Canada (Public Safety and Emergency Preparedness) v. Berisha

Canada (Public Safety and Emergency Preparedness) v. Berisha
Court (s) Database
Federal Court Decisions
Date
2012-09-20
Neutral citation
2012 FC 1100
File numbers
IMM-8716-12
Notes
A correction was made on March 31, 2014
Reported Decision
Decision Content
Date: 20120920
Docket: IMM-8716-12
Citation: 2012 FC 1100
Ottawa, Ontario, September 20, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Applicant
and
ALFRED BERISHA
(aka ALFRED CUKALI)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Minister asks the Court to set aside the decision of Harold Shepherd of the Immigration Division of the Immigration and Refugee Board (the Member), dated August 27, 2012, ordering the respondent to be released from immigration detention on conditions that include electronic monitoring.
[2] There is a question as to the true identity of the respondent. Notwithstanding the respondent’s continued assertion that he is Alfred Berisha from Kosovo, I and most who have examined the evidence, conclude, on the balance of probabilities, that he is Alfred Cukali from Albania. Unless the context otherwise requires, he is referred to in these reasons as the respondent.
[3] By Order dated September 6, 2012, I issued a stay of the Order for release, granted the Minister leave to judicially review that decision, and at the request of the parties expedited the hearing of the judicial review.[1] The next detention review is scheduled to commence in Toronto on September 24, 2012. The respondent asked the Court to stay that next review; however, I declined. I am not convinced that a judge of the Federal Court has jurisdiction to stay a review that is mandated by Parliament to be held every thirty days. I did undertake to issue my judgment on the judicial review by September 21, 2012. Counsel for the parties appeared and fully argued the merits of the application, in Toronto, on Friday, September 14, 2012.
[4] For the following reasons, the Member’s Order releasing the respondent is unreasonable and must be set aside.
Background
The respondent’s history in Canada, with its courts, and with immigration authorities
[5] Many members of the Board have noted and commented upon the respondent’s lack of credibility, including his lack of credibility as to his identity. They have also noted and commented on his lack of trustworthiness, his lack of cooperation with Canada Border Services Agency (CBSA) and other immigration authorities (except when it suited his own purposes), his ability to obtain forged documents, and his ability to cross the Canada-US border without detection.
[6] The following statement from Member A. Laut from the detention review he conducted in May 2012 is illustrative of the views expressed by members of the Immigration Division as to the respondent’s character and conduct.
I’m satisfied and agree with the assessment both of Member Kowalyk and Ms. Funston that there are strong reasons to believe that he would be unlikely to appear for removal. … He’s resisted efforts to remove him and it’s become increasingly clear that he’s been untruthful about his identity for many, many years now. He is fundamentally not a trustworthy person and he is a person who has relatively easy access to fraudulent documents and continues, in my view, to have that access, which could aid him in evading the authorities.
[7] Mr. Shepherd agreed with his colleagues’ assessment of the respondent. In his oral decision releasing the respondent from detention he stated:
[T]he concern this division has had all along is that Mr. Berisha Cukali, has simply not been forthcoming with this division, and is also somebody willing to take flight and use alternative names if it’s not convenient for him at any given time. In the conclusion of this – of this division, if things didn’t go well, Mr. Berisha or Cukali is quite capable of flight – taking flight …
[8] The following is the known history of the respondent since he arrived in Canada. There are periods of time unaccounted for by the respondent. This history supports the finding that he is neither credible nor trustworthy, and amply supports the finding that he is a significant flight risk.
[9] The respondent entered Canada on December 19, 1995, using an improperly obtained Italian passport. The following day he made application for social assistance payments from the City of Toronto. In January 1996 he was found to be inadmissible to Canada as he was not in possession of a valid and subsisting passport, identity, or travel document.
[10] The respondent made a claim for refugee status, claiming to be from Kosovo and a citizen of the former Yugoslavia. A departure order was issue against him on May 27, 1996.
[11] The Convention Refugee Determination Division of the Immigration and Refugee Board of Canada denied his refugee claim because of numerous credibility concerns both with the documents the respondent was relying upon to establish his identity as well as with his oral testimony. An application for leave to review that decision was dismissed by this Court on October 14, 1997.
[12] On February 24, 1999, the respondent submitted an application for permanent residence on humanitarian and compassionate grounds. This application was refused on June 19, 2000.
[13] In June 1999 the respondent was found to be inadmissible to Canada due to serious criminality because on May 29, 1997, he had been convicted in Toronto of uttering and possession of counterfeit money. On June 14, 1999, he was also charged with attempted murder, possession of a weapon for a dangerous purpose, and two counts of assault.
[14] As a consequence, he was detained by immigration authorities. A senior immigration officer forwarded to the Toronto East Detention Centre an offer of release on a $2,000 cash bond; however, the detention centre improperly released the respondent without the posting of the bond. An enforcement officer spoke to the respondent and arranged for him to report to the detention centre on July 27, 1999, and again on August 3, 1999, to remedy the situation of the unsatisfied bond. The respondent failed to report despite promising to do so. On January 7, 2000, a warrant was issued for his arrest.
[15] More than five years were to pass before the Canadian immigration authorities were to have contact again with the respondent. He was in the USA for at least part of that five-year period.
[16] On October 3, 2005, the respondent reported to Toronto Police Services regarding the outstanding criminal charges from June 1999. He was arrested but released by the Ontario Court of Justice on a $25,000 surety and $10,000 cash bail bond.
[17] The respondent then turned himself in to the Greater Toronto Enforcement Centre on October 5, 2005. He was released on a performance bond. His outstanding criminal charges from 1999 were withdrawn.
[18] The respondent then submitted an application for permanent residence in the spouse or common-law partner in Canada class on July 9, 2007. This application was refused on April 16, 2012. On May 4, 2012, he filed an application for leave and judicial review and, on consent of the Minister, the decision was set aside and sent back to be determined again. It remains outstanding.
[19] Days after the spousal sponsorship application was filed, the respondent submitted a Pre-Removal Risk Assessment application (PRRA). The PRRA decision was rendered on January 29, 2009, and was negative.
[20] In January 2010 the CBSA received information that the respondent, using the name Alfred Cukali, was wanted in the United States for possession of ecstasy with intent to distribute. Canada also received documents from the USA that indicated that in June 2001 the respondent was ordered removed from the United States to Albania or Italy; that this removal decision was appealed; and that a final decision was issued in January 2003. There is nothing that indicates that he was so removed. He may have entered Canada then, or remained in the USA until he returned to Canada, or he may have been elsewhere than Canada and the USA. Only the respondent knows.
[21] On February 2, 2012, a warrant for the respondent’s arrest was issued by Canadian immigration officials because he had violated the conditions of release by not living at the address he had indicated. The warrant was executed on February 7, 2012, and the respondent has been detained for removal since that date.
[22] On May 8, 2012, CBSA received a telephone call from the Embassy of Albania advising that they had received confirmation of the respondent’s identity as Alfred Cukali and that they were in a position to issue him a travel document.
[23] On May 16, 2012, CBSA received information from the Embassy of Albania via Alba Zoto, the respondent’s alleged common law partner, that the respondent suffers from a heart condition called cardiomyopathy, which prevents him from flying safely. An assessment by a cardiologist on June 22, 2012, found him fit to fly.
[24] On July 6, 2012, CBSA scheduled the respondent for escorted removal to Albania on July 18, 2012.
[25] On July 9, 2012, the Ontario Court of Justice ordered that the respondent to be brought before the Court on July 25, 2012, and thereafter as may be required in order to give evidence in a criminal proceeding. This summons was obtained by Nicolas Charitsis, a criminal defence lawyer in Toronto who is counsel for a Mr. Kazazi in the criminal proceeding. The applicant has noted that Mr. Charitsis is apparently also a friend of the respondent because on June 8, 2012, he offered to be a bondsperson. He has offered a $25,000 bond and to pay for part of the electronic monitoring device that forms a significant condition of the decision to release that is under review.
[26] As a result of the summons to appear, CBSA cancelled the respondent’s scheduled removal.
[27] On July 25, 2012, again at the request of Mr. Charitsis, the Ontario Court of Justice issued another subpoena ordering the defendant’s appearance as a witness for the defence in the trial of the above-noted criminal proceeding which is now scheduled to commence on December 4, 2012.
