CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Respondent, chronic paranoid schizophrenic, is danger to public—Held in immigration detention between 1999 and 2004—Immigration Division, Immigration and Refugee Board (IAD) ordered unconditional release in August, 2004— Minister seeking judicial review, arguing Board erred in failing to give compelling reasons for departure from decisions in prior detention reviews, finding detention had become indefinite— Submitting Board decision not to attach conditions perverse— Born in Jamaica, respondent came here as child but never became Canadian citizen—Developed mental illness symptoms when teenager—Has lengthy criminal record—In April, 1999 after disposition of certain charges, was put into immigration detention, ordered deported—Appeal wended way to S.C.C. but that leave to appeal denied—IAD granted new hearing and respondent lost again but Russell J. ordered new hearing, decision following which remains under reserve —Respondent has also sought ministerial relief on humanitarian and compassionate grounds and applied for relief to United Nations Human Rights Committee (UNHRC)—Currently incarcerated at Penetanguishene Mental Health Centre—His mental condition has deteriorated to extent that deemed unfit to attend most recent detention review— Presiding member concluded respondent probably ongoing public danger but noted statutory authority to continue detention restricted to securing removal from Canada—Immigration and Refugee Protection Act not authorizing detention to compel medical treatment— While removal arrangements made in summer 2001, respondent remained here three years later—As to whether continued detention contravened Charter, s. 7 fundamental justice principles, Board referred to Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), considered reasons for detention, length of time, whether any delay by respondent, alternatives to detention—Even though danger to public, Charter breached if detention indefinite— Detained over five years, case far from resolved—Minister undertaking not to remove respondent until UNHRC dealt with case—In ordering release, Board declined to impose conditions as they would be disobeyed—Due to public safety concerns, respondent’s detention continued under Ontario’s Mental Health Act—Preliminary argument: application moot as respondent now detained under Ontario statute and receiving treatment on involuntary basis so nothing gained by remitting matter to Board—Case not moot since continuing dispute between parties as to immigration authorities’ control over respondent—By unconditional release, immigration authorities lost control over respondent who, had he been capable of understanding implications of Board ruling, could have left Penetanguishene during 48 hours it took to arrange for him to be held under Mental Health Act—No assurance immigration authorities will be notified in event detention under Act terminated—In Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572, Federal Court of Appeal held that, while Board not bound by prior detention decisions, if deviating therefrom compelling reasons must be given, i.e. member should expressly explain what gave rise to changed opinion—Reasons herein were lengthy, careful, met standard mandated by F.C.A.—That no new evidence, no change in respondent’s circumstances point of decision—Despite passage of more than five years, no end to legal proceedings in sight—In Sahin, Rothstein J. said immigration detention could not be indefinite—When numerous steps remain to be taken prior to removal and time this will take is unknown, lengthy detention may be considered “indefinite”—According to Rothstein J., lengthy immigration detention could amount to deprivation of liberty not in accordance with Charter, s. 7—In Sahin, period of detention only 14 months—Whether detention has become indefinite is question of mixed fact, law—Patent unreasona-bleness appropriate review standard considering unusual facts herein—Board’s conclusion on this issue would withstand scrutiny even under more exacting reasonableness standard— Board member weighed danger to public against nearly five and a half years’ detention with no end to litigation in sight— Conclusion time for release had come reasonably open to member—But reasons given for non‑imposition of conditions were brief to point of terseness: “In view of his mental condition, I impose no conditions on him at this time”—As noted by Russell J. at hearing of review of Immigration Appeal Division decision herein, “provincial laws should have been used long ago to ensure [respondent] gets the treatment he needs for his illness and to ensure that he is detained in an appropriate institution until he ceases to be a danger to himself and the public”—In deciding not to impose any conditions on release, member’s reasoning was perverse—Respondent’s mental health condition, danger poses to public precise reasons stringent conditions should have been imposed—At minimum, release should have been conditional on receiving evidence respondent cared for as involuntary patient in secure facility—This aspect of Board decision could not stand as patently unreasonable—Application allowed in part— Immigration and Refugee Protection Act, S.C. 2001, c. 27— 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— Mental Health Act, R.S.O. 1990, c. M.7.
Canada (Minister of Citizenship and Immigration) v. Romans (IMM‑7277‑04, 2005 FC 435, Mactavish J., order dated 1/4/05, 25 pp.)