Alvin Brown v. Ministry of Public Safety, 2016 ONSC 7760

COURT FILE NO.: CR-16-0223-00M0

DATE: 20161209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALVIN JOHN BROWN Applicant

– and –

THE MINISTRY OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, SUPERINTENDENT OF TORONTO EAST DETENTION CENTRE Respondents

Counsel:

Jared Will and Jean Marie Vecina, for the Applicant

Martin Anderson and Melissa Mathieu for the Respondents, THE MINISTRY OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, ATTORNEY GENERAL OF CANADA, and Hera Evans for the Respondents, ATTORNEY GENERAL OF ONTARIO, SUPERINTENDENT OF TORONTO EAST DETENTION CENTRE

HEARD: August 30-31, September 7, 2016

Judgment

A.J. O’Marra J.

[1] The Applicant, Alvin John Brown, brought a habeas corpus application in which he sought to be released from detention pending deportation pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In addition, he sought a remedy under s. 24(1) of the Charter of Rights and Freedoms, 1982 on the grounds that his rights pursuant to ss. 7, 9, 10, and 12 of the Charter were violated by his unlawful detention.

[2] At the outset of the hearing, the parties consented to dismissal of the application as against the Attorney General of Ontario and Superintendent of Toronto East Detention Centre.

[3] During the habeas corpus hearing on September 7, 2016, Mr. Brown was deported (removed) to Jamaica, his country of birth, and as a result the habeas corpus application became moot. However, he continued his Charter claim based on his being in immigration detention pending removal for five years without charge as a denial of his s. 7 Charter right to fundamental justice, his right not to be arbitrarily detained, or subject to cruel and unusual treatment, contrary to ss. 9 and 12 of the Charter. He claims a remedy in damages pursuant to s. 24(1) of the Charter.

[4] The position of the Applicant is that his Charter rights were breached because the length of the immigration detention in a maximum security detention facility for five years was grossly disproportionate to the time required to carry out the removal order, during which he received inadequate treatment for his mental health issues.

Objections to Continuing the Application

[5] The Respondent, Attorney General of Canada, has a threefold objection to the court considering the Applicant’s Charter application for relief under s.24 (1).

[6] First, the Respondent contends that because Mr. Brown has been removed from Canada, and the issue of his detention, the focus of his habeas corpus application, has been resolved where relief is not available his application is now moot. As a general rule, moot cases cannot be determined on their merits. Consequently, there is no case to determine the application for s. 24(1) relief as the preconditions for the court to exercise its habeas jurisdiction no longer exists.

[7] Second, the Respondent argues that the specific Notice of Constitutional Question form (NCQ), as required by the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 109(1) had not been provided in this case, and therefore any relief sought for a Charter breach cannot be granted by the court.

[8] Third, the Respondent objects to a continuation of the matter on the basis that a court sitting as a criminal court on a habeas corpus application cannot award civil damages as sought by the Applicant.

Doctrine of Mootness

[9] On the issue of mootness, Sopinka J. stated for the unanimous court in Borowski v. Canada (AG), 1989 123 (SCC), [1989] 1 S.C.R. 342 at p. 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereafter.

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nevertheless elect to address a moot issue if the circumstances warrant.

[10] Insofar as the habeas corpus application is concerned, the removal of Mr. Brown to Jamaica resolved that dispute as between the parties. That matter is moot. However, that is not to say there ceased to be a “live controversy” in the sense that the necessary adversarial relationship continued to prevail based on the Charter application in which damages are sought as a remedy for alleged breaches of his Charter rights as a consequence of his immigration detention.

[11] In this instance, a second distinct claim was asserted in the Notice of Application in which the Applicant specifically asserted he was seeking a constitutional remedy based on a number of alleged breaches of his Charter rights.

Notice of Constitutional Question

[12] The Respondent argues that for the court to entertain a claim for Charter damages as sought by the Applicant, a Notice of Constitutional Question must have been filed as required by the Courts of Justice Act, s. 109(1) in a specific form and within the time limits specified in the Act:

(1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an act or of a rule of common law is in question.

2. A remedy is claimed under subs. 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable or the remedy shall not be granted as the case may be.

(2.1) The notice shall be in a form provided for by the rules of court or, in the case of a proceeding before a Board or Tribunal, in a substantially similar form.

[13] The Respondent relies on the decisions of the Supreme Court of Canada in Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241 and the Ontario Court of Appeal decision in Paluksa v. Cava (2002), 2002 41746 (ON CA), 59 O.R. (3rd) 469 for the proposition that a s. 24(1) remedy cannot be granted in the absence of the notice of constitutional question in compliance with the mandatory requirements of the Courts of Justice Act. Further, a lack of notice is presumptively prejudicial to the Respondent.

