THE MINISTER OF PUBLIC SAFETY v. EMERGENCY PREPAREDNESS, 2011 FC 185

Federal Court Cour fédérale Date: 20110216 Docket: IMM-3740-10 Citation: 2011 FC 185 Ottawa, Ontario , February 16, 2011 PRESENT: The Honourable Mr. Justice Kelen BETWEEN: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Applicant and COLLINS KWESI GYEKYE Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application by the Minister for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the Board), dated June 29, 2010, ordering the respondent​s release from immigration detention pending deportation, pursuant to

section 58 of the Immigration and Refugee Protection Act , S.C. 2001, c.27 (the Act) . [ 2 ] The application is now moot because the respondent was deported on November 9, 2010. Nevertheless, the applicant requests that this Court exercise its discretion to hear the application. FACTS Background [ 3 ] The respondent is a citizen of Ghana who arrived in Canada in 1994, at the age of 11, and became a permanent resident.

In the ensuing years he amassed a substantial record of criminal convictions, including for theft, assault, and failing to comply with probation, recognisance and appearance orders. [ 4 ] On January 5, 2005, an inadmissibility report was written pursuant to section 44(1) of the Act based on the respondent​s conviction of the crime of mischief over $5000, under section 430(3) of the Criminal Code of Canada . On November 24, 2005, the respondent was found inadmissible in his admissibility hearing and a deportation order was issued.

[ 5 ] The respondent appealed the deportation order. On April 25, 2008, the Immigration Appeals Division of the Immigration and Refugee Board found that the order was valid in law but granted a four-year stay, with conditions, on the basis of humanitarian and compassionate considerations. [ 6 ] On January 12, 2010, the respondent was convicted and incarcerated under section 348(1) (

b) of the Criminal Code of Canada for breaking and entering with intent. [ 7 ] Section 68(4) of the Act provides that a stay of the Immigration Appeal Division will cancel by operation of law if the subject is convicted of one of the offences referred to in subsection 36(1) of the Act. On April 28, 2010, the stay was terminated by operation of law as a result of the respondent​s conviction, and his appeal was terminated. The 2005 deportation order therefore became enforceable and reactivated. [ 8 ] The respondent was incarcerated as an ​immigration hold​ on June 19, 2010.

On June 22, 2010, the Board held a detention review hearing at which the respondent was ordered to be held in custody because he was a flight risk. [ 9 ] On June 29, 2010, a second detention review hearing was held, at which the Board ordered that the respondent be released from custody pending his removal.

It is this decision that is before this Court . [ 10 ] The applicant immediately sought and received a stay of the June 29 release order, which was subsequently extended three times, to last until August 24, 2010. [ 11 ] On July 27, 2010, a third detention review hearing was held and the Board determined that the respondent should be kept in custody. [ 12 ] The Board conducted three more detention review hearings, on August 24, September 22, and October 20, 2010. At all three hearings the respondent was ordered to remain in custody. [ 13 ] The respondent was removed on November 9, 2010. LEGISLATION [ 14 ]

Section 58 of the Act provides for the release or detention of persons detained under

Part 1, Division 6 of the Act:

(1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (

a) they are a danger to the public; (

b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada , or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (

c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or (

d) the Minister is of the opinion that the identity of the foreign national 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.

(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.

(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions. 58.

(1) La

section prononce la mise en liberté du résident permanent ou de l​étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :

a) le résident permanent ou l​étranger constitue un danger pour la sécurité publique;

b) le résident permanent ou l​étranger se soustraira vraisemblablement au contrôle, à l​enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d​une mesure de renvoi en vertu du paragraphe 44(2);

c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l​étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;

d) dans le cas où le ministre estime que l​identité de l​étranger 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.

(2) La

section peut ordonner la mise en détention du résident permanent ou de l​étranger sur preuve qu​il fait l​objet d​un contrôle, d​une enquête ou d​une mesure de renvoi et soit qu​il constitue un danger pour la sécurité publique, soit qu​il se soustraira vraisemblablement au contrôle, à l​enquête ou au renvoi.

