Court of Appeal for Ontario
Date: January 11, 2018 Docket: C63077 Judges: Simmons, Rouleau and Brown JJ.A.
Between
Alvin John Brown Applicant (Appellant)
and
Minister of Public Safety & Emergency Preparedness, Minister of Immigration, Refugees & Citizenship, and Attorney General of Canada Respondents (Respondents)
Counsel
For the Appellant: Jean Marie Vecina and Jared Will
For the Respondents: Bernard Assan, Martin Anderson and Mélissa Mathieu
Heard
October 19, 2017
On Appeal From
The judgment of Justice Alfred J. O'Marra of the Superior Court of Justice, dated December 9, 2016, with reasons reported at 2016 ONSC 7760, 273 A.C.W.S. (3d) 524.
Rouleau J.A.
A. OVERVIEW
[1] Prior to being deported to Jamaica, the appellant, Mr. Brown, was detained for the purpose of removal in a maximum security institution for five years. He brought a habeas corpus application and sought damages under s. 24(1) of the Canadian Charter of Rights and Freedoms as a remedy for the breach of his ss. 7, 9 and 12 Charter rights. Because he was deported before the application was decided, the habeas corpus portion of the application was dismissed as moot. He nonetheless proceeded with the Charter damages aspect of the application maintaining that, prior to being deported, the detention he suffered was cruel, unusual, arbitrary and indefinite. His application for Charter damages was dismissed. He appeals that dismissal, arguing that the application judge erred.
[2] Mr. Brown maintains that the application judge failed to properly interpret and apply this court's decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401. Had he done so, he would have found that the detention had become indefinite and arbitrary in contravention of ss. 7 and 9 of the Charter after 18 months of detention. Further, the application judge ought to have found that he was subjected to cruel and unusual treatment contrary to s. 12 of the Charter because of the effect of the detention's length and conditions. I would dismiss the appeal for the reasons that follow.
B. FACTS
[3] Mr. Brown, a Jamaican citizen, arrived in Canada in 1983 at the age of eight years old. He became a permanent resident in 1984. Between 1999 and 2010, he amassed 18 convictions, some of them for violent offences. He has previously been addicted to crack cocaine and alcohol. It is alleged that he suffers from schizophrenia. In 2005, his permanent residency was terminated and a removal order from Canada was issued because of serious criminality.
[4] In January 2011, at the conclusion of the criminal sentence he was serving, Mr. Brown was detained by the Canada Border Services Agency for the purpose of executing the removal order. On March 16, 2011, he was released on terms and conditions. On September 8, 2011, Mr. Brown was once again detained after the CBSA found that he had breached his bail conditions. The detention was considered necessary as he was found to be a danger to the public and a flight risk.
[5] Over the next five years, his detention in a maximum security prison was renewed every 30 days by the Immigration Division of the Immigration and Refugee Board. Those renewals were based on the fact that Mr. Brown continued to be a flight risk, a danger to the public, and that the Minister was exercising due diligence in its efforts to obtain the documents required for effecting the removal to Jamaica.
[6] In January 2012, the Immigration Appeal Division dismissed Mr. Brown's appeal of his removal order. In February 2012, five months after the start of the detention, an application was made for a travel document from the Jamaican consulate. The CBSA advised the consulate that Mr. Brown had lost his passport and birth certificate. Although the CBSA knew a birth certificate was to be included with the travel document request, it provided a copy of Mr. Brown's expired Jamaican passport in the hope that it would suffice.
[7] In June 2012, the consulate advised that the application had been lost. The Immigration Division noted that regular talks were being held with the Jamaican consulate during this period to obtain travel documents. The CBSA sent a new application in September 2012. Between then and August 2013, numerous requests for a status update were made by the CBSA to the consulate. In August 2013, the consulate advised the CBSA that Mr. Brown's application had been sent to Jamaica for processing. From October 2013 to October 2014, the consulate awaited confirmation of Mr. Brown's nationality.
