Canada (Public Safety and Emergency Preparedness) v. Lunyamila

Canada (Public Safety and Emergency Preparedness) v. Lunyamila
Court (s) Database
Federal Court Decisions
Date
2016-10-27
Neutral citation
2016 FC 1199
File numbers
IMM-1378-16, IMM-3026-16, IMM-3428-16, IMM-3861-16, IMM-913-16
Notes
A correction was made on 28-12-2017. Une correction fut apporté le 28 decembre, 2017
Reported Decision
Decision Content
Date: 20161027
Dockets: IMM-3428-16
IMM-913-16
IMM-1378-16
IMM-3026-16
IMM-3861-16
Citation: 2016 FC 1199
Ottawa, Ontario, October 27, 2016
PRESENT: THE CHIEF JUSTICE
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Applicant
and
JACOB DAMIANY LUNYAMILA
Respondent
JUDGMENT AND REASONS
I. Introduction [1] A fundamental issue raised by these applications is how to resolve the tension between, on the one hand, an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and on the other hand, the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal.
[2] In my view, where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.
[3] If it were otherwise, such a detainee could simply produce, or contribute to producing, a “stalemate,” for the purposes of ultimately obtaining his release from detention. This is precisely what the Respondent in these applications, Mr. Lunyamila, appears to be attempting to do. If he were successful, the public would be required to bear at least some risk of his violent and dangerous behaviour. The degree of such risk that it would be required to bear would depend on the nature of the terms and conditions of his release. But there would likely be at least some non-trivial risk. And if no meaningful constraint on such behaviour could be legally imposed, as at least one of the decision-makers whose decisions are the subject of review in these applications believes that risk would be substantial. In my view, this would be contrary to the scheme of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The same is true with respect to the risk posed by the fact that he would be unlikely to appear for his ultimate removal from Canada. To hold otherwise would enable him to manipulate our legal system in order to avoid the execution of a validly issued removal order.
[4] To permit a detainee who is a danger to the public or who poses a “flight risk” to manipulate and frustrate the operation of the law, as Mr. Lunyamila is attempting to do, would be to allow the detainee to essentially “take the law into his own hands.” This would undermine the integrity of our immigration laws and public confidence in the rule of law.
[5] Parliament cannot have intended that the freedom to roam the streets of Canada, and to go into hiding to avoid removal to one’s country of origin, could be procured in this manner by persons who pose a danger to the Canadian public or others who do not wish to cooperate with a validly issued removal order.
[6] Accordingly, and for the additional reasons set forth below, the five applications by the Minister of Public Safety and Emergency Preparedness [the Minister] will be granted. In brief, the decisions of the Immigration Division [the I.D.] of the Immigration and Refugee Board to release Mr. Lunyamila were all unreasonable. Moreover, the terms and conditions set forth in those decisions were unreasonable, as they would not have sufficiently addressed either the danger or the flight risk posed by Mr. Lunyamila. Those decisions will therefore be set aside.
II. Background [7] Mr. Lunyamila claims to be a citizen of Rwanda. He was granted refugee status in this country in 1996.
[8] Since his arrival in this country, Mr. Lunyamila has apparently had 389 police encounters. Those encounters have resulted in 95 criminal charges and 54 convictions. Ten of those convictions were for assaults that included punching his ex-girlfriend in the face and randomly attacking innocent civilians without provocation. He has also been convicted for sexual assault and carrying a concealed weapon, namely, an axe.
[9] In August 2012, a member of the I.D. issued an order for Mr. Lunyamila’s removal after determining that he was inadmissible on grounds of criminality, pursuant to paragraph 36(2)(a) of the IRPA. Approximately two years later, following his conviction for sexual assault, a delegate of the Minister issued an opinion pursuant to paragraph 115(2)(a) that Mr. Lunyamila constitutes a danger to the public in Canada.
[10] Mr. Lunyamila was first placed in detention in June 2013. He was briefly released in September 2013, but was rearrested within a few days after he breached one of the conditions of his release. He has been in detention ever since.
[11] Until January of this year, Mr. Lunyamila’s detention was maintained in each of his regular 30 day detention reviews, on the basis that he is a danger to the public and a flight risk. In each or most of those decisions, significant weight appears to have been given to the fact that he was not cooperating with the requirement of Rwandan authorities that he sign a declaration related to the acquisition of travel documents.
