Ali v. Canada (Minister of Public Safety and Emergency Preparedness)
Ontario Reports Ontario Superior Court of Justice, Nordheimer J. April 28, 2017 137 O.R. (3d) 498 | 2017 ONSC 2660
Case Summary
Immigration — Detention — Applicant subject to deportation order after being found inadmissible based on serious criminality — Immigration authorities unable to deport applicant because they could not determine his country of citizenship — Applicant spending seven years in immigration detention — Application for habeas corpus allowed — Detention unduly lengthy and its continuing duration uncertain — Applicant not thwarting efforts to remove him — Applicant posing limited risk to public — Minister failing to establish that applicant's continued detention was justified for immigration purposes — Detention violating applicant's rights under ss. 7 and 9 of Charter — Canadian Charter of Rights and Freedoms, ss. 7, 9.
The applicant had no legal status in Canada. He was found to be inadmissible on the basis of serious criminality and was ordered deported in 1995. Immigration authorities were unable to deport him because they could not determine his country of citizenship. He had spent the last seven years in immigration detention. He had had over 80 detention reviews. Each time, the Immigration Division of the Immigration and Refugee Board found him to be a danger to the public and unlikely to appear for removal. The applicant brought an application for habeas corpus challenging his continued detention as unlawful, and sought an order that he be released on appropriate terms and conditions.
Held, the application should be allowed.
Notwithstanding the complete, comprehensive and expert scheme for the review of detention orders under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, habeas corpus petitions involving immigration detainees should be heard in the superior court in exceptional circumstances where the detention has become unduly lengthy and its continuing duration is uncertain. Those two prerequisites were met in this case. A detention of more than seven years was exceptional, and it appeared that the detention was likely to continue for an indefinite period of time. The applicant was not refusing to co-operate with the authorities or attempting to thwart efforts to remove him. His criminal record consisted of petty crimes committed because of his drug addiction. He posed a limited risk to the public. The minister had failed to establish that the applicant's continued detention was justified for immigration purposes. The detention violated the applicant's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.
Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045 (S.C.J.); Canada (Minister of Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 1199, distd
Other cases referred to
J.N. v. United Kingdom, Application No. 37289/12, May 19, 2016 (ECt.HR)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 9, 12, 15 Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 3(b) Criminal Code, R.S.C. 1985, c. C-46 Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 23 Immigration and Refugee Protection Act, S.C. 2001, c. 27
Treaties and conventions referred to
International Covenant on Civil and Political Rights, art. 9
APPLICATION for habeas corpus.
J. Will and J. Blum, for applicant. M. Anderson & D. Engel, for respondent Attorney General of Canada.
1NORDHEIMER J. (orally): — Mr. Ali brings this application for habeas corpus challenging his continued detention, for deportation purposes, as unlawful. He seeks an order that he be released from detention on appropriate terms and conditions. As may become apparent from my discussion of the issues raised by this application, Mr. Ali's situation arises from what might be characterized as the immigration equivalent of the Gordian Knot, that is, an extremely difficult and apparently unsolvable problem: Mr. Ali has no status in Canada yet the authorities cannot deport him because they cannot determine his country of citizenship. This conundrum gives rise to the question that is posed by this application: can the immigration authorities continue to hold Mr. Ali in custody while they search for a solution?
Background
2Mr. Ali says that he was born in Ghana on June 6, 1966. Mr. Ali entered Canada in December 1986, when he was approximately 20 years old. He has remained in Canada since that time, with the exception of a ten-month period in 1996, when he was deported to Ghana. He was returned to Canada when the Ghanaian authorities discovered that Mr. Ali had procured a travel document, that had allowed him to be returned to Ghana, by using a fake Ghanaian birth certificate.
3Mr. Ali has never had legal status in Canada. During the 30 years he has lived in Canada, Mr. Ali has accumulated a lengthy criminal record including convictions for break and enter, possession of a narcotic for the purposes of trafficking, trafficking in a schedule I substance, forcible entry, assault, prowling by night, uttering threats and robbery. Mr. Ail also has two convictions for failure to comply with a probation order and for failure to attend court.