[8] After a request by the CBSA in February 2015, a Jamaican consular official interviewed Mr. Brown to verify his nationality. In March 2015, the CBSA learned that the interview did not satisfy the consulate of his nationality. Another interview was conducted in June 2015 by a CBSA officer to obtain more information.
[9] In August 2015, the consulate advised that they were not convinced that Mr. Brown was Jamaican due to the lack of a birth certificate. While there was a reference to Mr. Brown having been adopted in the CBSA's file, it was not clear until the fall of 2015 what significance, if any, this would play in the Jamaican authorities' confirmation of his nationality. In October 2015, the CBSA made additional inquiries of the Jamaican Registrar General regarding his adoption papers. As a result of those inquiries, his Jamaican nationality could be confirmed to the consulate's satisfaction on November 20, 2015. A removal date was set for January 21, 2016. The CBSA arranged for pending criminal charges against Mr. Brown to be stayed to allow the removal to proceed.
[10] In January 2016, the Jamaican consulate raised concerns about Mr. Brown's mental health issues, which further delayed the removal. In February 2016, CBSA officials in Ottawa became involved with the Ministry of Health in Jamaica. Assistance was sought from the Jamaican authorities and a CBSA liaison officer met with local authorities in Kingston, Jamaica in May 2016. In June 2016, Jamaican authorities confirmed that Mr. Brown's mental health condition could be accommodated.
[11] The Jamaican Ministry of Health requested further documentation, which was made available to them in mid-July 2016. In August 2016, more information was sought by the consulate, which was provided by the CBSA. On September 7, 2016, Mr. Brown was removed to Jamaica after a travel document was issued.
C. DECISION BELOW
[12] In July 2016, Mr. Brown filed his combined habeas corpus and Charter application. On August 30 and 31, 2016 the court heard the evidence and adjourned for submissions a week later. Mr. Brown, who was no longer contesting his removal, was removed from Canada on September 7, 2016 rendering the habeas corpus aspect of the application moot. However, Mr. Brown continued his Charter claim, seeking a declaration that the detention was unlawful and in violation of ss. 7, 9, and 12 of the Charter. He also sought an award for Charter damages in the amount of $1,500 per day.
[13] The application judge held that there had been no violation of "due process" under s. 7. Mr. Brown's case was reviewed every 30 days through a process that has been recognized as procedurally fair. The statutory basis for the detention was also subject to oversight by the Federal Court. Additionally, multiple factors warranted Mr. Brown's detention. As a result, the deprivation of liberty was in compliance with the principles of fundamental justice and justified in the circumstances.
[14] Section 9 of the Charter had also been respected because the legislative criterion for detention had been met. Mr. Brown's detention was for the valid purpose of removal. He could not be removed earlier because Jamaica had to issue a travel document.
[15] The application judge then held that Mr. Brown did not suffer cruel and unusual punishment. He received adequate care during detention, and his treatment while awaiting removal did not violate s. 12. Although the detention was lengthy, it was proportionate in light of the facts and the underlying purpose of detention. Mr. Brown was detained pursuant to a lawful process and could only be deported after Jamaica satisfied itself that he was a Jamaican national. Further, most of the delay was caused by the Jamaican authorities, not lack of diligence by the CBSA.
D. ISSUES
[16] Before dealing with the merits of the appeal, I will address the respondents' submission that:
- the procedure adopted by Mr. Brown in the Superior Court was inappropriate and the resulting record was inadequate to properly dispose of the claims.
[17] Next, I will deal with Mr. Brown's arguments that the application judge:
erred in finding that there was no breach of ss. 7 and 9 of the Charter;
erred in finding that there was no breach of s. 12 of the Charter; and
ought to have made an award of damages as an appropriate and just remedy for the breaches.