[14] However, the Applicant submits that in Eaton and in Guindon v. Canada (AG), 2015 SCC 41, [2015] 3 S.C.R. 3 there is recognition of at least two alternatives to notice under the CJA: either on consent of the Attorney General in the absence of notice or de facto notice equivalent to written notice.

[15] In this instance, the Applicant submits that its notice of application to the Respondent on July 13, 2016, more than 15 days before the hearing date of August 30, 2016 was de facto notice and in fact the contents exceeded the requirements of s. 109 of the CJA.

[16] In the Notice of Application in this matter the Applicant applied for (a) a writ of habeas corpus with certiorari in aid, pursuant to the Habeas Corpus Act and s. 7, 9, 10, and 12 of the Charter of Rights and Freedoms, 1982 on the ground that the applicant’s continued detention is unlawful;…a just and appropriate remedy under s. 24(1) of the Charter of Rights and Freedoms including release from detention and damages for his unlawful detention.

[17] Further, in the Relief Sought section of the application the Applicant specifically seeks the following declarations:

i) a declaration that the violation of his liberty and security of the person are contrary to the principles of fundamental justice and therefore contrary to s. 7 of the Charter;

ii) a declaration that his detention is arbitrary;

iii) a declaration that, on the facts of his case, continued detention amounts to cruel and unusual treatment;

iv) his release on the basis his continued detention is unlawful;

v) pursuant to s. 24(1) of the Charter the Applicant seeks release and damages in the amount of $1,500 per day for unlawful detention as a just and appropriate remedy; and

vi) his costs on the application on a solicitor/client basis.

[18] In this instance, I am satisfied that the applicant gave notice pursuant to s. 109(1) of the CJA that he sought a remedy under s. 24(1) of the Charter in relation to an act or omission of the Government of Canada.

Charter Remedy of Damages

[19] The Respondent further asserts that because the matter was initiated as a habeas corpus application, this court sitting as a criminal court does not have the power to order civil remedies such as damages or monetary compensation for breaches of the Charter.

[20] In this matter the applicant seeks damages for alleged breaches of his Charter rights as a remedy pursuant to s. 24(1). The award of damages is a civil remedy, which a court dealing with criminal matters should not grant.

[21] Counsel for the Respondent notes that the matter was framed as an “application under the Habeas Corpus Act, R.S.O. 1990, c. H. 1, s. 1.7 and Rule 43 of the Criminal Proceedings Rules”. Rule 43.01 of the Criminal Proceedings Rules states that the rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash subpoena, warrant, conviction, inquisition or other determination and applications for the discharge of a person in custody.

[22] In Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, the Supreme Court in considering the issue of courts of competent jurisdiction to grant s. 24(1) Charter remedies, Lamer J. noted at p. 885-886 that as desirable as it might be to have a system whereby a person could get from the judge he or she is before a “plenitude of remedies, this approach has to be defeated by the fundamental differences as between the civil and criminal process”.

[23] He went on to state the following:

To illustrate the problem briefly, it will be difficult to afford alleged violators, susceptible to pay damages or to be the object of some injunction, a fair hearing within the criminal justice process, whilst guaranteeing the accused all traditional safeguards. Furthermore, the criminal courts are not staffed and equipped to cope with such types of determinations. Our civil courts are, and I cannot find any compelling reason why they should not determine Charter issues for the purpose of granting remedies of a civil or administrative law nature.

[24] LaForest J. in a separate judgment stated at p. 953:

The absence of jurisdictional provisions and directions in the Charter confirms the view that the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. There is no need for special procedures and rules to give it full and adequate effect.

[25] Further, LaForest J. at p. 971, noted in reference to a court awarding damages for Charter violations the following:

I should perhaps say that I agree that civil remedies should await action in a civil court. Quite apart from a division of powers problem that would arise from attempting to award damages and similar remedies in a criminal court, the fact is that as a practical matter, these are best dealt with in accordance with pleading and practice appropriate to civil matters.

[26] In Reisher v. Ontario, [2002] O.J. No. 1793 (SCJ), Laforme J. in a habeas corpus application and claim for compensation as a remedy under s. 24(1) for Charter right violations observed:

It is clear from Mills and the case of Ontario v. 974649 Ontario Inc. [hereafter Dunedin Construction] that courts exercising criminal function are not to mix and match criminal and civil jurisdictions when resolving Charter issues. This approach, it is said: “…heeds the structural limits of the criminal trial process, by confining the court’s remedial powers to the criminal sphere.”

[27] He held that the criminal trial courts remedial jurisdiction does not extend to the power to order civil remedies like damages or compensation.

[28] Similarly, in R. v. Robertson, [2016] ONSC 2726 (SCJ), Quinlan J. on a habeas corpus application and claim for compensation for alleged Charter violations, followed Reisher stating:

The Superior Court sitting as a criminal court on a habeas corpus application does not have the power to order civil remedies such as damages or monetary compensation for breaches of the Charter…

[29] In response, the Applicant contends that the decision of Reisher, followed by Robertson have been overtaken by the Supreme Court of Canada decision in Doucet-Boudreau v. Nova Scotia (Ministry of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 19, wherein McLachlin C.J. in speaking of the principles of interpretation regarding s. 24 stated:

Section 24 must be interpreted in a way that achieves its purpose of upholding Charter rights by providing effective remedies for their breach. If the courts’ past decisions concerning s. 24(1) can be reduced to a single theme, it is that s. 24(1) must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations.

[30] Applicant’s counsel contends if the court finds Charter violations to have occurred to obtain an appropriate and just Charter remedy the Applicant would be required to commence another action thereby smothering him “in procedural delays and difficulties” contrary to the observation by Lamer J. in Mills that a remedy for a Charter violation must be easily available. In this instance, Mr. Brown has led his evidence concerning the alleged Charter violations in which the Respondent has responded. Mr. Brown has been removed from Canada and he is indigent. There is simply no realistic possibility of him bringing a separate action to vindicate his rights as submitted by Respondent’s counsel.

[31] In discussing bifurcated claims for Charter breaches, the Supreme Court of Canada in both Dunedin Construction and R. v. Conway, 2010 SCC 22 emphasized that the denial of easy access to remedies for Charter violations is a denial of an appropriate and just remedy. There are practical advantages as well as a constitutional basis for allowing persons to assert their Charter rights in the most accessible form available without the need for bifurcated, or separate proceedings to attain a just and appropriate remedy.

[32] The Respondent argued that it was disadvantaged in dealing with this matter as a habeas corpus application and that the mechanisms necessary for proper fact finding and quantum assessment were not available in the proceedings undertaken in this matter. I find that there is no merit to the argument insofar as fact finding process is concerned. Although the matter was commenced as an application pursuant to Rule 43 of the Rules of Criminal Procedure, the Respondent was given appropriate notice of the Applicant’s allegations of Charter violations and that it sought a remedy under s. 24(1) of the Charter by way of damages, specifying $1,500 per day during which his rights were violated.

[33] There were no limits imposed on the Respondent’s right or capacity to adduce evidence on the application or to test the evidence of the Applicant. Moreover, the application process under Rule 43 of the Rules of Criminal Procedure requiring specific contents of the notice of application, materials to be filed, production of affidavits, the right to conduct cross-examinations and preparation of factums by the Applicants and Respondent, is similar to the requirements of the Rules of Civil Procedure for applications. Both parties produced affidavits, supporting materials, adduced vive voce evidence and prepared factums addressing the habeas corpus application and the alleged Charter violations.

[34] Where Mr. Brown is already before a Superior Court, a court of competent jurisdiction in which the issue of alleged Charter violations has been engaged, I see no valid reason to require a bifurcation and unnecessary duplication of proceedings in this instance.

[35] Furthermore, if Charter violations were found to have occurred, and if the court was to decline to exercise its jurisdiction to consider relief under s. 24(1), Mr. Brown, would have no realistic remedy for the violation of his Charter rights.

Overview of the Circumstances Leading to Removal

[36] Mr. Alvin Brown, at the time of the hearing in this matter was 39 years old. He had lived in Canada since his arrival in June 1984 at the age of 8 from Jamaica. Subsequently, he became a permanent resident.

[37] Mr. Brown has a lengthy criminal record consisting of 18 offences involving crimes of violence and non-compliance with judicial orders: assault with a weapon; two counts of fail to attend court; two counts of fail to comply with recognizance; two counts of fail to comply with probation orders; trafficking in a controlled substance; three counts of robbery and two counts of uttering threats to cause death.

[38] After the Applicant was arrested for trafficking in a controlled substance under s. 27(1) (d) of the Immigration Act a report was issued which resulted in the finding that he was inadmissible to Canada on the grounds of serious criminality. In December 2005 his permanent residency was terminated and a removal order was issued pursuant to ss. 36(1) (a) and 45(d) of the IRPA.

[39] He appealed the removal order to the Immigration Appeal Division (IAD), which was dismissed on the basis that the nature and extent of his criminal record, the low possibility of rehabilitation and high risk of reoffending outweighed potential factors warranting humanitarian and compassionate relief.

[40] Mr. Brown was required to report to the CBSA on a monthly basis, however on October 15, 2009 he failed to report and a warrant was issued for his arrest. The warrant was executed March 30, 2010 at the Maplehurst Detention Centre where he was being held in custody on new charges.

[41] On May 7, 2010, Mr. Brown was convicted for robbery and uttering death threat offences.

[42] On January 27, 2011 he was released from custody having completed his sentence, then detained by the CBSA for removal.

[43] On March 16, 2011 he was released by the Immigration Division under the supervision of the Toronto Bail Program with conditions. However, on August 19, 2011 another warrant was issued for his arrest under the IRPA after the Toronto bail program withdrew its support on the basis that he had been found using cocaine, living in a shelter and being uncooperative with supervision in contravention of his release conditions.

[44] He was arrested September 8, 2011 and held in detention having been deemed a flight risk for failing to comply with his release conditions and his prior history of failing to comply with court orders. He was also found to be a danger to the public because of the multiple serious criminal convictions and risk of recidivism due to his drug and alcohol addictions.

[45] His detention has been reviewed every 30 days by the Immigration Division of the Immigration and Refugee Board (ID) for the 5 years he was in detention. On each occasion his detention was continued on the grounds that he posed a danger to the public and considered unlikely to appear for his removal if released.

[46] At his detention review August 14, 2014 he brought a challenge to the constitutionality of his detention and to the IRPA and IRPR provisions governing his detention. He asserted his detention to that point in time and the applicable provisions were contrary to ss. 7 and 12 of the Charter. The application was denied by the ID January 8, 2015 and his detention continued. He filed an application for leave and judicial review before the Federal Court. Leave was granted in July, 2015 and thereafter the matter not pursued.

Removal Process

[47] In order to effect a removal, the receiving country, in this case Jamaica, must issue a travel document. An application for the travel document is submitted through the country’s consulate. To obtain a travel document, the CBSA submits through the consulate the application signed by the person to be removed from Canada, a birth certificate, passport or other identity documents, a list of the serious convictions, contact numbers for potential telephone interviews with the person by the consulate officials and confirmation of identity. Once confirmation of person’s nationality has been made by the receiving country then the travel document is issued by that country.

[48] On February 15, 2012, the CBSA sent the requisite documentation, including the application, four pictures of Mr. Brown, a copy of his expired Jamaican passport used on his initial arrival in 1984, copy of the deportation order, a copy of the landing record from 1984 and list of convictions to the Consulate General of Jamaica in Toronto. In the covering document the Consulate General was advised that Mr. Brown stated he lost his passport and birth certificate when he was living in a shelter.

[49] It was clear in the application that Mr. Brown had no known relatives or contacts in Jamaica.

[50] According to Angela Beard, CBSA Supervisor, the CBSA knew that Mr. Brown did not have a birth certificate and in the circumstances it was then responsible for applying for such documentation with the help of the deportee.

[51] One of the difficulties encountered in obtaining a travel document in this case was the confirmation of Mr. Brown’s nationality, by way of a birth certificate. In the original application documentation requesting a travel document was a copy of the landing record for Mr. Brown dated June 26, 1984 when he was 8 years old in the section naming the person who would be willing to assist on his arrival in Canada was “Sidney Bolliver Brown, noted to be the Applicant’s adoptive father. There was information in the possession of CBSA and the Jamaican Consulate as early as February 2012 that Mr. Brown was adopted, as well as contact information for his family members.

[52] The next noted contact between the CBSA and the Jamaican consulate regarding the travel document application for Mr. Brown was June 27, 2012. The record indicated that the consulate advised the CBSA that the application had been lost and it could not be found. Accordingly, the application was resent by the CBSA in September, 2012, which included the same documentation, names, addresses and contact numbers of relatives in Canada, in addition to the address of a shelter home as a reception location in Jamaica available to Mr. Brown on his arrival in Jamaica.

[53] There were a number of contacts by the CBSA between September 2012 and July 2013 requesting updates from the Jamaican consulate officials as to the application for Mr. Brown. No responses were received.

[54] Coujoe Annamunthodo, CBSA Inland Enforcement Officer stated in his affidavit filed on the hearing, it was not until August 27, 2013 that the Jamaican Consulate informed the CBSA Mr. Brown’s application had been sent to Jamaica for processing and no specific timeframe for the issuance of the travel document could be provided.

[55] In October 2013, the Consulate indicated that they were still waiting for confirmation of Mr. Brown’s nationality from the Jamaican authorities before the travel document could be provided.

[56] Similarly, Aliecia Taylor, the Jamaican Consul wrote in response to an inquiry by Mr. Brown’s immigration consultant, dated February 12, 2014:

Please be advised that we are in receipt of a travel document request from the Canada Border Service Agency for Mr. Brown. However, before such a document is issued, we have to verify Mr. Brown’s nationality.

The request for the verification of Mr. Brown’s nationality has been sent to the authorities in Jamaica and we are awaiting a response.

As it relates to a timeline, I am unable to provide a specific time.

[57] On the same date at Mr. Brown’s ID hearing the member noted the following:

The Agency (CBSA) has followed up on a regular basis and it has even engaged in high level diplomatic talks with the Consulate just to resolve this issue with travel documents. So, at this time, the Minister can only wait patiently for the Consulate to be satisfied about your nationality and to issue the travel document. The Minister cannot compel the Consulate to circumvent its own set processes just to facilitate your exit from Canada. On January 16, 2014, the Minister did send an e-mail to the Consulate asking specifically about your case. And on the 17thth, the following day, a reply was received from the Consulate that they are still waiting for confirmation from Kingston and will notify the Agency as soon as the results are received.

[58] In subsequent reviews it is noted that confirmation of nationality was still pending from the Jamaican authorities. In the review of July 30, 2014 it is noted as well that there was no reason to doubt that nationality would be confirmed because a copy of Mr. Brown’s expired passport was available as a supporting document.

[59] Richard Ekwandja, CBSA Hearings Officer advised Damji Yashmin, CBSA Removal Unit Officer dealing with Mr. Brown’s case, the following:

On March 2, 2015, I submitted that the Consulate General of Jamaica advised CBSA that they interviewed Mr. Brown in a bid to obtain additional information without success. The Consulate further indicated that Mr. Brown was unable to provide them with needed additional information because he left Jamaica at age 7. I continued by saying the onus is on Mr. Brown and his family to provide that needed additional information which would likely pave the way for confirmation of his nation (sic) by Jamaican officials. I concluded by saying that his mother is the key person who can provide the additional information that the Consulate given that Mr. Brown was only 7 when he came to Canada. If the mother really wants a travel document to be issued to Mr. Brown she would contact or attend the Consulate and provide the additional information that the Consulate needs for the purpose of Confirmation of Mr. Brown’s nationality. Failure to doing that equals to lack of cooperation of the mother and other family members (brother, grandfather) in assisting Mr. Brown in his travel document application … The only information that CBSA has to date is that they are in the process of confirming Mr. Brown’s nationality and that’s the reason why they need additional information.

[60] In an e-mail dated March 3, 2015 Ms. Taylor, Consul advised Mr. Brown’s immigration consultant she had advised the CBSA that the Jamaican Deportation Unit remains unable to verify Mr. Brown’s nationality due to lack of information. She had interviewed Mr. Brown herself in a “bid to obtain additional information without success.”

[61] On August 10 2015 Ms. Taylor further advised that the Jamaica Registrar General’s Department had no record of Mr. Brown’s birth and his mother’s declaration of identity “has not sufficiently convinced the Immigration Authorities that he is Jamaican as she was unable to present a birth certificate.”

[62] It is unclear in the documentation and evidence presented on this application as to how it came about, but in October 2015 the CBSA made a request to the Jamaican Registrar General’s Department in Kingston, to locate Mr. Brown’s adoption papers in order to help establish his identity as a Jamaican national.

[63] Mr. Brown’s identity as a citizen of Jamaica was confirmed by the Jamaican Consulate November 20, 2015 thereby setting the stage for the issuance of a travel document for Mr. Brown’s removal to Jamaica.

[64] Mr. Brown had outstanding charges for unlawful assembly, participating in a riot, mischief and obstruction of a peace officer arising from an incident which occurred while he was in detention. The prosecution of outstanding charges would delay the removal process until it was completed. On December 1, 2015, the CBSA requested that the outstanding charges be stayed in order to prevent any further delay Mr. Brown’s removal. The Crown confirmed the charges would be stayed upon Mr. Brown’s removal.

[65] A removal date was set for January 21, 2016 and the CBSA requested through the Jamaican Consulate that the travel document be ready by January 18, 2016 to facilitate removal.

A Further Delay

[66] The issuance of the travel document was further delayed when the Jamaican Consulate advised the CBSA that there were concerns about Mr. Brown’s mental health issues and the appropriate arrangements needed to support him on arrival in Jamaica. The CBSA was advised that travel document would not be issued until such arrangements had been made.

[67] On January 25, 2016, the CBSA commenced a liaison effort with the Ministry of Health in Jamaica to that end. In February, 2016, Mr. Brown’s file was forwarded through the Jamaican Consulate to the Jamaican Ministry of Health for review and preparation of a treatment plan.

[68] On February 17, 2016, Mr. Brown was transferred from the Central North Detention Centre in Lindsay, Ontario to the Toronto East Detention Centre pending receipt of the travel document and removal.

[69] In May 2016 a CBSA liaison officer met with Jamaican authorities in Kingston, including a mental health facility official during which it was confirmed that Mr. Brown’s mental health condition was such that it could be dealt with through an outpatient clinic. It was confirmed on June 23, 2016 by the Bellevue Hospital in Jamaica that treatment could be made available through a local outpatient clinic. Further records were requested by the Jamaican Ministry of Health as to Mr. Brown’s current medical condition, which was addressed by the officials at the Toronto East Detention Centre.

[70] On September 6, Jamaican authorities issued the requisite travel document and on September 7, 2016 Mr. Brown was removed to Jamaica.

CBSA Claim Applicant was Uncooperative

[71] The Respondent asserts that much of the delay in obtaining a travel document was as a result of Mr. Brown being uncooperative by not providing information that would assist in effecting his removal.

[72] CBSA officer Coujoe Annamunthodo in his affidavit by review of CBSA documentation claimed that Mr. Brown hindered the removal process by giving inconsistent information about his birth certificate at the outset, stating he never had one or he lost it with his expired passport in 1999. It was also suggested that Mr. Brown would not give information about family members in Jamaica. Also, during the Immigration Division reviews Mr. Brown would become hostile and expressed frustration with the delay of his removal, sometimes removing himself from the hearing.

[73] Regardless of whether Mr. Brown ever had a birth certificate or had lost it, the outcome was the same – he did not have a birth certificate. It was noted in the original travel document application which he signed he had no known family in Jamaica. All of his family members are in Canada except for his father, referred to as “Phillip”, no last name provided, as being in Kingston Jamaica, and with whom he had no contact since 1983.

[74] Mr. Annamunthodo acknowledged that it could not have constituted a failure to be cooperative if Mr. Brown was unable to provide information regarding family in Jamaica if he did not have that information. Any frustration expressed during review hearings was quite understandable given the protracted nature of the removal process.

[75] I find that none of the suggested uncooperative behaviour on the part of Mr. Brown contributed to the delay.

[76] The CBSA had constructive knowledge that Mr. Brown had been adopted from the time of the original application for travel documents given the inclusion of the 1984 landing document however, so too did the Jamaican authorities on receipt of the application materials. I accept Mr. Brown’s evidence that he did not know that his grandparents had adopted him until it was revealed to him at the October, 2015 ID review hearing. Notwithstanding, it was information that would have been known to his mother who had been asked to provide assistance in the process of confirming her son’s nationality.

[77] Counsel for the Applicant submits that had the CBSA taken the steps to obtain Mr. Brown’s adoption records in February or March 2012 when the initial application process was commenced, a confirmation of nationality could have been received at the latest the spring of 2012. When the information had been made known to the Jamaican authorities in October 2015, Jamaica confirmed his nationality November, 2015 approximately one month later.

[78] The suggestion is speculative at best. I bear in mind that it took more than three years for the Jamaican authorities to acknowledge that they could not confirm his nationality based on the information submitted.

Failure to Adequately Treat

[79] The Applicant contends that the delay of his removal exacerbated his mental health condition and caused him extreme distress and depression such that it was cruel and unusual treatment. He claims that his treatment was inadequate and that the CBSA’s failure to alert the Jamaican consulate to his mental health issues further delayed his removal, in this instance for at least another eight to nine more months.

[80] The Applicant adduced the evidence of Dr. Gerald Devins, clinical psychologist who interviewed Mr. Brown on October 22, 2015 at the Central North Correctional Centre in Penetanguishene, Ontario. In his assessment, Mr. Brown satisfied the diagnostic criteria for “schizoaffective disorder, depressive type, symptom severity 12: reflecting a moderate and clinically significant degree of symptom expression across multiple domains of psychological functioning.”

[81] In terms of the impact of his prolonged detention, Dr. Devins concluded as follows:

It appears Mr. Brown does not have access to support services such as ongoing counselling and addictions rehabilitation programs at Ontario Central North Correctional Centre. It is not clear whether his adherence to pharmacotherapy is monitored and ensured. This is unfortunate, since it is noted, he clearly is in need. Existing evidence indicates that the prognosis for major mental illnesses, such as schizophrenia is poor when people are detained in prison as compared to when they who [sic] can access needed treatments and resources in the community. This is especially true when the clinical picture is complicated by addictions. Mr. Brown requires intensive, comprehensive care that includes expert pharmacotherapy, ongoing support of therapy and treatment for his addictions, such as can be accessed in the community.

[82] In addition, the Applicant tendered the evidence of Dr. Janet Cleveland, psychologist, who had limited access to Mr. Brown’s institutional medical records and did not personally conduct an assessment of him. She relied largely on observations made by Dr. Devins in his report as the basis for any comment as it related to Mr. Brown’s condition.

[83] In substance, Dr. Cleveland’s general opinion, based on earlier work as to the effects of detention on asylum seekers, refugees and other precarious status migrants, is that a detainee’s mental health is significantly more likely to deteriorate leading to depression over time when there is a perception of indeterminacy of the incarceration and there is a lack of “agency” experienced by the detainee in general.

[84] In her review of the limited records available to her concerning Mr. Brown’s detention at the Toronto East Detention Centre, her view was the treatment he received was not adequate, which has left Mr. Brown in a state of chronic psychological pain.

[85] Mr. Vincent Lee, the health care manager at the Toronto East Detention Centre gave evidence as to Mr. Brown’s care at that facility. Contrary to Mr. Brown’s assertion in his affidavit of April 15, 2016 that he did not have access to a psychiatrist, Mr. Lee indicated that on Mr. Brown’s admission to the TEDC in January 2016, he was assessed initially by a physician, Dr. Zoudis, who prescribed psychiatric medication he had been in receipt of before. On May 19, 2016 he was seen by another physician, Dr. Kerr who referred him to the institution’s psychiatrist, Dr. Johnston.

[86] Dr. Johnston saw him on May 25, 2016 and following his initial assessment he ordered the complete copy of Mr. Brown’s health care file which was received on June 3, 2016. He was re-assessed by Dr. Johnston again on August 10, 2016. In his notes, Dr. Johnston recorded the following:

I asked him how cold it is on his range. He stated, “Can’t remember. I just stay on my bed and read”. Eurythmic in interview. He would prefer Risperidone to Seroquel. I reviewed the old chart but cannot support diagnosis of schizophrenia.

[87] Based on Mr. Brown’s stated preference for a different anti-psychotic medication, Dr. Johnston ordered his Seroquel prescription be discontinued and replaced by the prescription of Risperidone. No further assessment or scheduled psychiatric appointment was made after his attendance on Dr. Johnston, which according to Mr. Lee indicated that in the psychiatrist’s clinical judgment Mr. Brown did not require another psychiatric appointment.

[88] Mr. Lee in summarizing the health care records noted Mr. Brown had been assessed by Dr. Zoudis on two occasions, Dr. Kerr on six occasions and by Dr. Johnston on two occasions. Mr. Brown received his prescribed psychiatric medication without interruption throughout the period of time he was at the Detention Centre. Further, he was referred to a social worker.

[89] Throughout the period of time Mr. Brown was at the Toronto East Detention Centre Mr. Brown continued to receive his prescribed medication. He had access to the health clinic by submitting a request or by making a verbal request to a correctional officer. He had access to social workers, the chaplaincy department and programs such as addiction counselling.

[90] Mr. Brown testified that he availed himself of programs for addiction, literary and anger management during his detention. Although there were some interruptions due to institution lock-downs.

[91] To the extent there was a difference of opinion or query as to the diagnosis of his condition by the mental health professionals, it is apparent did not interfere with his receipt of prescribed medication or add to the delay of his removal.

[92] There is no evidence that Mr. Brown’s medical care prior to his detention at the Toronto East Detention Centre was inadequate.

[93] While Mr. Brown was under deportation detention his care was administered by The Ministry of Community Safety and Correctional Services for the Province of Ontario. I am satisfied that the care he received while in detention for which there is evidence was adequate to meet his psychiatric needs notwithstanding the assertion to the contrary by the Applicant. Even though Mr. Brown complained of headaches as a consequence of the medication he was receiving, I note that during the course of the hearing, Mr. Brown testified and participated without difficulty.

Alleged Charter Breaches

[94] Counsel for Mr. Brown submitted that his detention was unlawful because the ID at each review continued his detention on the basis of his past convictions alone. He was continually detained because of the concern that he posed a high risk of recidivism due to his past convictions and considered a flight risk because of his history of non-compliance convictions.

[95] I am not satisfied that his detention was unlawful. He was subject to a continuing process of review every thirty days in a quasi-judicial process that has been recognized as being procedurally fair - the subject having a right to be represented by counsel, to call evidence, cross-examine witnesses and to receive disclosure in advance.

[96] It was noted in Mission Institution v. Khela, [2014] 1 S.C.R. 50, the determinations that a person is a danger to the public or a flight risk are fact driven and involve the weighing of various factors as outlined by statute. Accordingly, members are required to assess on the basis of the evidence presented during the hearing by the parties concerned as to whether there are grounds for continuing detention. Further, immigration detention reviews are subject to judicial oversight by the Federal Court, which can provide a remedy where the ID commits an error in conducting detention reviews.

[97] The regulatory regime set out in the Immigration and Refugee Protection Regulations, SOR/2002 – 227 sections 244 t- 248 allow for detention where a person is considered a danger to the public having been convicted of an offence in Canada involving violence or weapons or for trafficking under the Controlled Drugs and Substances Act. Factors as to whether a person can be considered a flight risk if there is a history of voluntary compliance with any previous departure order, required appearance at any previous immigration or criminal proceeding, and any conditions of release. In this instance there were multiple factors to warrant detention.

[98] In Canada (MCI) v. Thanabalasingham, 2004 FCA 4 at paras. 9-13, the Federal Court, required to review such hearings, observed while the members of the ID can follow prior hearing determinations, where members are not satisfied that grounds for detention continued to exist or that the circumstances otherwise warrant the grant of release, they can depart from previous review decisions to continue detention so long as they provide their reasons for doing so.

[99] Here, there was a statutory basis for Mr. Brown’s detention pursuant to a process that afforded due process, and an appellate review. The immigration detention review regime provides the protection that fundamental justice requires in the circumstances. There is a mechanism for periodic ongoing reviews of his detention. In Charkaoui v. Canada (MCI), 2007 SCC 9, 2007 1 S.C.R. 350 at pp. 374 and 408 to 411 and Sahin v. Canada (MCI), [1995] 1 FCR 214 it has been held that the IRPA detention review scheme meets the standards for a constitutionally compliant detention review scheme.

[100] The Applicant’s s. 7 right to due process was not violated in this instance. His detention was lawful.

[101] The Applicant contends that the detention was contrary to s. 9 of the Charter.

[102] Even a lawful detention can become arbitrary where detention becomes “unhinged” from its removal purpose and thus contravene s. 9. The Court of Appeal held in Chaudhary v. Canada, (Public Safety and Emergency Preparedness), 2015 ONCA 700 at para. 81:

…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 s. 7 and 9 Charter rights and no longer be legal).

[103] In this instance, the Applicant’s contention that there is a s. 9 violation fails in that Mr. Brown met the criteria for detention in the reviews and his detention was for the valid purpose of removal which continued to exist until his actual removal in September 2016. He could not have been removed from Canada until Jamaica issued the travel document, a matter wholly within its control and timing.

[104] Lastly, the Applicant contends that his lengthy detention constituted a cruel and unusual treatment contrary to s. 12 of the Charter. Counsel submits it was cruel and unusual treatment to detain Mr. Brown who has serious mental health issues for nearly five years in order to carry out a removal that should have taken, perhaps no more than a year to 18 months.

[105] In Charkaoui, supra, at para. 123, the Court held that while “the IRPA procedure itself is not unconstitutional…this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore fringes the Charter in a manner that is remediable under s. 24(1) of the Charter”. It only becomes cruel and unusual when it infringes accepted norms of treatment, denies the means required by fundamental justice to challenge the detention, or exceeds the period necessary to effect deportation.

[106] Counsel for the Applicant submitted that the Supreme Court in considering terms of imprisonment established in R. v. Lloyd, 2016 SCC 13 at paras. 23-24 that a term of imprisonment “will infringe s. 12 if it is grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender”. Gross disproportionality is made out where the length of the imprisonment is “so excessive as to outrage standards of decency and (is) abhorrent or intolerant to society”.

[107] Accepting that the test applies in this context, I note that in R. v. Nur, 2015 SCC 15 at para. 39, the Supreme Court stated it is a high bar to establish what constitutes cruel and unusual behaviour. In the circumstance of imprisonment, the test of gross proportionality “is aimed at punishments that are more than merely excessive”.

[108] While it is clear Mr. Brown suffered mental health issues, periods of depression, anguish and frustration leading to psychological pain due to the delay in his removal, as discussed above, I am not satisfied that he received inadequate treatment, such that it amounted to cruel and unusual treatment while in detention, the length of which was reasonable in the circumstances.

[109] Although the period of detention was lengthy, the proportionality of the length of detention should be assessed considering the contributing factors leading to delay, the circumstances, and the underlying purpose for the detention – deportation. Mr. Brown was detained by a lawful reviewable process on grounds set out in the IRPA and IRPR. Removal could occur only after the receiving country was satisfied that the deportee was a national of that country.

[110] In this instance, most of the delay was occasioned by the Jamaican authorities. Not only had the Consulate lost the original application, but it took almost a year after the replacement application was submitted for the Jamaican Consulate to advise the CBSA that Mr. Brown’s application had been sent to Jamaica for processing and could not provide a specific timeframe for the issuance of the Travel Document. A similar message was conveyed to Mr. Brown’s immigration consultant in February 2014. There were more than two years during which the Jamaican Consulate did not respond to update requests from the CBSA. It was only in August 2015 that the Jamaican Consulate advised that the Jamaica Registrar General’s Department had no record of Mr. Brown’s birth and his mother’s declaration of identity could not convince the Jamaican Immigration Authorities that he was Jamaican.

[111] Notwithstanding constructive knowledge by both the CBSA and the Jamaican authorities that Mr. Brown was adopted, in my view it did not add to the external cause of the delay by the Jamaican authorities. I am satisfied, on the record and evidence before me that there was no lack of diligence on the part of the CBSA in trying to effect Mr. Brown’s removal. Although the delay appears excessive, in the circumstances of this case it was not grossly disproportionate considering the source of the delay, the Jamaican authorities over which the Respondents had no control.

[112] I am not satisfied that Mr. Brown’s treatment to effect removal was cruel and unusual contrary to s. 12 of the Charter.

[113] In the result, the Applicant’s s. 24 (1) Charter claim for damages is dismissed.

A.J. O’Marra J.

Released: December 9, 2016

CITATION: Alvin Brown v. Ministry of Public Safety, 2016 ONSC 7760

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALVIN JOHN BROWN Applicant

– and –

THE MINISTRY OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, SUPERINTENDENT OF TORONTO EAST DETENTION CENTRE Respondents

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: December 9, 2016