Court File and Parties

COURT FILE NO.: 00002013/16 DATE: 20160928

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) Respondent – and – GODDAY DADZIE Applicant

Counsel: Nicholas Dodokin, Sharon Guthrie and Ian Hicks, for the Respondent Daisy McCabe-Lokos, for the Applicant

HEARD: September 12 and 13, 2016

APPLICATION FOR HABEAS CORPUS

REASONS FOR DECISION

Clark J.

INTRODUCTION

[1] The applicant is currently detained pursuant to the Immigration and Refugee Protection Act (“IRPA”). By way of habeas corpus, he applies to be released. The following are my reasons for decision on his application.

THE FACTS

[2] Not surprisingly, given the age of this matter, the immigration file is voluminous. Many hundreds of pages of documents from that file were entered into evidence. I propose, however, to give only a brief outline of the facts sufficient to frame the issues. I will amplify that narrative somewhat as the need arises in the course of my discussion of those issues.

[3] On June 2, 2003, Citizenship and Immigration Canada (“CIC”) was notified of two stowaways on a ship that was scheduled to arrive at Sault Ste. Marie, Ontario, on June 15.

[4] The applicant arrived in Sault Ste. Marie, Ontario, on June 20, 2003. He had no identity documents, but identified himself orally by the name he presently uses on this application. The applicant was detained. That same day an exclusion order was issued against him.

[5] On July 18, 2003, the applicant was ordered released on terms and conditions. One of the standard conditions of such a release, and one by which the applicant agreed to be bound, was to complete documents “related to establishing identity or obtaining travel documents…” [^1]

[6] On November 18, 2003, the applicant applied for refugee status, but his claim was not processed because he was subject to an exclusion order.

[7] On December 11, 2003, the applicant attended the Canadian Border Services Agency (“CBSA”). On that occasion, he filled out a passport application for Ghana.

[8] On December 17, 2003, a travel document (“TD”) was issued for the applicant by the Republic de Cote d’Ivoire; it was valid until March 17, 2004.

[9] On January 9, 2004, a Pre-Removal Risk Assessment (“PRRA”) [^2] was initiated. Through that process the authorities determined that it was safe to return the applicant to Cote d'Ivoire and, on March 5, 2004, the applicant was notified of that decision.

[10] On March 9, 2004, the applicant attended CBSA. He was given a corrected travel itinerary that required him to appear on March 13, 2004, for removal. The applicant failed to appear as directed for his removal. He then disappeared for more than four years.

[11] The applicant next came to the attention of the authorities in October 2008 when he attended CIC in Hamilton, Ontario, to make a refugee claim. On that occasion, the applicant used a variant of the name he originally used, but the authorities quickly determined that he was the person who had failed to appear for removal four years earlier.

[12] In the time between 2004, when Cote d’Ivoire issued the aforementioned TD, and the time of his 2008 arrest, the government of Cote d’Ivoire had decided that the applicant was not one of its nationals and that the first TD had been issued in error. They have since refused, and continue to refuse, to issue a TD.

[13] The applicant was detained for a number of months until, on June 9, 2009, he was once again ordered released; he was subject to conditions, including supervision by the immigration section of the Toronto Bail Program.

[14] In 2011, the applicant was arrested and charged with sexual assault. He was held in custody pending his trial. The charge was stayed in 2013, whereupon the applicant was released once again, subject to the same IRPA conditions he had been released on in 2009.

[15] On February 7, 2014, the applicant was arrested by CBSA for breach of his conditions of release, to wit: for failing to live at the address required by his release. The applicant was taken before the Immigration Division (“ID”) of the Immigration and Refugee Board of Canada for a hearing. He was found to be a flight risk and ordered detained. As mandated by IRPA, his detention has been reviewed regularly since that time. At each detention review (“DR”) since then the ID has found that he continues to represent a flight risk. He has never sought judicial review of his detention.

[16] Although initially the applicant was held in detention at the Immigration Holding Centre (“IHC”), on April 14, 2014, he was transferred to the Toronto East Detention Centre. That move was based on the applicant’s revelation to CBSA officials that he had been a member of a criminal street gang during part of the time he lived in Cote d'Ivoire. He was later held for a time at Maplehurst Correctional Complex and is presently at the Central East Correctional Complex in Lindsay, Ontario, having been transferred there in May of this year. Each of the aforementioned detention centres is a maximum security facility.

[17] Since his arrest in 2014, apart from two exceptions, [^3] the applicant has continually and steadfastly failed to assist the authorities in any meaningful way to establish his identity and has, in certain cases, actively frustrated their efforts to identify him. [^4] CBSA’s ongoing attempt to identify the applicant and secure a TD for him is made very difficult by virtue of the fact that he constantly changes the particulars he gives them concerning his antecedents. [^5]

POSITION OF THE APPLICANT

[18] Counsel for the applicant contends that the applicant was only rearrested in 2014 to coerce him into cooperating to a greater degree than he had been to that point. A further motive underlying his arrest, counsel asserts, was to punish him for his lack of cooperation. It is counsel’s position that these motives still exist and underlie the applicant’s continued detention.

