps most evident in how the section 248 factors are regularly assessed at hearings before the Immigration Division. For example, as noted above, when assessing the anticipated length of detention, as required by section 248(c) of the IRPR, the issues that are canvassed at hearings are how long before a person’s removal can occur or before the process that they are being detained for (admissibility bearing, examination etc.) which could lead to a removal order will take place. It is in this context that the anticipated length of detention is typically determined.
[44] When viewed in light of the authority to detain provided in subsection 58(2), the Member’s conclusion that “the practical day-to-day realities of the detention review process further supports a finding that the detention of an individual must be tethered to a removal order or a process that could result in a removal order being issued” (at para 65), does not reconcile with either the fact that (i) Mr. Taino still has an underlying removal order that the restricted PRRA did not eliminate, and (ii) a plain reading of subsection 58(1) of the Act regarding release:
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, serious criminality, 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 ou pour grande criminalité, criminalité 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.
[45] The combined effect of the two key detention provisions of the Act reproduced above (subsection 58(2) and paragraph 58(1)(a)) is that a foreign national may (i) be detained if subject to a removal order, and (ii) remain detained if declared a danger to the public. In other words, assuming a valid removal order exists, any of the circumstances in paragraphs (a)-(e) of subsection 58(1) may justify refusing to release the detainee. These are not conjunctive factors. Rather, any one of the five enumerated circumstances may justify ongoing detention.
[46] I note that the same Member wrote a decision six months to the day prior to Mr. Taino’s release order, in which she arrived at different conclusions regarding her acknowledgement of a “danger to the public.” This decision, Alemu v Canada (MPSEP), ID File No. 0003-B7-00527 [Alemu], was rendered on August 28, 2019, and its analysis is worth consideration, by way of contrast to Mr. Taino’s.
[47] As is always the case, there are differences in the profiles and history of Messrs. Taino and Alemu. But there are similarities as well, including a long history in Canada, the loss of their permanent resident status due to criminal inadmissibility, drug use, and a finding of danger to the public. One difference, for instance, was a possibility that removal could still be effected for Mr. Alemu. Unlike Mr. Taino, he had not received a positive risk analysis. With respect to his section 248 assessment, the Member found at paragraph 34 of Alemu that:
In this case, while I have found him to be both a danger to the public and a flight risk, it is the danger finding that most significantly weighs in favour of detention at this stage, particularly given its severity in the circumstances of this case. As noted by the Federal Court in Lunyamila: “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 [at para 85].”
[48] Mr. Alemu, at the time of this detention review before the Member, had been in immigration detention for almost two years. Indeed, the Member noted that his detention had become “indefinite,” because officials were unable to provide an anticipated timeline for removal other than to say that it would be lengthy, and might not ever happen, given the difficulty of obtaining a travel document from Ethiopia. However, the Member could not say that it could not be effected and, on that basis, she did not find a section 9 breach. The Member concluded (at para 68):
As such, I find that the fact that Mr. Alemu is being detained on the grounds that he is a danger to the public prevents his detention pursuant to s. 58(1)(a) from being arbitrary even if his detention becomes unhinged from its removal purposes.
[49] Six months later, the same Member held in the Decision under review (at para 79):
… I find that Mr. Taino’s detention has become unhinged from the immigration purpose of removal and is therefore unlawful. Mr. Taino’s detention therefore contravenes s. 9 of the Charter and cannot be maintained.
[50] While I understand that the Member did not feel that Mr. Alemu’s detention had yet become unhinged from removal given its possibility, she noted that “even if his detention becomes unhinged from its removal purposes,” his detention would not be arbitrary due to the danger he posed.
[51] I feel that the conclusion in Alemu represents a reasonable assessment, as opposed to the conclusion reached in Taino six months later. To say that the detention has become unhinged from removal is one thing. To say that the detention has become unhinged from any immigration purpose is quite another. Mr. Taino has been found, in no uncertain terms, to pose a danger to the public by IRCC in its restricted PRRA decision. And as also described above, the Member came to the same conclusion in the first part of her analysis. Ensuring the public is not at risk is an immigration purpose quite apart from removal.
[52] In the language used by the jurisprudence, removal – and the existence of a removal order – is one hinge in the machinery of immigration control. But so, in my view, is danger. That is a second hinge that may necessitate detention. In fact, I do not think it is any coincidence that danger to the public is enumerated first by Justice Rothstein (as he then was) in Sahin v Canada (Minister of Citizenship and Immigration) (1994), 85 FTR 99, 1994 CanLII 3521 (TD) [Sahin], in the list of considerations for detention or release that were later codified in section 248 of the Regulations, and which also came first amongst those factors. Indeed, as Justice Rothstein stated about that first factor, “I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public.”
[53] Sahin was decided under the previous immigration legislation. The current Act places even more importance on the safety of Canadians than the previous one, prioritizing security as a key aim as is made clear by various of its section 3 objectives (Medovarski v Canada (Minister of Citizenship and Immigration); Esteban v Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para 10).
[54] I further agree with the Minister that the Member’s interpretation unreasonably departed from subsequent jurisprudence of this Court, including most notably Canada (Public Safety and Emergency Preparedness) v Samuels, 2009 FC 1152 [Samuels], where this Court held that it is unnecessary to read into subsection 58(2) a requirement that a removal order be enforceable in order to justify detention. In that decision, Justice Tremblay-Lamer held (at paras 27-31):
A removal order that is stayed is not void. Although it cannot be executed pending a ruling on a protected person’s application for permanent residence or the passing of the deadline to file such an application, it still exists and is valid and, in my opinion, the person against whom it was issued is still “subject to it.”
The Respondent is, in effect, asking the Court to read the exclusion of stayed removal orders into subsection 58(2), which would then provide (in the part relevant to this case) that “[t]he Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national … is subject to an enforceable removal order and that the permanent resident or the foreign national is a danger to the public…”
I am not persuaded by the Respondent’s submission that this reading in is necessary to ensure that the provision complies with the Charter. Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have his detention reviewed every 30 days. The purpose of these reviews is to take into account any new events in the Respondent’s case. The Immigration Division must, pursuant to section 248 of the Regulations, consider the anticipated length of his future detention and the existence of alternatives to detention. In my view, these elements confirm that the statutory scheme created by Division 6 of the IRPA and the Regulations already reflects concerns associated with the Charter.
I add that the Charter’s guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice. The Respondent makes no submissions on whether detention for a limited (though admittedly potentially significant) period, of a person who is a danger to the public is in fact inconsistent with such principles. In the absence of any debate on this point, I do not think it this Court’s role to re-write the statute in the way suggested by the Respondent.
I find that the Tribunal had jurisdiction to order the continued detention of the Respondent, if it was satisfied that he was a danger to the public.
[Underline added; italics in original.]
[55] As already explained above, I agree with Justice Tremblay-Lamer that when the words of subsection 58(1) are read in their grammatical and ordinary sense, as well as harmoniously with the scheme and object of the Act, one cannot read in the word “enforceable” before removal order (Vavilov at para 117; see also Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21). Parliament could have – but did not – write “enforceable” in the detention provision of the statute, whereas it did in other provisions.
[56] The Member’s decision to read in that language is, in my view, equivalent to a declaration of constitutional invalidity. Rather than attacking the scheme and fashioning a subsection 24(1) Charter remedy, as the Member did in this case, a constitutional challenge under Charter subsection 52(1) invalidating a key section of the statute would require a proper foundation and procedure. I note that no notice of constitutional question was filed in this case. Without a proper constitutional challenge, I see no reason to depart from the Samuels interpretation, and the Member did not provide a reasonable basis to do so.
[57] In this regard, I note that the Member was not only obligated t