E. ANALYSIS
(1) Procedure Adopted
[18] In his application, Mr. Brown sought both habeas corpus as well as damages pursuant to s. 24(1) of the Charter. Because Mr. Brown had been deported before the court could rule on the request for habeas corpus, that part of the proceeding was moot. Over the objection of the respondents, the Charter damages portion of the application was nonetheless heard on the merits.
[19] Although I acknowledge that superior courts have broad discretion as to the scheduling of proceedings, they should not combine the hearing of both a habeas corpus application and a Charter damages application, as was done here.
[20] Because of the importance of the interests at stake, habeas corpus is intended to be a manner of quickly resolving the issue of the lawfulness of a person's deprivation of liberty: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 69. Courts are to give priority to such applications as they are deemed to be urgent.
[21] If, as here, a habeas corpus application is allowed to be joined with a claim for Charter damages, it distorts what is otherwise intended to be an expeditious process. It inevitably results in significant delays to the hearing of the habeas corpus application and gives the Charter damages claim a higher priority for hearing than it would otherwise receive.
[22] The application judge was facing a set of circumstances where the applicant had been removed and practicality was a factor. However, if the matter of Charter damages is pressed to an early hearing, the record required for the proper hearing and disposition of the issue risks being incomplete and unsatisfactory. In my view, this was the case here.
[23] Although I agree with the respondents that the record is inadequate to decide whether damages would have been an appropriate remedy for a breach, it was sufficient to allow the application judge to rule on whether Charter breaches had occurred. Therefore, I should not be taken as faulting the application judge in this case. He was presented with the hybrid application and habeas corpus was rendered moot after two days of hearings because Mr. Brown had been removed from Canada. He considered it appropriate and expedient to simply proceed with the Charter claim on the record he had. As a result, I would not interfere with the application judge's decision to proceed and rule on the Charter damages portion of the application.
[24] I turn now to the issues on appeal.
(2) Sections 7 and 9 of the Charter
[25] Sections 7 and 9 of the Charter provide the following guarantees:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right not to be arbitrarily detained or imprisoned.
[26] Mr. Brown submits that the application judge erred in failing to find that his five year detention contravened both ss. 7 and 9 of the Charter.
[27] In his view, the application judge's reasons show he erred by limiting his analysis to whether there had been a violation of the due process guarantee in s. 7 of the Charter. He also erred in concluding that, because detention was for the valid purpose of removal, no breach of s. 9 occurred. He argues that the court ought to have separately focused on the arbitrary and indefinite nature of the detention. Had the court done so and applied the principles set out in Chaudhary, it would have concluded that, after 18 months of detention, it had become illegal as there was "no reasonable prospect that the detention's immigration-related purposes will be achieved within a reasonable time": Chaudhary, at para. 81.
[28] As further support for this submission, Mr. Brown referred to how other countries deal with lengthy detentions for purpose of removal. The jurisprudence he tendered from these jurisdictions ought to have led the court to conclude that in accordance with international norms, a maximum period of detention for removal purposes should be enforced by the courts in Canada. He proposes that an 18 month maximum should be adopted.
[29] In my view, the application judge did not err in his analysis of the ss. 7 and 9 issues. After considering all of the evidence, the application judge concluded that the detention had not become unlawful. The Immigration Division had made the fact-driven determination that Mr. Brown constituted a flight risk as well as a danger to the public. These determinations are entitled to deference. Pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, there is a statutory process for continuous and regular reviews by the Immigration Division every 30 days in a quasi-judicial process recognized by the courts as being procedurally fair. There are also provisions for oversight by the Federal Court.
[30] Contrary to Mr. Brown's submission, the application judge did not stop his analysis there. Pursuant to Chaudhary, he recognized that he was to consider whether the detention had become illegal and breached Mr. Brown's Charter rights because of its length and prospect for removal. It is apparent from reading the application judge's reasons as a whole that he accepted the respondents' argument that, despite delays and unanticipated problems that resulted in the lengthy detention, it had not become illegal because there was a reasonable prospect of the removal being effected throughout the process.
