Salilar v. canada

IMM-1429-95

John Salilar (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Salilar v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, MacKay J."Ottawa, June 28 and 30, 1995.

Citizenship and Immigration " Exclusion and removal " Immigration inquiry process " Judicial review of third decision to keep applicant detained " Applicant entering Canada as stowaway " Convention refugee claim denied " Convicted of crimes while here " Before release from jail, Adjudicator determined applicant should be detained under Act, s. 103 " S. 103(7) permitting release where adjudicator satisfied detainee not likely to pose danger to public and likely to appear for examination " Adjudicator applied wrong test in assessing danger to public " Not sufficient to accept decisions of previous adjudicators, consider events since last review " Reasons for detention must be demonstrated each time " Probability of danger to be determined from circumstances of case " Adjudicator erred in referring to irrelevant comments about applicant by judge in related case " Requiring guarantee alcohol abuse would not recur, setting unreasonable standard for community support imposing standards not required by Act " Imminence of removal but one of factors to be considered " Detention reviews to be carried out with understanding detention extraordinary, Act s. 103(7) to be applied consistently with Charter, s. 7.

Constitutional law " Charter of Rights " Life, liberty and security " Immigration Act, s. 103(7) detention review hearings to be conducted consistently with right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice.

This was an application for leave to commence proceedings and for judicial review of a decision that the applicant's detention should be continued. Immigration Act, subsections 103(1) and (3) provide for the arrest of any person with respect to whom an inquiry is to be held, or a removal order has been made, where the officer is of the opinion that the person is likely to pose a danger to the public or is not likely to appear for the inquiry or for removal from Canada. Subsection 103(6) requires review of the detention decision at least once during each thirty-day period following that determination. Subsection 103(7) permits the adjudicator to order release from detention where he is satisfied that the person detained is not likely to pose a danger to the public and is likely to appear for an examination.

The applicant arrived in Canada as a stowaway on a ship. While here he was convicted of a number of crimes, and incarcerated. Before his release, it was determined by an adjudicator that he should continue to be held in detention. That decision was reviewed monthly thereafter. The decision in question was the third such review.

The Adjudicator referred to and agreed with the decisions in applicant's previous reviews. She referred to comments made by Dubé J. in a related case, wherein the shipping company sought judicial review of an order requiring it to remove Mr. Salilar from Canada on one of its vessels, referring to the applicant as a potential "unwanted and dangerous passenger". Although the Adjudicator referred to evidence of community support, she noted that it was substantially the same as that offered at the earlier reviews and which had implicitly been found insufficient by the other adjudicators. Adding that 24-hour-a-day monitoring was necessary to guarantee that alcohol abuse would not recur, and that such monitoring was not possible, she noted that the public had the right to expect protection from the possibility of a recurrence of the applicant's past behaviour.

The issues were: (1) whether the Adjudicator applied the wrong test in assessing the danger to the public; (2) whether she erred in taking into account Dubé J.'s comments; (3) whether she fettered her discretion in considering the circumstances to be taken into account in relation to terms and conditions on which the applicant might be released; and (4) whether she erred in failing to take into account the imminence of applicant's removal, particularly in light of the value of individual liberty in Canada and considerations arising under Charter, section 7.

Held, the application should be allowed.

(1) The Adjudicator did not apply the proper test in reviewing the applicant's detention. Each review must be a hearing de novo. It is not sufficient to proceed by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision. The adjudicator should start with the premise that detention is an extraordinary restraint in our society and that while subsection 103(7) would appear to put a significant onus on the person in detention, there must also be an onus upon immigration officials to demonstrate each time that there are reasons which warrant detention. Conviction and sentencing for a criminal offence do not lead to the conclusion that when the sentence is served there is a continuing likelihood of danger to the public warranting further detention. The probability of such a danger has to be determined from the circumstances of each case.

(2) The Adjudicator erred in her characterization of Dubé J.'s decision and in relying upon that characterization. His decision was irrelevant to the issues before the Adjudicator.

(3) The Adjudicator fettered her discretion by setting standards not required by the Act. The issue was not whether the applicant could be guaranteed not to present a possibility of danger to the public or of not appearing for removal, but whether the evidence supported a conclusion that he was not likely to pose a danger to the public and was likely to appear for removal, if released.