[12] However, in January and again in February of this year, I.D. Member Nupponen released Mr. Lunyamila from detention on certain conditions, after realizing that he has not had any Rwandan identity documents since his arrival in Canada. Member Nupponen reasoned that because Rwandan authorities also generally requested, at that time, certified copies of Rwandan government issued identification documents, which Mr. Lunyamila does not have, the prospects for his removal had become speculative and any further detention had become unreasonable. In this regard, Member Nupponen observed in his February decision that “… even though you’re not cooperating with the Minister in the Minister’s obligation to remove you, the fact that there is no identity documentation at this point makes removal look very, very distant, if possible” (Certified Tribunal Record [CTR], p. 58).
[13] In ordering Mr. Lunyamila’s release, Member Nupponen observed that one of the problematic triggers in Mr. Lunyamila’s past has been alcohol. Accordingly, two of the conditions that he imposed on Mr. Lunyamila were that he not consume drugs or alcohol, and that he attend Alcoholics Anonymous. However, Member Nupponen declined to impose certain other terms and conditions that had been imposed by Member King when she released him in 2013. In particular, Member Nupponen refused to require Mr. Lunyamila to “keep the peace and be of good behaviour” or to “cooperate with CBSA with respect to obtaining a travel document.” In the latter regard, Member Nupponen observed: “You’ve made it clear that that really isn’t a part of what you’re able to do now and from your point of view I can understand why you’re not willing to do that so it would be inappropriate for me to include that condition because it would be a condition which undoubtedly would be very quickly breached and it’s not my desire to have you breach conditions which in the bigger picture aren’t required” (CTR, p. 93).
[14] Justice Harrington granted the Minister’s applications for judicial review of Member Nupponen’s two decisions, after finding that those decisions were unreasonable (Minister of Public Safety and Emergency Preparedness v Lunyamila, 2016 FC 289 [Lunyamila]). Among other things, Justice Harrington observed that it was unreasonable for Member Nupponen to have concluded that Mr. Lunyamila’s recent outbursts of violent behaviour in detention did not confirm or exemplify the danger he presented to the general public. He also noted that that there was “nothing in the record to support the proposition that enforced abstinence will lead to sobriety in the future, particularly since [Mr. Lunyamila] was to be released into a home where alcohol was available” (Lunyamila, above, at para 10). In addition, Justice Harrington stated that there was “nothing in the record to support the proposition that he will report regularly in the future as set out in the terms of his release” (Lunyamila, above, at para 11). In this regard, Justice Harrington added: “Releasing Mr. Lunyamila on the term that he report regularly is certainly not justified by his past record. He has been convicted ten times for being a non-show” (Lunyamila, above, at para 15).
[15] While recognizing that the Minister’s inquiries with Rwandan authorities had not been robust enough, Justice Harrington observed: “[t]he remedy was not to release Mr. Lunyamila, but rather to call upon the CBSA to get a definitive decision one way or another as to whether his lack of identity papers could be overcome should he sign the required applications” (para 14).
[16] Finally, given that Justice Shore had previously issued a stay “until the application for leave and judicial review is determined on the merits,” Justice Harrington certified a question with respect to the legality of Member Nupponen’s decision to release Mr. Lunyamila. In passing, I note that an approach similar to that of Justice Shore was adopted by Justice Diner in August of this year (Canada (Public Safety and Emergency Preparedness) v Lunyamila (23 August, 2016), IMM-3428-16 (FC)). However, in April and July, Justices Kane and Martineau made it clear that the stays they issued in respect of the decisions to release that were made in those two months, respectively, were not intended to preclude further 30 day detention reviews from taking place pursuant to subsection 57(2) of the IRPA (Canada (Public Safety and Emergency Preparedness) v Lunyamila (20 April, 2016), IMM-1378-16 (FC); Canada (Public Safety and Emergency Preparedness) v Lunyamila (10 June 2016), IMM-1378-16 (FC); Canada (Public Safety and Emergency Preparedness) v Lunyamila, 2016 FC 880). I have followed that approach in the attached Judgment.
