Federal Court Decisions

Date: 20050401

Docket: IMM-3092-04

Citation: 2005 FC 428

Ottawa, Ontario, April 1, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

GINA UANSERU

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]       Gina Uanseru seeks judicial review of the decision of an Acting Operations Officer at the Greater Toronto Enforcement Centre that a cash bond in the amount of $5,000 be forfeited. Ms. Uanseru contends that the Officer erred in finding that there had been a breach of any of the conditions secured by the bond. In the alternative, in the event that there was such a breach, Ms. Uanseru submits that the Officer erred in failing to properly exercise her discretion when she caused the bond to be forfeited.

Background

[2]       Ms. Uanseru acted as a bondsperson for Francis Asuekom Mark. Mr. Mark is a Nigerian citizen living in Canada.

[3]       On December 23, 2003, an order was made for Mr. Mark's release from detention. The following day, as a condition of Mr. Mark's release, Ms. Uanseru signed a $5,000 performance bond and paid a $5,000 cash deposit. Other conditions of Mr. Mark's release included the requirement that he report any change to his address prior to moving to the new address, and that he attend at interviews when required to do so by the respondent.

[4]       After his release from detention, Mr. Mark resided with Ms. Uanseru, although he spent some nights with his common-law wife and the couple's infant child. Given that the Order for Release did not stipulate that he was to reside in one place at all times, the respondent acknowledges that Mr. Mark was entitled to stay overnight at his wife's home on occasion.

[5]       On January 24, 2004, Mr. Mark attended for an interview with representatives of the respondent. At the interview, Mr. Mark completed a Notice of Change of Address form on which he indicated that he had moved the previous day to his wife's address.

[6]       By letter dated February 11, 2004, the Officer advised Ms. Uanseru that Mr. Mark had failed to comply with the condition that he report any change of address prior to moving to the new address. As a consequence, Ms. Uanseru was asked to honour the performance bond by providing a cheque in the amount of $5,000.

[7]       The Officer further advised Ms. Uanseru that she had the right to make submissions in the event that there were any reasons why the performance bond and cash deposit should not be forfeited. Ms. Uanseru was further advised that the Officer would consider any submissions that she wished to make in determining what action was to be taken.

[8]       By letter dated March 8, 2004, Ms. Uanseru provided detailed submissions in support of her contention that neither the cash bond nor the performance bond should be forfeited. Amongst other things, Ms. Uanseru submitted that Mr. Mark had not in fact moved out of her house prior to his attendance at the interview on January 24, 2004. She further submitted that she had done everything possible to ensure that Mr. Mark complied with the conditions of his release, and that, having exercised all due diligence, her bonds should not be forfeited.

[9]       The operative portions of the Officer's March 17, 2004 decision provides:

I have carefully reviewed the submissions provided by your [counsel's] office in response to the decision to forfeit the bonds. I have also reviewed the facts of the case. I am satisfied that there was a breach of the condition of release. As such, it is my decision to forfeit the $5,000 cash bond. No action will be taken with respect to the $5,000 Performance Bond.

[10]     Ms. Uanseru now seeks judicial review of this decision as it relates to the forfeiture of the $5,000 cash bond.

Issues

[11]     Although Ms. Uanseru has identified several issues in this case, they may conveniently be dealt with under one of two headings. These are:

1.         Did Mr. Mark in fact breach a condition of his release? and

2.         Did the Officer err in exercising her discretion with respect to the forfeiture of the cash bond?

Did Mr. Mark in Fact Breach a Condition of His Release?

[12]     While conceding that the evidence on this point was somewhat confusing, Ms. Uanseru contends that the Officer erred in finding that Mr. Mark breached a condition of his release. According to Ms. Uanseru, although Mr. Mark spent the night of January 23, 2004 at his wife's residence, he did not physically move out of Ms. Uanseru's residence until January 24, 2004. As a consequence, notice was provided to the respondent prior to Mr. Mark changing his address, as required by the conditions of his release, and no breach occurred.

[13]     To say that the evidence on this point was somewhat confusing is to put it mildly. At various points in the process Mr. Mark himself seemed to say that he moved in with his common-law wife immediately after his release from detention in December of 2003, on January 23 or on January 24.

[14]     There is also some suggestion on the record that Mr. Mark's wife stated that Mr. Mark had moved in with her the week before he completed the change of address form, although it appears that she denies having said this.

[15]     Perhaps most importantly, the change of address form that Mr. Mark himself filled out on January 24, 2004 indicates that he had moved the previous day.

[16]     The finding that there had been a breach of a condition of release by Mr. Mark is a finding of fact. As such, I am satisfied that the finding is to be accorded significant deference. Whether I adopt the patent unreasonableness standard urged by the respondent or the reasonableness simpliciter standard advocated by Ms. Uanseru, I am satisfied that the Officer's finding that Mr. Mark had breached a condition of his release was one that was open to her, and that she did not err in this regard.

[17]     Before leaving this issue, I would like to note that while the actions of the respondent in this case seem a little harsh, given that Mr. Mark's breach of a condition of his release seems to be little more than technical in nature, I see no basis for Ms. Uanseru's argument that the respondent acted in bad faith in this case.

Did the Officer Err in Exercising Her Discretion with Respect to the Forfeiture of the Cash Bond?

[18]     The reason for using bonds is to allow for the release of individuals in immigration detention on terms that will ensure compliance with immigration legislation.        

[19]     The only case of which the parties are aware dealing with the forfeiture of a bond in the immigration context is the decision of Justice Dawson in Gayle v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 446. This decision dealt with a bond forfeited under the provisions of the former Immigration Act. It appears that the forfeiture of an immigration bond was also considered by Justice Nöel in Bcherrawy v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1825, another decision under the Immigration Act, where the reasoning in Gayle was adopted.

[20]     In Gayle, the only reason given for the forfeiture of a bond was the failure to comply with a condition of release. Justice Dawson found that while a breach of condition was a condition precedent for the exercise of discretion, the Officer still had to turn his or her mind to the exercise of discretion or the principles which should guide the exercise of discretion. Having failed to do so, the decision was set aside.

[21]     Since the events giving rise to the decisions in Gayle and Bcherrawy, the Immigration Act has been replaced by the Immigration and Refugee Protection Act. The wording of the relevant provision of the Immigration and Refugee Protection Regulations is somewhat different than the comparable provisions under the predecessor legislation, and thus the decisions Gayle and Bcherrawy are of limited assistance to the Court.   

[22]     Ms. Uanseru submits that given the paucity of case law in the immigration context, reference should be had to the jurisprudence that has developed in the criminal law area dealing with forfeitures of sureties posted to secure bail for those accused of criminal offences.

[23]     In my view, it is unnecessary to decide whether the law that has developed in the criminal field is of any assistance in the present case, given the respondent's concession that, notwithstanding the change to the legislation since the decision in Gayle and Bcherrawy, an Officer still has some discretion to decide whether forfeiture should be required in a given case, and that in exercising this discretion, the Officer is entitled to consider all of the facts of the case in issue.

[24]     This position is reflected in the provisions of the Citizenship and Immigration Canada Enforcement Manual. Specifically, section 7.5 of Chapter 8 of the Manual advises Officers that, in exercising their statutory authority in relation to the forfeiture of bonds, each case is to be considered on its own merits. The Manual further stipulates that where action is being taken to forfeit the bond, the bondsperson is to be advised, in writing, of the reason for the forfeiture.

[25]     In deciding whether the Officer properly exercised her discretion in the circumstances of this case, I am guided by the principles espoused by the Supreme Court of Canada in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2. That is, where statutory discretion has been exercised in good faith, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[26]     In this case, the record contains a copy of Ms. Uanseru's submission on which the Officer has made marginal notes. These notes make it clear that the Officer considered Ms. Uanseru's submissions prior to arriving at her decision to forfeit the cash bond.

[27]     One of these notes states:

Have reviewed these submissions and case info., it is my opinion that the T & C of release [have] been violated. Therefore cash bond to be forfeited. No action on the performance. (emphasis in the original)

[28]     Ms. Uanseru submits that this note demonstrates that the only reason considered by the Officer in deciding that the cash bond should be forfeited was the fact that Mr. Mark breached one of the conditions of his release. This view is confirmed, she says, when regard is had to the decision letter, where the Officer finds that there has been a breach of a condition of release, and goes on to state "As such, it is my decision to forfeit the $5,000 cash bond".

[29]     I agree with the respondent that it is clear from the record that the Officer reviewed Ms. Uanseru's submissions prior to arriving at her decision. Further, the fact that the Officer decided not to insist upon the forfeiture of the performance bond clearly demonstrates that she was aware that she had discretion not to insist on forfeiture.

[30]     However, it is impossible to discern from the Officer's reasons why she decided to exercise her discretion in Ms. Uanseru's favour in relation to the performance bond, nor is it possible to figure out why she declined to do so in relation to the cash bond. Thus there is no way of determining whether the Officer relied upon considerations that were irrelevant or extraneous to the statutory purpose.    

Conclusion

[31]     For these reasons, the application is allowed. In accordance with my reasons, the Officer's finding that Mr. Mark breached a condition of his release can stand. However, the question of whether Ms. Uanseru's cash bond should be forfeited is remitted to a different Officer for redetermination.

Certification

[32]     Ms. Uanseru has proposed a question for certification relating to the relevance of criminal law principles to forfeitures in the immigration law context. Given my reasoning, the question would not be dispositive of this case, and I therefore decline to certify it.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is allowed, and the matter is remitted to a different Officer for redetermination in accordance with these reasons.

2.          No serious question of general importance is certified.

               "Anne Mactavish"