OTTAWA, ONTARIO, JULY 26, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
LORI LYNN ROMERO
REASONS FOR ORDER AND ORDER
[1] The Minister for Public Safety and Emergency Preparedness (“the Minister”) seeks judicial review of the decision of Member Tessler of the Immigration Division of the Immigration and Refugee Board, allowing the conditional release from detention of the respondents, Michael John Welch and his common-law spouse, Lori Lynn Romero.
[2] The Minister submits that this was the fifth review of the detention of the respondents and that Member Tessler failed to provide clear and compelling reasons as to why he should depart from the four previous decisions and release the respondents on terms and conditions that are, in the Minister’s view, less stringent than those considered at the previous reviews.
[3] For the reasons that follow, I have concluded that the decision must be set aside.
BACKGROUND
[4] The respondents are citizens of the United States. They are wanted in the State of Colorado on a number of charges. After their release on bail pending their trial scheduled to begin in January 2006, they fled to Canada in December 2005.
[5] The Minister and the respondents give two very different versions of the events in Colorado leading up to this point. It is not for this Court to determine who is right and who is wrong.
[6] Shortly after the respondents came to Canada, they were arrested by the RCMP. A decision was made to detain them and, on January 18, 2006, a removal order pursuant to section 44 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the Act”) was issued against them.
Within a month of their arrest, the respondents claimed refugee status on the basis that they are at risk of persecution in the United States. This claim has yet to be decided.
[7] Their first detention hearing took place on January 17, 2006. At that time, it was determined that they were a flight risk but the duration of detention contemplated was very short. It was mentioned that they had two children.
[8] On January 19, 2006, Member Dyck came to the same conclusion and continued the detention. The two respondents’ children were in the audience during this second hearing. It became clear that they had been with their parents when the latter were apprehended. Since then, Mr. Welch’s mother had come to Canada and the children were in her care after having been in the custody of the Ministry of Children and Families. It was argued that it was not in the best interests of the children to be separated from their parents. However, the presence of the children was not found to supersede the other factors listed in section 245 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (“the Regulations”). At that time, Member Dyck considered and rejected a proposal that included a curfew and a $4,000 bond.
[9] The third detention hearing was held on February 16, 2006. At that time Member King considered the following proposed conditions: i) physical restriction to an area; ii) $25,000 cash bond for each of the respondents; iii) a prohibition to carry weapons; iv) daily reporting and, alternatively, the release of only Ms. Romero on these conditions to enable the children, who were back in the United States with their grandmother, to visit and spend some time with her.
[10] At that hearing, for the first and only time, the Minister argued that the respondents posed a danger to the public. Member King rejected this argument. However, largely because of their circumstances in Colorado, she found that the respondents were not likely to appear for removal from Canada if they were not in detention. She noted that, although the flight risk was minimal while their refugee claim was under review, she was required to contemplate their flight risk if their refugee claim was unsuccessful and they were ordered to appear for removal to the US. She also rejected the argument that Ms. Romero’s situation in Canada would be any more stable or settled if she were to be released and her children allowed to visit her. At the time of the hearing, Member King anticipated that the detention would last about ten months. He acknowledged that the Refugee Protection Division expedites hearings for people who are in detention and that the claim process should take six to eight months. She considered that even a release subject to cash bonds and very stringent reporting conditions would not be effective considering that the respondents failed to appear for their trial in the US in spite of the significant bail bonds in existence there (US$25,000 and US$100,000). Member King noted that the respondents had made a calculated or measured decision to flee to Canada.
[11] The fourth hearing on March 20, 2006, was conducted by Member Tessler, who again concluded that detention was necessary to ensure that the respondents would appear for their removal. At that time, in addition to the three conditions of release discussed earlier, the respondents proposed their release be made subject to a review once a decision was made on their refugee claim. They also alluded to the possibility of electronic tracking as an alternative to detention, but had been advised by the Minister that this was not a viable alternative as no such system was currently available. Member Tessler reviewed those conditions and noted that Member King had rejected similar proposals. He also found that he had no authority to give any direction to the Minister with respect to the quality of the detention (Mr. Welch was seeking to have conjugal visits and access to psychological counselling) and the electronic monitoring. Despite the fact that the respondents were likely to remain in detention for several months pending the determination of their refugee claim, he concluded that their continued detention was necessary.