[19] The applicant contends that, by virtue of the length of time he has been detained and the uncertainty of when his detention will end, it “is illegal because it is arbitrary and indefinite, and not in compliance with international norms.” [^6]

[20] The threshold test for the applicant to avail himself of the remedy he seeks is low, counsel asserts. All the applicant need show is that his detention is lengthy and that there is presently no end in sight. In this behalf, counsel argues, the court should consider not only his present detention, but also his earlier detention in 2008-09.

[21] While Ms. McCabe-Lokos acknowledges that the applicant’s cooperation has been wanting at times throughout the period of his detention, she asserts that, at this first stage (at which the applicant bears the onus), the court cannot consider his lack of cooperation in deciding whether he has met that onus. Consideration of that factor is only appropriate, counsel argues, at the later stage when the court must decide whether the applicant’s continued detention is legal.

[22] Provided the applicant can meet this test, then the onus shifts to the respondent to demonstrate that the applicant’s detention is legal, which, Ms. McCabe-Lokos submits, the respondent is unable to do.

POSITION OF THE RESPONDENT

[23] It is the position of the respondent that the applicant has failed to meet the onus he bears. This position is based on two propositions.

[24] First, the respondent asserts that the time during which the applicant has failed to cooperate with the CBSA to establish his true identity and country of origin must be subtracted from the overall period of detention. When his non-cooperation is factored in the period of detention the court ought to consider is reduced to approximately four months.

[25] Second, turning to the uncertainty surrounding when the applicant’s detention will end, the respondent asserts that any uncertainty is directly a function of his failure to cooperate. If he were to be truthful and cooperative, the respondent contends, his true identity could be established and a TD could be readily secured.

[26] In the alternative, were this court to find that the applicant has met his onus, the respondent says that it has met its burden of demonstrating that the applicant’s detention is legal.

DISCUSSION

GENERAL PRINCIPLES

[27] For the most part, there is no dispute between the parties on the law. Rather, the quarrel is with its application to the facts this case. For that reason, I propose to refer in only a cursory fashion the applicable law.

[28] To succeed on an application for habeas corpus, an applicant must establish that he has been deprived of liberty and, further, must raise a legitimate ground upon which to question the legality of that deprivation. If an applicant raises such a ground, the onus shifts to the authorities to demonstrate the lawfulness of that deprivation of liberty: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502.

[29] The framework for the consideration of this application is succinctly set out in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 127 O.R. (3d) 401, 2015 ONCA 700, 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. [Emphasis added.]

[30] “Habeas corpus issues as of right once a detainee proves a deprivation of liberty and raises a legitimate ground upon which to question the legality of that deprivation”: Chaudhary, at para. 94. “[H]abeas corpus applications [do] not affect the ultimate disposition of the immigration matters that underlie… detentions. Habeas corpus applications…deal only with whether detentions, when they have been very lengthy and of uncertain duration can be continued pending disposition of those immigration matters”: Chaudhary at para. 101.

THE PRINCIPLES APPLIED

Stage I: Is the applicant’s detention very lengthy and is his date of release uncertain?

Length of Detention

[31] Beginning with the length of this applicant’s detention, in deciding whether it has been very lengthy, three questions need to be considered:

(i) should the court factor in the nature of the facility in which the applicant has been detained? (ii) should the court consider the 2008-09 period of detention as well as the period of his present detention? (iii) should the court, at this stage, deduct the applicant’s failure to cooperate with the authorities from the overall length of the time he has been in custody, or should the court not consider that factor until it is deciding whether the respondent has met its onus?

[32] As for the first question, Ms. McCabe-Lokos subpoenaed certain records from the Ontario Ministry of Community Safety and Corrections with a view to demonstrating the nature of the facility in which the applicant is presently detained. It was agreed, however, that it was unnecessary for the court to examine this material, [^7] since it could take judicial notice of the proposition that the detention centre is a maximum security facility that, by its very nature, is a harsher and less hospitable environment than an IHC.

[33] I accept that, from both the applicant’s point of view and objectively, time spent in a maximum security facility is more onerous and, thus, would seem, certainly to the average detainee, lengthier than the same period spent in an immigration holding facility. While it is hard to quantify the difference in any precise way, it seems to me that an applicant ought to be able to more easily satisfy the burden of showing that his detention has been lengthy when he has been held in a maximum security facility. Accordingly, I am prepared to consider the nature of the place of the applicant’s detention into account in deciding whether he has met his onus.

[34] As for the second question, Ms. McCabe-Lokos argues that the court should consider the period during which the applicant was detained in 2008-09. She offered no authority for that proposition and I am not aware of any case that supports this position. The respondent, for its part, contends that the court should consider only the applicant’s present detention.

[35] The jurisdiction of the court on a habeas corpus application is limited, in my view, to considering the validity of the detention to which a detainee is subject at the time of the application. The applicant in this case was at liberty for almost five years before the arrest giving rise to this detention. I see no reason in principle to consider that earlier detention when deciding the length of the present one. Rather, I agree with the respondent that the only period I ought to consider is from the applicant’s 2014 arrest forward.