III. Relevant Legislation [17] Pursuant to subsection 58(1) of the IRPA, the I.D. is required to release a detained permanent resident or foreign national unless it is satisfied of certain things relating to such persons, after having taken account of the prescribed factors. Three of the things in question are:
Immigration and Refugee Protection Act, SC 2001, c 27
Loi sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Release — Immigration Division
Mise en liberté par la Section de l’immigration
(…)
(…)
(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 or 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);
(…)
(…)
(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) 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; ou
(…)
(…)
[18] Pursuant to section 244 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], the factors to be taken into account in considering whether a person is a “flight risk,” a “danger to the public” or “a foreign national whose identity has not been established” are set forth in sections 245, 246 and 247, respectively. Given that none of those factors were in dispute in the decisions that are the subject of these applications for judicial review, they will not be further discussed in these reasons. However, for convenience, they have been included at Appendix 1 below.
[19] Where it is determined that there are grounds for detention, the I.D. must take into consideration the factors listed in section 248, which states:
Immigration and Refugee Protection Regulations, SOR/2002-227
Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227
Other factors
Autres critères
248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté :
(a) the reason for detention;
a) le motif de la détention;
(b) the length of time in detention;
b) la durée de la détention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l’intéressé;
(e) the existence of alternatives to detention.
e) l’existence de solutions de rechange à la détention.
IV. Standard of review [20] Decisions made by the I.D. upon reviews of detention conducted pursuant to subsection 57(2) of the IRPA are decisions of mixed fact and law. It is common ground between the parties that such decisions are reviewable by this Court on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]; Shariff v Canada (Public Safety and Emergency Preparedness), 2016 FC 640, at para 14 [Shariff]; Canada (Public Safety and Emergency Preparedness) v Ismail, 2014 FC 390 [Ismail]; Ahmed v Canada (Citizenship and Immigration), 2015 FC 792 at para 18 [Ahmed 1]).
[21] Accordingly, the decisions under review will stand unless they fall outside the range of possible and acceptable outcomes that are defensible in respect of the facts and law. (Dunsmuir, above, at para 47). In conducting its review, the Court will assess whether the process and outcome fit comfortably within the principles of justification, transparency and intelligibility (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 59).
V. Analysis A. IMM-913-16 [22] The decision that is the subject of review in Application IMM-913-16 is Member King’s decision dated March 1, 2016. At the time that decision was made, the evidence in the record indicated that before issuing the necessary travel documents to persons under an enforceable removal order in Canada, the Rwandan High Commission generally requests, among other things, certified copies of Rwandan government issued identification documents (CTR, at p. 580).
[23] Given that Mr. Lunyamila has not had such documents since arriving in Canada after jumping off a ship, Member King stated that it would be “extremely unlikely that they would be obtainable.” Stated differently, she observed that Mr. Lunyamila “has … no way to access Rwandan documents himself.” In the absence of evidence to suggest that the Rwandan government would waive the requirement for identity documents, she found that “there is nothing [Mr. Lunyamila] can do that has any prospect for assisting the government’s removal attempts.” On the basis of that finding, she concluded that any request to continue to detain him was in essence a request to detain him indefinitely; and that such a request contravened s. 7 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].
[24] Member King added, for the same reason, that such a request also contravened s. 9 of the Charter, which protects against arbitrary detention or imprisonment; section 12, which provides a right not to be subjected to any cruel and unusual treatment or punishment; and section 15, which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[25] Accordingly, Member King concluded:
Mr. Lunyamila must be released from Immigration detention, not because an alternative to detention or conditions have been found that will mitigate the danger he poses of reoffending. He must be released because to detain him in this situation or even to impose conditions that attempt to deal with criminal behaviour would be a breach of his Charter rights (CTR, at p. 33).
[26] The Minister submits that Member King’s decision to release Mr. Lunyamila from detention was unreasonable because it was based on an abrupt and speculative conclusion that his detention was indefinite, without any meaningful consideration of the factors set forth in s. 248 of the Regulations, including Mr. Lunyamila’s lack of cooperation.
[27] I agree. Without such analysis, Member King’s conclusion that his detention had become indefinite was essentially based on the bald assertions described at paragraph 23 above.