4As a result of his criminal convictions, Mr. Ali was eventually found to be inadmissible to Canada on the basis of serious criminality, and a deportation order was issued against him in July 1995. For the more than 20 years since, Canada has been attempting to deport Mr. Ali, all without success, except for the temporary return to Ghana in 1996.
5While Mr. Ali says that he was born in Ghana, he also says that his birth was not registered. No documents were issued recording his birth. Mr. Ali says that this is not an uncommon event for persons born in Africa. Mr. Ali's father was a citizen of Ghana while his mother was a citizen of Nigeria. When he was around eight, Mr. Ali says that his mother moved him to Nigeria. When he was about 12 or 13, Mr. Ali's mother moved him to Germany and, thereafter, to the United States. It was after he arrived in the United States that Mr. Ali developed his drug addiction. In December 1986, Mr. Ali came to Canada from the United States and made a refugee claim. The refugee claim was eventually rejected.
6Mr. Ali has not provided any authentic documentation establishing his nationality. As a consequence, the Canada Border Services Agency ("CBSA") has taken a number of steps to prove his nationality and obtain a travel document for him. For example, CBSA has
(a) arranged for Mr. Ali to be interviewed by the Ghanaian and Nigerian authorities on multiple occasions; (b) sent Mr. Ali's fingerprints to various countries; (c) sent investigators to Nigeria and Ghana in an attempt to corroborate aspects of Mr. Ali's story; (d) sought information from the American authorities on the whereabouts of Mr. Ali's mother; (e) interviewed Mr. Ali's former common law spouse and daughter in an attempt to obtain information about his family and his past; (f) repeatedly interviewed Mr. Ali in an attempt to obtain actionable information; (g) conducted a linguistic assessment in an attempt to verify Mr. Ali's nationality; (h) sent Mr. Ali's photo to the Ghanaian mosque associated with the school he claimed he attended in an attempt to locate someone who might recognize Mr. Ali; and (i) issued a press release seeking the assistance of the public to establish Mr. Ali's identity.
7CBSA claims that their efforts in this regard have been hampered by Mr. Ali's lack of cooperation, including his constantly changing account of where he lived prior to coming to Canada; his different accounts of where he went to school prior to coming to Canada; his inconsistent stories about his family and their whereabouts; the various aliases Mr. Ali has used during his time in Canada; and the fact that the information about his past, that Mr. Ali has provided, has proven to be unverifiable or false.
8Mr. Ali, on the other hand, says that he has limited memory of his early childhood, and that his memory of his later life is hampered by his consistent drug use over many years. Mr. Ali says that his drug use explains his criminal record. By his own admission, Mr. Ali engaged in a pattern of being convicted for offences involving drugs, serving his time, getting released and then once again engaging in offences involving drugs. With the exception of the contents of his refugee claim, that Mr. Ali admits were false, Mr. Ali says that he has provided honest answers to all inquiries made of him within the limits that his memory permits.
9Mr. Ali's criminal record begins in January 1988, and continues to July 1994. There is then a six-year gap, before the record continues in December 2000, part of which would be explained by Mr. Ali's return to Ghana. The record is largely uninterrupted from December 2000 until July 2009. In February 2010, Mr. Ali was arrested on an immigration warrant. He has been detained since -- a period now exceeding seven years.
10Mr. Ali was detained at the Toronto West Detention Centre until October 2012, when he was moved to the Maplehurst Correctional Complex. Mr. Ali remained at Maplehurst until September 2016, when he was moved to the Central East Correctional Centre, where he is currently being held.
11Mr. Ali's father is deceased and the whereabouts of his mother are unknown. Mr. Ali's last contact with his mother was in 1995 or 1996, before he was removed to Ghana. Mr. Ali's mother was, at that time, living in the United States. Mr. Ali has no idea where his mother currently is. Any efforts that have been made by the U.S. authorities to find Mr. Ali's mother, the details of which are unclear, have been unsuccessful.
12Mr. Ali had a girlfriend in Canada and also had a daughter by his girlfriend. The daughter is now 26 and supports her father. Mr. Ali has two other children in Canada but he does not have any contact with them.
13The Immigration Division of the Immigration and Refugee Board, which is the administrative tribunal that reviews immigration detentions in accordance with the Immigration and Refugee Protection Act ("IRPA"), has repeatedly concluded that Mr. Ali is intentionally withholding information in an attempt to remain in Canada. The Immigration Division has held that Mr. Ali is "actively hampering the Minister's efforts" to remove him and that his "lengthy detention is almost entirely self imposed (sic) as a result of the contradictory information he has provided to the Minister".
14Prior to his current detention, Mr. Ali had been detained and released by the immigration authorities, a number of times. His release has often been contingent on his compliance with terms and conditions. Mr. Ali breached those terms and conditions on four occasions, a not surprising fact given his admitted addiction to cocaine.
15After Mr. Ali was detained in February 2010, the Immigration Division found him to be a danger to the public and a flight risk, and therefore maintained his detention in order to effect his removal. Since then, Mr. Ali has had over 80 detention reviews. Each time, the Immigration Division found him to be a danger to the public and unlikely to appear for removal. This is also not surprising given that there has been little opportunity for Mr. Ali to make any efforts to improve upon his background, and the concerns that it raises, while he has been detained.
The Habeas Corpus Application
16The Attorney General of Canada says that this court should decline to exercise its habeas corpus jurisdiction because the prerequisites to its exercise are not met and because the detention review process, under the IRPA, complies with the requirements of the Canadian Charter of Rights and Freedoms. The Attorney General of Canada points to certain decisions of the Supreme Court of Canada that have concluded that the IRPA affords the protections that fundamental justice requires in the circumstances. The Attorney General of Canada also asserts that the Supreme Court of Canada has found that the immigration detention review regime is a complete, comprehensive and expert scheme for the review of a detention -- a basis to decline habeas corpus jurisdiction.
17While that may be, the fact remains that the Court of Appeal in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) held that, notwithstanding the complete, comprehensive and expert scheme for the review of a detention under the IRPA, habeas corpus petitions involving immigration detainees should nonetheless be heard in this court, on their merits, in exceptional circumstances. Those exceptional circumstances were described as being where the detention has become unduly lengthy, and its continuing duration is uncertain. If those two prerequisites are met, then jurisdiction by way of habeas corpus is established and the onus shifts to the minister to demonstrate that the detention is justified, despite its length and uncertain duration. More specifically, Rouleau J.A. said, at para. 81:
On their habeas corpus applications, the appellants would have to show that reasonable and probable grounds exist for their complaints. The grounds will be the exceptional length of their detentions and their uncertain continued duration. The question the court will then have to address is whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees' ss. 7 and 9 Charter rights and international instruments to which Canada is a signatory. A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention's immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee's ss. 7 and 9 Charter rights and no longer be legal. In responding to the application, the Minister must satisfy a court that, despite its length and uncertain duration, the continued detention is still justified.
18The Attorney General of Canada submits that the length of the detention of Mr. Ali is not exceptional. She says that for the purposes of habeas corpus review of an immigration detention, it is not simply a question of counting days. Rather, regard must be had to the complexity of effecting removal in the circumstances, and the extent to which the foreign national has prolonged their detention by failing to cooperate with removal efforts. In Mr. Ali's case, the Attorney General of Canada essentially says that Mr. Ali is the author of his own misfortune because his lack of co-operation is the single most important factor in his continued detention.
19I do not agree. Simply put, a detention of more than seven years must be seen as being exceptional under any proper definition of that word. I note that the opposite of exceptional is usual or typical. If it is typical for Canada to detain persons for seven or more years for immigration purposes, then this country has a much more serious problem with its immigration process than is currently understood. While it may not always be a question of simply counting the days, at some point the number of days, by themselves, allow for no other conclusion.
20The other factor is whether the continued detention of Mr. Ali is uncertain. I find that it is. There is no reason to believe, given all of the efforts that have been undertaken to date, that any breakthrough in Mr. Ali's case is going to be made in the immediate future. Rather, it appears that the detention of Mr. Ali is likely to continue for an indeterminate period of time, something that the Immigration Division itself appears to acknowledge. Indeed, based on the current circumstances, if the Attorney General's position is correct, Mr. Ali's detention could literally continue forever. Consequently, I am satisfied that Mr. Ali has satisfied the two requirements, set out in Chaudhary, for this court to exercise its habeas corpus jurisdiction.
21The question then becomes whether the minister has established that Mr. Ali's detention continues to be justified for immigration purposes. In that respect, the Attorney General essentially relies on Mr. Ali's lack of co-operation as justifying his continued detention. She argues that this case is similar to the decisions in Canada (Minister of Citizenship and Immigration) v. Dadzie, and Canada (Minister of Public Safety and Emergency Preparedness) v. Lunyamila.
22I do not agree that this case compares to either the decision in Dadzie or to the decision in Lunyamila. As is implicitly recognized in Dadzie, the individual facts of each case will determine whether the detainee's failure to co-operate with the authorities is sufficient to justify his/her continued detention. Mr. Dadzie, for example, had "continually and steadfastly failed to assist the authorities in any meaningful way" (at para. 17). Further, Mr. Dadzie's period of detention was only two-and-a-half years. I say "only" not to diminish the effect of someone spending even that amount of time in a provincial detention facility, but merely as a comparison to what Mr. Ali has experienced.
23In this case, Mr. Ali has been detained for more than seven years, or about three times as long as Mr. Dadzie. Also, it cannot be said that Mr. Ali has failed in any meaningful way to co-operate with the authorities. Mr. Ali has consistently told the authorities that he was born in Ghana and that his mother is Nigerian. He has permitted the authorities to take his picture to be circulated, in whatever way the authorities determined, in an effort to find someone who might recognize him. In the same way, Mr. Ali has permitted the authorities to take his fingerprints and circulate them to other law enforcement agencies, such as INTERPOL. Mr. Ali has also been interviewed by officials from Ghana and from Nigeria. Mr. Ali provided the authorities with the last telephone number that he had for his mother, but it does not appear that the authorities ever followed up on that lead.
24The decision in Lunyamila can be distinguished essentially on the same bases. Mr. Lunyamila's length of detention was much shorter and his degree of co-operation was also very limited. Further, the danger to the public that was posed by Mr. Lunyamila was of an entirely different order of magnitude than is the danger posed by Mr. Ali. Mr. Ali has engaged in petty crimes that are entirely consistent with the criminal activities of a drug addict. Mr. Lunyamila, on the other hand, had violently attacked complete strangers. There is simply no comparison in terms of the danger posed.
25Those distinctions having been made, I would add a note of caution that the decisions in Dadzie and Lunyamila, as with most other immigration decisions of this type, have to be understood in relation to their own facts. In that respect, I do not read either of those decisions as establishing a general principle that a lack of co-operation by a detainee can justify detention indefinitely. I recognize that some might suggest that such a general principle could be drawn from Lunyamila, where Crampton C.J. said, at para. 95:
Nevertheless, in those infrequent situations in which those two lines of jurisprudence come into conflict, the scheme of the IRPA and the Regulations that I have described requires resolving a stalemate that has been produced by the detainee's failure to fully cooperate with the Minister's removal efforts, in favour of continued detention.