[36] Turning to the third question, it is well settled that “unexplained delay or lack of diligence should count against the offending party”: Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, at para. 114. See also Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214, at para. 30 and Jaballah (Re), [2010] F.C.J. No. 614, 2010 FC 507, at para. 145. If unexplained delay is to be held against the party responsible for the delay, it seems obvious that where, as here, I find as a fact that the applicant is deliberately trying to frustrate the ability of the authorities to identify him and, in turn, secure a TD for him, then, a fortiori, the delay is to be held against him.

[37] In Canada (Minister of Citizenship and Immigration) v. Kamail, 2002 FCT 381, [2002] F.C.J. No. 490, at para. 333, O’Keefe J. stated:

I cannot accept that the delay caused by the respondent’s refusal to sign travel documents can be used to support a finding that his detention time cannot be ascertained or to support a finding that a further lengthy detention is anticipated. The respondent himself is causing the delay.

I agree. I see no difference in principle between cases involving alleged breaches of s. 11 of the Charter, where delay occasioned or waived by an accused is ignored for purposes of determining whether the delay has been unreasonable. Otherwise, “there might be an incentive to employ dilatory tactics to escape justice”: R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 48. The same is obviously true respecting the removal from Canada of persons who do not wish to be removed.

[38] Ms. McCabe-Lokos relies on Ogiamien v. Ontario (Minister of Community and Safety and Correctional Services), [2016] O.J. No. 4002, 2016 ONSC 4126, for the proposition that the applicant’s conduct is not to be taken into account at this stage. In that case, Coats J. accepted that Ogiamien had been uncooperative with CBSA in their efforts to establish his identity, but refused to deduct from her calculation of the length of the detention (as the respondent in that case argued she should) the period during which he had failed to cooperate. More particularly, Ms. McCabe-Lokos emphasizes the fact that Coats J. was of the view that the government could, and ought to, have done more to effect Ogiamien’s removal during the approximately five years he was on release prior to the arrest that gave rise to the detention she was considering.

[39] Speaking generally, like Rothstein J., “I am not unmindful of the volume of immigrants and the demands on the various participants in the immigration process”: Sahin, at para. 32. Similarly, while in a perfect world, each case would get the fullest attention from the authorities, I suspect that “having regard to the liberty interest of the individual and the financial interest of the government in minimizing detentions, detention cases [are] given priority”: Sahin, at para. 32. That, surely, is just the reality in a heavily burdened system with finite resources.

[40] Turning to this case, in my respectful view Ms. McCabe-Lokos’ reliance on Ogiamien is misplaced. I say that because Coats J. indicated that she did not disagree in principle with the Attorney General of Canada’s position on this issue (which was the same as in this application), but simply refused to adopt it on the facts of that case and because, though similar to the case at bar in many ways, I find Ogiamien to be distinguishable in this context. I say that because, notwithstanding his earlier failure to cooperate with CBSA, by the time Coats J. was considering the matter Ogiamien had signed an application for a Nigerian TD and CBSA had accepted that he was born in that country. Accordingly, Coats. J. was prepared to overlook his earlier failure to cooperate. Here, in sharp contrast, Mr. Dadzie insists that his birth place is the Cote d’Ivoire, but CBSA does not accept that he was born there. In my opinion, their skepticism is well founded. [^8]

[41] Ms. McCabe-Lokos places particular reliance on Coats J.’s opinion, as expressed at para. 63, that the government ought to have done more in the time before Ogiamien was detained to effect his removal. There is a similar period of years in this case, during which the applicant was on release in relation to his immigration matter. Ms. McCabe-Lokos argues that, in the nearly five years that Mr. Dadzie was at large, the government did little or nothing of substance to effect his removal, such that the court should find the applicant’s failure to cooperate during the time he has been detained less egregious. In support of this position, Ms. McCabe-Lokos points to what she says is the applicant’s cooperation during this period, citing as an example the fact that he appeared on various occasions to be interviewed by CBSA officials. With respect, I reject this analysis for the following reasons.

[42] First, as I have earlier indicated, the only period that I am meant to consider is the period for which the applicant has been detained. Insofar as it was nothing the government did, but, rather, what the applicant did not do (namely, comply with his conditions of release) that caused him to be arrested and detained, the actions of the government prior to the commencement of that detention are largely, if not entirely, irrelevant.