[28] Given the danger posed to the public by Mr. Lunyamila, and the “flight risk” that he poses, Member King should have considered the steps that could reasonably be taken by Mr. Lunyamila to obtain Rwandan government issued identification documents. Member King also should have assessed whether the CBSA could obtain a definitive answer as to whether Mr. Lunyamila’s lack of identity papers could be overcome, should he sign the declaration required by the Rwandan High Commission (Lunyamila, above, at para 14).
[29] Member King’s failure to come to grips with these issues resulted in a decision that was not appropriately justified or defensible in law, particularly given that Mr. Lunyamila has an obligation to cooperate with effecting his removal, as his counsel conceded during the hearing of this application. Until these issues had been fully explored, it could not reasonably be established whether, in fact, Mr. Lunyamila’s detention had become indefinite.
[30] To the extent that Member King relied on her finding with respect to indefinite detention to reach her conclusion with respect to the violation of Mr. Lunyamila’s Charter rights, that conclusion was also unreasonable. Moreover, before reaching any conclusion with respect to the interplay between Mr. Lunyamila’s potential length of detention and his rights under s. 7 of the Charter, Member King was required to consider and weigh additional factors, including the danger that Mr. Lunyamila poses to the public, his flight risk and his steadfast lack of cooperation with the Minister’s efforts to remove him (Sahin v Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1534 (QL), at paras 30-33 (TD) [Sahin]). She should also have considered the interplay between Mr. Lunyamila’s steadfast refusal to cooperate with the Minister’s efforts to remove him from Canada, the extent to which such refusal had contributed to the length of his detention and the uncertainty regarding his future detention, and the principles of fundamental justice that are contemplated by s. 7 of the Charter. It is not immediately apparent how defiance of an immigration regime that has been repeatedly found to be constitutional can be consistent with the latter principles. However, given that the parties did not address those principles in their written and oral submissions, I will refrain from commenting further on them.
[31] Once the Minister established a prima facie case for Mr. Lunyamila’s continued detention based on the uncontested danger to the public that he poses and the flight risk that he presents, the onus shifted to Mr. Lunyamila to establish grounds for his release (Canada (Citizenship and Immigration) v John Doe, 2011 FC 974, at para 4 [John Doe]; Canada (Minister of Citizenship and Immigration) v Sittampalam, 2004 FC 1756, at para 27 [Sittampalam]). No such grounds were offered, as Member King stated that she did not need to hear any submissions from Mr. Lunyamila.
[32] In any event, it was an error for Member King to decide to release Mr. Lunyamila solely on the basis of a finding that, in the absence of his ability to obtain and provide Rwandan identification documents, his detention had effectively become indefinite. It is now settled law that the indefinite nature of an individual’s detention under the IRPA is only one factor to be considered when conducting a detention review, and cannot be treated as determinative. The other factors set forth in s. 248 of the Regulations also need to be considered (Ahmed v Canada (Citizenship and Immigration), 2015 FC 876, at paras 25-26 [Ahmed 2]; Canada (Public Safety and Emergency Preparedness) v Okwerom, 2015 FC 433, at para 8 [Okwerom]; Canada (Citizenship and Immigration) v B147, 2012 FC 655, at paras 53-57 [B147]; Warssama v Canada (Citizenship and Immigration), 2015 FC 1311, at para 21 [Warssama]; Canada (Public Safety and Emergency Preparedness) v Hassan, 2012 FC 1357, at para 47 [Hassan]).
[33] Member King further erred when she concluded that the Charter prevented her from imposing conditions to reduce the risk that Mr. Lunyamila poses to the public. So long as there is a meaningful process of ongoing review that allows the conditions of his release to be revisited, having regard to the evolving context and circumstances of his particular case, the Charter does not prevent the I.D. from imposing such conditions (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, at paras 107-117 [Charkaoui]; John Doe, above, at para 6).
[34] The foregoing errors distinguish this case from Ali v Canada (Citizenship and Immigration), 2015 FC 1012 [Ali], relied upon by Mr. Lunyamila. That case is further distinguishable as it concerned an I.D. Member’s reversal of a previous decision to release the detainee, based on new evidence that suggested, among other things, that the airport in Yemen had reopened. Justice Boswell found that reversal to have been unreasonable, in part “because there was no evidence whatsoever to show that the airport in Yemen was now accepting civilian flights or that the situation of unrest in and around Yemen had undergone significant change” (Ali, above, at para 14). With this in mind, the new evidence relied upon to justify the detainee’s release could hardly have been considered to have been compelling.