(3) Lorsqu​elle ordonne la mise en liberté d​un résident permanent ou d​un étranger, la

section peut imposer les conditions qu​elle estime nécessaires, notamment la remise d​une garantie d​exécution. [ 15 ]

Section 245 of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the Regulations), sets out the prescribed factors to be taken into account regarding whether a detained person constitutes a flight risk:

245 . For the purposes of paragraph 244( a ), the factors are the following: (

a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament; (

b) voluntary compliance with any previous departure order; (

c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (

d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (

e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; (

f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(

a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and (

g) the existence of strong ties to a community in Canada. 245 . Pour l​application de l​alinéa 244 a ), les critères sont les suivants :

a) la qualité de fugitif à l​égard de la justice d​un pays étranger quant à une infraction qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale;

b) le fait de s​être conformé librement à une mesure d​interdiction de séjour;

c) le fait de s​être conformé librement à l​obligation de comparaître lors d​une instance en immigration ou d​une instance criminelle;

d) le fait de s​être conformé aux conditions imposées à l​égard de son entrée, de sa mise en liberté ou du sursis à son renvoi;

e) le fait de s​être dérobé au contrôle ou de s​être évadé d​un lieu de détention, ou toute tentative à cet égard;

f) l​implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l​intéressé à se soustraire aux mesures visées à l​alinéa 244

a) ou le rendrait susceptible d​être incité ou forcé de s​y soustraire par une organisation se livrant à de telles opérations;

g) l​appartenance réelle à une collectivité au Canada. [ 16 ]

Section 248 of the Regulations sets out further factors that should be considered before deciding between ordering detention or release:

248. If it is determined that thereare grounds for detention, thefollowing factors shall beconsidered before a decision ismade on detention or release: (

a) the reason for detention; (

b) the length of time indetention; (

c) whether there are anyelements that can assist indetermining the length of timethat detention is likely tocontinue and, if so, that length oftime; (

d) any unexplained delays orunexplained lack of diligencecaused by the Department or theperson concerned; and (

e) the existence of alternatives todetention. 248. S​il est constaté qu​il existedes motifs de détention, lescritères ci-après doivent être prisen compte avant qu​une décisionne soit prise quant à la détentionou la mise en liberté :

a) le motif de la détention;

b) la durée de la détention;

c) l​existence d​élémentspermettant l​évaluation de ladurée probable de la détention et,dans l​affirmative, cette période detemps;

d) les retards inexpliqués ou lemanque inexpliqué de diligencede la part du ministère ou del​intéressé;

e) l​existence de solutions derechange à la détention. ISSUE [17] The Court considers the following issues relevant in this case: 1. Should the Court exercise its discretion to hear a moot case?

ANALYSIS Issue 1: Should the Court exercise its discretion to hear a moot case? [18] Because the respondent was removed from Canada on November 9, 2010, the issue of whether the June 29, 2010, detentionreview decision of the Board should be upheld is moot. [19] The applicant submits, however, that an alleged error committed by the Board warrants consideration by this Court despitebeing moot. [20] The applicant requests the Court exercise its discretion regarding the following issue: The Minister is very concerned about the Immigration Division​s decision to refuse to allow the representative for the Minister at thedetention review hearing an opportunity to cross-examine the bondsperson and wishes to obtain guidance from the Federal Court on thisissue. [21] The test for when a court should consider a moot case was stated by the Supreme Court of Canada in Borowski v.

Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342. The Supreme Court set out a two-step test to determining whether acase is moot. First, the Court must determine whether the court​s decision will affect the rights of the parties. In this case, the applicantacknowledges that this element is not present, because the respondent​s rights will not be affected by this Court​s decision. Second, thecourt must determine whether it should nevertheless exercise its discretion to hear the case: ¶16. The approach in recent cases involves a two-step analysis.

First it is necessary to determine whether the required tangible andconcrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it isnecessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term"moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the courtdeclines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test.

A court maynonetheless elect to address a moot issue if the circumstances warrant.

[22] In Borowski, the Court said a court should consider the following factors: 1. If the dispute is rooted in the adversary system. Per Borowski at paragraph 31: . . . It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarialrelationships will nevertheless prevail. . . . 2.

If hearing the case is in the interests of judicial economy: i. cases where the ​court's decision will have some practical effect on the rights of the partiesnotwithstanding that it will not have the effect of determining the controversy which gave rise to the action​ (Borowski at paragraph 35); ii. cases which are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review beheard by the court, the mootness doctrine is not applied strictly. . . .

The mere fact, however, that a case raising the same point is likely torecur even frequently should not by itself be a reason for hearing an appeal which is moot.

It is preferable to wait and determine thepoint in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it isultimately resolved.​ (Borowski at paragraph 36); and iii. cases which ​raise an issue of public importance of which a resolution is in the public interest.The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law​ (Borowski at paragraph37). [23] The applicant submits that the Court should exercise its discretion in this case because detention review decisions are evasiveof review. [24] The applicant submits that ​whether the minister has a right to cross-examine a potential bondsperson​ is a question of generalpublic importance. [25] The Court does not accept the applicant​s submissions.

Most significantly, the dispute before this Court is not rooted in theadversarial system. To the contrary, the respondent has made no representation whatsoever before this Court. This Court also lacks thebenefit of any submissions made by the respondent at earlier hearings, because the respondent has never been represented by counsel andhas consistently demonstrated a misunderstanding of the operation of the legal system. Nor are there any interveners or other partiesbefore this Court who may offer submissions.

As a result, the Court is asked to determine the questions before it having representationsof only one party. [26] Second, the Court accepts that detention review hearings often occur prior to anticipated removals that most detainees areremoved before judicial review applications of their detention hearings have time to proceed. [27] However, the Court is aware that the Federal Court has been able to judicially review a detention decision on an expeditedbasis within 30 days so that the Court could rule on the detention decision before it became moot. In Canada (Citizenship andImmigration) v.

B157, 2010 FC 1314, Justice de Montigny conducted a judicial review of a decision to release the applicant in that case,and granted the application. The judicial review application was heard on an expedited basis as a result of an order made at the time thata stay of the detention release decision was granted. [28] Finally, the question that the Court is asked to decide ​ ​whether the applicant had a right to question the potential bondsperson​has already been decided by this Court in Canada (Minister of Citizenship and Immigration) v. Ke (2000), (FC), 188F.T.R. 91 (F.C.) per Reid J.

In that case an adjudicator under the old Act had refused to allow the Minister to cross-examine a potentialbondsperson. The Court found that a breach of natural justice occurred with respect to the denial of the right to cross-examine abondsperson on the facts of that particular case: ¶6.

As I understand the Minister​s argument, it is that a breach of natural justice occurred in failing to allow for cross-examination ofthe bondsperson because a decision-maker is required to base his or her decision on the best evidence available, and because a party toan adjudication is entitled to test the evidence, central to the decision, presented by the opposing party. ¶7. I am not prepared to accept the proposition that in all cases an adjudicator is required to allow for cross-examination of a

bondsperson. I am prepared, however, to accept that in this particular case, the failure to do so did constitute a breach of the rules of fairness and natural justice. [ 29 ] Thus, this Court has previously determined this issue. In the case at bar, the potential bondsperson was the detainee​s mother, who was according to the evidence of the detainee prepared to put up $2000, which was, sadly, her life​s savings. In the end, the release from detention order was stayed and the detainee was deported. No bond was required.

A decision about whether to allow cross- examination is for the hearing officer to make on the facts which this Court will only review on a standard of reasonableness. This issue is not any more involved than this, and does not warrant the Court​s discretion to hear a moot application. Accordingly, this application for judicial review will be dismissed. JUDGMENT THIS COURT​S JUDGMENT is that : The application for judicial review is dismissed. ​Michael A. Kelen​ Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3740-10 STYLE OF CAUSE: The Minister of Public Safety and Emergency Preparedness v.

Collins Kwesi Gyekye PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: February 7, 2011 REASONS FOR JUDGMENT AND JUDGMENT: KELEN J. DATED: February 16, 2011

APPEARANCES : Ms. Amy King Mr. John Loncar FOR THE APPLICANT No appearance FOR THE RESPONDENT SOLICITORS OF RECORD : Myles J. Kirvan, Deputy Attorney General of Canada Ottawa, Ontario Self-represented FOR THE APPLICANT FOR THE RESPONDENT