26If the intent of that statement is to establish that, where a detainee does not co-operate and thus a lengthy period of detention results, that fact alone justifies the continuation of the detention, I respectfully disagree with it, at least where an application for habeas corpus is engaged. Taken literally, that rationale could justify the continued detention of a person forever. That result would, I hope, be seen as being problematic on its surface. It is also a result that cannot be justified on the basis that, to conclude otherwise, would have the effect of "rewarding" the uncooperative detainee. The purpose under the IRPA is not the punishment of uncooperative detainees. For the continued detention of the individual to be proper, it must be necessary to further a legitimate immigration purpose. I repeat a portion of the decision of Rouleau J.A., from para. 81, that I set out above:
A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control.
27The onus remains on the government to justify a continued detention. In order to do so, the government must establish that the continued detention remains hinged to the immigration purpose for which the detention was originally ordered. To authorize the government to hold a person indefinitely, solely on the basis of non-cooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter. It would also be contrary to Canada's human rights obligations.
28In fairness, the Attorney General of Canada does not advance such a proposition in this case. Rather, the Attorney General of Canada says that the detention of Mr. Ali has not, as yet, reached the stage where it has become disassociated from its immigration purpose. However, the Attorney General of Canada does not take a position as to when that stage would be reached.
29Does Mr. Ali's detention violate ss. 7 and 9 of the Charter? I conclude that it does. I reach that conclusion because I view Mr. Ali's detention as arbitrary and of indeterminate length. Canada has been attempting to remove Mr. Ali from this country for more than 20 years. During a lot of that time, Mr. Ali has been detained in detention facilities, including for the past seven plus years straight. On a fair review of the record in this case, there is no reasonable prospect that this situation is going to change. More specifically, there is no reasonable prospect that some development is likely to occur that will provide the necessary documentation that would permit Mr. Ali to be deported.
30On that point, I do not accept the position of the Attorney General of Canada that Mr. Ali continues to be the sole impediment to his removal from this country. While Mr. Ali has not always been forthright and while he has, on occasion, outright lied about some matters, the information that he provided about his background, as it relates to determining his citizenship, has been generally consistent. I do not accept that Mr. Ali is intentionally withholding critical information that, if revealed, would break the logjam in obtaining the necessary documentation to permit his removal. The Attorney General has failed to point to anything concrete by way of information that is being withheld. Vague references to not knowing the names of Mr. Ali's teachers; or where he went to school; or whether he lived for a short period of time in Italy; or the like, do not go to the central issue regarding his citizenship. For example, while the Attorney General may be justified in her skepticism about Mr. Ali's lack of memory regarding where he lived in New York State in the early 1980s, even if Mr. Ali had been able to give the authorities precise addresses where he lived, that would not assist in determining whether he is a citizen of Ghana or Nigeria or both. Indeed, I find it somewhat telling, on that point, that the American authorities have advised that they have no record of Mr. Ali or his mother ever entering the United States, when it clear that they both did.
31I am unable to conclude that Mr. Ali is actively thwarting the efforts of the authorities to remove him from Canada solely for the purpose of remaining in this country. The co-operation that he has given to the authorities over the years, while not perfect, is inconsistent with that assertion. In addition, his successful efforts to be returned to Ghana in 1996, albeit only temporarily as it turned out, are also inconsistent with that assertion. All that those efforts earned Mr. Ali was a number of months in a Ghanaian jail. Further, the fact that Mr. Ali has spent more than seven years in detention facilities in Ontario, with all of the well-known problems that are associated with those facilities, including at one time having been held for more than 100 days in segregation, is also inconsistent with that assertion. I am reinforced in my conclusion in that regard by the evidence that Mr. Ali gave before me.
32The Attorney General of Canada, the CBSA and the immigration authorities can point to nothing more than skepticism and speculation to support their assertion that Mr. Ali is actively preventing them from confirming his country of citizenship, so that they can deport him. The authorities cannot discharge the onus that rests on them to demonstrate that the continued detention of Mr. Ali is justified, for immigration purposes, based on skepticism and speculation.