[35] In summary, for the reasons that I have set forth above, Member King’s decision dated March 1, 2016 was unreasonable, as it fell outside the range of possible and acceptable outcomes that are defensible in respect of the facts and law.
B. IMM-1378-16 [36] The decision that is the subject of review in IMM-1378-16 is Member McPhelan’s decision dated March 31, 2016.
[37] In the course of his decision, Member McPhelan found that Mr. Lunyamila is both a danger to the public and a flight risk. With respect to the former, Member McPhelan noted that Mr. Lunyamila had displayed violent behaviour on two recent occasions at the facility where he is being detained. He also observed that he had engaged in such behaviour without having consumed any alcohol.
[38] However, like Member King, he concluded that Mr. Lunyamila’s detention had become indefinite, that this contravened his rights under s. 7 of the Charter, and that therefore he should be released.
[39] In my view, Member McPhelan’s decision was unreasonable for many of the same reasons as Member King’s decision dated March 1, 2016.
[40] In brief, Member McPhelan’s finding that Mr. Lunyamila’s detention had become indefinite was baldly asserted and not appropriately justified. It was based solely on his view that it was “highly unlikely” that Mr. Lunyamila would be removable to Rwanda without identity documents. That conclusion was somewhat more problematic than the similar one that was reached by Member King, in view of the new evidence indicating that the documentation “requested” by the Rwandan High Commission no longer included “certified copies of Rwandan government issued identification documents.” That item on the list had been replaced with “any other pertinent information (passport, expired passport, birth certificate, etc.)” (CTR, at p. 474). However, given that the examples given in parentheses are all in the nature of identity documents, Member McPhelan simply concluded, without any further discussion, that it was very likely that the Rwandan government was going to want to have identity documents. He did so without reconciling that conclusion with the change in the Rwandan High Commission’s practice, pursuant to which it no longer explicitly requests certified copies of Rwandan government issued identification documents.
[41] In addition, Member McPhelan erred by ordering Mr. Lunyamila’s release solely on the basis of his conclusion that Mr. Lunyamila’s detention had become indefinite. In this regard, he observed: “I do find that you are both a danger to the public and a flight risk but I consider that your detention has become indefinite and because of that I am ordering release.” This was contrary to the settled case law mentioned at paragraph 32 above, and to the plain wording of s. 248 of the Regulations, which requires all of the factors listed therein to be considered and weighed.
[42] I recognize that Member McPhelan subsequently identified various ways in which Mr. Lunyamila presents a danger to the public, and that he then proceeded to discuss Mr. Lunyamila’s flight risk and his steadfast refusal to cooperate with his removal from Canada. However, he did not in any way engage in the process of balancing those factors, which individually and collectively weigh strongly in favour of keeping Mr. Lunyamila in detention, against the length of his detention to date and the length of time that such detention is likely to continue. Instead of engaging in that balancing exercise, Member McPhelan proceeded directly to explaining the terms and conditions that he imposed on Mr. Lunyamila’s release. That failure to engage in the required balancing exercise contemplated by s. 248 rendered Member McPhelan’s decision outside the range of possible and acceptable outcomes that are defensible in respect of the facts and law, and therefore unreasonable.
[43] In addition, for essentially the same reasons provided at paragraph 30 above in respect of Member King’s decision, Member McPhelan erred in concluding that Mr. Lunyamila’s detention had become a violation of his rights under s. 7 of the Charter.
[44] Finally, I find that the terms and conditions that Member McPhelan imposed on Mr. Lunyamila’s release were not reasonable. Member McPhelan recognized that Mr. Lunyamila is a danger to the public and a flight risk. With respect to the former, he stated:
When I’m faced with the difficult task of releasing someone who is a danger to the public I think about the types of things that a person might do upon release and looking at your criminal record I think it’s likely that you might assault someone. You might utter threats at people. You might continue to commit threats. I don’t believe the passage of time has improved your behaviour particularly.
[45] Notwithstanding these findings, Member McPhelan did not impose terms and conditions of release that would reduce, to any significant degree, the foregoing risks. The only condition that arguably addressed the danger risk at all was the requirement that Mr. Lunyamila not engage in any activity subsequent to release which results in a conviction under any statute of Canada. In my view, that condition did not reasonably address that risk. While I recognize that it would be very difficult, if at all possible, to completely eliminate the danger posed by Mr. Lunyamila, any decision to release a person presenting such risk should virtually eliminate that risk. The terms described in Member McPhelan’s decision fell far short in that regard, thereby rendering that decision unreasonable.
[46] Indeed, to the extent that the condition described in the paragraph immediately above could not be enforced until Mr. Lunyamila had been convicted under a statute of Canada, it contemplates that a crime would have to be committed before it could be addressed, through the criminal justice system. Such an approach was patently unreasonable, and was not cured by the Minister’s inexplicable failure to suggest additional conditions.
C. IMM-3026-16 [47] The decision that is the subject of review in IMM-3026-16 is Member King’s decision dated July 14, 2016. To properly review that decision, it is necessary to briefly summarize Member Ko’s, dated June 16, 2016. In that decision, Member Ko concluded that Mr. Lunyamila’s detention should be continued, based on new information that the CBSA was actively pursuing and that raised additional questions as to his identity.
[48] I will note in passing that no detention reviews were held in April or May of this year, because the I.D. interpreted the Order issued by Justice Kane on April 20, 2016 as having imposed a stay on any release of Mr. Lunyamila until the application for judicial review of Member McPhelan’s decision was finally disposed of. Justice Kane subsequently clarified that she had not intended to suggest that subsequent 30 day reviews of detention pursuant to subsection 57(2) of the IRPA should not continue to occur.
[49] The new information relating to Mr. Lunyamila’s identity that provided the basis of Member Ko’s decision to detain him consisted principally of the following:
- Information from an informant who provided some details regarding persons he stated were Mr. Lunyamila’s father and an imam who may have known his father, who the informant claimed were both living in Tanzania. Although that information was initially received in February 2015, the evidence suggested that the CBSA had been having difficulty following it up with Canadian officials based in Tanzania. However, new information suggested that the International Organization for Migration might be able to assist in the process. In addition, the CBSA was exploring the option of hiring a third party to assist with the investigation. It is relevant to note that the same informant appears to have attended Mr. Lunyamila’s first few detention reviews and had initially informed an enforcement officer in November 2013 that Mr. Lunyamila had told him that his name was Maximilian Mlele Bundare and that he was born on April 7, 1968 in Tanzania (CTR at pp. 339, 354, 385, 392, 414, 430, 499; CTR Vol. 5 at p.150). The CBSA’s investigation of that information led to a different person by that name.
- Confirmation from open source information that a person by the name of the imam existed in Tanzania.
- Evidence reporting that the CBSA’s national headquarters had agreed to fund the cost of a field visit by a liaison officer to Tanzania to further the investigation of this information.
- A linguistics analysis that stated that Mr. Lunyamila’s linguistic background had been assessed to be Tanzanian with a very high degree of certainty and very unlikely to be Rwandan.
- Evidence from the CBSA that it had decided to request representatives from the Tanzanian High Commission here in Canada to meet with Mr. Lunyamila in Vancouver, in order to attempt to determine his nationality.
[50] Based on that new information, Member Ko found that further information should be available in the near future to assist in determining whether there is a viable possibility for Mr. Lunyamila’s removal to Tanzania. Member Ko then relied on that finding to depart from the four immediately previous reviews by concluding that Mr. Lunyamila’s continued detention could no longer be said to be indefinite. She therefore decided to keep him in detention, after discussing the length of his detention and the following facts: (i) his refusal to cooperate with the CBSA’s efforts to remove him from Canada, (ii) unexplained delays on the part of the Minister that had contributed to some of the delays in the removal process, (iii) the danger to the public that he presents, and (iv) the flight risk that he presents.
[51] In her decision of July 14, 2016, Member King disagreed with Member Ko’s assessment of the new information summarized above. Insofar as Member King explicitly adopted her decision of March 1, 2016 “in its entirety,” it was unreasonable for the various reasons discussed at paragraphs 27-35 above.
[52] In addition to the reasons given in her March 1st decision, Member King stated that she disagreed with member Ko’s decision on several grounds.
