2021 FC, 2021 FC 1315

Date: 20211126 Docket: IMM-8625-21 Citation: 2021 FC 1315 Ottawa, Ontario, November 26, 2021 PRESENT: The Honourable Mr. Justice Roy BETWEEN:THE MINISTER OF CITIZENSHIP AND IMMIGRATIONApplicantandHENRY ISAIAH CAMPBELLRespondent ORDER AND REASONS [1] The Minister of Public Safety and Emergency Preparedness (MPSEP or the Minister) filed a motion informally on November 25,2021 for the purpose of obtaining an interim stay of the order releasing Henry Isaiah Campbell from immigration detention.

The motionis narrow in scope, as the MPSEP is seeking for the status quo to continue for a period of seven days in order for the parties to prepareand file documentation in respect of a motion to stay the release from detention of the Respondent pending determination of theMPSEP’s application for leave and judicial review filed also on November 25, 2021. [2] Mr. Campbell has been detained by the Immigration authorities since July 31, 2021, although he was also detained for periods of timesince March 2021.

The order by a member of the Immigration Division (ID) for the release of the Respondent was issued on November24, 2021. The Court held a conference call on November 25 and it was resolved by the parties’ counsel to have a hearing on November26, 2021 to hear the matter. That hearing took place on November 26. [3] There is little information that is available at this early stage. The parties sought to supplement the record on November 26.

TheMinister presented written representations together with an affidavit, the purpose of which was to introduce some notes to files fromofficers which bring granularity to the situation with Mr. Campbell. The notes provide details about Mr. Campbell’s immigration record,including his frequent failures to abide by his release conditions. Mr. Campbell is a 28 year old U.S. citizen who came to Canadaillegally from the United States in December 2019.

According to the detention review held on October 28, 2021, he has been detainedcontinuously since July 31, 2021, but there have been other detention periods prior to July 31. According to his counsel, he has beendetained from some time in March to some time in April 2021 and during periods from April to July 2021. There is a removal fromCanada order that has been stayed in view of criminal charges that are pending.

It is not known at this stage when the trial will proceed,which suggests that the detention, without being indeterminate, may actually not be close to being concluded if the Respondent is notreleased.. [4] In previous detention reviews, the detention of the Respondent was ordered on two grounds. The last one, on October 28, concludedthat detention ought to be ordered because, on a balance of probabilities, Mr. Campbell was found to be unlikely to appear and heconstitutes a danger to the public, although on the lower end of the danger spectrum.

The ID member discussed alternatives to detentionon October 28 and noted that the Respondent’s current counsel had just been recently retained; there was a release plan that was beingworked on that would address the particular circumstances of the Respondent. It should therefore not have been a surprise that, at theNovember 24 detention review, something was to be presented. An alternative to detention was clearly being considered not only by theparties, but also by the ID.

The October 28 detention review concluded by the ID stating "“that there is no alternative being presentedtoday”" and "“[t]oday, I don’t have any factors to sufficiently offset my concerns.”" [5] The transcript of the hearing of November 24 was not yet available for our hearing of November 26, 2021. Counsel for the Ministerindicated he was confident it would be available on Monday, November 29. An affidavit was made available by the Respondent aboutthe release plan which was accepted by the ID.

Without being completely clear as to the roles to be played, we learn that the Respondentis to be "“supervised”" by Margaret’s House and Community Support Services if, and when, released. However, no representative fromMargaret’s House and Community Support Services testified at the hearing and no one has been identified in the release order.

Theaffidavit filed on behalf of the Respondent contends that the Hearing Officer, on behalf of the MPSEP, "“never directly faulted theRespondent’s decision not to produce a witness from the organization”"; no request was made to issue a summons for someone to bepresented as a witness on behalf of the organization. The affidavit declares that a representative from Margaret’s House and CommunitySupport Services confirms the capacity and willingness to enforce the terms of the Release Order. No details are supplied.

Finally, theaffidavit reports that the ID heard about the Respondent’s breaches of previous release orders and discussed them, yet he concluded thatthe new release plan addressed the concerns. Contrary to the suggestion made by the Respondent that the Hearing Officer acquiesced tothe release order being made, this is contested by the Minister who claims that the November 25 transcript need be before the Court. Asecond affidavit was filed with the Court on behalf of the Respondent.

The affidavit of November 26 presents a short exchange at the IDhearing that could leave the impression that the government’s Hearing Officer was largely in agreement with the release order.

I notedhowever that yesterday’s affidavit spoke of the Canada Border Services Agency Hearing Officer who "“never directly faulted theRespondent’s decision not to produce a witness from Margaret’s House and Community Support Services ….”" In my view having thetranscript would help clarify that which continues to be nebulous, including what position was taken by the Hearing Officer. [6] The Applicant, in his motion filed informally, sought to satisfy the Court of the tri-partite and conjunctive test set out in Toth vCanada (Minister of Employment and Immigration), (1988) (FCA), 86 NR 302:

1 . Is there a serious issue to be tried? 2 . Will the applicant suffer irreparable harm if the stay is not granted?, and 3 . Does the balance of convenience favour the applicant? The written submissions addressed the test squarely. [ 7 ] The Court in matters of this nature operates with an incomplete record, but was assisted by the Applicant’s factum and the submissions of both counsel.

I believe is to be avoided, by the judge hearing a motion filed informally, on the basis of a truncated record, intruding on the role of the Judge who would have a more complete evidentiary record, if the motion for an interlocutory stay (as opposed to an interim stay) were to proceed. I therefore proceed accordingly. [ 8 ] Be that as it may, the tri-partite and conjunctive test must be considered. The addition of the notes to files offers a different perspective on the circumstances of this case. In my estimation, the test has been satisfied. [ 9 ] There is a serious issue to be examined by the Court.

On an interim stay of just a few days, where the record is incomplete, it seems to me that it suffices for an applicant to show that the issue is neither frivolous nor vexatious. That is in fact the general rule. Here, it is the legality of the ID’s release decision that is challenged. Was it reasonable? The Applicant contends that the entire release plan is for all intents and purposes left in the hands of a third party who never appeared before the ID. The third party was evidently not made a party to the proceedings.

As the Applicant points out, no one person is made responsible for enforcing the Release Order. In fact, there is no curfew that is ordered, no bond to be posted, the selection of the residence is to be approved by a third party on the basis of criteria that are not spelled out, no prohibition to possess prohibited substances is ordered. There is no indication as to what form of supervision is required, given that the Respondent was detained in view of his propensity to not comply with previous release orders and the danger he may pose to the public.

Indeed, this Applicant breached his three previous release orders. [ 10 ] The point of the matter is not to dispose of the serious issues at this stage, but rather to be satisfied that the issue is neither frivolous or vexatious. It is not, on the basis of the record as it is known. That may change once a more complete record is available. The Applicant raised other issues such that the third party not having testified before being approved, given the " “responsibilities” " it would be undertaking.

It is not necessary to go any further to conclude that the first branch of the test is satisfied. [ 11 ] The evidence available shows that the Respondent has failed repeatedly his obligations under previous release orders and that he faces charges in the criminal courts, including home invasions. The MPSEP argues that there is a need for the stay motion to be heard with a fuller record available to ascertain if the conditions for the release are appropriately sufficient to ensure good behaviour. If not, it may be that the release order is not reasonable.

That constitutes a serious issue, one that is neither vexatious nor frivolous. [ 12 ] The MPSEP speaks of irreparable harm if he loses the ability to enforce the legislation and execute the removal of the Applicant from Canada (there is pending a removal order): the risk posed, he said, is not adequately mitigated. Given the past history of the Respondent, supervision at an adequate level is necessary to prevent bad behaviour.

In Canada (Public Safety and Emergency Preparedness) v Sevic , IMM-1375-20, February 26, 2020, here is how Fothergill J. put the issue: Turning to the second branch of the Toth test , the party seeking a stay must adduce clear and non-speculative evidence that irreparable harm will follow if the motion is denied. The Minister says there will be irreparable harm to the orderly administration of justice if the interim stay is not granted.

The underlying application for leave and judicial review will be rendered moot, and the Minister will be deprived of an adequate opportunity to prepare and present a motion for a stay pending determination of the application on its merits. In the meantime, Mr. Sevic may attempt to frustrate his removal from Canada and may present an ongoing danger to the public. He has a history of non-compliance with Canada’s immigration and criminal laws, and has demonstrated through his words and actions that he may not appear for removal. I agree with the characterization made by Justice Fothergill.

With the appropriate adaptation, this paragraph applies to our circumstances. I add that the fact that the interim stay will last only 7 days from the day it was sought (until December 2, 2021) is an important consideration. The liberty interest of the Respondent is such that delays have to be minimized.

They will be. [ 13 ] Similarly reasons favour the conclusion that the balance of convenience branch of the test is satisfied. [ 14 ] The public interest commands in my view that this whole situation be clarified with the assistance of a more fulsome record that will include the transcript of the hearing of November 24. The danger to the public and the propensity to break release conditions require, in the public interest, that the interim stay be granted for a very short period. The status quo will allow for the matter of an interlocutory stay to be argued more fully. [ 15 ] It follow that the motion is granted.

ORDER in IMM-8625-21 THIS COURT ORDERS : The release of the Respondent from detention in temporarily stayed pending the determination of the Minister’s motion for a stay of the Release Order made by the Immigration Division of the Immigration and Refugee Board on November 24, 2021; In order for the stay motion to be heard on an expeditious basis, the following timeline is ordered: 1 . The Minister shall serve and file his stay motion record no later than end of business on November 30, 2021;

2 . The Respondent shall serve and file his responding motion record no later than end of business on December 1, 2021; 3 .

The hearing of the Minister’s motion for a stay of the Release Order shall take place on December 2, 2021, at 2:00 p.m., by teleconference, or at any other time as directed by the presiding judge. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8625-21 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v HENRY ISAIAH CAMPBELL PLACE OF HEARING: HELD BY VIDEOCONFERENCE BETWEEN OTTAWA (ONTARIO) AND tORONTO (ONTARIO) DATE OF HEARING: NOVEMBER 26, 2021 ORDER AND REASONS: ROY J.

DATED: NOVEMBER 26, 2021 APPEARANCES : Christopher Ezrin Lorne McClenaghan For The Applicant Anthony Navaneelan Stephanie Bishop Hall For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Applicant Legal Aid Ontario’s Refugee Law Office Toronto, Ontario For The Respondent SBH LAW Barrister and Solicitor Toronto, Ontario For The Respondent