IMM-8322-04
Ottawa, Ontario, this 15th day of July, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
- and -
the Minister of Public Safety and Emergency Preparedness
Respondent
REASONS FOR ORDER
SNIDER J.
[1] The Applicant, Debra Jean Rhoades née Larson, a 46-year old American citizen, was arrested, on September 14, 2004, under a Notice of Arrest, made by Immigration Officer Marc Yelle pursuant to s. 55 of the Immigration and Refugee Protection Act ("IRPA"). As of that same date, the Applicant was made subject to an Exclusion Order issued by Immigration Officer Lisa MacIntyre pursuant to s. 44(2) of the IRPA, which provides that she cannot come into Canada for a one-year period after she is removed from Canada. The Applicant seeks judicial review of both the Notice of Arrest (Court file IMM-8321-04) and the Exclusion Order (IMM-8322-04). These two files were joined by order of the Court and heard together. These reasons address both matters.
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[2] As a preliminary matter, the Respondent sought to change the style of cause to reflect the Respondent as the Minister of Public Safety and Emergency Preparedness. As of April 4, 2005, pursuant to the Department of Public Safety and Emergency Preparedness Act, S.C. 2005, C-10 the office of the Solicitor General of Canada was abolished and the responsibilities transferred to the newly-created department. The Applicant did not object to the amendment of the style of cause. The request will be granted.
Issues
[3] The issues raised by this application are as follows:
(a) What is the appropriate standard of review?
(b) Is the application for review of the Notice of Arrest moot?
(c) Did Officer MacIntyre err in issuing the Exclusion Order?
(d) Should the conditions of the release be quashed?
Background
[4] The Applicant has resided in Canada since 2001. Until 2004, she resided in Kingston, Ontario with her husband, Ian Rhoades. Through Mr. Rhoades, the Applicant had applied for permanent residence under the family class, which application was refused on May 2, 2003 for failure to provide information as required. She held a visitor's visa that allowed her to remain in Canada until March 26, 2003. Since that time, the Applicant has been without status in Canada.
[5] In January 2004, the Applicant separated from Mr. Rhoades; Mr. Rhoades was subsequently charged with domestic assault. At some time between January and April 2004, the Applicant relocated to Ottawa. She did not notify the Canada Border Services Agency ("CBSA") of her new address.
[6] On September 14, 2004, the Applicant appeared at the Canada/U.S. border to try to sell an imported car in Canada to a Canadian citizen (Mr. Eric Mcphee). Due to concern
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about the circumstances of the Applicant, the customs officer at the border contacted Immigration Officer Marc Yelle. After interviewing the Applicant, Officer Yelle took the following action:
Having determined that Mrs. Rhoades was residing permanently in Canada without status, that she was working here illegally and, in my opinion, was unlikely to appear for a proceeding that could lead to the making of a removal order pursuant to section 44 of the Immigration and Refugee Protection Act, at approximately 13:35, I arrested Mrs. Rhoades. I informed her that she was being arrested for being an immigrant without a visa.
[7] In addition to arresting the Applicant, Officer Yelle prepared a s. 44(1) report and forwarded that report to Immigration Officer Lisa MacIntyre who issued the Exclusion Order against her. Due to the pending criminal matter, the Applicant could not be removed from Canada immediately. After interviewing the Applicant, Officer MacIntyre agreed to release her on a cash bond and terms and conditions.
[8] In this case, the conditions imposed were:
· $3000 cash bond
· Notify Citizenship and Immigration Canada ("CIC") of any address change
· Keep the peace
· Notify CIC of any criminal charges
· Abide by all conditions imposed
· Not engage in work in Canada
· Other:
o must report in person every week
o must provide CBSA will all court documents or subpoena to prove involvement in any court case
[9] The Applicant was released at about 16:30 on the same day as her arrest.
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Legislative Scheme
[10] The starting point of the legislative scheme that led to the arrest of the Applicant and the subsequent Exclusion Order is her status in Canada; the Applicant is a "foreign national" for purposes of the IRPA in that she is neither a Canadian citizen nor a permanent resident. With this in mind, we move to s. 20(1) of the IRPA. That section provides that:
| 20.(1) Every foreign national . . . who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence.
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20.(1) L'étranger ... qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence.
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[11] A foreign national who seeks to remain in Canada and who does not hold a valid visa is "inadmissible" on the basis of s. 41(a):
| 41. A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act.
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41. S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait -- acte ou omission -- commis directement ou indirectement en contravention avec la présente loi et, s'agissant du résident permanent, le manquement à l'obligation de résidence et aux conditions imposées. |
[12] Officer Yelle, after his interview with the Applicant determined that she was "a person who, on reasonable grounds, is suspected to be" inadmissible under s. 41(a) because of her failure to comply with s. 20(1)(a).
[13] The treatment of the Applicant was two-fold; an inadmissibility report was prepared and dealt with, which led to the exclusion order and she was arrested. I will review the statutory framework of each action.
