2016 FC, 2016 FC 1239

Date: 20161104 Docket: IMM-4554-16 Citation: 2016 FC 1239 [ENGLISH TRANSLATION] Ottawa, Ontario, November 4, 2016 PRESENT: The Honourable Mr. Justice Shore BETWEEN:THE MINISTER OF PUBLIC SAFETYAND EMERGENCY PREPAREDNESSApplicantandALEXANDRE CHIPOVALOVRespondent JUDGMENT AND REASONS: [1] A decision-maker should be cautious when concluding on clear-cut evidence without having anticipated the consequences ofthat decision, given compelling overall evidence leading to an unreasonable decision. Furthermore, such a decision is likely to be setaside by the Toth v.

Canada (Citizenship and Immigration) (1988), (FCA), 86 NR 302 (FCA) and R.J.R. MacDonaldInc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [R.J.R. MacDonald] conjunctive three-part test,vindicating the successful party. [2] The applicant appears before this Court with an application for suspension of the release order issued by a member of theImmigration Division (ID) of the Immigration and Refugee Board. [3] The respondent did not meet the previous conditions in respect of his criminal record.

Starting in 1999, the respondent wasconvicted of criminal acts, robbery, assault, possession of stolen property, obstruction, possession of property obtained by crime, breachof conditions, failure to comply with a recognizance, etc.

In addition, the respondent was arrested on the ground that he was considered aflight risk based on his history. [4] The ID has kept the respondent in detention since 2013, following at least 35 detention reviews for flight risk, and noreasonable alternatives were seen based on the circumstances of the case. [5] No justification of the ID’s decision is considered reasonable based on the facts of the case. [6] In order to set aside an earlier reasoning of the ID concerning a release from custody, there is an obligation to provide arationale for its departure from previous decisions, only if the situation has changed to in fact provide a reasonable justification for arelease from custody.

This is in no way reasonable way considering the facts supported by the evidence in his record; and even duringthe current detention period, the respondent’s actions show the opposite. The Court also notes about 60 charges of breach of anundertaking or breach of probation; in the past, the ID concluded that the alternative did not offset the flight risk since the respondent didnot cooperate. Overall, the situation has not changed. [7] The Court points out the importance of Canada (Minister of Citizenship and Immigration) v.

Thanabalasingham, 2004 FCA4, [2004] 3 FCR 572 at para. 24: [24] The reasons given by Judge Gauthier are logical and clear. I am fully satisfied that she correctly applied the proper standards ofreview to Mr. Iozzo’s findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer thecertified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, theImmigration Division must come to a fresh conclusion whether the detained person should continue to be detained.

Although the burdenof proof might shift to the inmate once the Minister has established a prima facie case, the Minister always bears the ultimate burden ofestablishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews.

However, previous decisions todetain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons fordeparting from previous decisions. [8] The applicant fully satisfied the requirements specified in this decision. [9] The ID has ignored clear-cut evidence. [10] A decision-maker cannot speculate rather than analyze evidence in the docket that the decision-maker must consider (seeCanada (Citizenship and Immigration) v.

Li, 2009 FCA 85 at para. 62). [62] With respect, I do not think that it was appropriate for the Board, at the September 11, 2008 review hearing, to base itsassessment of the anticipated future length of detention on a mere preliminary opinion when the final decision would come only a monthlater and a detention review is held every month. The Board was led by this opinion to assume that judicial review proceedings would beauthorized by the Federal Court and that an appeal would necessarily be heard by the Court of Appeal. It then felt justified to review its

previous time estimate to include the additional time which would result from its assumption. [ 11 ] The applicant has satisfied the conjunctive three-part test of the Supreme Court of Canada’s decision in R.J.R. MacDonald Inc. , supra. [ 12 ] The Court orders that the respondent’s release order be stayed until the respondent completes a new detention review with a supporting decision and until the Court has ruled on the application for leave to apply for judicial review.

JUDGMENT THE COURT ORDERS THAT the respondent’s release order be stayed until the respondent completes a new review of its detention with a supporting decision and until the Court has ruled on the application for leave to apply for judicial review. “Michel M.J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4554-16 STYLE OF CAUSE: THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v. ALEXANDRE CHIPOVALOV MOTION HEARD BY CONFERENCE CALL ON NOVEMBER 4, 2016, BETWEEN OTTAWA, ONTARIO AND MONTRÉAL, QUEBEC JUDGMENT AND REASONS: SHORE J.

DATED: November 4, 2016 ORAL AND WRITTEN SUBMISSIONS BY: Thi My Dung Tran Caroline Doyon For the applicant Mélanie Calisto Azevedo For the respondent SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada Montréal, Quebec For the applicant Mélanie Azevedo, counsel Montréal, Quebec For the respondent