[12] The decision that is the subject of the present application was issued as a result of the fifth hearing which began on April 19, 2006. It was again presided over by Member Tessler. The respondents, who had until then been represented by counsel, were representing themselves. They called Mr. Beagley, a representative of the company Trace Canada, as a witness to explain how Trace Canada could equip them with electronic tracking devices that would keep a record of their movements at all times. The company could then report this information to Immigration officials who would know immediately if the respondents had breached their conditions of release. Their submission was that the flight risk would be considerably reduced if such a mechanism were used. Member Tessler took the matter under advisement.
[13] The hearing resumed on May 11, 2006. At that time, Member Tessler specified that he was not “reopening” the detention review, but simply wished to obtain some clarification with regard to the services offered by Trace Canada. He began by questioning Mr. Beagley about the functioning of the electronic tracking system.
[14] Member Tessler handed down his decision orally. He stated that he considered electronic monitoring to be more responsive than a self-monitored curfew and no-go zone. It was also more responsive than periodic physical reporting where, according to him, the respondents could be long gone by the time they failed to show up to report. It was thus a more immediate form of reporting. He also noted that, in the end, if a person’s intention is to abscond, they will do so whatever the type of monitoring and explained that:
Alternatives to detention are not meant to provide absolute certainty of appearance for removal. They need only have the effect of reducing the risk to an acceptable degree. The fact that the persons concerned have proposed electronic monitoring and have made the effort to bring a proposal for consideration is an indication of their sincerity in seeking to address the Minister’s concerns of flight.
[15] Member Tessler clearly considered that while electronic monitoring could not ensure that there would be no breach of the release conditions, it would greatly lessen the risk of “impulsive behaviour” on the part of the respondents. As the applicant had raised the concern that there were no resources to react if a breach occurred, Member Tessler pointed out that a breach with electronic surveillance would tax the available resources no more than in any case where a person fails to report and becomes subject to arrest.
[16] Apart from the advantages of electronic monitoring discussed above, the other relevant factor militating in favour of a release was the “new” information with respect to the respondents’ teenage boys. In that respect, Member Tessler said:
… the other new information that was presented at this hearing is that the persons concerned have two teenage boys. Their hope is that if they’re released, the boys could join them in Canada. It’s not clear whether that would be possible, but if the boys come to Canada, their presence would likely have the effect of anchoring the persons concerned to a location and it would make it harder for them to flee as a group and harder for them to hide from the authorities. I believe it’s unlikely they would try to cross back into the United States and, in any case, they would have difficulty evading authorities in Canada for very long as a unit of four people.
In the other scenario, if the boys do not come to Canada, the persons concerned would be drawn back to Colorado to be reunited with them. I highly doubt that they would suffer separation from the boys for an extended period of time. In other words, any attempt to live below the radar would make contact with their children extremely problematic and intolerable for them and I consider this a serious incentive to comply.
…
In consideration of their family obligations, I believe that they’re[sic] willingness and ability to flee, if faced with return to the United States, is considerably reduced.
[17] After revealing that he was prepared to offer release on terms and conditions, Member Tessler sought to have a discussion with the parties about those terms and conditions before finalizing them. He noted that he wanted to address the set-up of the monitoring system. The Minister’s response was that he still objected to the proposed release and would leave it up to the Member to fashion whatever terms and conditions he found satisfactory because the applicant had no faith in Trace Canada’s proposal. After further discussion with Mr. Beagley, Member Tessler fixed the terms and conditions as follows:
i) a passive reporting electronic monitoring system would be put in places;
ii) within 72 hours of the release, the respondents were to report their residential address to an Immigration officer, as well as any and all changes of address while in Canada;
iii) they had to agree to:
a. not remove the ankle bracelet affixed by Trace Canada
b. not leave the geographical boundaries set out in a map attached to the order
c. provide, prior to release, evidence to Immigration officials of having executed an equipment lease and monitoring service agreement for passive GPS electronic monitoring with Trace Canada including evidence of the payment of the security deposit and the annual fee
d. the agreement with Trace Canada was to provide, among other things, that daily monitoring reports would be sent to the Canadian Border Service Agency (“CBSA”) by way of fax or email, that CBSA would be advised of any breach by telephone and that Mr. Welch and Ms. Romero had to agree to place their belt units in the Charger Base Unit on or before 11:00 p.m. every day
e. the electronic monitoring system was to be operational within seven days of release and the respondents were to report additionally when and where directed by Immigration officials, including for removal if required.