(4) Although arrangements for removal were uncertain and their timing unknown, the likelihood of early action by immigration officials to remove the applicant was but one factor in the ultimate assessment of the likelihood of the applicant's appearance for removal if released from detention.

Detention reviews are to be carried out on the basis that detention is an extraordinary condition and that subsection 103(7) of the Act is to be applied consistently with Charter, section 7 which guarantees everyone the right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

statutes and regulations judicially considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Immigration Act, R.S.C., 1985, c. I-2, ss. 83(1) (as am. by S.C. 1992, c. 49, s. 73), 103(1) (as am. idem, s. 94), (3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94), (6) (as am. idem), (7) (as am. idem).

cases judicially considered

applied:

Sahin v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 99 (F.C.T.D.).

distinguished:

Leif Hoegh & Co. A/S v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 769 (T.D.) (QL).

APPLICATION for leave to commence proceedings and for judicial review of the Adjudicator's decision to keep the applicant in continued detention under Immigration Act, section 103. Application allowed.

counsel:

Darryl Larson for applicant.

Leigh A. Taylor for respondent.

solicitors:

Larson Bryson Boulton, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

MacKay, J.: This is an application for leave to commence proceedings, and for judicial review, in relation to a decision made June 2, 1995, by an adjudicator, pursuant to subsection 103(7) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 94)] (the Act), by which she determined that the applicant should continue to remain in detention. The issues here raised concern the validity of the decision of the Adjudicator who, after reviewing the circumstances of the applicant's continuing detention, declined to order his release.

Under subsections 103(1) [as am. idem] and (3) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94] of the Act provision is made for the issue of a warrant for the arrest of any person with respect to whom an examination or inquiry is to be held, or a removal order or conditional removal order has been made, where the officer authorized to order detention is of the opinion that the person is likely to pose a danger to the public or is not likely to appear for the inquiry or for removal from Canada. Under subsection 103(6) [as am. idem], where a person has been placed in detention provision is made for review thereafter, of the reasons for continuing detention, at fixed intervals including at least once during each thirty-day period following the initial determination and review.

In this case the decision by the Adjudicator on June 2, 1995 was the third monthly review, following the initial decision which resulted in the applicant's detention and the first review of his continuing detention. Here the original decision to detain the applicant was made March 2, 1995; it was reviewed on March 7, 1995, and thereafter was reviewed again on April 6, May 5 and June 2, 1995. The last of those reviews led to the decision attacked in this application for leave and for judicial review.

Under subsection 103(7) the function of the adjudicator reviewing the detention decision is set out as follows:

103. . . .

(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond.

Procedural background

On May 29, 1995, in Vancouver there was scheduled before me a similar application, but in relation to the review decision made on May 5, 1995. At that time, i.e. May 29, the next monthly review was set for June 2, and after discussion with counsel for the parties in chambers, I arranged to meet them, if it were necessary, following the Adjudicator's scheduled review and decision on June 2.

Counsel attended following that decision. I then adjourned the application originally set for hearing on May 29 and the applicant subsequently withdrew it (Court file IMM-1191-95). Counsel for the parties agreed to an expedited schedule for completion of documents to support this application for leave and for judicial review, if leave be granted, before the decision of June 2 is replaced by the next scheduled 30-day review in accord with subsection 103(6). That process was settled upon as a means to bring the applicant's situation before the Court for consideration before the decision now impugned is replaced by decision of an adjudicator following further review of the matter, scheduled for June 30. The normal rules for preparation of an application for leave and for judicial review do not make possible an opportunity to review a decision which lasts only 30 days and is then subject to review and replacement by yet another decision.

In the ordinary course an application for leave and for judicial review is dealt with in two stages: the matter is considered for purposes of leave on the basis of written application and representations and only if leave is granted is an order issued for the application for judicial review to be heard at a fixed time and place. In this case, counsel having agreed upon the expedited schedule, when documents were submitted to the Court, and made available in Ottawa, a hearing was fixed for June 28, by telephone, with counsel for the parties in attendance at the Court's office in Vancouver, and the Court presiding in chambers in Ottawa. In the special timing and scheduling circumstances of the case, this Court agreed to hear counsel for the parties in relation to the leave application and the merits of the judicial review application. Decision was reserved. An order allowing leave and allowing the application for judicial review was filed on June 29 and these are brief reasons for that order.

First, I concluded leave was granted since the application presents an arguable case warranting consideration by the Court. Since time did not permit the matter to be heard at a later date the merits of the application for judicial review are dealt with on the same occasion as the application for leave and in these reasons.

The background

The applicant claims to be a native and citizen of Liberia. As a stowaway aboard a merchant ship from Bombay, India, he was removed from the vessel on its arrival in Halifax in 1992. He then made a claim to Convention refugee status, which was refused on October 12, 1993.

While in Canada he was convicted of a number of crimes. In February 1993, he was convicted of possession of a dangerous weapon, and theft under $1,000 and was sentenced to one year's probation and one day in jail, respectively. In September 1994, he was convicted for uttering a threat, for assault and for mischief resulting in original concurrent sentences for nine months, six months and one month, respectively, sentences which were reduced on appeal to time served (about five months), two months and one month. In September 1994, he was again convicted of assault and sentenced to two months consecutive to his earlier sentences. Finally, in October 1994, he was convicted and sentenced for theft under $1,000 and for failure to appear to answer that charge and he was sentenced on those counts to time served.

On March 2, 1995, the day he was scheduled for release from jail for his criminal convictions, an adjudicator made the first determination that he should be detained pursuant to section 103 of the Immigration Act. That decision was reviewed, as we have noted on March 7, 1995 by another adjudicator who determined that he should continue to be held in detention. Thereafter, as noted, his circumstances were the subject of a review by an adjudicator in early April, May and June, in accord with subsections 103(6) and (7) of the Act.

The issues

For the applicant it was urged that the Adjudicator erred in her decision on four grounds. It is urged that she applied the wrong test in assessing the danger the applicant, if released, would pose to the public in Canada, that she erred in taking into account certain comments of my colleague Mr. Justice Dubé in[qj]

another but interrelated case,¹*ftnote¹ Leif Hoegh & Co. A/S v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 769 (T.D.) (QL). that she fettered her discretion in considering the circumstances to be taken into account in relation to terms and conditions on which the applicant might be released, and finally that the Adjudicator erred in failing to take into account the imminence of removal of the applicant from Canada, particularly in light of the value of individual liberty in Canada and considerations arising under section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] factors commented upon in Sahin v. Canada (Minister of Citizenship and Immigration)²*ftnote² (1994), 85 F.T.R. 99 (F.C.T.D.). by my colleague Mr. Justice Rothstein in a case also concerned with the application of subsection 103(7) of the Act. I deal with these in turn.

Analysis

The first argument on behalf of the applicant is that the Adjudicator applied the wrong test in assessing whether or not Mr. Salilar is likely to pose a danger to the public. At the beginning of her decision the Adjudicator does set the test out, and it would appear does so correctly when she states:

. . . Mr. Salilar, the issue before me is whether I am satisfied that, if released, you would not be likely to pose a danger to the public and would be likely to appear for removal as directed.

Further, in setting out her conclusion the Adjudicator appears again to properly state the test under subsection 103(7) as follows:

For these reasons, I will not be offering you release today because I think there is a probability that you would pose a danger to the Canadian public, if released. There is also a probability that you would not make yourself available for removal, if released.

Between her opening statement of the test and the conclusion, the Adjudicator referred, inter alia, to the decisions made by adjudicators at previous reviews. This was in apparent response to argument on behalf of the applicant that in the course of the first adjudicator's decision the test was improperly applied by a conclusion that Mr. Salilar "may pose a danger to the public". In the June decision the Adjudicator notes that in her view the adjudicator involved in the original decision, who had again reviewed the situation on May 5, demonstrated in his decision on the later occasion that he had an accurate concept of the test that he applied, even though on the occasion in May when he reviewed his decision, he again uses the word "may", i.e. a possibility, rather than words that relate to a probability. In the decision of June 2 the Adjudicator, after referring to earlier review decisions notes her agreement "with the findings of my fellow adjudicators".

The Adjudicator also makes reference to other proceedings in this Court in the application for judicial review by a shipping company and to the efforts of immigration officials to confirm Mr. Salilar's identity in an effort to facilitate his removal from Canada. The applicant's argument that the department's efforts indicate that removal was not then imminent, a factor favouring the applicant's release, at least in the view of his counsel, was not accepted; though the removal was acknowledged not to be imminent, it was also not "illusory". The Adjudicator refers as well to the applicant's reported lack of co-operation with immigration officials in failing to provide them with information they need to effect his removal from Canada. Reference is made by the Adjudicator to proposals of the applicant's counsel that if released on appropriate terms and conditions he would not be likely to pose a danger to the public, a proposal termed "speculation" in view of his past record of inappropriate behaviour resulting in criminal convictions, except when he was serving on probation. That behaviour was apparently the result of alcohol abuse, an abuse which was likely to create a strong likelihood that past behaviour would recur. The Adjudicator notes that "I believe that the public of Canada has the right to expect to be protected from the possibility of a recurrence of your past behaviour", a phrasing which clearly does mistake the test and finally, reference is made, as noted below to comments of Mr. Justice Dubé in the other proceedings earlier referred to, where reference was made to the claimant as a potential "unwanted and dangerous passenger", if placed aboard ship by immigration officials.

In my view, very few of the matters referred to by the Adjudicator after setting the test out properly are relevant in any way to the issues before her, that is, whether the applicant "is not likely to pose a danger to the public and is likely to appear for removal".

I appreciate the difficulty which adjudicators face in connection with detention reviews. Nevertheless, it is important that they consider only relevant factors in dealing with the decisions they must make. It seems important also in my view, that each of those reviews must be a hearing de novo, that is in the sense that the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed, as was essentially the case on June 2, by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision. Rather, the adjudicator should start with the premise that detention is an extraordinary restraint in our society and that, while subsection 103(7) would appear to put significant onus on the person in detention, there must also be an onus upon the Minister and his departmental officials to demonstrate each time that there are reasons which warrant detention of the person in question.

For example, while in this case the criminal offences committed by the applicant were serious enough that he would not be a person admissible to Canada and therefore is subject to removal, yet the mere fact that he was convicted of those offences does not in itself result in a determination that he is likely to pose a danger to the public or even that he "may" pose a danger to the public. Conviction for a criminal offence and sentencing for it do not in our society lead to the conclusion that when the sentence is served there is a continuing likelihood of danger to the public warranting continuing detention. The probability of such a danger has to be determined from the circumstances of each case.

Here, the fact of those convictions, the earlier determinations by other adjudicators, the inability of the applicant to guarantee to the Adjudicator that alcohol abuse would be avoided in future, and the reference in the decision of Mr. Justice Dubé were the principal factors which appear to have led to the conclusion that there was a probability the applicant would pose a danger to the public if released. None of these factors, in my opinion were directly relevant to the issue of the likelihood that, if released, the applicant would pose a danger to the public.

The applicant also argues that the Adjudicator improperly considered comments of Mr. Justice Dubé in another case before the Court. In that case a shipping company sought judicial review of an order by immigration officials that it take Mr. Salilar aboard one of its ships and remove him from Canada. Dubé J. stayed the order and action by immigration officials, and in the course of his reasons assessing the likelihood of irreparable harm he referred to Mr. Salilar as a potentially "dangerous passenger", obviously in light of the representations made to him in that case.

With respect, the Adjudicator on June 2, 1995 does not appear to have understood the legal process involved in that case or its relevance for this one when she said:

I can only conclude from that that having reviewed your case and presumably the same information that is before me, that even Justice Dubé found it reasonable to conclude that you are likely to pose a danger to the public if again allowed to be at large.

In fact, Dubé J. would not have reviewed Mr. Salilar's case, he would not have had the same information on Mr. Salilar's case as was before the Adjudicator on June 2, and he clearly made no determination that Mr. Salilar is likely to pose a danger to the public.

In my opinion the Adjudicator clearly erred in her characterization of the decision of Dubé J. and in relying upon that characterization in coming to her conclusion. His decision was clearly irrelevant to the issues before the Adjudicator. While it is not the only factor relied upon, it is given some importance, as I read the Adjudicator's decision, as a reason for her conclusion.