[43] Second, as for what Ms. McCabe-Lokos contends was Mr. Dadzie’s cooperation during the years preceding his 2014 arrest, I do not regard his actions as meaningful cooperation. Unlike Ogiamien, whose principal failure to comply with his immigration release was beyond his control (namely, because, unbeknownst to CBSA, he was custody in relation to criminal charges), the applicant in this case was “provided health care coverage and was essentially left alone to work and live in accordance with his work permit and release conditions.” [^9] Against this backdrop, as I pointed out in oral argument, it was in the applicant’s interest to appear to cooperate in order that he would remain at large. Any obvious failure to cooperate might well have prompted his arrest for breach of a condition of his release. But the record is replete with references to the fact that on these various attendances on CBSA the applicant contributed very little that was new and less still that the officers felt they could rely upon as truthful. In my view, he was simply feigning cooperation in order to maintain the then prevailing status quo, which was, presumably, something resembling the sort of existence he had come to Canada to find. [^10]

[44] Third, to focus on the fact that CBSA failed to earlier take the steps it is now taking, when the applicant was on bail, is to ignore the reality that, in the two and half years Mr. Dadzie has been detained, CBSA still has not been able, despite concerted efforts, to determine his true identity or country of origin. Thus, it is highly speculative, in my view, to assume that, had CBSA made the same sorts of efforts earlier, when Mr. Dadzie was at liberty, (and thus, presumably, even less inclined to cooperate with the authorities in any meaningful way than he is presently) that they would have succeeded or, in the least, made progress that would have rendered their present task less difficult. To my mind, even if they had done considerably more than they did, given Mr. Dadzie’s ongoing failure to cooperate there is no reason to suppose that CBSA would be any closer to being able to remove the applicant than they currently are.

[45] In sum, then, I respectfully disagree that what is said to be the government’s failure to do further and other things than it has done should be factored into the equation.

[46] Focusing, then, on the actual period of detention, when those periods during which the applicant has failed to cooperate with CBSA are subtracted from the overall period, I conclude that his detention has not been very (exceptionally) lengthy. Rather, I agree with the respondent that the period for which he has been cooperating is only four months. However, by virtue of the circumstances of his detention, i.e.: in a maximum security facility, I will consider the period of detention to be one of six months. [^11] Even having augmented the detention period by that amount, I have decided, nevertheless, that the applicant has not met his onus of showing that his detention has been very lengthy.

Uncertain Duration

[47] Looking forward, can it be said that the applicant’s detention is of uncertain duration?

[48] Ms. McCabe-Lokos argues that the applicant “is being detained for a removal that cannot be executed, a removal for which there is no timeline at all.” [^12] This is predicated on the proposition that “[t]he Applicant’s country of origin is Ivory Coast. Ivory Coast refuses to recognize him and refuses to issue him a travel document, despite doing so in 2004.” [^13]

[49] Taking the position that the applicant’s identity has been established (i.e.: that he is who he says he is and is, as he claims to be, a Cote d’Ivoire national), Ms. McCabe-Lokos argues that there is no longer any need to establish his identity. However, she bases this on the applicant’s oral assertions and the fact that, more than a decade ago, Cote d'Ivoire issued him a TD. But the applicant’s accounts, given over the course of many years, have involved a great many inconsistencies and, by his own admission, he has told a great many lies. As for the Cote d'Ivoire having once issued the applicant a TD, that government now denies that he is one of its nationals and indicates that the earlier issuance of the TD was an error. There is also other compelling evidence that the applicant is not a native of Cote d'Ivoire, but, rather, a native of Ghana. [^14]

[50] Once one ceases to take it as a given that the applicant’s country of origin is Cote d’Ivoire, (such that he cannot secure a TD because it disavows him), then one has to recognize that, to the extent that his detention can be said to be of indefinite duration, the applicant is, by virtue of his obstructionist tactics, the author of his present predicament. Were he to cooperate fully with the CBSA, there is little doubt in my mind that his true identity and actual country of origin could be readily established.

[51] Ms. McCabe-Lokos contends that the applicant’s degree of cooperation is not likely to change in the foreseeable future. Thus, his continued detention can no longer be justified on the basis of needing to establish his identity. Since there is no end in sight to the standoff, she argues, the court’s only option is to order his release. I disagree.

[52] The applicant has a statutory obligation to cooperate with CBSA. His flouting of this responsibility ought not to be rewarded. He ought not to be able to accomplish his obvious goal of staying in Canada by simply continuing to ignore the law.

[53] In Kamail, notwithstanding it was clear that the detainee was obstructing the CBSA officials in the exercise of their duty to remove him, the immigration adjudicator held that the detainee had to be released because his detention was indefinite. On judicial review, O’Keefe J. held that the adjudicator had erred, because Kamail was “the sole cause of the indefinite nature of the detention”: para. 35. At para. 38, O’Keefe J. observed that “[t]o hold otherwise, would be to encourage deportees to be as uncooperative as possible as a means to circumvent Canada’s refugee and immigration system.” This passage was quoted with approval by Mosley J. in Walker v. Canada (Minister of Citizenship and Immigration), [2010] F.C.J. No. 474, at para. 30.

[54] This is not a fanciful concept. In this very case Mr. Dadzie has mentioned several times to CBSA personnel that his failure to cooperate up to that point was predicated on “bad advice from other inmates.” [^15] That demonstrates to me that, even among the limited number of people with whom he comes into contact while in detention he encounters other persons who think that one way to avoid removal from Canada is simply to obstruct the authorities until the court eventually intercedes and orders their release.

[55] “By definition, the concept of anticipated future detention requires an estimation of what the expected duration of the future detention will be”: Canada (Minister of Citizenship and Immigration) v. Li, [2009] F.C.J. NO. 329, 2009 FCA 85, at para. 64. But, to a large extent, only the applicant can answer this question, because only he knows how long he is prepared to continue to refuse to cooperate with the authorities. In summary, I find that his lack of cooperation with CBSA is the real and immediate cause of the indefinite nature of his detention. In keeping with Kamail and Walker, I am not prepared, in these circumstances, to find that he is indefinitely detained in the sense in which that term is understood in habeas corpus matters.

[56] In Chaudhary, at para. 29, Rouleau J.A. held:

An immigration detention must be for an immigration-related purpose: to detain someone under the IRPA, an immigration officer must have reasonable grounds to believe the individual is inadmissible to Canada and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal or a proceeding that could lead to the making of a removal order. Also, a foreign national can be detained if an immigration officer is not satisfied of his or her identity in the course of any procedure under the IRPA.

On the evidence, I am satisfied that the applicant’s detention is for “an immigration-related purpose”.

[57] At para. 81, Rouleau J.A. further held:

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.

Relying on this passage, Ms. McCabe-Lokos asserted in oral argument that “the evidence supports the conclusion that immigration objective cannot be achieved”, such that the applicant’s detention now amounts to a violation of his s. 7 and 9 rights and is, therefore, illegal. I disagree for the following reasons.

[58] First, although Ms. McCabe-Lokos insists that the applicant’s identity is established, CBSA is not convinced that the applicant is who he says he is. Moreover, it is not only the CBSA that holds this view; the ID shares this concern. As recently as May of this year, the ID member who decided the applicant’s DR indicated that despite the issue having been discussed at length, Mr. Dadzie’s identity “remains a mystery.” The member went on to mention that the uncertainty surrounding the applicant’s identity had implications for the risk of flight. [^16] On the evidence before me, I consider their skepticism to be well founded.

[59] Second, although his identity remains in serious question, the applicant is not detained on that basis; rather, albeit his uncertain identity factors into the equation, he was originally detained in 2014, and remains detained, on the basis that he is a flight risk. That view, expressed by numerous ID members on successive DRs [^17], is stated nowhere quite so plainly, perhaps, as in Mr. Macinkiewicz’s May 18, 2016, reasons for detention, where, at p. 6, he states, “[t]he sole reason for Mr. Dadzie’s detention is to ensure his appearance for removal.”

[60] Third, Ms. McCabe-Lokos’ argument ignores the proviso in Chaudhary, at para. 81, that what is reasonable will depend on the circumstances. Where, as here, the applicant’s detention is, in effect, self-imposed (because Mr. Dadzie chooses not to cooperate with the CBSA in any productive manner), he cannot rely on his own obstructionist tactics to argue that his detention constitutes a breach of his Charter rights: Charkaoui, at para. 114.

[61] Ms. McCabe-Lokos further argues that the applicant is being detained for both coercive and punitive reasons.

[62] In support of the first assertion, Ms. McCabe-Lokos relies on a “Note to File” dated December 23, 2008, [^18] wherein the author, CBSA Officer Bob Hickson, [^19] noted that “the subject was advised if he refuses to cooperate, he will be transferred to TWDC.” [^20] While I agree that the remark has a coercive overtone to it, counsel’s argument ignores:

(i) that the current detention came about as a result of the applicant having breached the terms of his release; (ii) that his continued detention is based not on his failure to cooperate, but, rather, on the fact that he is considered to be a flight risk; (iii) that his continued detention has been determined repeatedly by an independent tribunal [^21] (differently constituted in each case) to be lawful and appropriate; (iv) that the offending remark was said more than five years before the applicant’s current detention commenced; and (v) that Hickson, so it would appear, no longer has any connection to this case.

Against that backdrop, whatever Hickson’s intent may have been in making that comment, it does not follow that different officers, years later, have the same motivation.

[63] In fairness, Officer Donaldson appears to be of the view the applicant is more apt to eventually decide to cooperate if he is detained than he would be if he were at liberty. I find as a fact, however, that the CBSA’s purpose for arresting the applicant in 2014 was not to coerce his cooperation, but, rather, because he was considered to be a flight risk. That said, one of the grounds for detention under the IRPA is that a person’s identity is not known [^22] and a factor to be considered in deciding whether detention is appropriate on that ground is the degree of cooperation that person has provided in establishing his identity. [^23] Donaldson’s view that the applicant’s detention serves an immigration purpose other than the one on the basis of which he was detained does not invalidate an otherwise valid detention: R. v. Nolet (2010), 2010 SCC 24, 256 CCC (3d) 1 (S.C.C). See also Canada (Attorney General) v. He, [2013] O.J. No. 4292, 2013 ONCA 575.

[64] Turning to counsel’s second proposition, i.e.: that CBSA is using detention to punish the applicant for his failure to cooperate, in cross-examination Officer Donaldson denied any such motivation. I accept his evidence. That leaves the accusation without evidentiary foundation and I reject it accordingly. In this context, it is also worth repeating that the applicant’s detention has been repeatedly confirmed by different members of the ID, an independent tribunal.

[65] I recognize that, “[i]f there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release”: Charkaoui, at para. 115. That said, the uncertainty as to how much longer the applicant will be detained prior to removal is largely, if not entirely, a function of his failure to cooperate in a forthright and meaningful way. At the risk of repetition, to permit the applicant to effectively thwart the IRPA’s provisions by stubbornly refusing to do what the statute requires him to do would be a direct and powerful incentive to other persons endeavouring to avoid deportation.

[66] In terms of alternatives to detention, it was held in Charkaoui, at para. 116, that “[s]tringent release conditions…seriously limit individual liberty. However, they are less severe than incarceration.” Inasmuch, as the IRPA [^24] requires the ID to consider reasonable alternatives to detention, I propose to examine briefly the alternatives that have been considered in this case.

[67] The applicant asserts that the CBSA has not properly considered viable alternatives to detention. I disagree. This argument wrongly presupposes that it is the CBSA that controls whether the applicant is released, whereas, as noted above, it is the ID.

[68] On May 13, 2016, during a DR, the applicant sought his release, proposing that one Mike Khan would be his surety. The member presiding on that occasion refused his application on the ground that the proposed bondsman did not know the applicant well enough to be a reliable surety. Having read the member’s reasons, [^25] I agree with his assessment of the proposal.

[69] In August 2014, the applicant again sought release; this time with the Toronto Bail program as the supervising agency, but the Bail Program refused to supervise him based on his failure to cooperate with CBSA. I find it interesting that the applicant complains that the CBSA’s position that he is not cooperating is unreasonable, yet, at the same time, the Bail Program, an entity that is entirely independent of the CBSA, refused to supervise him for that very reason. [^26]

[70] Despite Mr. Dadzie having exhausted all legal means by which he might have gained permission to remain in Canada, his determination to remain in Canada appears to be resolute and unwavering. Given: (i) the applicant’s failure to attend for removal in 2004; (ii) his having remained underground, as it were, for more than four years; (iii) his filing of a second refugee claim under a false name; [^27] (iv) his failure to abide by the conditions of his 2009 release (which failure led to his present detention); and (v) his failure since 2014 to cooperate with the authorities, as he is obliged to do, to establish his true identity and country of origin (which speaks legions about his attitude toward his ultimate removal from Canada); I agree with the various members of the ID who have held that he is a flight risk. I further agree that the alternatives he has proposed have not been such as to overcome that risk.

Summary re: Detention

[71] In summary, for the foregoing reasons, I am of the view that the applicant has not shown that his detention has been very lengthy or, looking to the future, that it is indefinite.

Stage II: Legality of the Applicant’s Continued Detention

[72] Strictly speaking, having decided that the applicant has not met the onus cast upon him on such an application, I need not consider whether his continued detention is legal. However, in the event that I am wrong in holding that the applicant’s failure to cooperate with the authorities can be considered in deciding whether he has met his onus, I will go on to consider the legality of the applicant’s detention as though he had met his onus.

[73] Had I not considered the applicant’s failure to cooperate at the first stage, there is no question that he would have raised a legitimate ground to question his detention, namely, that it has been very lengthy and, for the present at least, there is no end in sight. The onus would then fall on the respondent to demonstrate that the continued detention is lawful.

[74] The applicant argues that his detention is both arbitrary and contrary to principles of fundamental justice.

Arbitrariness

[75] The word “arbitrary” is defined as “1 based on random choice or personal whim. 2 (of power or a ruling body) autocratic.” [^28] The applicant’s detention is neither random nor based on anyone’s personal whim. Nor, since it is the subject of review by an independent tribunal (mandated by statute to determine the question of detention according to a well established set of criteria which have been held to be constitutionally valid), can it be said to be autocratic.

Principles of Fundamental Justice

[76] As for principles of fundamental justice, “[b]efore the state can detain people for significant periods of time, it must afford them a fair judicial process”: Charkaoui, at para. 28. Such a process requires that the detainee be entitled to know the case against him and have the opportunity to answer that case at a hearing before an independent and impartial adjudicator: Charkaoui, at para. 29. While not “a blanket exclusion to habeas corpus in all matters related to immigration law”, the IRPA provides a “complete, comprehensive and expert system for reviewing detention”: Chaudhary, at para. 49.

[77] “To comply with s. 7 of the Charter, [an adjudicator] must make a decision based on the facts and the law”: Charkaoui, at para. 48. The principles of fundamental justice require “at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law”: Charkaoui, at para. 48. Having examined the transcripts of the DRs provided, I conclude that there has been, in each instance, a meaningful judicial assessment. Respecting the applicant’s complaint that some of the DRs have been very short, that simply reflects the fact that on those occasions there had been no new development since the last hearing.

[78] As for the applicant’s failure to cooperate, as I have earlier indicated, there remains a serious issue concerning his true identity and a further serious issue concerning the likelihood that if released he would appear for removal. In that behalf, the applicant’s refusal to cooperate, which his counsel concedes I am entitled to consider at this stage, has obvious implications for both concerns. As noted above, provided reasonable alternatives to detention have been considered, each of those concerns is statutorily a valid reason to detain. As also noted, the applicant’s lack of cooperation has been the cause of his detention to date and, going forward, is the reason why there is no immediate end in sight. At the risk of repetition, the applicant cannot create his own delay by his failure to cooperate, as he obliged to do under the IRPA, and then use that delay to argue that his continued detention is unlawful.

International Law

[79] The applicant relies on jurisprudence and statutory instruments arising in the international law context for the proposition that international norms prohibit detention that is either arbitrary and/or indefinite. Counsel asserts that Canadian law is obliged to interpret domestic law in conformity with these norms. I agree. See R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53 et seq. That said, with one exception, I do not propose to discuss the cases or instruments upon which counsel relies because, having found that the applicant’s detention is neither arbitrary nor in conflict with principles of fundamental justice, I am persuaded that the IRPA provisions concerning detention are not in conflict with international norms, either generally or in their application to this case.

[80] The exception to which I refer is the case of Michael Mvogo [^29] in which the Working Group of the United Nations Human Rights Council held that Mvogo’s continued detention by Canadian immigration authorities for more than seven years was arbitrary.

[81] On the one hand, the case is distinguishable because, although Mvogo had originally been uncooperative until 2011 (Chaudhary, at para. 25), the difficulty in properly identifying him was not Mvogo’s fault, but, rather, after 2011 arose from “the lack of cooperation by the consular representation of his country of origin”: Working Group Opinions, 23 July, 2014, at para. 24. On the other hand, as Ms. McCabe-Lokos points out, the working group opined that, even had the delay been Mvogo’s fault, his seven year detention had not been shown by the detaining authority to be either necessary or proportionate. I note, further, that the case can be distinguished from the present case by virtue of the fact that the authorities responsible for his detention had not responded to the Working Group’s request of the Government of Canada to justify Mvogo’s detention.

[82] The case is also of interest in the following way. Between the time the working group handed down its opinion, in July 2014, and the time the Ontario Court of Appeal released its reasons, Mr. Mvogo had been removed from Canada. This case highlights the reality that although the process may seem, at a particular point in time, to be stalled indefinitely, that can change. As I have said, the ability to overcome the apparent stalemate lies within the applicant’s control. Thus, I see no reason to conclude that his detention is indefinite and therefore unlawful.

Summary re: the Respondent’s Onus

[83] “[T]he Charter’s guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice”: Canada v. Minister of Public Safety and Emergency Preparedness) v. Samuels, [2009] F.C.J. No. 1437, 2009 FC 1152, at para. 29. In my view, the applicant’s detention is neither arbitrary nor in conflict with those principles of fundamental justice. Thus, I am satisfied that, had I found that the applicant had met his onus, I would have gone on to find that the respondent had met its onus of showing that the applicant’s detention is lawful.

RESULT

[84] In the result, for the foregoing reasons the application is hereby dismissed.

R. Clark J.

Released: September 28, 2016

Footnotes

[^1]: See Exhibit 3, p. 371: Exhibit 6 to the affidavit of Merfed Douri. [^2]: A PRRA is a process designed to determine the level of risk a person will likely face if he is returned to his country of origin. [^3]: One of the exceptions is his participation, in late 2015, in two linguistic assessments to determine whether his French is that of a Cote d'Ivoire native. (That said, even to the limited extent that it can be said that he has cooperated with CBSA efforts to identify his country of origin, it must be noted that the applicant has also been selective in his cooperation. He refused, for example, to participate in a linguistic assessment in relation to Twi, a language spoken in Ghana.) The other exception is he consented earlier this year to have his particulars (including a photograph) published in the media in an appeal to the public for assistance in identifying him. [^4]: He has provided inconsistent information as to his antecedents. When confronted with these inconsistencies, he has admitted numerous times that he lied. On two occasions in October 2015, when the authorities sought to obtain his fingerprints, he refused to leave his cell. [^5]: For an extensive list of these inconsistencies see Exhibit 1, p. 255: Exhibit 55 to the affidavit of Peter Donaldson. [^6]: Applicant’s Application Record, Volume I, Applicant’s Factum, para. 3. [^7]: To avoid any inconvenience, were it to later become necessary for the court to consider these records, they were entered into the record as a sealed exhibit. It never became necessary to examine them. [^8]: To mention just two among a number of facts pointing to this, Cote d’Ivoire now asserts that the applicant is not one of its nationals and refuses to issue him a further TD and two linguistic assessments have given rise to the opinion on the part of the assessors that the applicant is not a native of Cote d’Ivoire. [^9]: Applicant’s Application Record, Volume I, Applicant’s Factum, para. 22. [^10]: The applicant has made it plain from his earliest encounters with authorities in this country that he wants to stay in Canada. See Exhibit 3, p. 375: Exhibit 7 to the affidavit of Merfed Douri. See also Applicant’s Application Record, Volume III, Tab 18, Reasons of a Detention Review held under the Immigration and Refugee Protection Act, concerning GODDAY DADZIE, where, at pg. 5, Mr. Macinkiewicz, the member conducting the applicant’s DR on that occasion, observed that he has “exhibited a strong desire to stay in Canada.” [^11]: While I have allowed some additional time in light of the nature of the applicant’s custody, I hasten to add that his being housed in the detention centre is not inappropriate, in my view. I say that notwithstanding the fact that Ms. Douri recently assessed the applicant as suitable for detention in the IHC. (See Exhibit 3, p. 626 et seq.: Exhibit 55 to the affidavit of Merfed Douri.) Rather, I base my view on Mr. Donaldson’s concerns, as expressed in his testimony that women and children are housed in the IHC, taken together with the applicant (1) having acknowledged belonging to a criminal street gang in Cote d'Ivoire, which was, according to him, involved in theft, robbery and kidnapping; (2) having acknowledged to CBSA officials belonging to an armed resistance to the Cote d'Ivoire government and indicating, in that behalf, involvement in armed conflict; and (3) having misconducted himself during his current detention, to wit: on one occasion smashing a television, thereby initiating a fight with other inmates and leading to his transfer to another pod in the facility, and, in a separate incident, assaulting a manager at the facility. Also germane in this context is an incident mentioned in the applicant’s May 13, 2016, DR, wherein, on May 11, 2016, he resisted an effort to move him from the Toronto East Detention Centre to the Central East Detention Centre. When correctional officers came to collect him, he began screaming that he did not want to be transferred and adopted a physically aggressive stance with the officers, such that they were obliged to restrain him with both handcuffs and leg irons. The applicant was represented by Ms. McCabe-Lokos at that DR, who did not challenge the correctness of the report. [^12]: Applicant’s Application Record, Volume I, Applicant’s Factum, para. 5. [^13]: Loc. cit. Since 2004, Cote d'Ivoire has twice declared that the applicant is not one of its nationals and has made it clear that it will not issue him a TD. See also Exhibit 1, p. 255: Exhibit 55 to the affidavit of Peter Donaldson. [^14]: As well as other information indicating the applicant is from Ghana, he acknowledged in one of his refugee claims that Ghana was his country of birth and, as noted above, actually filled out a Ghanaian passport application in 2003, yet refused to fill out another such application when asked to do so during the course of his current detention. It is also interesting in this context that, as noted above, the applicant refused to participate in a linguistic assessment in relation to Twi. See Exhibit 1, p. 119: Exhibit 20 to the affidavit of Peter Donaldson. [^15]: See Exhibit 1, p. 245: Exhibit 53 to the affidavit of Peter Donaldson. [^16]: Applicant’s Application Record, Volume III, Tab 18, Reasons of a Detention Review held under the Immigration and Refugee Protection Act, concerning GODDAY DADZIE, pg. 4. [^17]: In his May 18, 2016, reasons, at pg. 7, Mr. Macinkiewicz took the trouble to note that in every detention review the applicant had had to that date, save one, each member had found that “Mr. Dadzie has been the cause of his lengthy detention due to his lack of cooperation with immigration officials in establishing his identity and therefore securing a travel document.” In terms of the exception he mentioned, Mr. Macinkiewicz then went on to point out that the same member who conducted the applicant’s May 2015 DR, “who had the impression that Mr. Dadzie was not obstructing removal”, later found in the applicant’s November 2105 DR, that “Mr. Dadzie was not cooperating with establishing his identity and was acting in bad faith.” [^18]: See Exhibit 1, p. 34: Exhibit 3 to the affidavit of Peter Donaldson. [^19]: Hickson’s name does not appear on the document itself, but, at sub para. 8 (c) of his affidavit, Officer Donaldson attests that Hickson was the author. [^20]: It is agreed that “TWDC” is an acronym for the Toronto West Detention Centre. [^21]: The Immigration Division (“ID”) of the Immigration and Refugee Board of Canada. [^22]: Immigration and Refugee Protection Regulations (SOR/2002-227), s. 244 (c). Indeed, so central is identity that it has been characterized as “a cornerstone of the Canadian immigration system”: Canada (Minister of Public Safety and Emergency Preparedness) v. Mukenge, [2016] F.C.J. NO. 309, 2016 FC 331, at para. 11. See also Canada (Minister of Citizenship and Immigration) v. XXXX, [2010] F.C.J. No. 1367, 2010 FC 1095, at para. 23, where Phelan J. characterized Identity as “a virtual sine qua non of immigration law.” [^23]: Op. cit., s. 247 (1) (a). [^24]: Op. cit., s. 248 (e). [^25]: Applicant’s Application Record, Volume III, Tab 18, Reasons of a Detention Review held under the Immigration and Refugee Protection Act, concerning GODDAY DADZIE, pgs. 10-12. [^26]: See Exhibit 3, p. 622: Exhibit 50 to the affidavit of Merfed Douri. [^27]: Insofar as his true identity is unknown it is impossible to say that the name the applicant used in his second refugee claim is false. By the word “false”, then, I mean only that it is a name other than the one he used upon entering Canada and still presently uses. [^28]: Concise Oxford Dictionary, 10th Ed. Revised (1999, Oxford University Press, Oxford) [^29]: See Chaudhary, at paras. 22 to 26.