33The issue then is what remedy ought to be given in these types of situations. One thing is clear and that is that Canada cannot purport to hold someone in detention forever. Mr. Ali has not been convicted of a criminal offence, and yet he has been held for over seven years in detention facilities, facilities that, if he had been convicted of a criminal offence, would have entitled him to a credit of more than 10 years against any sentence that might be imposed. I would also note, on this point, that, as best as I can tell from Mr. Ali's criminal record, he has spent almost twice as much time in detention, pending his removal, then he served as punishment for all of his criminal convictions added together. That result is unacceptable.
34While I appreciate that there are concerns about the prospect of releasing Mr. Ali, given his stated danger to the public, that danger has to be viewed in its proper context. None of Mr. Ali's prior convictions have been so serious that they have attracted a penalty of more than a few months' imprisonment. Indeed, as I noted earlier, the convictions are mostly for minor offences that are consistent with the actions of a drug addict. In addition, there are persons, and an organization, that are prepared to assist Mr. Ali and who will try to make sure that he obeys the conditions of a release. In the bail context, it is well established that proper terms and conditions can reduce the risk to the public from a person's release, such that a detention order can no longer be justified. I can see no compelling reason to treat a release in the immigration context any differently.
35In relation to that point, I will make one other observation. It is not clear to me why persons, in the situation of Mr. Ali, are housed in provincial detention facilities rather than in federal correctional institutions. Immigration is, after all, a matter of federal jurisdiction. I assume that this is done because it is believed that, in the vast majority of cases, the length of detention will be of short duration and, thus, provincial detention facilities are the proper place to house such persons. However, as Mr. Ali's case amply demonstrates, immigration detentions are not always short.
36I was told that such persons are not housed in federal institutions because the Corrections and Conditional Release Act ("CCRA") prohibits it. I will say that on a quick review of the CCRA, I do not see the prohibition to which the Attorney General of Canada makes reference. However, assuming it is there, there is nothing that would prevent the Government of Canada from amending the CCRA to provide that, in situations where a person may be detained for a lengthy period of time for immigration purposes, they may be housed in a federal institution.
37I make that observation because, in a case such as Mr. Ali's, housing him in a federal institution, where there is a greater opportunity for treatment, counselling, education and work skills training would assist in ameliorating the impact of a lengthy period of detention as well as making the individual concerned a better candidate for release. As it stands now, holding Mr. Ali in a provincial detention facility does not provide for any rehabilitative steps to be taken and, thus, it is not surprising that the 80 some reviews, that Mr. Ali has undergone, have not reached any different conclusion regarding his danger to the public and his flight risk. No one should be surprised at a lack of change, if no opportunity is provided to achieve change. Also, placing persons, such as Mr. Ali, in federal institutions would be consistent with the legislated purpose of the CCRA, which is to assist the "rehabilitation of offenders and their reintegration into the community as law-abiding citizens": s. 3(b).
38In the end result, Mr. Ali's situation closely mirrors the situation, upon which the European Court of Human Rights commented last year in J.N. v. United Kingdom, where the court said, at para. 106:
Although the court found that lengthy detention could be justified by the applicant's offending, by the realistic fear that he would further offend, and the genuine and reasonable concern that he might abscond, it held that, even given those factors, there had to come a time when "such a sterile tactic as merely sitting and waiting while repeatedly urging the applicant to change his mind, in full expectation that he would not" ceased to be detention genuinely for the purpose of deportation.
39As I have said, given the history of this matter, there is no reasonable prospect that the continued detention of Mr. Ali will result in information being obtained that would lead to his removal. His detention, therefore, is not justified for legitimate immigration purposes. His risk to the public is limited, as I have already explained. His "flight risk", that is, his potential failure to report, is not demonstrated on the record. The immigration authorities have never had any problem in locating Mr. Ali when he failed to honour his terms of release. In addition, there is evidence of health concerns that have developed with respect to Mr. Ali, both physical and mental, that will not be properly addressed as long as Mr. Ali remains in a provincial detention facility. All of those factors demonstrate that Mr. Ali's continued detention constitutes a violation of ss. 7 and 9 of the Charter. In light of that conclusion, it is not necessary for me to address whether ss. 12 and 15 of the Charter might also be violated.
40Therefore, I grant Mr. Ali's application for habeas corpus and order that he be released. The Attorney General of Canada suggested that, if I reached that conclusion, I should leave the terms and conditions of release to be determined by CBSA. I do not accept that that should be done. If this court is ordering a release, then it is this court that should set the appropriate terms and conditions. I would note, in passing, that it would also seem inappropriate to leave that determination to the CBSA, given that it is, in a very real sense, a party to these proceedings who is in opposite interest to Mr. Ali.
41The terms and conditions of release will therefore provide that Denise Davidson and Sakrina Ali are to act as guarantors, each in the amount of $500, and Mr. Ali, you shall
(i) keep the peace and be of good behaviour and attend all immigration proceedings as and when required; (ii) reside with Denise Davidson and be amenable to the routine and discipline of that address; (iii) make reasonable efforts to seek and maintain employment, if you are provided with a work permit; (iv) not to be away from your place of residence each and every night between the hours of 10:00 p.m. and 6:00 a.m., except for medical emergencies; (v) report once per month to the CBSA office nearest your residence and attend at the CBSA office on such additional occasions as the CBSA may direct on providing seven days' notice to you; (vi) seek and maintain any counselling or treatment for drug addiction as required by either of your guarantors, and sign any necessary authorizations so that your compliance with this condition can be monitored, both by your guarantors and by the CBSA; (vii) abstain absolutely from the possession and/or consumption of any drugs or other substances prohibited by law; (viii) not possess any weapon as defined in the Criminal Code [R.S.C. 1985, c. C-46]; (ix) not apply for nor possess a firearms acquisition certificate or other form of gun licence; (x) present yourself at the front door of your residence within five minutes of being requested to do so by a peace officer; (xi) have a copy of your conditions of release on your person at all times while outside of your place of residence and produce them to any peace officer if requested.
42Finally, I was asked to direct the Minister of Immigration, Refugees and Citizenship to provide Mr. Ali with a work permit and with interim federal health coverage. At this stage, I am not satisfied that those orders should be made. Rather, I would instead offer my strong recommendation to the minister, and his officials, to review Mr. Ali's situation and determine whether it would be appropriate to provide those items, in light of my order. On that point, I would note that, given that Mr. Ali is likely to remain in Canada for some time while the removal process continues, it would seem to be advantageous to have him work and make a contribution, rather than have him sit around idly. Further, given that Mr. Ali's health problems have been caused, at least in part, by his detention, it would also seem reasonable for the government to facilitate his access to health care for the purpose of remedying those issues.
43Having said all of that, I consider it more appropriate at this stage to leave those matters in the hands of the minister and his officials, especially since I do not have a full understanding of what is involved in providing those accommodations. The matter can always be brought back before me to further address those items, if it should transpire that the minister does not act properly in response to my recommendations.
Application allowed.
Notes
1 At the outset of the hearing, and on consent, the Attorney General of Ontario and the Superintendent of the Central East Correctional Center were removed as respondents. Further, pursuant to the provisions of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 23, it appears that the only necessary respondent is the Attorney General of Canada. 2 S.C. 2001, c. 27. 3 (2015), 2015 ONCA 700, 127 O.R. (3d) 401, [2015] O.J. No. 5438 (C.A.). 4 [2016] O.J. No. 5185, 2016 ONSC 6045 (S.C.J.). 5 [2016] F.C.J. No. 1489, 2016 FC 1199. 6 See, for example, the International Covenant on Civil and Political Rights, art. 9. 7 S.C. 1992, c. 20. 8 Application No. 37289/12, 19 May 2016 (ECt.HR).