[31] I disagree with Mr. Brown's submission that Chaudhary sets a maximum length of detention. It prescribes a fact-driven analysis in which there is a balancing of the statutory reasons for detention and the prospect of removal within a reasonably foreseeable timeframe against a detainee's rights not to be detained arbitrarily or for indefinite periods.
[32] As explained in Chaudhary, at para. 82, a detention in the immigration context will become arbitrary and therefore illegal when, because of its length and uncertain duration, it is no longer reasonably necessary to further the machinery of immigration control. While the length of the detention is a critical factor in that analysis, the question of when it can be reasonably anticipated that the removal order will be executed is another important consideration. In that sense, it is principally a forward looking test and not one where reasonable decisions are later made to appear as having been unreasonable with the benefit of hindsight.
[33] Mr. Brown also argues that the application judge made a palpable and overriding error in finding that the CBSA acted reasonably in submitting his application for a travel document to the Jamaican consulate without first having sought out the documents relating to his adoption or having obtained a new birth certificate. He also maintains that the application judge should have found that additional unnecessary delay was incurred because of the CBSA's failure to inform the Jamaican authorities of his mental condition until after his Jamaican nationality was confirmed. In his submission, the delays resulting from the CBSA's unreasonable conduct rendered the detention illegal.
[34] I disagree. The application judge made the factual determination that "there was no lack of diligence on the part of the CBSA in trying to effect Mr. Brown's removal." It was open to him to make this finding based on the record before him. He examined the fact that the CBSA submitted the request for travel documents to the Jamaican authorities without including a birth certificate and without having pursued the issue of Mr. Brown's adoption. The application judge accepted that the CBSA believed, in good faith, that the expired passport would be sufficient to confirm Mr. Brown's citizenship in light of the fact that he had reported having lost his birth certificate. As the application judge explained, the Jamaican consulate forwarded those documents and sent on the application to Jamaica for processing. For a period of time, it appeared as though Mr. Brown's nationality would be confirmed by means other than the filing of a birth certificate. Ultimately, the Jamaican authorities determined that this documentation, together with the interview of Mr. Brown, was not sufficient to confirm the nationality. It is only then that the CBSA adopted the alternative approach of seeking to obtain adoption records as a means of confirming Mr. Brown's nationality. Thereafter, the Jamaican authorities accepted that he was a Jamaican national. The issuance of travel documents would follow.
[35] There is nothing unreasonable in the CBSA waiting until Mr. Brown's nationality is confirmed before engaging in discussions with the receiving authority as to the appropriate arrangements needed to support him on arrival. The CBSA authorities followed their normal procedure in dealing with this concern. In this case, an additional short delay followed to ensure that appropriate arrangements could be made to support Mr. Brown upon his arrival in Jamaica given his mental condition. The application judge noted this additional delay but nonetheless found no Charter breach. I would not, therefore, interfere with the application judge's finding that the CBSA's conduct was reasonable.
[36] In summary, the reasons disclose that the application judge carefully reviewed the history of Mr. Brown's detention and the reasonableness of each step taken by the CBSA to effect his removal. Although the CBSA encountered a number of problems and the delays were significant, these were largely caused by the Jamaican authorities. The application judge nonetheless concluded that despite the length of the delay "his detention was for the valid purpose of removal which continued to exist until his actual removal in September 2016." This factual determination was made by the application judge while applying the correct legal principles. This determination is entitled to deference and I would therefore dismiss this ground of appeal.
[37] I also consider that there is no basis on this record to conclude that international law and principles somehow stand for the proposition that any detention exceeding 18 months is to be considered illegal. In support of this submission, Mr. Brown simply references a selection of court and tribunal decisions, as well as legislation and directives from various jurisdictions. These suggest that lengthy detention for the purpose of removal in these jurisdictions is limited or restricted either by law or by the courts. Mr. Brown did not, however, lead any expert evidence that would provide a context and explain how the immigration regimes operate in those various jurisdictions. Specifically, it is unclear as to whether and how the length of the detention is in fact limited. Nor are we informed as to how those regimes protect detainee rights and how they compare to the protections in place in Canada.
[38] From the information that is in the record, it is clear that Canada's IRPA operates quite differently from the regimes in place in the United States, the United Kingdom, and the European Union. As noted by the application judge, the IRPA meets the standards for a constitutionally compliant detention review scheme. As noted by the Supreme Court of Canada, the Canadian regime, despite the fact that it may lead to "lengthy and indeterminate" detention, provides "an effective review process that meets the requirements of Canadian law": Charkaoui, 2007 SCC 9, [2007] 1 S.C.R. 350, at paras. 105 and 124 to 127.
[39] I turn now to the s. 12 issue.
(3) Section 12 of the Charter
[40] Section 12 of the Charter reads as follows:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[41] Mr. Brown argues that because of its length of five years, his detention in a maximum security institution constituted cruel and unusual punishment. He also argues that in the circumstances of this case, his detention is grossly disproportionate to its removal purpose. Further, the conditions of detention including the medical care he received for his mental health issues exacerbate the Charter breach.
[42] I disagree. As I have explained, the application judge's determination that the Immigration Division process for review of Mr. Brown's detention was fair and lawful ought not to be disturbed. Nor should his findings that there had been no lack of diligence on the part of the CBSA in effecting Mr. Brown's removal and that the delays, although lengthy, were largely beyond their control. The application judge also considered and rejected Mr. Brown's submission that he did not receive adequate treatment of his mental health issues while in detention. These findings are well supported by the record.
[43] Mr. Brown takes issue with the application judge's rejection of the expert evidence of two psychologists he tendered. These experts opined that he received inadequate treatment of his mental health issues while in detention. The respondents did not tender responding expert evidence by a psychologist challenging the opinion expressed by Mr. Brown's experts. In his submission, the application judge could not reject his uncontradicted expert opinions in the absence of persuasive reasons to do so.
[44] In my view, the application judge did not err in rejecting Mr. Brown's expert evidence. The reasons he gave for rejecting it are adequate. As noted by the application judge, there were substantial shortcomings in Mr. Brown's experts' assessment of his treatment and condition. This contrasted with the explicit contents of the institutional medical records.
[45] The application judge was entitled to rely on the institution's medical records and the testimony of Mr. Lee, the health care manager at the Toronto East Detention Center, and to prefer this evidence to that of Mr. Brown's experts. Those experts reported a very different picture than what was painted by the institution's records. The records also contradicted Mr. Brown's testimony as to the treatment received. He maintained for example that while in detention, he had limited access to a physician and had no access to a psychiatrist. However, the records disclosed not only that Mr. Brown had several sessions with a physician but also with a psychiatrist. The records also show that the psychiatrist changed Mr. Brown's antipsychotic medication at his request and that he was allowed to see doctors by following the process in place where he was detained.
[46] Mr. Brown has not established that the application judge misapprehended any of the evidence in reaching his conclusion that he received proper treatment. There is simply no basis to interfere with that factual finding.
[47] I reject Mr. Brown's submission that the application judge erred in his application of the relevant law to the facts of this case. Specifically, he submits that the application judge did not give adequate weight to the combined effect of the detention's length, the psychological stress of not knowing when it would end, and the difficult conditions of detention. The reasons show that the application judge did not misapprehend or ignore relevant facts. He was well acquainted with the circumstances of Mr. Brown's detention and of his medical condition. It is not up to this court to reweigh all of the evidence.