Further, the applicant argues that the Adjudicator fettered her discretion by requiring assurances or guarantees that the applicant would not partake of alcohol, in light of his history of alcohol abuse and consequential misbehaviour, giving rise to his criminal convictions, and by setting an unreasonable standard for community support which might otherwise have warranted consideration of terms and conditions to be applied if Mr. Salilar were released.

The Adjudicator's decision does refer to the possibility of further alcohol abuse as likely to cause recurrence of the applicant's previous behaviour which had resulted in several convictions. It refers as well to evidence of community support, in the form of an affidavit of Mr. Nkony, but notes it was offered at the time of the initial detention review, and though set out in more detail for the review on June 2, is not substantially different, and implicitly it was earlier insufficient to satisfy other adjudicators. The Adjudicator adds, "nor am I satisfied that he (Mr. Nkony) would be in a position to monitor your actions 24 hours a day which I believe is what would be necessary for him to live up to the kinds of guarantees made in that Affidavit".

I agree that sets standards not established by the Act and indicates a fettering of the Adjudicator's discretion. The issue before the Adjudicator was not whether the applicant could be guaranteed not to present a possibility of danger to the public or a possibility of not appearing for removal, rather it was whether the evidence supported a conclusion that he was not likely to pose a danger to the public and was likely to appear for removal, if released.

Finally, the applicant urges that the Adjudicator in this case failed to exercise the discretion vested by subsection 103(7) by failing to consider factors such as those set out by Mr. Justice Rothstein in Sahin in considering reasons for detention. Here, in particular, the Adjudicator declined to consider, though invited by applicant's counsel, the significance of the imminence of removal and the fact that there was evidence before the Adjudicator, with which she apparently agreed, was that removal was not imminent. Where this is the case, it is argued, that is a factor to be taken into account in determining the question of the applicant's likelihood of appearing for removal, if released. Thus, where removal is not imminent it may be more difficult to conclude rationally that the applicant is unlikely to appear for removal.

In written argument the applicant urged the Adjudicator ought to have assessed the legality of the process of removal relied upon by the Department, that is by ordering his removal by a certain ship. I am not persuaded that this would lead to a conclusion that the removal was "imminent" or "illusory", or that the classification of removal by either adjective is particularly helpful. It clearly was apparent to the Adjudicator here that arrangements for removal were uncertain, and their timing unknown, on June 2. However, in my opinion the likelihood of early action by immigration officials to remove the applicant is only one factor, and perhaps a minor factor, in the ultimate assessment of the likelihood of his appearance for removal if released from detention. Other factors to be considered are referred to by way of example by Rothstein J. (at page 110, Sahin v. Canada (Minister of Citizenship and Immigration), supra).

Rothstein J. stresses in his decision the context in which detention reviews are carried on, including an appreciation that detention is an extraordinary condition and that subsection 103(7) of the Act is to be applied consistent with section 7 of the Charter assuring "Everyone . . . the right to . . . liberty . . . and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

Conclusion

In my opinion the Adjudicator did not apply the proper test in assessing the relevant reasons for her conclusion pursuant to subsection 103(7), in reviewing the applicant's detention, that he was likely to pose a danger to the public and was not likely to appear for removal, if released. Only relevant reasons may be taken into account.

Thus the order issued, allowing leave for the application to be heard and allowing the application for judicial review. Because the circumstances underlying the applicant's situation present special considerations the order provides particular terms. Although earlier review decisions are criticized by the applicant, the decision here in issue is only that of June 2, and the applicant's detention under previous adjudicators' decisions not here examined, is presumed to be lawful. The decision of May 5, by law, was to be reviewed within 30 days and it was so reviewed on June 2, 1995. In setting aside the decision of June 2, I do so with effect when the continuing detention of the applicant is further reviewed, in accord with subsection 103(7) on or before July 10, 1995, by an adjudicator who has not previously reviewed the applicant's detention. I also order that the review previously scheduled for June 30 be stayed, to be superseded by the review by a "new" adjudicator. If that cannot be arranged in the time now ordered the respondent may apply to extend the time, explaining the reason for an extension. Finally, if that review results in continuing detention of the applicant, further periodic reviews shall be conducted in accord with subsections 103(6) and (7).

I note that both counsel advised following the hearing that this case did not raise a serious question of general importance within the terms of subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] for consideration by the Court of Appeal, and no question is certified.