CITATION: R. v. Ogiamien, 2015 ONSC 3738
COURT FILE NO.: 114/14
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jamil Osai Ogiamien
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and the MAPLEHURST CORRECTIONAL COMPLEX and the ATTORNEY GENERAL OF CANADA
Respondents
Self-Represented
Mr. Whitehead and Ms. Evans, for the Ministry of Community Safety and Correctional Services and Maplehurst Correctional Complex
Ms. Guthrie and Mr. Dodokin, for the Attorney General of Canada
HEARD: June 1, 2015
REASONS FOR RULING
Coats J.
[1] On June 1, 2015, Mr. Ogiamien sought to call Mr. Peter Donaldson, a Canada Border Services Agency employee, as a witness. Ms. Guthrie moved to quash the subpoena arguing that Mr. Donaldson had no relevant evidence for the court. The central issue before the Court as it relates to the Attorney General of Canada is whether this court should decline to exercise its habeas corpus jurisdiction to review the lawfulness of Mr. Ogiamien’s arrest and detention on immigration matters, with the result that Mr. Ogiamien would be left to his statutory remedies under the Immigration and Refugee Protection Act, S.C. 2001, c.27, to raise his concerns regarding the lawfulness of his continued detention with the Immigration Division and Federal Court.
[2] Mr. Ogiamien argued that Mr. Donaldson had relevant information concerning several matters. First, he argued that Mr. Donaldson had evidence concerning the delay in Mr. Ogiamien’s receipt of the Access to Information and Privacy (“ATIP”) documents, the documents he requested under a freedom of information request from the Canada Boarder Services Agency under the Access to Information Act R.S.C., 1985, c. A-1. Mr. Ogiamien argued that the delay in his receipt of the ATIP disclosure prevented him from commencing a fulsome application for leave to the Federal Court. Second, Mr. Ogiamien argued that Mr. Donaldson has conducted investigations and produced documents with respect to attempts to establish Mr. Ogiamien’s identity and that these are relevant to the legality of his detention and that delay and denial of production of these investigative reports and documents has negatively impacted the effectiveness and efficiency of the statutory remedies available under the Immigration and Refugee Protection Act.
[3] Ms. Guthrie responded that there is nothing in any material to suggest that Mr. Donaldson had anything to do with the ATIP request. Further, she argues that the March 6, 2015 Order of Madam Prothonotary Martha Milczynski of the Federal Court determined that even without the ATIP materials Mr. Ogiamien had sufficient materials to support his application for leave to the Federal Court. Ms. Guthrie also referred to Rule 5 of the Federal Court’s Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 and argued Mr. Ogiamien had everything he needed to bring an application for leave to the Federal Court.
[4] Ms. Guthrie also argued that Mr. Donaldson made no decisions regarding Mr. Ogiamien and that no documents from Mr. Donaldson regarding Mr. Ogiamien were “used” at the immigration hearings and therefore there were no decisions of Mr. Donaldson that would be subject to judicial review and no documents of Mr. Donaldson’s that should have been disclosed pursuant to Rule 26 of the Immigration Division Rules SOR/2002-229. Ms. Guthrie maintained that there was no relevant evidence Mr. Donaldson could provide on whether the statutory remedies under the Immigration and Refugee Protection Act provide Mr. Ogiamien with effective and efficient remedies.
[5] Mr. Ogiamien countered that he was entitled to full disclosure including disclosure of the information obtained from investigations made by Mr. Donaldson and relied upon Don v. Canada (Minister of Citizenship and Immigration) 2013 FC 1, [2013] F.C.J. No. 174; Cha v. Canada (Minister of Citizenship and Immigration) 2006 FCA 126, [2006] F.C.J. No. 491; Hernandez v. Canada (Minister of Citizenship and Immigration) 2005 FC 429, [2005] F.C.J. No. 533 and Bhagwandass v. Canada (Minister of Citizenship and Immigration) 2001 FCA 49, [2001] 3 F.C. 3 (C.A.).
[6] It was not possible for me to know if Mr. Donaldson had relevant evidence or not and, therefore, I did not quash the subpoena and indicated that Mr. Ogiamien could have an opportunity to call Mr. Donaldson as a witness to ask Mr. Donaldson questions to establish whether or not he had relevant evidence. Mr. Ogiamien commenced questioning and I halted the questioning after Mr. Ogiamien was unable to establish relevancy and I indicated that I would provide more thorough written reasons. These are my reasons.
[7] Mr. Ogiamien was unable to establish that Mr. Donaldson made any decision, determination or order affecting Mr. Ogiamien that would be subject to Federal Court review or that Mr. Donaldson in any way directly impacted the effectiveness or efficiency of Mr. Ogiamien’s statutory remedies. He was never present at any of the immigration division hearings involving Mr. Ogiamien. Mr. Ogiamien was unable to establish that Mr. Donaldson had any direct obligation to produce any documents to Mr. Ogiamien. Mr. Ogiamien was unable to establish that Mr. Donaldson had anything to do with Mr. Ogiamien’s ATIP request.
[8] It is clear that investigations done by Mr. Donaldson with respect to Mr. Ogiamiens’s identity have been referred to at the immigration division hearings. Mr. Donaldson was not personally at the hearings. Ms. Rose, another Canada Border Services Agency employee, was and she testified at the trial. Mr. Ogiamien had an opportunity to question her. Any issues surrounding what ought to have been disclosed to Mr. Ogiamien under Rule 26 of the Immigration Division Rules are left to final argument as is the issue of whether any non-disclosure, if it occurred, affected Mr. Ogiamien’s statutory remedies under the Immigration Refugee and Protection Act.
[9] Whether there was delay in the ATIP production and whether only partial production was made can be argued in final argument as can the issue of whether the ATIP process impacted on the effectiveness and efficiency of Mr. Ogiamien’s statutory remedies under the Immigration Refugee and Protection Act.
[10] It also remains to be determined whether there was overall a lack of disclosure by the Canada Border Services Agency to Mr. Ogiamien and whether this impacted his statutory remedies and how this issue is impacted by the March 6, 2015 order. I leave to final argument the applicability and relevance of the four cases referred to by Mr. Ogiamien referenced above. Mr. Ogiamien was unable to establish that Mr. Donaldson himself, in his role, had any direct disclosure obligation to him under any Act or Rule.
[11] In conclusion, Mr. Donaldson’s evidence was halted when after being granted sufficient time to question Mr. Donaldson, Mr. Ogiamien failed to establish the relevancy of his evidence.
Coats J.
Released: June 15, 2015
CITATION: R. v. Ogiamien, 2015 ONSC 3738
COURT FILE NO.: 114/14
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
Jamil Osai Ogiamien
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and MAPLEHURST CORRECTIONAL COMPLEX and the ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR Ruling
Coats J.
Released: June 15, 2015