[48] Mr. Brown has not demonstrated that the application judge committed a palpable and overriding error in his assessment of the facts or in his application of the law. The application judge was familiar with the relevant jurisprudence. He cited R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, and correctly applied the gross disproportionality test that is to be used when a s. 12 breach is alleged. After considering the length and conditions of detention as well as Mr. Brown's mental health, he concluded that the treatment received was not so excessive as to outrage our standards of decency: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39, and Charkaoui, at para. 96. Whether detention is cruel and unusual depends on the specific circumstances of each individual case, which were properly assessed by the application judge in this case. As a result, I see no basis to interfere with his conclusion that there was no violation of s. 12 of the Charter.
(4) Charter Damages
[49] I need not determine the issue of damages under s. 24(1) of the Charter, given the conclusion I have reached that there has been no Charter breach. However, because the parties have fully argued the issue of whether we ought to make an award of damages, I will address it briefly.
[50] In effect, the approach taken by Mr. Brown is premised on the assumption that if a court grants the remedy of habeas corpus applying the principles outlined in Chaudhary, it will have determined that the detention has become illegal in violation of some or all of a detainee's ss. 7, 9, and 12 rights. The court should then go on and determine specifically when that illegality initially arose. Following that determination, it would award Charter damages from that day forward up to the date the detention ended, either as a result of a habeas corpus order or removal, as here. As explained earlier, Mr. Brown submits that 18 months should be set as the outside limit of any detention after which Charter damages would necessarily arise.
[51] Such an approach contemplates habeas corpus applications being routinely joined to a parallel Charter application, as here. The court will be asked to determine not only whether habeas corpus should be granted, but also the period or periods of illegal detention. The court will then be called upon to assess and award damages for the period or periods of illegal detention. In this case, Mr. Brown argues that the period of illegal detention is three and a half years. The length of this period is the result of a calculation where a court determined maximum detention of 18 months is deducted from the five year detention.
[52] In my view, Charter damage claims cannot be joined to habeas corpus applications. As I have explained earlier habeas corpus is intended to be an expeditious process to determine whether a restriction on liberty of a person is legal at a given point in time. It is not, nor should it become, a potentially complex and protracted process in which entitlement to s. 24(1) damages is determined.
[53] Second, the Chaudhary test is forward looking. It assesses whether a habeas corpus application can be entertained by the Superior Court. It is concerned with the detainee's current status and whether the detention is illegal. The habeas corpus application is not concerned with precisely when the detention may have become illegal.
[54] Finally, a finding that a detention has become illegal and that the detainee should be released does not answer the question of whether a detainee is entitled to Charter damages even assuming it were found that the detention had been illegal for some time. Specifically, it does not consider what effect, if any, is to be given to the fact that the person's detention was legally authorized by a constitutionally valid statute, the IRPA, up to the point where habeas corpus is granted and the person's release is ordered. As explained in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, issues such as whether the rule of law may be undermined might come into play. Where state conduct was pursuant to a valid statute, it may be inappropriate to award damages "unless the state conduct meets a minimum threshold of gravity": Ward, at para. 39.
[55] Those are significant and difficult issues that, because of the court's finding that the detention was not illegal, were not addressed by the application judge. Further, due in part to the compressed nature of the proceeding below, this court would have been unable to assess whether a Charter damage award was an appropriate remedy had it found a breach. The record is simply inadequate.
[56] In conclusion, therefore, if Charter damages are to be sought for an alleged illegal detention by the Immigration Division, they are to be sought through standalone Charter applications or by way of action, and not as part of a habeas corpus application. Proceeding in that fashion will not interfere with the proper and expeditious processing of the habeas corpus application and will allow the parties to compile a proper and complete record and squarely address the legal issues raised by the claim for Charter damages.
F. CONCLUSION
[57] For these reasons, I would dismiss the appeal.
[58] If the parties cannot agree on the issue of costs, I would ask the respondents to submit brief submissions not exceeding five pages within 15 days of the release of this decision and Mr. Brown to file a response not exceeding five pages within 10 days thereafter.
"Paul Rouleau J.A."
"I agree Janet Simmons J.A."
"I agree David Brown J.A."
Released: January 11, 2018