[18] After Member Tessler made his decision, the Minister began the present application for judicial review. Justice Robert Barnes issued an interim stay of the release pending the hearing on the merits of the Minister’s motion to stay. Shortly thereafter, Chief Justice Allan Lutfy stayed the release pending the outcome of this application.
[19] The text of the relevant portions of the Act and Regulations are set out in Annex I.
ISSUES
[20] As mentioned, the Minister argues that Member Tessler failed to give clear and compelling reasons for deviating from the four previous decisions of his colleagues. He also submits that there were several procedural irregularities; particularly, that Member Tessler made his decision to release the respondents before setting out the conditions for their release. These irregularities allegedly amount to an excess of jurisdiction.
[21] There will be no need to determine whether there were any irregularities because I find that Member Tessler failed to give clear and compelling reasons and that such failure is sufficient to justify setting aside the decision.
[22] The Court notes that the decision to set aside Member Tessler’s order should not be construed in any way as an opinion on the adequacy of the conditions he set out. Although the Minister clearly does not agree that these conditions are suitable, his attack did not focus on this point. As noted during the hearing, on such an issue, the Minister would have had to establish that the decision was patently unreasonable.
ANALYSIS
[23] In Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] F.C.J. No. 15 (QL), 2004 FCA 4, the Federal Court of Appeal considered the nature of the Immigration Division’s detention reviews under sections 57 and 58 of the Act. It noted that the Act does not draw any distinction between the first and subsequent detention reviews or impose any requirement for any new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted.
[24] In that case, the Federal Court of Appeal also had to determine what weight was to be given in subsequent reviews to previous decisions. Justice Marshall Rothstein said:
11 Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.
12 The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.
13 However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.
[25] With respect to the burden of proof, it is clear that the Minister bears the initial burden of establishing that continued detention is warranted since section 58 provides that “[t]he Immigration Division shall order the release … of a foreign national unless it is satisfied … that” one of the listed conditions is met.
[26] As noted earlier, the question here is not whether or not the Member was justified in ordering the release on the conditions he did but simply whether he has provided clear, compelling reasons for departing from the previous decisions reached at the detention reviews.
[27] In my view, this is a question of procedural fairness for which there is no need to proceed to a pragmatic and functional analysis to determine the standard of review to be applied. If there was a breach, the decision must normally be set aside.
[28] If I am wrong in that respect and the consideration of the previous decisions is part of the decision maker’s overall assessment of the facts and the evidence before him, I adopt the pragmatic and functional analysis I conducted in Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 523, 2003 FC 1225. The standard of the patently unreasonable decision would apply to such an issue. If, as argued by the Minister, Member Tessler misapprehended the evidence adduced before him and wrongly believed that some evidence he considered very relevant to his final conclusion was new, his conclusion would be patently unreasonable.
[29] The Court agrees with the statement made by Justice Pierre Blais in Canada (Minister of Citizenship and Immigration) v. Sittampalam, [2004] F.C.J. No. 2152 (QL), 2004 FC 1756, that the threshold set out by the Court of Appeal in Thanabalsingham, above, is a fairly low one which will depend on the circumstances of each case.
[30] In the case before Justice Blais, it was clear that time had passed and that the decision maker questioned whether there still remained a danger to the public. Here, the Minister noted that there were no changes in the relevant circumstances before Member Tessler, the expected length of the detention had not increased and both sides had been diligent in bringing this matter forward. The only issue was the existence of alternatives to detention.
[31] As mentioned, the Minister is adamant that Member Tessler contradicted himself by imposing lighter conditions on the respondents than those he rejected at an earlier hearing and that insufficient justification was given in that respect. The Minister seemed particularly troubled by the fact that the respondents were given seven days without any surveillance until Trace Canada had set up their monitoring system.