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(a) The Exclusion Order
[14] After interviewing the Applicant, Immigration Officer Marc Yelle reported the Applicant under s. 44(1) of the IRPA, which provides that:
| 44.(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. |
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44.(1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre. |
[15] This s. 44(1) Report was sent to the Minister's delegate, Immigration Officer MacIntyre. Officer MacIntyre's powers pursuant to s. 44(2) and s. 44(3) are as follows:
[16] In this case, s. 228(1)(c)(iii) of the Immigration and Refugee Protection Regulations applied to the Applicant in that she had failed to establish that she held a valid visa under s. 20 of the IRPA. This meant that Officer MacIntyre could exercise her discretion and issue a removal order without referring the matter to an inadmissibility hearing. The type of removal order to be issued was an "exclusion order". Section 225(1) describes an exclusion
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order as one that "obliges the foreign national to obtain written authorization in order to return to Canada during the one-year period after the exclusion order was enforced".
[17] Because the Applicant was scheduled to appear in a criminal court matter, there was an automatic stay of the Exclusion Order.
(b) The arrest
[18] In addition to preparing the s. 44(1) report, Officer Yelle arrested the Applicant because he was of the opinion that she was unlikely to appear for subsequent removal. This arrest of the Applicant took place pursuant to s. 55(2) which states that:
| (2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,
who the officer has reasonable grounds to believe is inadmissible and is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2). |
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(2) L'agent peut, sans mandat, arrêter et détenir l'étranger qui n'est pas une personne protégée dans les cas suivants : a) il a des motifs raisonnables de croire que celui-ci est interdit de territoire et constitue un danger pour la sécurité publique ou se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2).
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[19] Section 56 of IRPA allows an officer to order the release of a foreign national from detention:
| . . . if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary. |
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... s'il estime que les motifs de détention n'existent plus; il peut assortir la mise en liberté des conditions qu'il estime nécessaires, notamment la remise d'une garantie.
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Analysis
(a) What is the appropriate standard of review?
[20] The actions of the immigration officers in this case are discretionary decisions based on their assessment of the credibility of the Applicant and their findings of fact.
[21] On questions of fact, this Court can intervene only if it considers that either Officer Yelle or Officer MacIntyre "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, s. 18.1(4)(d)). The findings of the officers are entitled to great deference by the reviewing court. The Federal Court of Appeal has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness (Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315 (F.C.A.), at para. 4). In the specific context of removals officers, this Court has held that the decisions are subject to the greatest of deference (J.B. v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 2094, at para. 25).
(b) Is the application for review of the Notice of Arrest moot?
[22] The Respondent submits that the issue of the validity of the Notice of Arrest is moot since, upon the release of the Applicant, the Notice of Arrest is no longer in dispute.
[23] As established by the Supreme Court of Canada in Borowski v. Canada (Attorney General) [1989] 1 S.CR. 342, the test for mootness is two-fold. First, the Court must determine whether the dispute between the parties has disappeared. Second, even if the dispute has disappeared, the Court may exercise its discretion to hear the case in certain circumstances. In deciding whether to exercise discretion, I should consider:
1. Whether an adversarial context prevails;
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2. Whether the decision under review will have some practical effect on the rights of the parties and will not be a waste of judicial resources; and
3. The need for the Court to demonstrate awareness of its proper function.
[24] In this case, there is no question that the Notice of Arrest - and, hence, the direct dispute - has disappeared with the release of the Applicant. The next step in the analysis is to consider whether to exercise my discretion to hear this matter in spite of the disappearance of the dispute.
[25] While there may still be an adversarial context as between the parties, it appears to relate more to the issuance of the Exclusion Order and does not, in my view, comprise a reason to use judicial resources to consider the validity of a spent Notice of Arrest.
[26] The third consideration is the practical effect of any order of this Court quashing this Notice of Arrest. The Respondent argues that there is no longer any practical effect on the parties. The Applicant submits that the Applicant is still under the obligation to comply with the requirements set by the officer for the release. The Applicant argues that the conditions were part of the arrest and that, for this reason, quashing the Notice of Arrest would have the effect of eliminating the conditions.
[27] The arrest was made pursuant to s. 55(2)(b) of the IRPA. The conditions were imposed pursuant to s. 56 as conditions to ensure that the Applicant reported for deportation
when required to do so. In my view, the arrest is a separate decision from the decision to release and to impose conditions. Indeed, a review of the record shows that it was Officer MacIntyre, and not Officer Yelle, who made the decision to release the Applicant and as to the content of the conditions. An order of this Court overturning the Notice to Arrest would not automatically quash this decision of Officer MacIntyre. Accordingly, success by the
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Applicant in having the Notice of Arrest overturned would have no practical effect; the conditions of the release would still be in effect until, possibly, further action was taken.
[28] Finally, I see little role for the Court to play from a policy or awareness perspective in what can only be a short-term, temporary situation. In this case, the Applicant was in custody for less than four hours. Even on a theoretical basis, the longest that a Notice of Arrest could be in effect without a review is 48 hours when the IRPA requires that the Immigration Division review the reasons for the continued detention of a foreign national (IRPA, s. 57(1)). There is nothing that warrants the intervention of the Court.
