2021 FC, 2021 FC 1477

Date: 20211228 Docket: IMM-9724-21 Citation: 2021 FC 1477 Ottawa, Ontario, December 28, 2021 PRESENT: Madam Justice Walker BETWEEN: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Applicant and LISANDRO DANIEL RODRIGUEZ MARTINEZ Respondent ORDER AND REASONS [ 1 ] The Applicant seeks a stay of the order of the Immigration Division (ID or, alternatively, the Member) of the Immigration and Refugee Board of Canada rendered on December 24, 2021, releasing the Respondent from detention on certain terms and conditions (Release Order).

The stay is sought pending the determination of the Applicant’s request for leave and judicial review of the Release Order. On December 24, 2021, Justice Pallotta granted an interim stay of the Release Order pending a hearing of the motion for an interlocutory stay. She set that hearing down for December 28, 2021 and I heard the matter. [ 2 ] The following are my reasons for granting the motion. I. Background [ 3 ] By way of brief factual background, the Respondent is a citizen of Costa Rica who arrived in Canada in 2002 and was granted permanent residence in 2009.

He has a lengthy criminal history, evidence of which was before the Court, that includes numerous convictions and five different periods of incarceration. [ 4 ] Most notably, in May 2012, the Respondent was convicted of failure to comply with a reconnaissance, followed by a 2014 conviction for serious assault of a former girlfriend whom he beat and threatened to kill. In 2015, the Respondent was convicted of three offences for which he was sentenced to a total of nine years’ imprisonment: aggravated assault, forcible confinement and use of a firearm to commit an indictable offence.

The convictions arose from a violent home invasion and robbery during which the Respondent concealed his identity with a mask and pistol whipped the victims, one of whom suffered life-threatening injuries and was placed in a medically induced coma. At the time of this incident, the Respondent was living with his mother and was a regular drug user. Stolen property and a significant amount of drugs were found in their home. [ 5 ] In 2016, the Respondent was found inadmissible to Canada pursuant to paragraph 36(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 and, in 2020, was found to be a danger to the public of Canada. The Respondent challenged this latter decision by way of application for leave and judicial review. This Court dismissed the application at leave by way of order made on February 1, 2021. [ 6 ] While incarcerated in 2019, the Respondent was charged with counts of possession of a

Schedule 1 substance for the purpose of trafficking (fentanyl and heroin). As a result, he was not released on his original statutory release date but was transferred to criminal remand custody pending disposition of the trafficking charges. The Respondent was convicted of those charges in July 2021 and his new statutory release date was December 26, 2021.

The Respondent was then transferred to immigration detention pending his removal from Canada. [ 7 ] The Respondent is scheduled for removal to Costa Rica on December 30, 2021 at 7:00 AM. [ 8 ] The Respondent’s 48-hour detention review occurred on December 24, 2021. The Applicant submitted that the Respondent should be detained on the grounds that he is unlikely to appear for removal and is a danger to the public. The Applicant also submitted that the Respondent presented no suitable alternative to detention.

The Respondent was represented by counsel at the detention review. [ 9 ] At the conclusion of the review hearing, the Member released his decision. As discussed more fully below, the Member ordered the Respondent’s release on terms and conditions that included the posting of a $5,000 cash bond by his mother and bondsperson, and a requirement that he remain at her home. II. The Release Order [ 10 ] The Release Order was delivered orally by the Member and is dated December 24, 2021. [ 11 ] The Member found that the Respondent was unlikely to appear for removal and poses a danger to the public.

With respect to the likelihood he would report for removal, the Member noted that the Respondent has a recent conviction from his time in a federal institution and has previously violated bail and parole conditions. The ID weighed this finding against the fact that the Respondent

appears to have reconciled himself to returning to Costa Rica. The Member concluded that while, on a balance of probabilities, theRespondent is unlikely to appear for removal, any flight risk could be managed by appropriate supervision. [12] The ID characterized the danger to the public as the more serious concern and stated that the Respondent had made some progresstowards rehabilitation. The Member addressed the Respondent’s serious criminal history and found some involvement with a criminalorganization in the 2019 trafficking charges.

However, the Member stated that the trafficking offences were committed under "“somelevel of duress”", although not serious enough to prevent conviction and the imposition of a two-year prison sentence. The Member alsostated that the Respondent wanted to turn over a new leaf but that desire had not been tested in the community and he would need to bekept away from drugs.

The Member concluded: However, I am satisfied, that in the absence of a robust release plan, that the [Respondent] is a danger to the public as thereis a material risk you would engage in further activity that would [en]danger the public. [13] The Member addressed the factors to be considered before a decision is made on detention or release (section 248 of theImmigration and Refugee Protection Regulations, SOR/2002-227).

The Member stated that, as the Respondent was only facing one weekof further detention, his release was not justified on anything less than a release plan that fully offset both flight risk and danger.

TheMember found that both risks were offset by his release plan that involved his mother as the proposed bondsperson, the cash bond, andthe mother’s understanding that she was required to report any breach of the conditions of release to Canadian immigration authorities. [14] In response to the Applicant’s argument that the mother did not understand the Respondent’s criminal history, the Memberacknowledged some concern that she did not want to fully engage with that history as it was traumatic for her to do so.

The Memberdetermined that it is not necessary for a bondsperson to understand someone’s criminal and immigration history to be an effectivebondsperson. The importance of such an understanding depends on the release plan, which in this case requires only that the motherensure the Respondent does not leave the house. [15] Based on the Respondent’s unwillingness to put his family at risk, the ID concluded that the fact the mother does not leave thehouse and will exercise significant control meant there was no material risk that the Respondent would revert to drugs and a criminallifestyle.

The Member believed the mother would eventually report any breach of the release conditions. [16] The Member quickly canvassed the other

section 248 factors as he was running out of time.

He concluded that none of those factorsovercame his position that the Respondent’s release plan was sufficient to address both danger to the public and flight risk. [17] Based on the foregoing, the Member ordered the Respondent’s release from detention. [18] The conditions of release imposed on the Respondent included: - be present at all times at the address provided to the Canada Border Services Agency (CBSA), except for attendance atappointments or hearings with the CBSA or the Immigration and Refugee Board; - do not use or possess cannabis or alcohol, unless prescribed by a physician; - do not associate with anyone you know or suspect to be involved in criminal activity; - do not contact the victim of your aggravated assault conviction; - abide by all the conditions of your statutory release; and - do not use, operate or possess a computer or telephone except under the direct supervision of your bondsperson unless on a phonecall with CBSA or legal counsel.

III. Analysis [19] The three-pronged test for obtaining an interlocutory stay is well-known.

The moving party must demonstrate that: 1) the underlying application for judicial review raises a serious question to be tried; 2) the moving party will suffer irreparable harm if the stay is refused; and 3) the balance of convenience favours the granting of the stay. (See, R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12 (CBC); Manitoba (Attorney General) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110; RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311(RJR-MacDonald)). [20] An interlocutory stay is an exceptional, equitable remedy.

Its central objective is to prevent irreparable harm that will occur betweenthe motion and the disposition of the matter on its merits (see e.g., Google Inc. v Equustek Solutions Inc., 2017 SCC 34 at paras 24, 40-41 (Google Inc.)). [21] The RJR-MacDonald test is conjunctive, meaning that an Applicant must satisfy all three elements.

It is necessarily fact specific andmust be applied carefully and holistically against the strengths and weaknesses of the evidence before the Court to determine whether thegranting of a stay is just and equitable in all of the circumstances (Canada (Public Safety and Emergency Preparedness) v Erhire, 2021FC 908 at paras 22-23 (Erhire); Google Inc. at para 25).

A. Serious Issue [ 22 ] In RJR-MacDonald , the SCC stated that the " “serious question to be tried” " criterion is a relatively low threshold. In order to establish the existence of a serious issue in the underlying application for judicial review, an applicant need only show that the application is neither frivolous nor vexatious ( CBC at para 12; Koca v Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FC 473 at para 14 ; Canada (Public Safety and Emergency Preparedness ) v Smith , 2019 FC 1454 at para 51 ( Smith ) ) .

However, recent decisions of this Court have held that a higher threshold must be met in cases where the applicant seeks to stay an order for release from detention because the individual’s liberty is at stake.

According to this line of cases, to satisfy the first part of the test, the applicant must demonstrate on a prima facie basis that the underlying application for judicial review is likely to succeed ( Erhire at paras 25-26 ). [ 23 ] The parties disagree on the appropriate legal test for serious issue at the first stage of the RJR-MacDonald test but it is not necessary to determine this issue in the present case.

The Applicant has established serious issues in the Release Order, whether the standard applied is the frivolous and vexatious standard or the elevated standard of likely success in the application for judicial review of the Release Order. [ 24 ] The Applicant submits that they have established a serious issue regarding the procedural fairness of the rushed hearing process and resulting decision. The Applicant also raises a number of arguments regarding the reasonableness of the Release Order.

In this latter regard, the parties agree that the Release Order is subject to review on a reasonableness standard ( Canada (Citizenship and Immigration) v Vavilov , 2019 SCC 65 ). [ 25 ] The Applicant argues that the ID breached their right to a fair hearing by denying their request for additional time and/or a de novo hearing, and by conducting a rushed hearing due to the Member’s personal circumstances.

The Applicant emphasizes that the request for additional time was made not simply because they had received new evidence from the Correctional Service of Canada (CSC) but also because the Respondent’s testimony should not be rushed, nor should that of the proposed bondsperson. The Applicant submits that the Member did not turn his mind to all the reasons for the request for more time, focusing only on the new CSC evidence. [ 26 ] I have reviewed the transcript (Transcript) from the December 24 hearing and the Release Order.

I agree with the Applicant that, at times, the Member’s references to the need to speed up the hearing and his urging that the Applicant limit questions, suggest a complicated hearing that was unduly compressed.

The hearing marked the first detention review for the Respondent and gave rise to serious issues regarding his liberty on the one hand and, on the other, those of public safety and compliance with Canadian immigration laws. [ 27 ] In contrast, the Respondent points to a number of instances where the Member acknowledged that further time may be required and sought to safeguard a record of the hearing on December 24 th for any future resumption or new hearing before another ID member.

I agree with counsel’s argument that the parties were provided the opportunity to assess the new evidence and to question the Respondent and his mother. [ 28 ] While there are deficiencies in the process and some concern of a rushed pursuit of a decision that day, the Transcript does not establish that the parties were materially prevented from having a fair opportunity to consider and test the issues at play and the evidence. [ 29 ] With regards to the substance of the Release Order, the Applicant submits that the Member erred: (1) in determining that the Respondent poses a medium risk of danger to the public; (2) in finding the release plan presents a suitable alternative to detention; (3) by ignoring evidence that the proposed bondsperson is not suitable; and (4) by failing to understand the applicable legal test that requires a release plan to virtually eliminate the risk posed to the public. [ 30 ] The Respondent argues that there are no serious issues in the Release Order and that the Member addressed each of the arguments the Applicant now raises. [ 31 ] Despite the able arguments of the Respondent’s counsel, I agree with the Applicant that the reasons provided by the ID in the Release Order do not satisfy the requirements of a reasonable administrative decision, specifically those of intelligibility and justification.

The Member stated that the Respondent is unlikely to report for removal and is a danger to the public but relied on a flawed release plan that fails to take into account material evidence.

I find serious and determinative errors in the Member’s analysis of the release plan and proposed bondsperson and, to a lesser extent, in his failure to clearly apply the applicable legal test to which a release plan must respond. [ 32 ] First, the ID failed to reasonably address the fact that the Respondent’s mother had on a prior occasion unsuccessfully served as his surety, relying on the Respondent’s rehabilitation to counter the past failure.

This reliance can be contrasted with the fact that the Respondent was a regular drug user while living with his mother and committed his most serious offences during that time. Further, the mother could not respond when presented with the fact that the Respondent had violated conditions and committed an offence under her supervision. Her testimony repeatedly demonstrated her lack of knowledge of the extent and severity of her son’s criminal history.

However, the Member stated only that he had some concern based on her vague testimony but reasoned that it was traumatic for her to recall details of her son’s actions. His concern was partially offset by the amount of the bond. [ 33 ] With respect, the mother’s testimony can be characterized as vague to the point of being evasive. For example, she did not remember why the Respondent was serving a sentence until informed that he was convicted of aggravated assault for badly beating a woman with an imitation firearm.

She then stated that she did remember but believes that all people have done something wrong in their lives. Her position was that her son is now a new person. She had no knowledge of his associations with drugs or alcohol and stated that she had not discussed a plan for her son’s release with him. [ 34 ] I find that the proposed bondsperson demonstrated little understanding of the reasons for which she will be required to exercise significant control over the actions of her adult son. She did not take responsibility for her prior failure when functioning in a similar situation.

The omission by the Member to address this evidence and his reliance on her effective control as a full answer to the danger posed by the Respondent’s release is a determinative error in the Release Order. The mother’s lack of understanding of or refusal to

acknowledge her son’s criminal behaviour calls in to question her willingness to enforce the specific conditions placed on him, such as use of a phone or a computer, and abstinence from alcohol and drugs. [ 35 ] The ID also erred in failing to clearly identify and apply the legal test to which a release plan must respond. The Member made conflicting statements about whether the release plan for the Respondent must mitigate the risk he poses to the public or virtually eliminate such risk.

The jurisprudence of this Court establishes that a release plan must be sufficiently robust when there is a finding of danger to the public " “to meet the requirement to ‘virtually eliminate’ the risk of the danger posed” " ( Canada (Public Safety and Emergency Preparedness) v Taino , 2020 FC 427 at para 92 , citing Canada (Public Safety and Emergency Preparedness) v Lunyamila , 2016 FC 1199 at paras 45 , 59, 85 and 116). The Member refers to a prior case requiring that a release plan ensure the public is not exposed to any " “material or meaningful risk” " .

It is not clear in the subsequent paragraphs whether the Member applied that threshold to the release plan or to the level of danger posed by the Respondent. I acknowledge that the Member later stated that the release plan must fully offset flight risk and the danger to the public but it remains unclear what standard was effectively applied to the plan.

This alone is not a determinative error in the Release Order but shows a lack of clarity that undermines the Member’s reasoning. [ 36 ] The ID released the Respondent on largely standard terms and conditions and made no effort to explore alternatives to those conditions. They are strict conditions but do not take into account the suitability of the bondsperson. The Member accepted that the Respondent poses a material risk of engaging in further activity that would endanger the Canadian public but did not explain why the release plan would be effective.

Rather, the Member relied on the Respondent’s efforts to rehabilitate himself, notwithstanding his recent conviction for drug trafficking, and his mother’s ability to control the minutiae of his actions, failing which she would eventually report a breach of the release conditions. The Member discounts the importance of the Respondent’s consistent involvement with drugs, as evidenced by his recent trafficking conviction, on the basis of some duress while in the institution.

The ID’s reliance on generalities and good faith in light of the evidence in the record seriously compromises the justification for release in the Release Order. [ 37 ] For these reasons, even applying the elevated threshold of a serious issue in the Release Order, I am satisfied that the Applicant has met the first part of the RJR-MacDonald test for a stay. B. Irreparable Harm [ 38 ] The second element of the test relates to irreparable harm.

The onus rests on the Applicant to demonstrate through clear and convincing evidence that irreparable harm will occur if the stay of removal is not granted ( Smith at paras 54, 99-101 ; Erhire at para 32 ; Canada (Public Safety and Emergency Preparedness ) v Thomas , 2021 FC 456 at para 81 ) .

" “Irreparable” " harm is harm that cannot be compensated or remediated by monetary damages or otherwise cured ( RJR-MacDonald at p 341) . [ 39 ] The Applicant argues that irreparable harm necessarily arises where there is a serious issue in a release decision when the individual is a flight risk and poses a danger to the public (Canada (Public Safety and Emergency Preparedness) v Asante , 2019 FC 905 at para 39 ). [ 40 ] I have found that there are serious issues in the ID’s reliance on a standard form release plan and proposed bondsperson who has been ineffective in controlling and supervising the Respondent in the past.

The Respondent has a serious criminal record with a recent conviction for drug trafficking. His mother’s testimony reveals she has little knowledge, or acceptance, of his use or involvement with drugs, despite his drug usage and commission of a violent crime while under her supervision.

The Member found that the Respondent is a flight risk and a danger to the public yet ordered his release solely on reliance on the mother’s enforcement of the conditions of the release plan. [ 41 ] Having regard to all of the evidence, the Release Order is inadequate for ensuring the Respondent’s compliance with his legal obligations, including the requirement that he report for removal on December 30, 2021. The public interest will suffer if the Respondent fails to report ( Erhire at para 38 ).

I acknowledge the very short time-period during which the Respondent would be subject to the release conditions but conclude that the Applicant has established irreparable harm flowing from the order to release the Respondent on conditions that do not virtually eliminate the danger he poses. The Applicant has satisfied the second part of the RJR-MacDonald test for a stay. C. Balance of Convenience [ 42 ] The last element of the three-part test is the balance of convenience. [ 43 ] I find that the balance of convenience favours the Applicant.

The harm to the Respondent of an additional short period in detention prior to his removal, including his desire to say goodbye to his family, are insufficient to overcome the risk posed by a failure on his part to report for removal. The right of the public to be protected weighs heavily in my determination given the weaknesses in the release plan on which the Member’s decision was centred . [ 44 ] In conclusion, the Applicant has satisfied each of the three elements of the test for granting a stay of release. The Applicant’s motion for a stay is granted. ORDER in IMM-9724-21 THIS COURT ORDERS that : 1 .

The Applicant’s Motion for a stay of release of the Respondent is granted.

2 . The Release Order is stayed pending the determination of the Applicant’s application for judicial review in this proceeding. 3 . No costs are awarded. blank “Elizabeth Walker” blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9724-21 STYLE OF CAUSE: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v LISANDRO DANIEL RODRIGUEZ MARTINEZ PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: December 28, 2021 ORDER AND reasons: WALKER J. DATED: December 28, 2021 APPEARANCES : Charles J.

Jubenville Veronica Cham For The Applicant Cheryl Robinson For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Applicant Refugee Law Office Legal Aid Ontario Toronto, Ontario For The Respondent