[32] The Court does not accept these submissions. Member Tessler makes it clear that he finds electronic monitoring to be superior to physical reporting, curfews or no-go zones. It is also evident that during the first seven days Member Tessler (as well as Member King) considered the risk of flight to be minimal because the respondents are still awaiting a decision on their refugee claim. The Minister acknowledged that this fact could be properly considered when gauging the effectiveness of the conditions.
[33] It is true that Member Tessler does not specifically discuss the giving of a bond and why it is not necessary in this case. However, the Court is satisfied that the answer to this question is implicit in his decision given that, in all previous decisions, it was recognized that the posting of bail would have no real impact on the flight risk. Had the superiority of electronic monitoring been the sole basis of the decision, the Court would have concluded that the reasons given by Member Tessler meet the low threshold set out by the Court of Appeal in Thanabalsingham. However, it was not so.
[34] Member Tessler clearly distinguished the situation before him from those reviewed by his colleagues on the basis of the “new evidence” with respect to the respondents’ children. As mentioned earlier, the fact that the children were with their parents when they were arrested, and that they could visit their mother if Ms. Romero alone was released, was clearly considered by the previous decision makers.
[35] Member Tessler could not properly turn his mind to the decisions of his colleagues on this point and consider why he should depart from the course of action they took if he believed that the information relating to the existence of the respondents’ children was new.
[36] The respondents argue that the decision is simply badly written and that the new information was not the existence of the children, as noted in the decision, but rather the new hope that the children could come to live in Canada if the respondents were released.
[37] The Court cannot accept this argument. The Court cannot rewrite the decision on such a material issue. While the ultimate conclusions of Member Tessler with regard to the children may be correct, he clearly failed to consider the contrary view expressed by Member King in particular.
[38] The Court has much sympathy for the difficult situation in which the respondents find themselves. However, they will be entitled to seek release at the next detention hearing which, according to the parties, will take place as soon as possible after the release of these reasons.
[39] The parties did not submit any question for certification and the Court is satisfied that this matter turns on its own facts.
ORDER
THIS COURT ORDERS that the application is granted. The decision of Member Tessler dated May 11, 2006 is set aside. A new detention review should be held as soon as possible.
Relevant Legislation
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are 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);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.
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58. (1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l’étranger 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);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
d) dans le cas où le ministre estime que l’identité de l’étranger n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger.
(2) La section peut ordonner la mise en détention du résident permanent ou de l’étranger sur preuve qu’il fait l’objet d’un contrôle, d’une enquête ou d’une mesure de renvoi et soit qu’il constitue un danger pour la sécurité publique, soit qu’il se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi.
(3) Lorsqu’elle ordonne la mise en liberté d’un résident permanent ou d’un étranger, la section peut imposer les conditions qu’elle estime nécessaires, notamment la remise d’une garantie d’exécution. |
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162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
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162. (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie.
(2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.
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173. The Immigration Division, in any proceeding before it,
(a) must, where practicable, hold a hearing;
(b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;
(c) is not bound by any legal or technical rules of evidence; and
(d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. |
173. Dans toute affaire dont elle est saisie, la Section de l’immigration :
a) dispose de celle-ci, dans la mesure du possible, par la tenue d’une audience;
b) convoque la personne en cause et le ministre à une audience et la tient dans les meilleurs délais;
c) n’est pas liée par les règles légales ou techniques de présentation de la preuve;
d) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision. |
Immigration and Refugee Protection Regulations, S.O.R./2002-227
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248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention. |
248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté :
a) le motif de la détention;
b) la durée de la détention;
c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l’intéressé;
e) l’existence de solutions de rechange à la détention. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2519-06
STYLE OF CAUSE: THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
MICHAEL JOHN WELCH and
LORI LYNN ROMERO
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: JULY 18, 2006
REASONS FOR ORDER: GAUTHIER J.
APPEARANCES:
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Banafsheh Sokhansanj
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Zool Suleman
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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Mitelut & Company Vancouver, BC |