Federal Court Decisions

IMM-2044-96

BETWEEN:

DERAR KIDANE,

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This application for judicial review of an adjudicator's decision dated June 12, 1996, which determined that the applicant should remain in detention pursuant to section 103 of the Immigration Act, R.S.C. 1985, c. I-2, pending his deportation, was heard in Toronto, Ontario on April 23, 1997. At the conclusion of argument, I took the matter under reserve and indicated that these written reasons would follow.

     The applicant is a U.N.H.C.R. refugee from Ethiopia who arrived in Canada on June 27, 1986. Since August 9, 1989 the applicant has been convicted of 15 offenses including eight under the Narcotic Control Act and seven under the Criminal Code. As a result of these convictions the applicant was found to be a person described under s. 27(1)(ii) of the Immigration Act. On February 22, 1995 a deportation notice was issued against him. On March 7, 1995, after completion of his court imposed sentence, the applicant was placed in immigration custody pending deportation.

     Detention reviews under s.103(3) of the Immigration Act were conducted on a regular basis beginning on March 9, 1995. Although the applicant has been served with a deportation order which is determinative of his fate, immigration officials have had difficulty finding a country that will accept him. This difficulty was precipitated by the applicant asserting his Eritrean nationality and stating that he did not want to be deported to Ethiopia, although that is his country of origin. To this date, the applicant remains in custody.

     A number of events contributed directly and indirectly to the extended detention of the applicant. These include: the applicant's delay in filing submissions and subsequent request for an extension of time to file submissions regarding the Minister's opinion that the applicant is a danger to the public; the applicant's decision not to file an appeal of the deportation order and subsequent request for extension of time for late filing of that appeal; the appeal hearing before the Immigration Appeal Division (IAD) and the rendering of the IAD decision; a resumed s. 103 detention review process; and finally, this instant application for judicial review of the June 1996 adjudicator's decision. Although the applicant has argued that the delays were caused by the Minister's lack of diligence, the record clearly demonstrates that these delays and the resulting extended custody were substantially the product of the applicant's own actions.

     The applicant has submitted that the adjudicator erred in making her June 1996 decision to keep the applicant in custody. The main grounds for the applicant's application are that the adjudicator misapprehended the definition of "indefinite detention" and ignored constitutional arguments. These grounds, if proven true, amount to errors in law and would, therefore, make the adjudicator's decision reviewable.

     First, the applicant states that the adjudicator misapprehended the definition of "indefinite detention" as described by Mr. Justice Rothstein in Sahin v. M.C.I., [1995] 1 F.C. 214 at 229, (1994) 85 F.T.R. 99, 30 Imm.L.R. (2d) 33 (F.C.T.D.). The applicant submitted the following passage from Sahin, supra, in support of his position:

I am satisfied that what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice. I have used the term "indefinite detention". It is arguable that detention under section 103 is not indefinite because it must be reviewed at least every 30 days and may be maintained only while a conditional removal order is pending, which, itself, implies the taking of recognized and prescribed steps under the Immigration Act. On the other hand, when any number of possible steps may be taken by either side and the times to take each step are unknown, I think it is fair to say that a lengthy detention, at least for practical purposes, approaches what might be reasonably termed "indefinite".

By this line of reasoning the applicant submits that his detention, now going into its twenty-eighth month, is an indefinite detention. Unfortunately, I cannot agree with the applicant's submissions. Moreover, these submissions are based on a case that is easily distinguishable from the instant matter. Mr. Sahin arrived in Canada without proper documentation and was immediately put into s. 103 detention after a conditional removal order was made against him. He was not a criminal nor was he found to be a danger to the public. Mr. Kidane, on the other hand, is a convicted drug trafficker guilty of at least 15 offenses. The Minister has formed the opinion that Mr. Kidane is a "danger to the public". The removal order issued against the applicant is final and effective. Once immigration officials are able to find a country that will take the applicant, he will leave Canada. Mr. Justice Rothstein in Sahin, supra, dealt with a man who had done nothing wrong except come to Canada without proper documentation. In the light of these dissimilarities the findings of Rothstein, J. are not particularly germane to the applicant's situation.

     However, Rothstein, J. in Sahin, supra, at 231 did elaborate on issues relevant to s. 7 of the Charter in the context of s. 103 detention review hearings. These observations help adjudicators determine when a detention may become indefinite and when Charter rights are in jeopardy. He stated:

The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious ones. Needless to say, the considerations relevant to a specific case, and the weight to be placed upon them, will depend on the circumstance of the case.

(1)      Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public.

(2)      Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release.

(3)      Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.

(4)      The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc.

     The applicant's lengthy detention is the only factor that supports the position of release. The other three factors cannot possibly be found to be in favour of the applicant. First, the applicant is not only considered to be a danger to the public by the adjudicator, the Minister has also formed the opinion that he is a danger to the public. Second, the record indicates that the applicant is largely responsible for the delays in these proceedings which have extended his detention. Last, there is no real alternative to detention. The applicant is a criminal who has been issued a removal order. He knows that he is being deported. There is no appeal and he has exhausted all his remedies. "There is a public interest in detaining persons when there are reasonable grounds for believing that they would not appear for inquiry or removal. This public interest must be weighed against the liberty interest of the individual." (Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 547 at 574, (1995) 104 F.T.R. 81, 32 Imm.L.R. (2d) 220 (F.C.T.D.)).

     The second issue raised by the applicant is that the adjudicator erred by ignoring the constitutional arguments of the applicant. There is nothing, either in the record or the adjudicator's decision, that would indicate that she ignored the applicant's constitutional arguments. On the contrary, the adjudicator, in her decision, covered all of Mr. Justice Rothstein's factors as set out in Sahin, supra, when she concluded that an extended detention would not violate the applicant's Charter rights. Her reasoning was lucid and free from any reviewable error.

     For these reasons this application for judicial review is dismissed.

O T T A W A

July 11, 1997                          "James A. Jerome"

                             A.C.J.