Canada (Public Safety and Emergency Preparedness) v. Hamdan

Canada (Public Safety and Emergency Preparedness) v. Hamdan
Court (s) Database
Federal Court Decisions
Date
2019-09-03
Neutral citation
2019 FC 1129
File numbers
IMM-4819-19
Decision Content
Date: 20190903
Docket: IMM-4819-19
Citation: 2019 FC 1129
Vancouver, British Columbia, September 3, 2019
PRESENT: Mr. Justice Diner
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Applicant
and
OTHMAN AYED HAMDAN
Respondent
JUDGMENT AND REASONS
I. Overview
[1] This application judicially reviews an order made by the Immigration Division [ID] releasing Mr. Hamdan from detention. Mr. Hamdan has been detained for approximately four years – the two most recent years pursuant to immigration legislation and, previously, on the basis of criminal charges. The Minister argues for Mr. Hamdan’s continued detention on the ground that he poses a danger to the public.
II. Background
A. Mr. Hamdan’s Immigration History in Canada
[2] The Respondent, Mr. Hamdan, is a 38-year-old citizen of Jordan who was born in the United Arab Emirates. He entered the United States in September 1999 on a student visa. Mr. Hamdan states he converted from Islam to Christianity and, heeding a lawyer’s advice that he would have a better chance of successfully claiming asylum north of the border, he entered Canada on July 14, 2002. The Refugee Protection Division [RPD] found him to be a Convention refugee on August 30, 2004, based on his fear of persecution due to his religious conversion.
[3] On August 14, 2008, Mr. Hamdan’s application to become a permanent resident of Canada was refused as abandoned after Citizenship and Immigration Canada made repeated unsuccessful attempts to contact him.
[4] Following two deadly terrorist attacks carried out in Canada in 2014 in alleged support of the Islamic State, the Royal Canadian Mounted Police [RCMP] conducted a review of social media to identify potential threats to Canadian national security. Mr. Hamdan was identified and charged with four terrorism counts due to inflammatory Facebook posts he made on multiple pages and profiles between September 2014 and July 2015. He was charged with four terrorism-based counts, the first three for counselling murder, assault, and mischief, and the fourth for knowingly instructing any person to carry out a terrorist activity. The fourth charge required a finding of one of the underlying three offenses to proceed.
[5] In September 2017, the RCMP prepared a threat evaluation of Mr. Hamdan, finding a high risk that he will continue to post on the internet for the purposes of inciting others to commit terrorist acts and that he appears to have the knowledge and ability to carry out an attack himself. The RCMP also noted in the same threat evaluation that its assessment was not a prediction.
[6] On September 22, 2017, Justice Butler of the Supreme Court of British Columbia, in a 70-page, comprehensive decision, reviewed 85 impugned posts of Mr. Hamdan in detail, only finding the elements of actus reus under one of the charged offenses (counselling terrorism) with respect to one of the 85 social media posts. However, the judge found an absence of mens rea for that post. The Court thus acquitted Mr. Hamdan of the four terrorism charges: R v Hamdan, 2017 BCSC 1770. Upon his release, Mr. Hamdan was immediately transferred into immigration detention.
[7] On May 8, 2018, the RPD dismissed the Minister’s application to vacate Mr. Hamdan’s refugee protection. The Minister applied for judicial review of this decision. On October 18, 2018, the RPD granted the Minister’s application to cease his refugee status on the ground that his reason for seeking refugee protection – namely, his conversion to Christianity – had ceased to exist.
[8] Also on October 18, 2018, the Immigration Division [ID] found Mr. Hamdan to be inadmissible for being a danger to the security of Canada and issued a deportation order against him after another lengthy decision, of some 57 pages.
[9] Mr. Hamdan applied for judicial review of both October 18 decisions. On November 21, 2018, this Court quashed the RPD’s refusal to vacate Mr. Hamdan’s refugee status, concluding that it was unreasonable to reach any conclusion other than Mr. Hamdan having been a Christian of convenience.
[10] Mr. Hamdan requested the deferral of his removal pending an assessment of the risk he would face and the outcome of his own applications for judicial review. On November 28, 2018, a Canada Border Services Agency [CBSA] inland enforcement officer refused to defer his removal. Mr. Hamdan applied for judicial review of this CBSA decision.
[11] On February 1, 2019, this Court dismissed Mr. Hamdan’s request for leave to challenge the RPD’s cessation decision and the ID’s inadmissibility decision, but granted leave for judicial review challenging both (1) the constitutionality of the twelve-month Pre-Removal Risk Assessment [PRRA] bar in paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], and (2) the refusal to defer his removal. However, in response to an interlocutory motion, this Court subsequently granted a stay of his removal pending the outcome of the judicial review or until a PRRA officer duly conducted his risk assessment.
[12] On April 4, 2019, Immigration, Refugees and Citizenship Canada [IRCC] established a new public policy allowing, on a discretionary basis, the waiver of the PRRA bar for persons whose refugee status has been ceased under paragraph 108(1)(e) of IRPA. The following day, Mr. Hamdan was given the opportunity to submit a PRRA application, and subsequently did so. He cannot be deported while this application remains pending as there is a regulatory stay of removal until either the application is rejected or, if allowed, until IRCC cancels the stay.
[13] On July 25, 2019, this Court dismissed Mr. Hamdan’s remaining judicial review applications for mootness on the ground that he had submitted a PRRA application pursuant to the Minister’s public policy.
B. Prior Detention Reviews
[14] Upon his acquittal from his criminal charges, as mentioned above, Mr. Hamdan went directly from criminal into immigration custody. On October 5, 2017, at Mr. Hamdan’s first, 48‑hour detention review, the ID member ordered his continued detention on the ground that he was a danger to the public. The member was satisfied that Mr. Hamdan would continue to be active online in a way that celebrated and encouraged acts of terrorism, and that such activity would put the Canadian public at risk.
[15] His seven-day detention review of October 12, 2017 resulted in continued detention, as did all such monthly reviews until August 2019. In other words, the ID continued to review Mr. Hamdan’s detention every 30 days, as required under IRPA, and consistently ordered continued detention on the basis that he posed a danger to the public.
[16] At his July 18, 2019 detention review – the last before his August hearing which resulted in his release – the ID member granted a request to hold another detention review in less than 30 days to allow Mr. Hamdan’s counsel to advance, for the first time, an alternative to detention. In doing so, the member noted that any alternative to detention capable of supporting release would need to be “extremely comprehensive and robust and address all of the issues that are live in this case.” That led to the next detention review some two weeks later, which for the first time in 27 such hearings, and after two years in detention, resulted in an order releasing Mr. Hamdan.
III. Decision under Review
[17] The August 2, 2019, the ID member [Member] ordered Mr. Hamdan’s release subject to a comprehensive list of conditions. The Member concluded that, on a balance of probabilities, Mr. Hamdan does not pose a danger to the public if released with appropriate conditions.
[18] Specifically, the Member imposed 26 conditions of release, ten of which are mandatory conditions under section 250.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. The conditions include requirements that Mr. Hamdan reside with a bondsperson, abide by a curfew between midnight and 5:00 a.m., report by phone to CBSA every weekday, and refrain from accessing any device capable of connecting to the internet, driving a vehicle or accepting a ride from anyone without the approval of his bondsperson. See Annex A for a complete list of the release conditions.
[19] At the hearing, the Member heard testimony over the telephone from the proposed bondsperson regarding his relationship with Mr. Hamdan, his understanding of the situation, and his ability to ensure Mr. Hamdan’s compliance with conditions.
[20] In his decision, the Member began by outlining several general principles that guide detention reviews, noting that Canadian law regards detention as an exceptional measure. He then acknowledged his responsibility to provide clear and compelling reasons for reaching a different conclusion from multiple prior decisions to continue detention.
[21] The Member highlighted two aspects that he believed differentiated his hearing from prior ones. First, he pointed to the fact that Mr. Hamdan’s matters before this Court were dismissed as moot because he has been granted the opportunity to apply for a PRRA. Second, and more importantly, he noted that Mr. Hamdan’s counsel had provided, for the first time, a “serious proposal for an alternative to detention,” including a proposed bondsperson and specific conditions.
[22] The Member accepted that a “danger to the public” element is present in this case. However, he found that the risk posed by Mr. Hamdan is “much less” than that posed by individuals commonly before the ID, given that Mr. Hamdan had no established record of having committed violent criminal acts. He further noted that none of the factors listed in section 246 of the Regulations are present, and Mr. Hamdan has no convictions for any offence in Canada.
[23] Given his finding that a “level of danger to the public” exists, the Member proceeded to consider the factors required by section 248 of the Regulations. He found that the reason for detention – Mr. Hamdan’s danger to the public – constituted a significant factor weighing in favour of continued detention.
[24] On the other hand, he found that the significant length of the almost two-year immigration-based detention, and the uncertainty regarding its future length, both weighed in favour of release. The Member did not find that any delay or lack of diligence was a determinative factor, and he dismissed as speculative the Minister’s argument that the best interests of the bondsperson’s children might be negatively affected by Mr. Hamdan’s release into their home.
[25] Regarding the alternative to detention, the Member referred to the April 1, 2019 Guidelines Issued by the Chairperson, Pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act [Guidelines]. The Member found that the proposed conditions were sufficient to mitigate the risk posed by Mr. Hamdan and acknowledged that his release order relied significantly on the commitment of the bondsperson. The Member found him to be a suitable bondsperson, citing his “intimate knowledge” of Mr. Hamdan that stems from their decade-long close friendship and their having lived together for about 18 months. The Member accepted the bondsperson’s testimony that a $2,000 bond represented a significant amount to him in light of his responsibilities running his own business and raising a family.
[26] The Member, referring to Canada (Public Safety and Emergency Preparedness) v Lunyamila, 2016 FC 1199, concluded that Mr. Hamdan’s conditions would “virtually eliminate” any risk, because under them, Mr. Hamdan could not engage in any of the activities that led to the finding that he was a danger to the public – i.e. posting on the internet. Furthermore, he would be located in a rural, fairly remote location, with limited mobility.
[27] After oral and written submissions from counsel, including with respect to the proposed conditions for release, the Member rejected the Minister’s request for more stringent conditions, such as house arrest or electronic monitoring, deeming such conditions excessive given the degree of risk posed and the fact that Mr. Hamdan had not “hurt anybody in the past.”
[28] The Minister immediately filed a judicial review after that August 3, 2019 decision, as well as a stay application, before this Court. Both the stay and leave were granted on an expedited basis. A special sitting was convened, and took place in Vancouver on August 27, 2019. This provided sufficient time to hear from both parties, and decide the matter, which I will now proceed to do.
IV. Relevant Provisions
[29] The relevant provisions of IRPA and the Regulations are reproduced in Annex B.
V. Issues and Standard of Review
[30] In this judicial review application, the Minister argues that the Member erred in three ways: (i) by failing to provide clear and compelling reasons for departing from the prior decisions to detain; (ii) by failing to consider the reason for the detention; and (iii) by ordering release on terms and conditions that do not mitigate the danger to the public.
[31] The Minister contends that any or all of these three errors renders the decision unreasonable, which they note is the standard of review. That is, indeed, the appropriate standard of review, as ID detention reviews are primarily fact-based decisions and are to be given deference (Canada (Public Safety and Emergency Preparedness) v Ahmed, 2019 FC 1006 at para 19). When operating under the reasonableness standard of review, the reviewing court must determine whether the ID member’s reasons allow the court to understand why the member made a decision and whether the conclusion is within the range of acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[32] Before proceeding any further, I feel compelled to make the following remarks.
[33] Terrorism is not an easy subject matter for any tribunal or reviewing Court. The Board member reflected as much when he stated the following in his oral reasons:
I wish this went without saying but I will go ahead and say this: My release decision is not in any way an endorsement or a vindication of Mr. Hamdan’s ideology, his thinking or the views that he has expressed in the past in his online postings… I am not issuing this decision because of my personal feelings or any reaction to Mr. Hamdan as an individual. I am required to do the best I can to follow what’s required by the law in light of the specific circumstances of the case and the principles that I have already articulated, and what ultimately counts in an assessment of danger to the public are Mr. Hamdan’s actions.
[34] I would adopt the ID Member’s remarks as my own. Suffice it to say that I find Mr. Hamdan’s past conduct no less reprehensible than the Member did, and exceptionally difficult to digest. To disseminate news coming from the sources in question is one thing; to actively promote and champion that news – including terrorist actions against Canadians on home soil – descends to even further lows.
[35] That said, my role is not to sit in judgment of Mr. Hamdan. Nor is it to decide whether he should be released from detention – that is the ID’s role. Rather, my role is simply to ensure that the ID made a reasonable decision based on the criteria set out in IRPA and the Regulations. In doing so, I must give appropriate deference to the ID, as it is the tribunal to which Parliament has entrusted the role of deciding immigration detention matters.
VI. Analysis
[36] Much of my analysis is devoted to discussing the third issue, namely, the reasonableness of the release conditions, as the suitability of conditions is a complex issue, and one that was particularly disputed both at the hearing and in submissions. However, this is not to diminish the first two issues raised, the analysis of which follows.
A. Issue (i): Clear and compelling reasons
[37] In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Rothstein (as he then was) explained that an ID member conducting a subsequent detention review must reach a fresh conclusion as to whether the person should continue to be detained. However, the member must consider previous decisions to detain and provide clear and compelling reasons for departing from such decisions (at para 10). Justice Rothstein added that while an express explanation for reaching a different conclusion is preferable, clear and compelling reasons for doing so may be implicit in the decision (at para 13).
[38] I must review whether those reasons were clear and compelling on a deferential standard. As recently explained by Justice Norris, “the requirement for clear and compelling reasons for departing from a previous decision of the ID should be seen not as a discrete ground for judicial review but, rather, as an application of the reasonableness standard” (Canada (Public Safety and Emergency Preparedness) v Mohammed, 2019 FC 451 at para 23).
[39] In Mr. Hamdan’s Decision, the ID clearly explained why it was diverging from the outcome of the prior decision, and indeed, approximately two dozen ID decisions prior to that. The Member stated in his oral decision that this was the first “serious proposal for an alternative to detention, including a proposed bondsperson and specific conditions,” with the bondsperson having testified at the hearing about his prospective supervision of Mr. Hamdan, his knowledge of Mr. Hamdan, and motivation to ensure compliance, both in terms of his ties to Mr. Hamdan and financial commitment through the surety tendered. The Member emphasized that at prior reviews, the degree of risk was unmitigated by any restrictive conditions of release, and thus higher than under the alternative.
[40] Given the mitigated risk, the Member also noted that the length of time spent in detention under section 248(b) of the Regulations weighed considerably in favour of release. Justice Mosley has held that clear and compelling reasons to depart from a prior detention decisions can include the proposal of an acceptable alternative to detention, as well as changes in circumstances that could lead the ID to find that the factors set out in section 58 of IRPA are no longer present (Kippax v Canada (Citizenship and Immigration), 2014 FC 429 at para 20).
[41] Indeed, Justice Abella noted in her dissent in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 [Chhina] (which was not contradicted by the majority), that “[i]t is not enough for the Minister to rely on previous [ID] decisions to satisfy the [ID] on the s. 58 and s. 248 inquiry. The integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para 127); see also Justice Grammond’s decision in Canada (Public Safety and Emergency Preparedness) v Baniashkar, 2019 FC 729 [Baniashkar] at paras 12–14 and 20).
[42] In addition to the primary factors noted above regarding alternatives to detention, the Member also noted other changes. These included the change in the situation with Mr. Hamdan’s challenge to the constitutionality of the PRRA bar, given this Court’s dismissal of that application for mootness. Indeed, the reason for this decision was that the Minister changed the policy and invited Mr. Hamdan to submit a “restricted” PRRA under subsection 112(3) of IRPA, ending any claim to Charter violations for being unable to obtain a risk assessment. As it turned out in evidence that became available between the time of the Member’s Decision and this judicial review, Mr. Hamdan’s first stage of his restricted PRRA has been approved, and the timing for the next stage of the risk assessment, according to the new information provided, is approximately one year. Even if the second stage decision occurs sooner than that, the restricted PRRA is nonetheless a long and complicated process (see Kanagaratnam v Canada (Citizenship and Immigration, 2015 CF 885 at paras 12-15 for a description of the steps involved).
[43] As I have concluded in a previous case with over two years of immigration detention and where there was also no resolution in the foreseeable future, the ID is entitled to weigh that concern heavily among the various statutory factors considered (Canada (Public Safety and Emergency Preparedness) v Rooney, 2016 FC 1097 at para 39).
[44] Finally, I note that the conclusion on this first issue is consistent with the one prior consideration of the Member’s Decision – namely Justice Gascon’s August 13, 2019 Order temporarily staying Mr. Hamdan’s release such that he has remained in detention pending this decision. In that stay Order, Justice Gascon found serious issues “regarding at least the second and third grounds identified by the Minister.” This, in my view, implicitly signalled that the first ground was not a strong suit for the Minister on the elevated threshold that Justice Gascon applied to the serious issue test (although I certainly will not tread into whether the serious issue threshold should or should not be elevated, a topic which was also mentioned at the judicial review hearing, and which has also been the subject of recent commentary of this Court – see, for instance, Canada (Public Safety and Emergency Preparedness) v Asante, 2019 FC 905 at paras 18 and following).
[45] In sum, I find that the ID provided clear and compelling reasons for departing from the prior decisions to detain. The Member clearly explained where his decision departed from those that had preceded his, and given Mr. Hamdan’s liberty interests, acted in accordance with section 7 Charter principles (Rooney at para 19; Ahmed v Canada (Citizenship and Immigration), 2015 FC 792 at para 19).
[46] The fact that the Minister does not agree that the various changes that emerged during this, the 27th detention review, were sufficient to justify Mr. Hamdan’s release, are ultimately no more than an invitation for this Court to reweigh the evidence (Canada (Citizenship and Immigration) v B072, 2012 FC 563 at para 29). Clearly, to do so would be an inappropriate exercise in a reasonableness review, given the explanation of that standard provided above.
B. Issue (ii): Consideration of danger
[47] The Member clearly acknowledged Mr. Hamdan’s danger, noting that he was detained as a result of having been found to be danger to the public under section 58(1)(b) of IRPA. The Member also acknowledged the earlier decision of the ID, finding Mr. Hamdan to be inadmissible under section 34(1)(d) of IRPA. The Member noted various distinctions between an inadmissibility assessment and a release from detention, including the focus on the evidence and the different standards applied to the relevant legislative provisions. The Member also commented on Mr. Hamdan’s profile in light of the danger finding, all given the backdrop of his past internet activity. This included his lack of any criminal convictions, lack of evidence of violence, behaviour in prison, conduct at the hearing, and testimony provided.
[48] The Minister contends in his submissions that the “Member’s reliance on the fact that the Respondent has not been the instigator of violence while in provincial correctional facilities shows a fundamental misapprehension of the risk the Respondent has been found to pose to the Canadian public. That he has not ‘resorted to violence’ in a supervised setting has no bearing on the risk that he will personally carry out a terrorist act in the future.” Mr. Hamdan has not been found to be a danger due to a prior assault conviction, but due to his praise of “Lone Wolf” attacks, his promotion of ISIS, his dissemination of instructions on how to carry out attacks, his identification of possible targets in Canada for terrorist activity, and his apparent fascination with the extreme violence of ISIS.
[49] However, the argument that the Member did not consider the reason for detention is at odds with his Decision. For instance, the Member held:
Now, I recognize that, as I have already said, this is a forward-looking assessment. It's not entirely based on past behaviour or the absence of past behaviour, of course. I also recognize that although he was acquitted of all criminal charges, the court in dealing with those charges still found that he was prepared to commit violent jihad as part of his struggle, and he has been found repeatedly by this Division, including myself, to pose a danger to the public based on past social media posts that this Division found endorsed and encouraged terrorist attacks in Canada and abroad.
Also I would say on a rather secondary level based on his own past statements expressing anger and threats of harm against various individuals and entities including Facebook staff when his accounts were removed, of a specific RCMP officer and an RCMP location and interpreters. Now, the Immigration Division including me has repeatedly concluded that he would likely incite others to commit violence by continuing to post similar views online and/or that he would commit violence himself if released.
The member went on to note:
Of course, the Regulations direct me that even where it is determined that there are grounds for detention, I have to consider other factors before making a decision on detention or release, so it's not enough for me to stop at a conclusion that Mr. Hamdan poses a danger to the public. I still have to consider other factors and these are articulated in Regulation 248. The reason for detention, of course, [sic] danger to the public. I recognize the points raised as reflected in the jurisprudence that this is a very significant ground that does justify continued detention and at times even lengthy detention.
[50] The Member makes it clear above, and in various other places in his reasons, that the danger element exists in Mr. Hamdan’s case. However, the Member also notes that based on a holistic view of the evidence, on the spectrum of ‘danger to the public’ that the ID routinely deals with, Mr. Hamdan finds himself towards the low end, because he never committed violent criminal acts. The Member also makes clear that the imposition of various conditions will mean that, on a balance of probabilities, Mr. Hamdan will not meet that threshold going forward, such that his ongoing detention would not be justified.
[51] The Member notes that the standard of proof on detention review is markedly different from the “very low threshold of reasonable grounds to believe,” the standard used for admissibility decisions. He notes that a further distinction in assessing danger to the public for the purpose of ongoing detention is that the question is whether the person constitutes a present and future danger to the public, whereas the focus in the other proceedings is backward looking. Thus, while a person's past behaviour is helpful in assessing present and future risk, the Member notes that immigration detention is not intended to punish someone for what they have said or done in the past, as much as it is preventative for the future. On that note, the Member finds that:
Parliament did write in Regulation 246 specific factors that are to be considered in assessing whether a person is a danger to the public. Of course, as the parties agree and as this Division well knows, those specifically listed factors are not exhaustive and this Division can consider anything else that might also be relevant, but it is still worth noting and emphasizing that in Mr. Hamdan's case none of those Regulation 246 factors are present. Some of them aren't even relevant. …not only does Mr. Hamdan not have any of those types of convictions in Canada, he doesn't have any convictions at all in Canada. He has a clean criminal record here.
He has been charged of course, as has been discussed so extensively in these proceedings, but he has been acquitted of the criminal charges, so that is a significant factor in my view that makes him different than most of the people that this Division deals with on the ground of danger to the public. He has no history of committing violent criminal offences in Canada. He has no history of directly harming anyone in Canada in a manner that would justify continued detention if those elements were present.
[52] The Member, apart from these comments on the lack of any evidence of a violent or criminal past, also notes Mr. Hamdan’s good conduct despite the lengthy incarceration. He remarks that “although immigration detention is stressful – he has been held in provincial institutions, not an immigration holding centre – and this Division has seen many examples of individuals held in those environments who engage in significant violent activity within the institutions even though they're in a controlled environment. That's not the case for Mr. Hamdan.”
[53] I note that the Member based this assessment in part on new evidence before him from the August 2019 hearing, which included two years of correctional records concerning Mr. Hamdan’s behaviour during detention, spanning 50 pages of logs between April 2017 and April 2019 (approximately five months of which in 2017 related to non-immigration detention). The Member pointed out that his behaviour over that period showed no evidence of violence. Rather, these logs indicate that Mr. Hamdan was usually respectful and often displayed good conduct while in detention. The member also noted Mr. Hamdan’s willingness not to post. He ruled:
At this point in time I think it's somewhat speculative to argue or to maintain on a balance of probabilities that Mr. Harndan's future postings, if any, would on a balance of probabilities likely motivate anyone in Canada to carry out that type of attack. There is no evidence that his past postings motivated anyone to actually carry out some type of action of this kind, so overall in consideration of all of these issues I accept -- I continue to accept that there is a level of danger to the public that exist, but again I repeat that on the spectrum of the kind of cases that this Division routinely deals with, I conclude it's much less of a danger than we see with those individuals who have established records of criminal violence.
Mr. Hamdan has no such history of violent behaviour in Canada and with appropriate conditions of release I conclude that he is not a danger to the public on a balance of probabilities.
[54] The Member thus focused his findings on forward looking danger as based on Mr. Hamdan’s conduct in the years since posting his social media messages, i.e. while incarcerated, as well as his conduct during the hearing itself. This was open to the Member.
[55] The fact that the ID had found Mr. Hamdan to be a danger to the public in the context of its admissibility decision the previous year, did not require the ID to reach a similar conclusion in the detention context, as these adjudicate different issues under different sections of IRPA, with different Charter considerations at play. They are also made according to different standards of proof, namely, a balance of probability in the detention context, as opposed to the lower standard of reasonable grounds to believe in inadmissibility proceedings, where the focus is what the individual has done in the past, rather than the forward-looking detention context of what will happen if s/he is released.
[56] In an analogous situation, while still on this Court Justice de Montigny explained in Canada (Public Safety and Emergency Preparedness) v Sall, 2011 FC 682, when addressing a ID member’s decision to release in spite of an existing danger opinion from the Minister:
[39] Moreover, the Member was entitled to disagree with the assessment made by the Minister, not only because he relied on other factors to measure the danger (the workshops taken by Mr. Sall, his cooperation with the CBSA, the passage of time and his marriage), but also because this danger opinion was issued in a very specific context (to determine whether he should be removed from Canada), which is distinct from the purposes of a detention review. As pointed out by the Federal Court of Appeal in Williams v Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646, what the Minister or his delegate must focus on in the exercise of his discretion under paragraph 115(2)(a) of the IRPA is to determine whether an individual who has committed one or more serious crimes in the past creates an unacceptable risk to the public. Such an assessment necessarily involves “political considerations not inappropriate for a minister” (Williams, at paragraph 29), but which are certainly not relevant for the ID in a detention review.
[57] Finally, the Minister argues that the Member had insufficient information concerning Mr. Hamdan’s mental health diagnosis, treatment, and prognosis to properly assess his risk to the public, in that he has been seeing a psychologist twice each week and has been prescribed medication. Yet, there is no independent evidence as to the nature of the symptoms or medication.
[58] In a previous detention review, in June, 2019, when Mr. Hamdan explained he was seeking to obtain his medical records through access requests but had not received them, and even requested an order from the Board for production of these records, the Minister argued the Board did not have the authority to order this and that the Board could not make any findings with respect to Mr. Hamdan’s mental health (which he argued was being negatively impacted by his lengthy imprisonment). The Minister has not established that there is any non-speculative basis for further concern based on the fact that Mr. Hamdan has received counselling and takes medication prescribed by his physician, in particular given that this is an ongoing condition of his release.
[59] First, I note that Mr. Hamdan and his counsel have been attempting to obtain health records from his institution, which they have been unable to get to date. Second, the ID remarked that Mr. Hamdan required two breaks, and took it upon himself to leave the room “to calm himself down and deal with his emotions.” The Member went on to note that it is:
understandable that someone in Mr. Hamdan’s position would be experiencing strong emotions and have strong, visceral reactions to what is said about him and the implication that that has for him and his future, especially when he has been in detention for so long, but he did not lose control of his behaviour. He requested to be excused and he managed those difficult emotions in a perfectly civilized and appropriate manner…
[W]hatever Mr. Hamdan’s mental health difficulties that he may be suffering from, in his everyday living situation which is a stressful one and in which violence is not uncommon in a provincial institution, he’s keeping it together in a peaceful fashion and hasn’t engaged in violent behaviour, and I consider that very significant and again something that distinguishes him from many of the other danger to the public cases that this Division routinely sees.
[60] As the Member was aware of the lack of medical documentation before him, which Mr. Hamdan described as including a Post-Traumatic Stress Disorder diagnosis, that Member clearly took this into account in the decision as above. He included a condition that Mr. Hamdan be assessed for, and participate fully in, counselling or medical treatment for mental health, including compliance with any prescribed medicine. And that segues into the third and last issue in today’s judicial review – whether the Member’s terms and conditions for Mr. Hamdan’s release mitigate his danger to the public.
C. Issue (iii): Conditions mitigate danger to the public
[61] Given that I find that the Minister’s first two issues do not raise reviewable errors, and the Member both provided clear and compelling reasons to depart from prior ID decisions, and did so with the Minister’s reason for the detention in mind, I now turn to the Minister’s third issue, which attracted focused discussion in oral and written submissions first before the Board, and then before this Court.
[62] My conclusion on this third issue, like the first two, is that the outcome and rationale were both open to the Member, in that he turned his mind to the 25 enumerated conditions in his Order for Release (see Annex A) in a systematic manner. While his analysis may have not covered every possibility that may arise from the bondsperson’s oversight, the financial pledge, and other tools implemented to secure compliance, perfection is not the standard on reasonableness review (see, for instance, Justice Evans’ dissent at para 163 of Public Service Alliance of Canada v Canada Post Corporation, 2010 FCA 56, as relied on by the Supreme Court in allowing the appeal (2011 SCC 57 at para 1).
[63] Rather, I find that the Member implemented what he could with his available toolkit to follow the judicial guidance in “virtually eliminating” the risk posed by Mr. Hamdan’s danger. The fact that other members might have decided not to release – and indeed had not released on many occasions in this case – does not render the decision unreasonable.
[64] Before reviewing the law, jurisprudence and policy on conditions, I note that the principal conditions that the Minister argues are unreasonable concern the “unsuitable and inappropriate” bondsperson, his modest financial surety, his ability to control the Mr. Hamdan, and the fact that others live with the bondsperson.
(1) Conditions mitigating the risk
[65] As already discussed above, particularly in the context of the first issue, particular importance is placed on the ID’s requirement to consider alternatives to detention under the legislation (section 248 of the Regulations), the jurisprudence, and policy. And any decision to release someone who has been found to pose a danger will necessarily require carefully considered conditions.
[66] The Member noted in his Decision that the Guidelines state “[r]elease conditions imposed must be tailored to the specific circumstances of the case. They should be linked to risk and be effective in adequately mitigating those risk factors.” Indeed, a guiding objective and principle contained in section 1.1.3 of the Guidelines states that Canadian law regards detention as an exceptional measure, as enshrined in numerous instruments including the Charter, International Covenant on Civil and Political Rights, and Convention on the Rights of the Child.
[67] In emphasizing that availability, effectiveness and appropriateness of alternatives to detention must be adequately assessed in each case, the Guidelines state that conditions should only be required where necessary (i.e. in situations of heightened risk) given that they are a restriction on liberty. But, if imposed, they must be both tailored to the individual’s circumstances so that they are attainable and proportionate to the level of risk. Thus, each condition must have a rational connection to the circumstances of the case and the specific ground of detention, which the Board member should explain in the reasons.
[68] The Guidelines, of course, take into account the guidance provided by the law and jurisprudence that has come out of it, which require the ID to be vigilant when a danger has been found.
[69] Here, the Member was alive to the ‘danger’ evidence. The Decision includes direct reference to the RCMP’s 2017 Threat Assessment concerning Mr. Hamdan, dated September 7, 2017. In fact, the Member began his assessment of the alternative to detention by explicitly considering the 2017 RCMP Threat Evaluation Report:
I will note though that even the more recent threat evaluation report in 2017 in C-2 at Tab 5 also states explicitly and took pains to note that it was not predictive of Mr.