[29] In all these circumstances: (a) I am satisfied that the issues arising from the Notice of Arrest are moot; and (b) I decline to exercise my discretion to hear this application for judicial review. In view of this decision, there is no need to consider whether Officer Yelle erred in issuing the Notice of Arrest.
(c) Did Officer MacIntyre err in issuing the Exclusion Order?
[30] The issuance of the Exclusion Order was made pursuant to s. 44(2) on the basis that the Applicant was inadmissible to Canada. This is a second-level review of the circumstances of the Applicant. The first report was made by Officer Yelle under s. 44(1). Officer MacIntyre's was required to form an opinion as to whether the s. 44(2) report was well-founded. After reviewing the report and interviewing the Applicant, Officer MacIntyre concluded that the report was well founded. Many reasons for the "opinion" Officer MacIntyre formed were summarized during cross-examination on her affidavit. In addition to the fact that the Applicant never contacted CIC to rectify her change of address and that she ought to have known that her permanent resident application had been denied, Officer MacIntyre stated that:
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She didn't notify us of her change in her marital status. Weight was given to the fact that she [told] Officer Yelle that she was still in a relationship with Ian Rhoades at the time of the first interview. She openly admitted that she was in Canada permanently since 2001, that all her personal belongings were here in Canada, that she wished to remain here permanently now with Mr. Seguin, that she did not wish to move back to the US. . . . And that through her own
admission her permanent address was here in Canada and she only had short visits to the United States.
[31] This evidence supported Officer MacIntyre's opinion that the report was well-founded and that the Applicant was inadmissible to Canada. As a result of this determination, the decision to issue the Exclusion Order was made.
[32] The Applicant argues that the Officer erred in issuing the Exclusion Order because she was not illegally in Canada. She makes this argument on the basis that, in August 2004, she was admitted into Canada upon her return from a short trip to the United States without being detained. As a citizen of the United States, she asserts that she is not required to hold a visa to come to Canada.
[33] This assertion is true if she had been any usual American citizen coming in to Canada as a visitor. But that is not what the Applicant was doing here. The Applicant's admission to Canada in August 2004 does not change the evidence that demonstrates that she is residing in Canada permanently without being a permanent residence of Canada. That is the basis of the Exclusion Order. Every foreign national who intends to live permanently in Canada - even U.S. citizens - must hold a valid visa to do so (s. 20(1)(a)). Failure to hold such a visa is an act or omission which contravenes a provision of the IRPA. For this reason she is inadmissible for failing to comply with the IRPA (s. 41(a)) and her re-entry to Canada in August 2004 is irrelevant.
[34] The Applicant also argues that Officer MacIntyre did not take into account certain evidence related to the abusive relationship she had endured at the hands of her former husband. However, the record demonstrates that this information was considered but that it did not change Officer MacIntyre's opinion that the Applicant was inadmissible.
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[35] In conclusion on this issue, the Applicant does not point to any evidence that was ignored; in effect, she is expressing a disagreement with the weight that Officer MacIntyre gave to the evidence before her. In my view, the decision to issue the Exclusion Order was well supported by the evidence and there is no reason for the Court to intervene.
(d) Should the conditions of the release be quashed?
[36] The Applicant argues that the conditions are too onerous. However, as noted above, the conditions on the Applicant were imposed by Officer MacIntyre acting pursuant to s. 56 of the IRPA. In the absence of an application for judicial review of Officer MacIntyre's s. 56 decision, there is no matter to be adjudicated before the Court.
Conclusion
[37] For these reasons, I conclude that both applications will be dismissed. The application to overturn the Notice of Arrest is dismissed on the basis that it is moot and the application to quash the Exclusion Order is dismissed on the basis that there is no reviewable error.
[38] While I agree that the arrest of the Applicant appears to have been a rather harsh reaction in the circumstances, I also note that I was not at the interview by Officer Yelle and did not have the opportunity to witness first hand what occurred. Absent a reviewable error, it is not the role of the Court to intervene in the exercise of discretion by immigration officers simply because I might have looked at the facts differently.
[39] The Applicant proposes that I certify a question to the effect of what factors must be considered by an immigration officer in coming to a decision to arrest, under s. 55 of the IRPA, or to issue an Exclusion Order, pursuant to s. 44(2) of the IRPA. In my view, this question is not determinative of the issues before the Court. I decline to certify a question.
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[40] Finally, the Applicant seeks costs on a solicitor and client basis. In my view, even if the Applicant had been successful, this would not be an appropriate case for the assessment of costs on any basis.
"Judith A. Snider"
___________________________
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: IMM-8321-04
IMM-8322-04
STYLE OF CAUSE: DEBRA JEAN RHOADES nee LARSON v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 5, 2005
REASONS FOR ORDER: The Honourable Madam Justice Snider
DATED: July 15, 2005
APPEARANCES:
Mr. Davis Morris FOR APPLICANT
Ms. Catherine A. Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
Bell, Unger, Riley, Morris FOR APPLICANT
Ottawa, Ontario
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada