MINISTER OF PUBLIC SAFETY v. EMERGENCY PREPAREDNESS, 2020 FC 380

Date: 20200313 Docket: IMM-1780-20 Citation: 2020 FC 380 Ottawa, Ontario, March 13, 2020 PRESENT: The Honourable Mr. Justice Roy BETWEEN: MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Applicant and TEMITOPE JAMES AKINBOWALE Respondent ORDER AND REASONS [ 1 ] The Minister’s counsel appeared before this Court late on March 10 to argue for an urgent stay of a decision made by the Immigration Division (ID) to allow the release from detention of Mr. Akinbowale.

Following a period in custody of 15 months (the information available at the time of the order of March 10, was that he served a sentence for aggravated assault of 21 months’ imprisonment), the respondent was arrested and brought into federal detention on March 2, 2020. Mr. Akinbowale is due to be deported to his country of nationality, Nigeria, on March 20, 2020. [ 2 ] The Court granted the urgent stay in view of the allegation that the respondent is a danger to the public and constitutes a flight risk. Counsel argued that time was needed to prepare a proper record in order to argue the case adequately.

The allegation that the respondent constitutes a flight risk did not appear to be frivolous and the issue was whether the alternatives to detention were reasonable. The urgent stay was granted to allow for a more proper record to be constituted and for the parties to prepare. The case was heard earlier today. [ 3 ] Mr. Akinbowale has been in Canada since January 2000. Between 2000 and 2008, he has attempted a number of recourses, which have all proven to be unsuccessful, including seeking refugee status (2003), and making an application for a PPRA (pre-removal risk assessment) and one based on H&C considerations.

A deportation order was issued in 2004. A warrant for the respondent’s arrest was issued on March 20, 2008 following his failure to appear in order to make travel arrangements for his return to Nigeria. He remained in the community for years, until he was arrested for the incident which led to his conviction for aggravated assault. In effect, it is how the immigration authorities were made aware of his presence, which led to the arrest ( s. 59 of the Immigration and Refugee Protection Act , S.C. 2001, c 27 [IRPA]).

Counsel for the Minister have asserted on numerous occasions that the respondent " “s’est soustrait à son renvoi en 2008 et a vécu dans la clandestinité jusqu’en 2019” " . This is rhetorical flourish as the reality is rather that this appears to have been little efforts deployed to locate the respondent who lived in the same apartment for eleven years (applicant’s motion record, p. 22).

As the ID said on March 10, " “(i)n effect hiding in plain sight” " (applicant’s motion record, p. 29). [ 4 ] The record at this stage was completed by an unofficial transcript of the decision under review, as well as written representations. [ 5 ] The legal framework under which the ID operates is the following. Division 6 of IRPA gives authority to arrest with and without a warrant a foreign national if the person is inadmissible and is a danger to the public or is a flight risk ( s. 55 of IRPA ). If not released before, a review of the detention takes place within 48 hours.

In the case at bar, such review took place on March 3. The ID found that there was a " “ground of danger to the public” " in view of the criminal conviction, as well as a " “flight risk ground” " because of statements by the respondent that he wished to stay in Canada. Given that there were no reasonable alternatives to detention, " “I will maintain detention for an extra period” " (ID decision of March 3, 2020, at para 34). [ 6 ] The next review of the detention by the ID comes 7 days later ( s. 57 of IRPA ). That is when the ID chose to release the respondent from detention, on March 10. [ 7 ] It is

section 58 of IRPA and sections 244 , 245 , 246 and 248 of the Immigration and Refugee Protection Regulations , SOR/2002-227 [ Regulations ] that apply. IRPA provides that there be prescribed factors with respect to the detention and release.

Section 244 of the Rules reads: " 244 For the purposes of Division 6 of

Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person " " 244 " " Pour l’application de la

section 6 de la

partie 1 de la Loi, les critères prévus à la présente

partie doivent être pris en compte lors de l’appréciation : " " (

a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act ; " " a) " " du risque que l’intéressé se soustraie vraisemblablement au contrôle, à l’enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d’une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; " " (

b) is a danger to the public; or " " b) " " du danger que constitue l’intéressé pour la sécurité publique; " " (

c) is a foreign national whose identity has not been established. " " c) " " de la question de savoir si l’intéressé est un étranger dont l’identité n’a pas été prouvée . "

Sections 245 and 246 state the factors to be considered for flight risk and danger to the public. They are not the subject of dispute in this case.

Section 248 speaks of other factors to consider before a decision on detention or release is made. In the case at hand, it is sub- paragraphs 248 (

e) and (

f) which are relevant. They read: " " " 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 : " " (

e) the existence of alternatives to detention; and " " e) " " l’existence de solutions de rechange à la détention; " " (

f) the best interests of a directly affected child who is under 18 years of age. " " f) " " l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché . " " SOR/2017-214, s. 7; SOR/2019-213, s. 1. " " DORS/2017-214, art. 7; DORS/2019-213, art. 1. " " [ " " 8 " " ] " " In the case at bar, the ID chose to release the respondent from detention because, contrary to the finding of March 3, there was on March 10 alternatives to detention.

The ID was satisfied that a cash deposit of $ 3,000, an obligation for the respondent to reside with the person who posted the guarantee, a curfew from 10 p.m. to 10 a.m. and a reporting obligation to the Canada Border Services of Canada were sufficient. However, the applicant contends that this does not suffice to satisfy the requirements of subsection 47(2) of the Regulations , and particularly paragraph 2 (b): " " Requirements if guarantee posted " " Exigences : cautionnement " " 47

(2) A person who posts a guarantee must " " 47 (2) " " La personne qui fournit une garantie d’exécution, autre qu’une somme d’argent, doit : " " (

a) be a Canadian citizen or a permanent resident, physically present and residing in Canada; " " a) " " être citoyen canadien ou résident permanent effectivement présent et résidant au Canada; " " (

b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and " " b) " " être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; " " (

c) present to an officer evidence of their ability to fulfil the obligation arising from the guarantee. " " c) " " fournir à un agent la preuve qu’elle peut s’acquitter de ses obligations quant à la garantie fournie. " [ 9 ] " In order to prevail on its motion to stay the ID order to release the respondent, the Minister must satisfy the well known tripartite test: " 1 . There must be a serious issue to be considered in the underlying judicial review application; 2 . The applicant must convince the Court that he " will suffer irreparable harm if the interlocutory injunction is not granted; " 3 .

The balance of convenience must favour the applicant. [ 10 ] In the immigration context, it has long been the law that where the interlocutory application will produce the remedy sought with the underlying application, " “the test of serious issue becomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review ” " ( Wang v Canada (Minister of Citizenship and Immigration) , 2001 FCT 148 , [2001] 3 FC 682 , para 11 ). [ 11 ] This is accepted by the Minister.

Reference is made to R. v Canadian Broadcasting Corp. , 2018 SCC 5 , [2018] 1 SCR 196 [ Canadian Broadcasting Corp. ] . The burden the Minister accepts is summarized at paragraph 18 of Canadian Broadcasting Corp. : [18] In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR — MacDonald test, which proceeds as follows:

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction. Thus a strong likelihood of success is what is needed. I add that the admonition in Baron v Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 FCR 311 is apposite: " “Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case” " (para 67).

In other words, the reviewing judge must factor in that an applicant has the burden to satisfy a court that the decision is not reasonable, not merely that the court disagrees with the decision made by the tribunal which has been designated by Parliament to make those types of decisions. In this case, it is the ID that was very specifically given the duty to make these determinations. [ 12 ] This translates into a methodology that calls for the focus to be on the decision under review. A reviewing court must refrain from

deciding the issue itself.

In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [ Vavilov ] , the Supreme Court endorses the jurisprudence of the Federal Court of Appeal which avoids turning a reasonableness analysis into correctness by making " “our own yardstick and thus use that yardstick to measure what the administrator did” " ( Delios v Canada (Attorney General) , 2015 FCA 117 , at para 28 , cited in Vavilov , at para 83 ). (See also Canada (Attorney General) v Heffel Gallery Limited , 2019 FCA 82 , at paras 49-50 ). [ 13 ] It follows that the applicant had to show, first and foremost, how the decision under review is unreasonable, and not to seek to have this Court disagree with the assessment made by the ID.

The applicant argues that the decision lacks intelligibility in view of paragraph 47(2) (

b) of the Regulations . I am afraid that for those who disagree with a decision intelligibility will be lacking. I am unable to reach that decision now that we have the reasons given by the ID. [ 14 ] The ID is conscious of the fact that the respondent does not wish to return to Nigeria, which makes the ID acknowledge that the respondent poses a flight risk (applicant’s motion record, p. 30). As for the danger to the public, the ID considers it at the low end of the scale and the ID considers the flight risk as being more crucial. But the ID considers fully the alternatives to detention. [ 15 ] No one will doubt that liberty is of paramount importance in this country.

Section 58 of IRPA reflects the importance of freedom as it provides that the " “Immigration Division shall order the release of … a foreign national unless …” " . Reasons are needed in order to refuse release and the Regulations provide that one factor is the existence of alternatives to detention. As I understand it, the issue raised by the Minister is that it has not been established to his satisfaction that the person who posts a guarantee in cash of $3,000, and who must reside with the respondent, will not prove capable to ensure that the respondent will comply with the conditions.

The applicant disagrees with the ID. The applicant would want for the Court to agree that the conditions are not stringent enough. [ 16 ] With great respect, I must disagree with the applicant that the ID’s reasons " “ " ne démontrent pas qu’il a examiné les critères du contrôle et de la surveillance que le garant se devait exercer [ sic ] sur le défendeur " ” " (memorandum of fact and law, para 23). The ID addressed the issue squarely. I reproduce a number of paragraphs from the decision: From his testimony, I heard that he didn't take the last time that he put up a bond for somebody as seriously as he does now.

This is a more casual acquaintance, somebody that got into some kind of trouble. He put up some money and that person (inaudible) and that was some 14 years ago. Under these circumstances, he does testify very credibly that his relationship with you is very different. He knows you as a much closer friend, a much more intimate relationship that (inaudible) both ways.

To quote him directly, he is confident at 100% that he can influence you to comply with the law and one area of his testimony that was credible when I posed the last question about a delicate one, how would you having to choose between insuring your compliance under very tragic, emotional circumstances. l'm talking about that conversation that is not going to be a happy household, around the 18 th , 19 th and 20 th . It's going to be a very sad day. And on that point, his testimony was credible. That even under those circumstances, non-compliance is just not an option.

He did testify repeatedly that it was him who influenced you to turn yourself in and that led to your arrest for the incident for which you just finished your sentence. Now alternative to detention are not intended to be perfect. … That said, I am satisfied with the bond from your friend, and in certain terms and conditions, specifically aimed to address these concerns. I am satisfied that we can adequately address the flight concerns that l have. So, my decision in this matter is to order your release from detention, on the bond proposed by your friend, and under the following terms and conditions.

I invite all three of you to pay particular attention to these terms and conditions. … And if he feels, I'm confident that if he feels that you're dragging your feet, and making excuses, if he feels that you're thinking of not complying, that will give you opportunity at that point to exercise whatever control he may have under these circumstances. … It's not about staying in Canada, it's not about, is about giving you a chance to wrap up your affairs, getting some face to face time with your son and to wrap up your affairs to go back.

Between then and now, if you want to discuss with counsel what the future may hold in store for you, I invite you to do so. I want you to understand that you've got 10 days left. … Do you know your responsibility? If you start to lose confidence in him, I expect you to turn him in. Once you start to feel that he's getting ready to bolt, not to wait until he does it. Your testimony before me was such that you have that confidence. If you think he's losing it, then (inaudible) to turn him in. If for any reason, your (inaudible) [ 17 ] In effect, the ID gave significant weight to the fact that Mr.

Akinbowale followed the advice of the person, who now deposits $ 3,000 and will host the respondent in his residence, when he asked about trying to avoid police detection after the incident which resulted in imprisonment for 15 months. The respondent accepted the advice received and chose to report to the police. That would tend

to show that the guarantor is able to ensure that Mr. Akinbowale will comply with the conditions imposed, in accordance with paragraph 47(2) (

b) of the Regulations . Moreover, the obligation to reside with the guarantor is not insignificant, together with a curfew valid with 12 hours per day. Enforcement of those conditions is not onerous. Finally, the guarantor is invited specifically by the ID to take action if the respondent were to not abide by his obligations. " [ " " 18 " " ] " " The applicant had to show a likelihood of success that the ID decision was unreasonable. Instead, the argument boils down to a disagreement about how stringent the conditions ought to be in this case. There is certainly room to disagree with the decision maker.

But such is not the test. The applicant had to show that there is an issue where he is likely to succeed that the decision is not reasonable. That demonstration has not been made. The ID considered whether the person posting a guarantee is able to ensure that the respondent will comply with the conditions imposed. There was evidence to support such a conclusion. The decision is internally coherent and is justified in view of the facts and the legal constraint that release from detention is the preferred outcome ( " Canada (Public Safety and Emergency Preparedness) v Mohammed , 2019 FC 451 , at para 17 ).

" " " [ " " 19 " " ] " " As a result, the motion for an interim stay must be dismissed. The urgent stay issued on March 3, 2020 is accordingly lifted. " ORDER in IMM-1780-20 THIS COURT ORDERS that : " 1. " " The motion for an interim stay is dismissed. " 2. " The urgent stay issued on March 3, 2020 is lifted. " “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1780-20 STYLE OF CAUSE: MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v TEMITOPE JAMES AKINBOWALE PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA, ONTARIO and montréal, québec DATE OF HEARING: MARCH 13, 2020 ORDER AND REASONS: ROY J.

DATED: march 13, 2020 APPEARANCES : Evan Liosis For The Applicant Julien Labrie-Masse For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Montréal, Québec For The Applicant Julien Labrie-Masse Aide juridique Montréal, Québec For The Respondent