[53] In particular, she rejected Member Ko’s conclusion that Mr. Lunyamila’s detention could no longer be said to be indefinite because of the new information that I have summarized above. In this regard, she observed that the informant who has been suggesting that Mr. Lunyamila is a Tanzanian citizen initially provided that information to the Minister in 2013, yet the Minister has only recently decided to incur the costs associated with the investigation activities relied upon by Member Ko. She stated that the Minister was not entitled to win detention for longer periods of time because an identity investigation is expensive.
[54] In my view, that analysis was unreasonable. In brief, it failed to recognize that Mr. Lunyamila has insisted all along that he is Rwandan, he has not been cooperating with the Minister’s efforts to remove him to Rwanda, and it was only recently that a linguistics analysis concluded that he is “assessed to be Tanzanian with a very high degree of certainty.” The Minister was entitled to take the time required to pursue what initially appeared to be the most likely avenue for removing him from Canada, namely, by removing him to Rwanda, before devoting scarce public funds to the possibility of removing him to Tanzania.
[55] The Minister is not required to devote scarce funds from the public purse to chase down every possibility, no matter how remote, for removing someone from Canada when that person is not cooperating with efforts to remove him from Canada. It was not reasonable to require the Minister to incur the substantial costs that were required to explore the possibility of removing Mr. Lunyamila to Tanzania until the linguistics analysis was conducted and the new information was received from the informant, and partially verified by confirming the existence in Tanzania of an imam going by the name provided by the informant. Until those new developments, the basis for believing that Mr. Lunyamila might be of Tanzanian nationality was very speculative.
[56] Member King also noted in her decision that Mr. Lunyamila’s indefinite detention cannot be supported by the facts that he is a danger to the public, a flight risk and has not been cooperating with the Minister’s efforts to remove him for three years.
[57] I disagree. In addition to what I have said earlier in these reasons in connection with Member King’s decision dated March 1, 2016, I would add the following:
[58] To permit someone in these circumstances to take the position that he should be released on the grounds that his detention had become indefinite would be effectively to allow that person to frustrate the will of Parliament and, in essence, “take the law into his own hands” (Sahin, above, at para 15; Ahani v Canada, [1995] 3 FC 669, at para 40, aff’d [1996] FCJ No 937, at para 4, leave to appeal denied [1996] SCCA No 496; see also, R v Malmo-Levine, R v Caine, 2003 SCC 74, at para 178). That would undermine the integrity of our immigration laws and public confidence in the rule of law.
[59] In my view, the scheme of the IRPA and the Regulations contemplates that persons who are a danger to the public or a flight risk and who are not cooperating with the Minister’s efforts to remove them from this country, must, except in exceptional circumstances, continue to be detained until such time as they cooperate with their removal. Exceptional circumstances would be warranted, because it will ordinarily be very difficult to formulate terms and conditions of release that will eliminate, or virtually eliminate, the danger to the public presented by the individual. Thus, it ordinarily would be difficult to avoid exposing the general public to some risk by releasing the detainee. However, this might be justified in an exceptional circumstance, such as where there have been unexplained and very substantial delays by the Minister that are not attributable to the detained person’s lack of cooperation or to an unwillingness on the part of the Minister to incur substantial costs that would be associated with pursuing non-speculative possibilities for removal.
[60] In Medovarski v Canada (Minister of Citizenship and Immigration); Esteban v Canada (Minister of Citizenship and Immigration), 2005 SCC 51, the Supreme Court of Canada underscored the priority given to security in the IRPA, in the following terms:
[10] The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
[61] This priority to protect the public from foreign nationals who have engaged in serious criminality is in keeping with the fact that “[o]ne of the most fundamental responsibilities of a government is to ensure the security of its citizens” (Charkaoui, above, at para 1).
[62] This priority is reflected in the objectives of the IRPA, in particular paragraphs 3(1)(h) and (i), and paragraphs 3(2)(g) and (h) which state:
Immigration and Refugee Protection Act, SC 2001, c 27
Loi sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Objectives and Applications
Objet de la loi
Objectives – Immigration
Objet en matière d’immigration
3 (1) The objectives of this Act with respect to Immigration are:
3 (1) En matière d’immigration, la présente loi a pour objet :
(…)
(…)
(h) to protect public health and safety and to maintain the security of Canadian society;
h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne;
(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadi