Date: 20030220
Docket: IMM-831-03
Neutral citation: 2003 FCT 203
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Applicant,
- and -
STEPHEN MICHAEL JAMES AMBROSE,
Respondent.
[1] The applicant, by motion, seeks a stay of the decision of the Immigration Division of the Immigration and Refugee Board (the tribunal) dated February 3, 2002 wherein the tribunal ordered the respondent's release pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) notwithstanding that he found that the respondent constituted a danger to the public in Canada and was a flight risk.
[2] The respondent is one of five British subjects convicted on October 16, 2001 of conspiring to commit an indictable offence contrary to paragraph 465(1)(c) of the Criminal Code, R.S.C. 1985, c. 46. They conspired to import 2.5 tons of cannabis resin into Canada contrary to subsection 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The offence carries a maximum sentence of life imprisonment. Mr. Ambrose pleaded guilty and was sentenced to seven years and eight months in a federal institution.
[3] A report, pursuant to section 27 of the former Immigration Act, R.S.C. 1985, c. I-2 regarding the respondent, was forwarded to the deputy minister and on June 11, 2002, the respondent was ordered detained pursuant to subsection 105(1) of the Immigration Act. A removal order followed on October 31, 2002. Subsection 50(b) of IRPA prohibits the applicant from effecting removal of the respondent until his sentence is completed. Mr. Ambrose became eligible for day parole on January 25, 2003 but remained in detention pursuant to the subsection 105(1) order. A 48-hour detention hearing was held on January 27, 2003. The tribunal determined that Mr. Ambrose was a danger to the public and a flight risk and ordered his continued detention. The tribunal commented that the respondent could not be eligible for day parole due to amendments to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA) and that it would be unnecessary to proceed with further review hearings. The respondent's case presenting officer requested a seven-day detention review hearing, which took place on February 3, 2003. The tribunal found that the respondent posed a threat to Canadian society and was a flight risk but ordered his release. It is this decision of February 3, 2003 that is the subject of the underlying application for leave and judicial review.
[4] The tri-partite test for the granting of a stay is articulated in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). The applicant bears the onus of establishing that there exists a serious issue, that irreparable harm will result if the stay is not granted and that the balance of convenience favours the applicant. The test is cumulative and each of the three prongs must be satisfied.
Serious Issue
[5] The decision of the tribunal on January 27, 2003 makes specific factual findings that the respondent is a danger to the public and a flight risk. In its decision of February 3, 2003, the tribunal states:
I do not want to come back on what I have said a week ago and reiterate the reasons why I had drawn the conclusion that your presence in Canada constitutes a danger to the public and that but for detention, you would not otherwise appear. This decision is part of your file and any person can refer to it to have a look at my reasoning . . .
I have however, as I stated earlier, given it a second thought. In the perspective that you are presently not to be released due to the simple operation of the law. My reading of these Sections again is that the removal order is what triggers the coming into play of these Sections and their application to your case. So, again saying that day-parole has become inoperative and considering you are an inmate in a federal penitentiary, I now decide that you do not pose, at this point in time, a danger to the public in Canada nor is there any unlikelihood of appearance due to your status of inmate and consequently, detention is not maintained in your case, as you are again a person who is detained and who is serving a sentence. So, today's hearing is now terminated and it will be true now that there will not be any further hearings.
[6] The applicant submits that the only reasonable interpretation that can be accorded to these findings is that the tribunal would not have released the respondent had it determined that the respondent was eligible for day parole. The release was based on the tribunal's interpretation of section 24 of the CCRA that the respondent could not be day paroled. It is common ground that the respondent's day parole is imminent. The applicant refers to section 58 of the IRPA that provides as follows:
| 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.
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[7] The allegations of error are that the tribunal erred in fact in that based on the material before it, it could not have concluded as it did. It erred in law by releasing the respondent, having found him to be a flight risk and a danger to the public, in contravention of section 58 of the IRPA. Finally, the applicant alleges that the tribunal erred in concluding that no further detention hearing would be held. Subsection 57(2) of the IRPA, specifically requires a further review at least once during each 30 day period following each previous review.
[8] The respondent submits that the matter is complicated and confusing and involves the interpretation of the IRPA, the CCRA and the National Parole Board determination. The respondent concedes that there is a serious issue to be tried.
[9] I am satisfied that there exists a serious issue.
Irreparable Harm
[10] The applicant argues that if a stay is not granted, the respondent will be released notwithstanding that he has been determined to be a flight risk and a danger to the public. This would therefore prevent the Minister from fulfilling his statutory obligations under the IRPA. Moreover, the respondent will not be available for removal and the application for leave and judicial review will be rendered moot.
[11] The respondent argues that there is a wealth of information available to illustrate that he is neither a danger nor a flight risk. Specifically, he mentions the correctional plan progress reports, his exemplary behaviour throughout his incarceration and the de facto structure and profile relative to the Westmorland Institution.
[12] The applicant's position is supported by authority from this court: Canada (Minister of Citizenship and Immigration) v. Chen, [1999] F.C.J. No. 1815; Canada (Minister of Citizenship and Immigration) v. Chen (1999), 182 F.T.R. 142; Canada (Minister of Citizenship and Immigration) v. Lin, [1999] F.C.J. No. 1997 (T.D.); Canada (Minister of Citizenship and Immigration) v. Patwal, 2001 FCT 152, [2001] F.C.J. No. 442 (T.D.).
[13] The respondent's arguments were articulate but failed to recognize that the criteria for detention pursuant to the IRPA are not the criteria for detention under the CCRA. Moreover, there was no evidence (affidavit) before me with respect to the respondent's argument.
[14] In accordance with the reasoning in the authorities referred to above, I conclude that the applicant has satisfied the onus with respect to irreparable harm.
Balance of Convenience
[15] Regarding the balance of convenience, in light of my findings on serious issue and irreparable harm, the balance of convenience is in favour of the applicant. The Minister is entrusted with the public interest to enforce immigration laws and, here, that public interest outweighs the respondent's interest. Additionally, the applicant has evidenced a willingness to expedite the matter and has provided an undertaking to file an application record on or before February 27, 2003.
[16] In the result, the motion is allowed. The decision of the tribunal dated February 3, 2003 is stayed pending the determination of the application for leave and the determination of the application for judicial review, if leave is granted. The applicant will serve and file the application record not later than February 27, 2003.
_____________________________
Judge
Ottawa, Ontario
February 20, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-831-03
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
STEPHEN MICHAEL JAMES AMBROSE
PLACE OF HEARING: OTTAWA, ONTARIO, HALIFAX, NOVA SCOTIA, DORCHESTER, NEW BRUNSWICK
DATE OF HEARING: FEBRUARY 20, 2003
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: FEBRUARY 20, 2003
APPEARANCES:
MS. LORI RASMUSSEN FOR THE APPLICANT
MR. STEPHEN M.J. AMBROSE RESPONDENT ON HIS OWN BEHALF
SOLICITORS ON THE RECORD:
MR. MORRIS ROSENBERGFOR THE APPLICANT
DEPUTY ATTORNEY GENERAL
OF CANADA