[28] The following summarizes the various detention reviews.
The respondent’s detention reviews
[29] Since being detained on February 7, 2012, the respondent has received regular detention reviews as required by s. 57 of the Act. Prior to the August 27, 2012, release decision under review, the conclusion of each member was that the respondent was not trustworthy, was a significant flight risk, and should remain in detention.
February 14, 2012
[30] As an alternative to detention, the respondent proposed a $10,000 cash bond from his common law partner Ms. Zoto, as well as a performance bond of $10,000 and a cash bond of $2,000 from a friend, Mr. Beci. Member Heyes found this insufficient to offset his concern that the respondent was a flight risk:
Whether you are Mr. [Berisha] or that other gentleman from Albania are not entirely settled in my view that certainly affects credibility and trustworthiness of you and whether or not you can be trusted to abide with terms and conditions.
I do not see that either bondsperson or I do not see in this proposal (inaudible) something that either bondsperson could ensure your appearance for removal.
Your wife is sponsoring you to remain in Canada as a spouse. The other bondsperson would be living in a separate city and has some health concerns which I believe might impact his ability to supervise.
And I think given that your nationality and identity are still an issue I do not believe that this proposal sufficiently offsets flight risk concerns.
...
And given that information I do not believe that simply increasing the bonds is sufficient to offset my concern that you would not be likely to appear for removal.
And so I am going to continue your detention on the grounds of being unlikely to appear for removal.
March 1, 2012
[31] The respondent proposed additional bondspersons and amounts at his second review, namely: Ms. Zoto, a $10,000 security deposit; Mr. Beci, a $3,000 security deposit; Mr. Kraja, a $10,000 security deposit; Mr. Luga, a $20,000 security deposit and $20,000 performance bond; and Mr. Charitsis, a $10,000 security deposit.
[32] Member Kowalyk did not find that the “substantial” funds offered offset the concerns that arose from the respondent’s use of an alternative identity and undocumented re-entry into Canada around 2005, nor did these funds offset his lack of credibility and trustworthiness or the doubt as to his availability for removal. Member Kowalyk was satisfied that the respondent would be unlikely to appear for removal if released on the terms offered.
April 11, 2012
[33] The respondent proposed an additional $10,000 security deposit from Ms. Zoto. Member Funston explained that clear and compelling reasons have to be given for departing from prior detention review decisions and that the additional cash from Ms. Zoto was the only new information being provided. Member Funston noted and agreed with Member Kowalyk’s concerns as to the respondent’s trustworthiness and credibility:
The concerns regarding your credibility, your trustworthiness and your identity and your questionable cooperation are not offset by the alternatives that are being proposed.
...
I am satisfied that you are a flight risk and that 58(1)(b) continues to apply against your release.
May 11, 2012
[34] The respondent added to the bonds being proposed: Ms. Zoto was now also offering an additional $5,000 performance bond; Mr. Beci increased his security deposit to $5,000; Mr. Kraja offered an additional $2,000 security deposit, plus $5,000 as a performance bond; and Mr. Charitsis added $2,000 as a security deposit, and $10,000 as a performance bond. Despite the additional amounts, Member Laut concluded that regardless of the amounts at risk, they did not address the concern that the respondent was a significant flight risk:
I’m satisfied and agree with the assessment both of Member Kowalyk and Ms. Funston that there are strong reasons to believe that [Mr. Berisha] would be unlikely to appear for removal. He’s been in Canada since 1995. He has ties, strong ties here. He’s resisted efforts to remove him and it’s become increasingly clear that he’s been untruthful about his identity for many, many years now. He is fundamentally not a trustworthy person and he is a person who has relatively easy access to fraudulent documents and continues, in my view, to have that access, which could aid him in evading the authorities.
He has sought to evade serious criminal charges in Canada in the past by fleeing to another jurisdiction. I think there’s a likelihood that he would do that if released now. I expect his removal will be soon.
There have been in the past very large bonds offered by several parties, including his common law [spouse]. There are five parties offering bonds today. All of them have been examined and rejected in the past. They’re offering larger sums of money today. That does not persuade me that their bonds would be effective.
I agree that Ms. Kowalyk’s reasons at paragraph 35 of her reasons for rejecting these bondspersons continue to apply to the circumstances today. I would add very strongly that I have been told that all of these people believe that the individual known as Alfred Berisha – born in Kosovo. I’m not satisfied that that’s the truth. I’m not satisfied that these individuals, therefore, even know who they would be signing a bond for.
I don’t believe the bonds would be effective.
June 8, 2012
[35] At this review, Mr. Charitsis’ security deposit amount was increased to $25,000. The respondent’s counsel also raised the possibility of electronic monitoring, but it is clear from the transcript that no evidence was led and counsel made no submissions on this alternative. Member Funston continued the detention, reasoning:
Now the alternatives that are being proposed today are pretty much echo alternatives that have been proposed in the past. All of the named bondspersons have been offered at one point or another at prior detention reviews, and more than one time or another, and have all been rejected primarily as the concern has been that you’ve been viewed to be a person who could not be successfully relied upon to comply with the conditions of your release and to comply with removal.
You have unfortunately been dishonest in your dealings with Immigration officials. You have been withholding very important information with respect to your identity and you have also – it seems to me from the record, that you’ve not even been honest with your own counsel with respect to the issues around identity and nationality and you’re – the lengths that you seem to be prepared to go to in order to mislead Immigration officials and avoid your removal from Canada and (inaudible) that you’ve been found to be entirely lacking in credibility and (inaudible) trustworthy.
And, Members have not been persuaded that financial guarantees from various friends and acquaintances will be sufficient to ensure your compliance.
There’s been nothing today presented to me by way of new information that would lead me to contradict my decision with respect to the assessment of your bondspersons and their ultimate rejection by Members of this Division.
Now, the added feature today is the potential of electronic monitoring. One of your bondspersons I understand is willing to pay for it, but I have not been presented with enough information with respect to the (inaudible) of electronic monitoring and how it would work and whether it would work in your case.
[emphasis added]
July 5, 2012
[36] No transcript was prepared for this review by Member Delduca, but the hand-written notes of Minister’s counsel at the hearing summarize the reasons for the decision as “rely on previous reasons; removal soon – fit to fly; detention not lengthy; no altn.”
August, 27, 2012
[37] The August 2012 detention review was heard over four days: August 2, 10, 21, and 27, 2012. On August 27, 2012, Member Shepherd gave his reasons for releasing the respondent.
[38] On August 10, 2012, the respondent called witnesses to explain the electronic monitoring he was proposing. He called Robert Aloisio, Director of Business Development with Safe Tracks GPS Solutions, the owner of the electronic monitoring bracelet technology that was being proposed and Frank Darrin Hansma, Behavioural Compliance Program Director for INTACTAccess Incorporated, which through agreement with Safe Tracks GPS Solutions, provides private sales and rentals of its electronic monitoring equipment. It is this company that would contract with the respondent to install and monitor the electronic leg bracelet.
[39] The Member “agree[d] completely” with his colleagues in previous detention reviews that:
[A]lthough substantial amounts of [bonds] had been proposed, [the respondent’s] ... lack of trust does not make him a candidate for release ... [that] the amount of the bond offer is not the problem, and the concern this division has had all along is that Mr. Berisha, Cukali has simply not been forthcoming with this division, and is also somebody willing to take flight and use alternative names if it’s not convenient for him at any given time ... [and that] if things didn’t go well, Mr. Berisha or Cukali is quite capable of flight.
[40] However, Member Shepherd went on to consider the issue of electronic monitoring. In so doing, he acknowledged the concerns of CBSA and provided his response based on the testimony of the witnesses for the respondent.
Concern: The respondent could remove the leg bracelet.
Response: The bracelet is made of titanium which is very difficult to cut. As well the leg bracelet has a fibre wire that surrounds it which, if cut, emits a 95 decibel alarm. Further, if one tries to remove it, the alarm is triggered at the call centre which then communicates that information to those on the contact list.
Concern: The respondent could simply take the leg bracelet off in the subway as the tracking system doesn’t work underground.
Response: The alarm can be sounded if he attempts removal while underground and if he resurfaces, then, if he still has the leg bracelet on the GPS can once again track him and alert the contacts as to his whereabouts.
Concern: If a call goes to GTEC, it could be a significant amount of time before CBSA can dispatch someone from Mississauga – CBSA is not in a position to offer an effective emergency response.
Response: CBSA says that it will not ignore the alarm. It will use its normal procedures, issue an arrest warrant and it will be in the CPIC system. However, it was noted that arrest may take some time.
Concern: If he fails to pay for the electronic monitoring it will be terminated.
Response: The company says that it does not cut it off if there’s a default in payment, it alerts the contacts and some time is given to address the arrears of payment before turning the system off.
Concern: Who is to be alerted if there is a breach?
Response: The bondspersons and CBSA are to be alerted.
Concern: How can it be assured that he is in his apartment when the GPS system can only reveal whether he is in the apartment building?
Response: The company can install proximity beacons in his apartment which will be triggered if he leaves it.
Member Shepherd noted that no system was perfect and, as he put it, “we have to look to see whether or not the alternative offsets the risk more likely than not.” He found that it did.
Order for Release
[41] The Order for release signed by Member Shepherd on September 27, 2012, states that the respondent "is hereby ordered ... released from detention subject to the following conditions:"
1. The following persons post a guarantee (performance bond) or provide cash in the amounts stipulated:
(a) Alba Zoto: $10,000 cash
(b) Ilir Kraja: $10,000 cash
(c) Elvin Luga: $20,000 cash, $20,000 performance bond
(d) Nicholas Charitsis: $20,000 cash
(e) Arber Gina: $40,000 cash, $19,000 performance bond
Total: $100,000 cash, $39,000 performance bond.
2. "Be equipped before release with electronic monitoring equipment from Intact Access Inc. Keep contract with company in good standing at all times. Remain subject to electronic monitoring at all times."
3. "Pay contractual fees on time. Protocol Contact Information must include all bondspersons and the Canada Border Services Agency."
4. "The person concerned shall remain at all times at the residential address disclosed to the Canada Border Services Agency unless to proceed directly to report to CBSA and to return forthwith to the residence. In the event of a medical emergency, he may be present at a hospital for necessary treatment with the presence of a bondsperson."
5. The person concerned shall:
(a) "Present themselves at the date, time and place that a Canada Border Services Agency (CBSA) officer or the Immigration Division requires them to appear to comply with any obligation imposed on them under the Act, including removal, if necessary."
(b) "Provide CBSA, prior to release with their address and advise CBSA in person of any change in address prior to the change being made."
(c) "Report to an officer at CBSA Office at GTEC, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 once per week."
(d) "Reside at all times with Alba Zoto."
The Law Relating to Detention and Release
[42] The provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) and the Immigration and Refugee Protection Regulations (the Regulations) set out the conditions under which persons may be placed in immigration detention and the considerations for their release. For the purposes of this application, the following are the relevant provisions.
[43] Section 55 of the Act provides that a foreign national, such as the respondent, may be detained when there are reasonable grounds to believe that the person is “unlikely to appear for … removal from Canada.”
[44] Section 57 of the Act provides that a person so detained “must” have the detention reviewed by the Immigration Division within 48 hours, at least once during the following seven days, and then at least once during each following 30-day period.
[45] Subsection 58(3) of the Act provides that notwithstanding that it has been found that the foreign national is unlikely to appear for removal, the Immigration Division may order the person to be released and if it so orders “it may impose conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.”
[46] Subsection 47(2) of the Regulations provides that a person who posts a guarantee “must … be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions [of release] imposed.”
[47] Lastly, section 248 of the Regulations stipulates that where there are grounds for detention, then the Immigration Division “shall” consider the following factors before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(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;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
Issues
[48] In my view, the issues raised by in this application are the following:
1. Did the Member fail to give clear and compelling reasons for ordering the release of the respondent;
2. Did the Member properly consider the requirements set out in section 248 or paragraph 47(2)(b) of the Regulations; and
3. Was the order of the Member releasing the respondent from detention on the condition of electronic monitoring unreasonable?
Standard of Review
[49] The applicant says that the first issue as one of procedural fairness and frames it as follows: “The Member breached procedural fairness by failing to give clear and compelling reasons for ordering the release of the Respondent.” The applicant submits that it and the second issue are reviewable on the correctness standard. The respondent submits that the standard of review of all three issues is reasonableness and that considerable deference is to be given to the Board.
[50] The Minister cites Canada (Minister of Public Safety and Emergency Preparedness) v Welch, 2006 FC 924 [Welch], for the proposition that a member’s failure to give “clear and compelling reasons” for departing from the results of previous detention reviews is a breach of procedural fairness reviewable on the standard of correctness.
[51] The requirement that on a subsequent detention review a member is to consider and follow previous decisions, absent clear and compelling reasons to do otherwise, arises from the decision of Court of Appeal in Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4 at paras 10-13:
10. Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.
11. Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.
12. The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.
13. However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.
[52] The requirement that a member give clear and compelling reasons is no more than a requirement that a member give reasons to explain why he or she is departing from previous decisions that have been made and, if the reasons are weak, then there ought not to be any departure. With respect to the view of Justice Gauthier, as she then was, in Welch, I do not agree that the requirement to give “clear and compelling” reasons relates to procedural fairness.
[53] In Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 para 39, the Supreme Court of Canada considered the purpose of requiring that administrative decision-makers give reasons for their decisions:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R.A. Macdonald and D. Lametti, "Reasons for Decision in Administrative Law" (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship & Immigration), [1997] 2 F.C. 646 (Fed. C.A.) at para. 38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that these are significant benefits of written reasons. [emphasis added]
[54] The underlined concept above has recently been considered by the Federal Court of Appeal in Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158. Justice Stratas noted, at paragraph 16:
There must be enough information about the decision and its bases so that the supervising court can assess, meaningfully, whether the decision-maker met minimum standards of legality. This role of supervising courts is an important aspect of the rule of law and must be respected: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dunsmuir, supra at paragraphs 27 to 31. In cases where the standard of review is reasonableness, the supervising court must assess “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, supra at paragraph 47. If the supervising court has been prevented from assessing this because too little information has been provided, the reasons are inadequate: see, e.g., Canadian Association of Broadcasters, supra at paragraph 11. [emphasis added]
[55] One must also be mindful of the recent decision of the Supreme Court in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, wherein at para 22 it is explained that it is only when there are no reasons and some are required, that decision is to be examined on the correctness standard:
It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
[56] Here there are reasons provided by the Member. Therefore, the Minister has not framed the issues correctly; procedural fairness is not engaged. While the Minister is of the view that the Member’s reasons are not “clear and compelling” and don’t support him departing from the previous detention decisions, that is an alleged error of mixed fact and law for substantive review – namely the application of section 58 of the Act as interpreted by case law, to the facts of this case – to be conducted on the basis of reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]; B072 v Canada (Citizenship and Immigration), 2012 FC 563, at paras 18-19; Canada (Citizenship and Immigration) v B147, 2012 FC 655, at para 10.
[57] Similarly, I find that whether the Member considered and properly applied the criteria listed in section 248 and paragraph 47(2)(b) of the Regulations to the facts of this case to be an issue of mixed fact and law to which the reasonableness standard of review applies.
[58] That is not to say that a failure to consider a prescribed factor is easy to overlook on the standard of reasonableness. If, as in Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299, the Member expressly demonstrated that he was not applying the law, i.e. the above criteria, that bound him, then his decision is unreasonable. On the other hand, if it is not so obvious from the decision or record that he failed to correctly identify the law to be applied, I will have to more fully grapple with whether there exists “justification, transparency and intelligibility within [his] decision-making process [and] … whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law:” Dunsmuir, above, at para 47.
[59] For these reasons, I find that each of the issues identified by the applicant is reviewable on the basis of reasonableness.
Analysis
1. Clear and compelling reasons for departing from previous decisions
[60] Member Shepherd provided oral reasons for his decision to release the respondent from detention. While not as detailed or coherent as one might wish, I cannot agree with the Minister that he failed to give clear and compelling reasons for departing from previous decisions.
[61] Member Shepherd agreed with the previous members that the respondent is a flight risk. He states that their findings of fact are “sound and their objection to the bonds persons is sound.” He agrees with his colleagues that “if things didn’t go well, Mr. Berisha or Cukali is quite capable of flight.” The objection to the bondspersons throughout has been that no amount of money placed at risk will prevent the respondent from fleeing if it suits his purpose. They were never rejected for some reason personal to them although, as noted below, Alba Zoto warranted a closer examination.
[62] Member Shepherd notes at the beginning of his reasons that at the previous hearings the respondent’s detention was noted as “recent” whereas now he has been detained for four months; that whereas he had been considered to be subject to a “more quick removal” he is now under a subpoena to testify in December 2012 and cannot be removed earlier; and now the amount and number of bondspersons proposed has been increased. Despite these differences from previous decisions he says “this isn’t enough to warrant release, so based on all of those bonds persons, I don’t see a significant change, a clear and compelling reasons [to depart] from my colleague’s determination, so I think that if it is – if there had been no more than that, the matter would end there with detention.”
[63] However, Member Shepherd then says the following:
However, I have to go on and consider something else. The issue of electronic monitoring. … So the first time that the alternative of electronic monitoring has been squarely before this division what is in the August detention review which continues today.
So the issue is whether or not electronic monitoring will provide a material change in circumstance and clear and compelling reasons why detention should end if Mr. Berisha Cukali should be ordered release, notwithstanding the fact that the bonds persons alone do not offset (inaudible) very significant flight risk posed by Mr. Berisha, Mr. Cukali.
[64] The Member then examines the evidence as to how the electronic monitoring works, considers the Minister’s concerns including concerns as to its operability underground, as to those to be alerted if there is an alarm, as to ensuring that he remains in his apartment, as to possible failure to recharge the unit, and as to removal of the leg bracelet. He concludes with this statement: “So the issue is is this enough to have clear and compelling reasons that [departing] from not only my colleague’s version, I call it conclusion, I hold myself, and even conclusion that the new bonds person, Alfred Gina does not (inaudible), does the addition of the electronic monitoring offset the risk so that more likely than not, Mr. Berisha or Mr. Cukali would report for removal [emphasis added].”
[65] He concludes that the electronic monitoring permits the bondspersons to respond “right away” if the respondent goes where he is not to be, if he fails to recharge the bracelet, if he attempts to remove the bracelet, or generally if he attempts to flee.
[66] It is beyond question that the Member saw the addition of electronic monitoring as the clear and compelling reason to depart from previous decisions, and absent that new condition, that he would not have departed from the previous decisions. In my view, based on the foregoing, it was not unreasonable for the Member to find this to be a clear and compelling reason entitling him to depart from the dispositions of previous detention reviews. It remains an issue for examination whether, once entitled to depart from previous dispositions, his decision to release was otherwise reasonable based on the applicable law and the evidence before him.
2. Consideration of section 248 and paragraph 47(2)(b) of the Regulations
Factors to be considered before release – section 248 of the Regulations
[67] Section 248 of the Regulations prescribes five factors that “shall” be considered prior to making a decision to release from detention: (i) the reasons for the detention, (ii) the length of time in detention, (iii) the length of time detention is likely to continue, (iv) any unexplained delays or diligence by the person or Department, and (v) the existence of alternatives to detention.
[68] The applicant submits that the Member erred in failing to consider that the respondent was removal ready and was only in detention due to the subpoena requiring that he testify. I do not agree.
[69] The following passage from the record shows that the Member was aware that the respondent was removal ready and that he could not be removed until he had testified:
[A]t this point, there’s a steady (inaudible) until December when a criminal matter of drunk driving will be heard. He’s a witness at that trial. He’s got a subpoena, so he’s got to (inaudible) stay until that matter has been resolved. So at this point in time, four months and once that matter has been resolved, once he has given evidence, then he’s removal ready. There are no obstacles to his removal except for that issue.
[70] It is also evident from the record that the Member was well aware of the other factors required to be considered under s. 248, and he did so. There is no merit to the applicant’s submission.
Imposing conditions on release – paragraph 47(2)(b) of the Regulations
[71] Subsection 58(3) of the Act provides that if the Immigration Division orders release “it may impose any conditions that it considers necessary including the payment of a deposit or the posting of a gu