Court File and Parties

Citation: Scotland v. Canada (Attorney General), 2017 ONSC 4850 Court File No.: CR-17-90000167-00MO Date: 2017-08-14 Ontario Superior Court of Justice

Between: Ricardo Scotland, Applicant – and – Attorney General of Canada, Respondent

Counsel: Subodh Bharati and David Cote, for the Applicant Bernard Assan and Chris Ezrin, for the Respondent

Heard: August 7, 2017

Before: E.M. Morgan, J.

Reasons for Judgment

[1] Ricardo Scotland is a citizen of Barbados. In 2010, he made an application for protection as a Convention refugee in Canada. He is still waiting for a final determination of that claim.

[2] In the meantime, Mr. Scotland is in a maximum security detention facility near Niagara Falls, Ontario. He has been in prison for a total of 17 months since April 2013, and at this point has been held in custody without release since October 2016. As with Kafka’s protagonist, Joseph K, no one knows why he is detained: Franz Kafka, The Trial (B. Mitchell, trans., New York: Schocken Books, 1998), p. 4.

[3] Although his detention has been reviewed on a monthly basis by the Immigration Division (“ID”) of the Immigration and Refugee Board of Canada (“IRB”) pursuant to the Immigration and Refugee Protection Act, SC 2001, c. 27 (“IRPA”) and Regulations thereunder, and despite the fact that counsel for the Attorney General of Canada puts forward no substantive reason for his continued detention, Mr. Scotland cannot seem to get himself out of custody. He appears enmeshed in an endless circuit of mistakes, unproven accusations, and technicalities.

[4] Mr. Scotland applies to this Court for a writ of habeas corpus with certiorari in aid to be released from immigration detention.

I. The refugee claim

[5] After coming and going from Canada a number of times beginning in 2007, Mr. Scotland applied for refugee status in December 2010. As is standard for refugee claimants, he was issued a conditional removal Order under section 49(2) of the IRPA. He was not detained under this Order, but was obliged to keep the Canada Border Service Agency (“CSBA”), the federal agency that enforces immigration law, apprised of his current address.

[6] In May 2012, Mr. Scotland’s application for refugee status was refused by the IRB. On judicial review in January 2013, the Federal Court found the IRB decision to be unreasonable and set it aside. The decision was then sent back to the IRB for reconsideration. That proceeding is now scheduled to be heard by the Refugee Protection Division of the IRB. A hearing date has been adjourned a number of times, and is currently scheduled for next month. It is not possible to know at this point whether that hearing will proceed as scheduled or will adjourn again, and if it does proceed whether the decision will bring finality to the refugee application or will spawn further judicial review and other proceedings.

II. Detention and breaches

[7] Since making his refugee claim, Mr. Scotland has been detained and found to have breached the terms of his release four times. The cumulative effect of these breaches is what has made it impossible for him to convince the ID to let him out of detention. Indeed, the effect of these breaches is so overwhelming to his case that the ID has refused to release him even at the most recent detention review hearing, where counsel for the Attorney General supported his release and, together with Mr. Scotland’s counsel, made a joint submission for his release on specific terms.

a) Breach #1 – failure to update address

[8] In April 2013, there was a police raid on the house where Mr. Scotland was residing. As a resident of the premises, Mr. Scotland was charged with possession of narcotics, a firearm, and stolen property over $5,000, all of which were found in the house. The charges were ultimately stayed by the Crown and Mr. Scotland was not convicted of any offense.

[9] At Mr. Scotland’s first detention hearing before the ID after his arrest, the CBSA took the position that he had breached his immigration condition by failing to notify the CBSA and the IRB of his change of address. The “change” that they were referring to was his pre-trial custody on the criminal charges for which he ultimately was not convicted. The CBSA maintained that failure to notify them of a change of address put Mr. Scotland in the category of a flight risk, as if his incarceration on criminal charges was a voluntary act that signified an intention on his part to evade the CBSA and his immigration law responsibilities.

[10] Interestingly, even this imaginative interpretation of Mr. Scotland’s actions by CBSA turned out to be based on a faulty factual premise. While in custody, Mr. Scotland did, in fact, call the 1-888 number that he had for the CBSA and advise them of his arrest. He may not have identified his detention on criminal charges as a “change of address” – after all, what rational person would conceive of police custody prior to receiving bail as a change of address? – but he did let them know his circumstances. CBSA subsequently acknowledged that Mr. Scotland so advised them.

[11] In any case, the ID accepted the CBSA’s interpretation of Mr. Scotland’s actions and concluded that he had breached the terms of his immigration condition. Indeed, it appears that the ID deferred to the CBSA’s determination of whether a breach of conditions had occurred, and retained for itself only the decision as to what remedy applied to the breach. Counsel for Mr. Scotland contends, and from the transcripts of Mr. Scotland’s detention review hearings he seems to be accurate in this contention, that this is a pattern in ID adjudications; while the ID independently assesses the severity and consequences flowing from any given breach, it uncritically accepts the CBSA’s determination of whether a breach has occurred without considering the position of Mr. Scotland.

[12] On June 13, 2013, Mr. Scotland was granted bail with respect to the criminal charges. The terms of his release included house arrest at the home of his surety, Patricia Baker, and a prohibition on any visits at Ms. Baker’s home from certain listed individuals.

[13] Despite receiving bail in the criminal process, the ID continued Mr. Scotland’s detention in immigration holding on the grounds of his failure to report the change of address. He thus remained in custody another month until on July 4, 2013, when Ms. Baker posted a $2,000 bond to secure his release. As a term of his release from immigration detention, Mr. Scotland was required to comply with his criminal bail conditions.

b) Breach #2 – being in the presence of a prohibited person

[14] The following year, on September 4, 2014, Mr. Scotland obtained a variation of his criminal bail conditions lifting house arrest and allowing him to leave Ms. Baker’s residence in order to attend work. As part of this arrangement, he was to report to the police twice a week.

[15] Despite his consistent reporting, the police were apparently unaware of the variance in his bail conditions. On March 27, 2015, Mr. Scotland was arrested and charged with failure to comply with one of the terms of his criminal bail conditions – that he was in the presence of an individual listed as prohibited for house visitations. In fact, under the new terms of his release Mr. Scotland was not required to remain at Ms. Baker’s home or to restrict the persons who could come visit him.

[16] The Crown acknowledged the police error and eventually, on November 27, 2015, withdrew the charge of breach of bail. Despite this acknowledgement of error by the Crown and the dropping of the charge, the CBSA continued to characterize this as a breach of Mr. Scotland’s immigration release conditions.

[17] The CBSA appears to have taken the view that the accusation that he had breached his criminal bail provisions constituted proof that he had breached his criminal bail provisions, and since his immigration release required him to comply with his criminal bail provisions he was ipso facto in breach of the terms of his release from immigration detention. Again, the ID accepted the CBSA’s position that Mr. Scotland was in breach without making an independent determination to that effect. Mr. Scotland was therefore determined to be in breach of the terms of his release based not on anything he did, but on an acknowledged police error.

[18] The adjudicator did, however, determine that this breach (or, perhaps one could say, this non-breach) required remedial action. Accordingly, the ID member kept Mr. Scotland in immigration detention until his release conditions could be made more severe. On May 6, 2015, Ms. Baker and a new bondsperson, Melina Ivanova, each posted bonds in the amount of $2,500. In addition, the ID increased Mr. Scotland’s reporting requirement by adding another two weekly reporting sessions in addition to the two which he already had to comply with under the terms of his criminal bail release.

[19] Mr. Scotland’s counsel makes the point that the CBSA and the ID continued through the remedial hearings to maintain that the incident constituted a breach. Apparently, they are of the view that once the CBSA, acting as law enforcement agency, labels an act a breach of release conditions, there is nothing a detainee can do to change that designation. Likewise, the CBSA and ID continued to refer to Mr. Scotland’s earlier arrest as a change of address, and continued to assert that Mr. Scotland had failed to inform CBSA of this change notwithstanding that they eventually confirmed that he had indeed called their 1-888 number for that very purpose. Counsel for Mr. Scotland submits that the cumulative effect of CBSA’s alleged but erroneous breaches has influenced the ID’s decisions to increase the onerousness of his detention and the terms of his release.

c) Breach #3 – Failure to report

[20] Every week for more than a year, Mr. Scotland reported to the police 4 times a week. The pattern was broken, however, on August 7, 2015, when he failed to attend at the police station as he was supposed to do. He was charged with breaching the conditions of his criminal bail for his non-appearance on that one and only occasion.

[21] Mr. Scotland appeared in the Ontario Court of Justice on the charge of breach of bail on October 9, 2015. He explained to the court that the week of August 7th was the week of the mid-summer civic holiday, and the short, 4-day week threw him off of his schedule. He had been taking his young daughter to cheerleading practice every day, and on this particular week he confused Friday for Thursday and forgot to take himself to the police station. Nadel J. accepted Mr. Scotland’s version of events, and found him not guilty of the charge.

[22] Most significantly, Justice Nadel indicated in his judgment that Mr. Scotland’s conduct in missing the single reporting day was inadvertent:

Here is my concern, clearly this was not contemptuous. The only reasonable inference is he forgot. He reported for a year, twice a week for a year and he had a child here and he got caught up, it seems to me. I do not reject his evidence. He forgot because he had his young eight year old who he had not seen very much and he was happily being dad.

I do not see any basis to convict him. So, that is my decision, found not guilty.

[23] Remarkably, the CBSA took the position that this unintentional action, combined with past “breaches” (i.e. the change of address and the police error) which the court has seen fit “to forgive”, signals a risk that Mr. Scotland might fail to attend for his removal from Canada if that were to come to pass, and that he therefore must be further detained. The CBSA hearing officer stated at the March 4, 2016 detention review:

Counsel [for Mr. Scotland] has argued in the past that the court saw to forgive Mr. Scotland, yet this breach is – yet this is a beach no matter how you look at it. He was supposed to show up. He just didn’t. The courts have different matters to look at. What we are looking at for our purpose here today – is Mr. Scotland likely to appear? He has proven that he is capable and willing to not appear. The function of the courts is different than what we are here today to decide.

[24] In response, the ID member hearing the matter seemed more willing than the CBSA officer to acknowledge the unintentional nature of Mr. Scotland’s failure to report on one day in August 2015. Nevertheless, she accepted that the missed reporting day was indeed a “breach”, and confined her analysis to determining the consequences that flow from that supposed breach.

[25] Further, the member equivocated on the character of Mr. Scotland’s actions when she put this incident together with his history of supposed breaches. Again, as counsel for Mr. Scotland points out, the cumulative effect of past erroneous assertions by the CBSA and ID undermined any inclination the adjudicator may have had to release Mr. Scotland from custody. As the ID member put it at the March 4, 2016 detention review:

But I’m looking at, you know, the circumstances of that breach. I’m not a hundred percent convince that it was a deliberate failure to appear for that reporting. You know, your explanation that, you know, it was a holiday and you got confused is certainly an explanation. I, we all, forget things, of course, but here reporting was a very important part of your life at that time, two days a week. It’s hard to forget to report. I’m thinking of your history here…

Now, I have to consider that the standard here, which is the balance of probabilities. Is it more probably than not, given your history and your circumstances, that you would report? Certainly because of the breaches, your own word is not sufficient… So, certainly releasing you on your own recognizance is not even a viable option today.

[26] In the result, the adjudicator somehow managed to conclude that an accidental failure to appear signals that Mr. Scotland is a flight risk. She came to this conclusion by taking account of his “history”, which, as we know, is a history of errors on the part of the immigration authorities and police, and thus no reflection on Mr. Scotland. The ID member therefore continued Mr. Scotland’s detention for what was, in effect, an absolute liability offense – i.e. the inadvertent failure to report one day within a stream of year-long reports.

d) Breach #4 – Curfew violation

[27] On March 14, 2016, Mr. Scotland’s bail conditions were liberalized, giving him increased freedom during the day and subjecting him to a nighttime curfew. At the following immigration detention review, on March 23, 2016, he was released on terms that mirrored the criminal bail conditions. Subsequent to this, his criminal bail conditions were varied once again, and the curfew was cancelled.

[28] Following the cancellation of his curfew, Mr. Scotland attended at the CBSA office to inquire as to whether the curfew would likewise be cancelled under the terms of the immigration release. After an exchange with a CBSA officer, he was apparently left with the impression that the curfew would be lifted for all purposes. As a sign of his bona fide belief that he was in compliance with all conditions of release on both the criminal and the immigration side, he thereafter continued to report to the CBSA as required.

[29] Nevertheless, on October 23, 2016, Mr. Scotland was arrested by the CBSA and was charged with being outside his residence between the hours of 10:00 p.m. and 6:00 a.m. Again, the ID member deferred to the CBSA’s assessment that the incident amounted to a breach – despite the fact that the immigration release was fashioned to mimic the criminal bail terms, and the criminal bail terms had been varied to eliminate the nighttime curfew. Mr. Scotland was never charged on the criminal side with breach of bail flowing from this incident, as he had not breached any currently valid term of his release.

[30] Despite his innocence on the criminal side of things, the ID member never turned her mind to the circumstances of this alleged breach of his immigration release. Similarly, she never adverted to Mr. Scotland’s understanding of the situation, but rather focused on his history of supposed breaches and simply added this one to the pile. In the January 17, 2017 detention review, the ID member explained:

Members in the past have decided more on the side of you crossing that line sir, I look at the list that I just provided and I find that Canada Border Services Agency is being very technical although it is within their right to find a breach if they find it to be a breach.

They can find that when someone does not show missing only one bond reporting date they could find that to be a breach as it is clear if someone does not show up they have beached.

[31] Once again, the cumulative effect of a series of faux breaches resulted in a finding that what was at most an unintentional breach, and was arguably no breach at all, amounted to the type of transgression that made even more stringent bail conditions necessary. The ID member then rejected Mr. Scotland’s proposed bondsperson, indicating, as usual, that, “I do not believe that she would be an adequate person to supervise M. Scotland given his history” [emphasis added].

[32] To make a long story short, Mr. Scotland may have been exonerated for each and every one of the allegations against him, but paradoxically, the more the immigration authorities make and then act on errors in his case, the more difficult it gets for him to prove to their satisfaction that his record is the product of a series of errors. “That’s some catch, that Catch 22”: Joseph Heller, Catch 22 (New York: The Modern Library, 1961), p. 46.

III. The joint submission

[33] On May 19, 2017, yet another detention review was held before the ID in Mr. Scotland’s case. On that date, the CBSA Hearing Officer and Mr. Scotland’s counsel presented a joint submission calling for Mr. Scotland’s release. The terms of that jointly proposed release contained some rather stringent conditions such as a nightly curfew, weekly reporting to CBSA, work and study with permission only, and a cash bond presented by a new surety.

[34] Despite the fact that the parties had mutually agreed on a joint proposal, the release was rejected by the ID member who ordered Mr. Scotland’s continued detention.

[35] The ID member’s reasoning in the May 19, 2017 decision is, with respect, difficult to follow. In the first place, she made lengthy reference to an incident which had taken place in June 2015 in which Mr. Scotland was seen at a car dealership supposedly without his surety being present, at a time when the terms of his release prohibited this. It was also alleged that he met with an acquaintance of his at a time when that person was on the prohibited list. At a subsequent hearing, a security video of the car dealership was produced and played for the ID which showed that, in fact, the surety was present with Mr. Scotland all along. It was also established that he was not prohibited at that time from meeting with individuals that had previously been on his prohibited list. Accordingly, the CBSA stopped pursuing the allegation related to the car dealership visit, and no breach of Mr. Scotland’s term of release was ever found.

[36] Despite the fact that the car dealership incident was by May 2017 water under the bridge, and was in any case not a breach of anything, the ID member appears to have used it against Mr. Scotland. In her stated reasons, she posed it as a ground for rejecting the joint proposal that was before her. She pronounced in her May 19, 2017 decision:

In my view, the fact that you put yourself in the position to have concerns about with whom you were in contact and whether you were truly in the presence of Ms. Baker shows an issue or a concern with your lack of judgment…

Now, I’m not suggesting that this condition was in place at the time of the two evidenced contacts with Mr. Harrison, but my concern is, Mr. Scotland, with your ongoing lack of judgment in your dealings with Immigration, with complying with orders of the court, with complying with orders of this Division.

[37] Counsel for Mr. Scotland submits that the ID member thereby “put out an impossible test for [Mr. Scotland] to answer, namely that he concern himself with the individuals that he contacts, even if he is not prohibited from contacting them.” Moreover, the ID member’s reasoning does not indicate how Mr. Scotland’s supposed lack of judgment in this previous event – and, indeed, in all of the other supposed breaches that she reviews and holds against him – impacts on whether he is likely or not to appear for his refugee determination hearing. She simply states that, “when I look at [the history of breaches] in their entirety, it demonstrates to me a pattern of you not doing what is required of you regardless of the financial consequences to your friends and to the consequences of you being retaken into custody and that is a concern to me.”

[38] The ID member’s rejection of the joint proposal and her continuation of Mr. Scotland’s detention has been taken to the Federal Court for review. Interestingly, since the CBSA supported Mr. Scotland’s release, albeit on stringent conditions, the government is in a position where it must continue to support the release. In the factum filed by the Attorney General in the Federal Court proceedings, counsel for the A.G. makes it clear that the government does not consider Mr. Scotland to be either a danger to the public or a flight risk. Essentially, the A.G. concedes that there is no substantive reason to continue to detain Mr. Scotland.

[39] At the hearing of the present application, I asked counsel for the Attorney General whether they still maintain this position. After all, the Federal Court factum was filed merely weeks ago. Counsel confirmed for me that, yes, the Attorney General remains of the view that Mr. Scotland poses no risk to the public and is not likely to flee or to fail to attend for his refugee hearing or his removal.

[40] When I asked counsel why, then, is the Attorney General opposing the present application, counsel for the A.G. had no substantive response. That is, he repeated for me the litany of technical breaches on which the CBSA and ID members have focused – virtually all of which, as has been seen, are not even technical breaches but were in fact mistaken allegations made against Mr. Scotland.

[41] By the end of the hearing, I was forced to conclude that not only do the decisions of the ID leave it unclear why Mr. Scotland continues to be detained, but the governmental party seeking his continued detention here likewise cannot articulate a rationale for this continued detention. In fact, it takes no great stretch of logic to see that since the Attorney General is of the view that Mr. Scotland is not now a danger to the public or a flight risk, he never was. He has been in maximum security detention since his incarceration 10 months ago, and so has done nothing to change his situation for the better during this time; thus, if he is not a danger or a flight risk today, he was not a danger or a flight risk when he was imprisoned last October.

[42] Although the government cannot provide a clear rationale for Mr. Scotland’s initial or continued detention, the reason for this lack of clarity is itself clear to me: there is no rationale. Mr. Scotland is being held in prison for no real reason at all.

IV. Habeas corpus

[43] It is well established that this Court has jurisdiction to hear an application for habeas corpus – a remedy that has been called “the most celebrated writ in the English law”: 3 W. Blackstone, Commentaries 129(4) (1768).

[44] Section 10 of the Canadian Charter of Rights and Freedoms provides that, “Everyone has the right on arrest or detention... (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”. The Supreme Court of Canada has stated that, “As a matter of principle, a provincial superior court should exercise its [habeas corpus] jurisdiction when it is requested to do so…[and that] [o]nly in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its habeas corpus jurisdiction”: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para 44.

[45] Counsel for the Attorney General makes two arguments in response to Mr. Scotland’s habeas corpus petition. First, he says that the immigration detention review regime is a complete, comprehensive and expert scheme for the review of detention. He goes on to submit that the existence of such a system provides a basis on which the Court should decline to exercise its jurisdiction. Second, he submits that the threshold test for the Court’s exercise of jurisdiction in a case like this is that the detention in issue has been unduly or exceptionally lengthy and its future duration is uncertain. He goes on to state that these conditions do not exist here.

[46] Turning first to the question of the comprehensive detention review regime, the Federal Court of Appeal has found that, in general, the IRPA complies with the requirements of the Charter: Canada (MCI) v. Li, 2009 FCA 85. Properly applied, the statutory regime that creates the detention review system does afford the protections embedded in the principles of fundamental justice: Apaolaza-Sancho v. Directeur d’Établissement de detention de Rivière-des-Prairies, 2008 QCCA 1542, at paras 15-17.

[47] In Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253, the Ontario Court of Appeal instructed that an exception to the habeas corpus jurisdiction of the Superior Court pertains where the legislature has put in place a complete, comprehensive and expert procedure that covers the same territory otherwise at issue. In that instance, the Superior Court is to restrain from disrupting the comprehensive statutory system through unfettered exercise of its habeas corpus powers.

[48] While the IRPA system is indeed comprehensive, the Supreme Court of Canada has stated that “there is no reason to assume that the Federal Court is more expert than the superior courts in determining whether a deprivation of liberty is lawful”: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para 57. The Superior Court has concurrent jurisdiction with the Federal Court in determining the lawfulness of a continuing immigration detention, the former under its habeas corpus jurisdiction and the latter under its IRPA statutory jurisdiction: Khela, at para 56; May, at paras 44, 50.

[49] In fact, the Supreme Court has gone out of its way to emphasize that the statutory jurisdiction of the IRB and the Federal Court with respect to immigration detention does not insulate this area from habeas corpus review. As LeBel J. put it in Khela, at para 67: “A decision that is within the decision maker’s jurisdiction but that lacks the safeguards of procedural fairness will not be lawful. Likewise, a decision that lacks an evidentiary foundation or that is arbitrary or unreasonable cannot be lawful, regardless of whether the decision maker had jurisdiction to make it.” The Court specifically held that “[w]hether a decision is ‘lawful’ cannot relate to jurisdiction alone”, and that it is not the case that review on a habeas corpus application is limited to an analysis of whether the Federal Court, the ID, the IRB, or any other decision-maker had statutory jurisdiction to make a decision: Khela, at para 66.

[50] It was on the basis that concurrent jurisdiction exists that the Ontario Court of Appeal held in Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, at para 54, that the Peiroo exception is not a blanket exclusion of habeas corpus in immigration-related matters. The question in Chaudhary, as described by Rouleau J.A. at para 81, was 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.” Despite the comprehensive system under the IRPA, the Court in Chaudhary resorted to its habeas corpus jurisdiction to assess the lengthy and indeterminate term of immigration detention.

[51] Counsel for the Attorney General submits that the Court’s statement in Chaudhary sets out a test for all cases. He takes from this the notion that in order to qualify for a remedy, it would be necessary to find here that Mr. Scotland’s incarceration has been as lengthy as some of the more renowned cases in this area.

[52] The A.G.’s counsel points to the recent decision of this Court in Ali v. Canada (Public Safety and Emergency Preparedness), 2017 ONSC 2660, where the applicant had languished some 7 years in immigration detention before seeking a writ of habeas corpus. It is the A.G.’s position that Mr. Scotland’s case is not as lengthy as the egregious situation described in Ali. Counsel for the A.G. further submits that in the Ali case there was no end in sight for the continuing detention since the applicant could not identify his country of citizenship and therefore could not be removed from Canada to any particular destination. By contrast, counsel for the A.G. submits, Mr. Scotland’s continued detention will end one way or another when his refugee claim is ultimately adjudicated with finality.

[53] In my view, this argument misapprehends the core rationale of the Chaudhary case. The point is not for courts on habeas corpus review to engage in a comparative assessment of different applicants’ detentions and to determine whether one incarceration is too long in comparison with the other. Rather, the object of the exercise is to determine whether any given instance of detention is unduly lengthy given the reasons for that detention. As Rouleau J.A. put it, “[a] detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control”: Chaudhary, at para 81.

[54] The question, therefore, is whether the detention is too long in view of the purpose it is meant to accomplish and in view of the reason for the detention in the first place. It is proportionality that is the primary measure of the harshness of any given incarceration: see sections 718.1 and 718.2 of the Criminal Code. A life sentence may be unduly harsh for a non-fatal crime, whereas three consecutive life sentences may be proportionate for a triple murder: see R. v. Saretzky, 2017 ABQB 496, at paras 41-48. Just as a criminal sentence “must reflect and not exceed the offender’s overall moral culpability”, R. v Ahmed, 2017 ONCA 76, at para. 91, so too an immigration detention must reflect and not exceed its purpose of immigration control.

[55] With that in mind, is Mr. Scotland’s total of 17 months of detention, or his now consecutive tally of 10 months and running, too long? Counsel for Mr. Scotland submits that, in the first place, “[a]ssessing a detainee’s length of time in detention should be looked at cumulatively, not consecutively, having regard to any release from detention and the duration of such release”: Shariff v. Canada (Public Safety and Emergency Preparedness), 2016 FC 640, at para 38. Accordingly, the government does not get to start over in counting the duration of his detention by simply releasing a detainee for a short time and then re-detaining him.

[56] Moreover, Mr. Scotland’ counsel argues that the number of months in detention is all but irrelevant here, since the detention is grounded in virtually nothing and fulfills no purpose. As an illustration he submits that if, hypothetically, an immigration official decided to detain a person who is undeniably a Canadian citizen, and placed him or her in custody despite the person waiving their Canadian passport in the air while being taken away, then even one day in detention would be too long. It would be clear that a citizen’s detention purportedly under the IRPA is unlawful, and habeas corpus would be the appropriate recourse. We would not have to wait for 7 years, or even 7 days, of blatantly arbitrary and illegal detention to pass.

[57] A similar analysis pertains to the reference in Chaudhary to indefinite detention. While an indefinite custodial term is at the extreme end of a potentially lengthy detention, putting a finite number of months or years on the detention does not necessarily provide an answer. The Federal Court has observed that, “a lengthy detention, at least for practical purposes, approaches what might be reasonably termed ‘indefinite’”: Sahin v. Canada (Minister of Citizenship and Immigration, [1995] 1 FCR 214 (Fed. Ct. T.D.).

[58] Again, as a hypothetical, at the hearing I put to counsel for the A.G. the example of a detainee who instead of facing indefinite custody as in Ali, was facing a maximum of, say, 45 years awaiting removal from Canada. Counsel for the A.G. agreed, correctly in my view, that if the length of time is sufficiently long to be a miscarriage of justice, then a determinate term is no different than an indeterminate term of detention.

[59] The central characteristic of Mr. Scotland’s case is the difficulty he has had in removing himself from the vicious cycle of errors. This is combined with the tendency of the CBSA and ID to read culpability into, and to assign fault to, inadvertent actions. These approaches have resulted in the immigration authorities imprisoning him for conduct that is not morally blameworthy and that is not aimed at fulfilling its statutory purpose. Under the circumstances, the Charter’s section 7 prohibition on denial of liberty in the absence of fundamental justice is engaged in both its procedural and its substantive senses.

[60] Turning first to procedural justice, it is by now trite law that the context of the decision at issue, and the impartiality of the decision-maker given the context of the decision, all factor into the principles of fundamental justice:

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.

Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, at paras 21-27

[61] In a procedural sense, Mr. Scotland’s case discloses numerous instances of ID adjudicators deferring or delegating the question of whether there has been a breach of release terms to CBSA officers. In my view, this constitutes a violation of one of the most essential principles of fundamental justice – that the statutorily designated decision-maker must actually make the decision in issue. The power to decide whether a given action constitutes a breach of a term of release for a former detainee is conferred on the ID, and as such is “to be exercised by the authority on which the statute has conferred it and by no other authority”: Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, quoting John Willis, “Delegatus non potest delegare” (1943), 21 Can. Bar Rev. 257, 259.

[62] This improper reliance on the CBSA and its frequent undermining of the independent decision-making authority of the ID members is what makes it nearly impossible for Mr. Scotland to have his point taken seriously. The CBSA is for the most part responsible for the erroneous judgments which have resulted in Mr. Scotland’s ongoing detention; it is little wonder that the review process yields no progress toward remedying these errors. This delegation of authority to the enforcement agency who is a party to the case against Mr. Scotland provides a graphic illustration of improper self-judging.

[63] It is for the ID to independently adjudge whether Mr. Scotland has breached the terms of his release. “Impartiality of the decision-making body is a critical feature of natural justice which is captured by the Latin maxim, nemo judex in causa sua debet esse – no one should be the judge in his own cause”: Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869. It is essential under section 7 of the Charter that the CBSA be answerable to an independent adjudicative body in its role of enforcing immigration detentions, and that it not be the decision-maker itself. In giving the CBSA such a level of deference that the enforcement agency effectively usurps the adjudication role, the ID has engaged in a form of legal process that is not in compliance with the most basic precepts of procedural justice.

[64] On the substantive side, since the earliest days of the Charter the Supreme Court has been emphatic that “absolute liability and imprisonment cannot be combined”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at para 3. As Lamer J. put it in R. v. Vaillancourt, [1987] 2 S.C.R. 636, at para 27, “whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law…there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence.”

[65] Thus, failure to notify the CBSA of a change of address in circumstances which no one would consider a change of address, or the inadvertent failure to report one day during a holiday week in the midst of an entire year of reporting, signals nothing about immigration law enforcement or Mr. Scotland’s potential for breaching his obligations. Detaining him for these de minimis, unintended actions amounts to imprisonment on an absolute liability basis; and an adjudicative and review system that fails to heed this fact inevitably collides with the principles of fundamental justice.

[66] The Supreme Court of Canada made a similar point in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para 96, in the context of its analysis of cruel and unusual punishment:

It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual… Conversely, a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual [citations omitted].

[67] In Mr. Scotland’s case, the CBSA and ID have engaged in a form of arbitrary decision-making which effectively combines the right under section 9 of the Charter not to be arbitrarily detained with the right under section 7 not to be detained absent moral culpability. The arbitrariness inherent in Mr. Scotland’s detention is patent to all who take an objective view.

[68] Courts across Canada have indicated that, “[T]he ‘articulable cause’ upon which the assessment of the arbitrariness of a governmental agent’s actions hinges boils down to whether a demonstrable rationale has been given which is sufficiently reasonable to have justified the detention”: R. v. Burke (1997), 118 C.C.C. (3d) 59, at para 29 (Nfld. C.A.). Applying this thinking to the context of immigration decisions, the Ontario Court of Appeal noted that “[d]etention is not arbitrary where there are ‘standards that are rationally related to the purpose of the power of detention’”: Charkaoui, at para 105, quoting P.W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p.46-5.

[69] As indicated above, the A.G. in its factum filed with the Federal Court for the judicial review of Mr. Scotland’s latest detention review all but conceded that there is no reason for his continued detention. Counsel for the government expressly acknowledged that Mr. Scotland is neither a danger to public safety nor poses a risk of non-appearance for his potential removal from Canada.

[70] A limit on Charter rights such as the right not to be arbitrarily detained “will be arbitrary if it bears no relation to, or is inconsistent with, the objective that lies behind the legislation”: Rodriguez v. British Colmbia (Attorney General), [1993] 3 S.C.R. 519. Given the Attorney General’s view that Mr. Scotland represents neither a public safety problem nor a flight risk, “the detentions at issue have become unhinged from the state’s purpose of deportation”: Charkoui, at para 131.

[71] This detention lacking any valid purpose combines with the incarceration on absolute liability grounds and the procedural inadequacies of the ID detention review process to provide grounds for this Court’s intervention. There has been a deprivation of liberty contrary to the principles of fundamental justice and the right against arbitrary detention, making the deprivation unlawful: Khela, at para 20.

V. Circular analysis

[72] In Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 236 D.L.R. (4th) 329, at para 9, the Federal Court of Appeal indicated that an ID member “must set out clear and compelling reasons in order to depart from previous decisions to detain an individual…” Counsel for Mr. Scotland submits that the record of proceedings demonstrates that ID members have interpreted this to mean that for any new detention there must be compelling reasons not to detain that person again.

[73] In effect, once a decision to detain is rendered at the first detention review, for all practical purposes the CBSA has met its burden, and at every subsequent detention review it is difficult, if not impossible, to displace the initial decision. Each ID decision, even if later proven to have been based on faulty information, gets relied on and replicated the next time around. Counsel for Mr. Scotland argues in his written submissions that Mr. Scotland “has been hampered in challenging the evidence of the CBSA due to the hearing officer’s reliance on breaches of conditions without having to prove the breach. This has resulted in prolonged detentions and increasingly difficult conditions of release being imposed...”

[74] In accordance with the ID’s strict interpretation of Thanabalasingham, once Mr. Scotland was charged with a crime he was thereafter deemed to be at risk of criminal conduct, despite the charges ultimately being dropped or stayed. Likewise, once Mr. Scotland was accused of being out and about without his surety, he was thereafter deemed to be a person who breaches his terms of release, despite the later realization that the terms had been varied so as not to require that he be in his surety’s company. The detention review process becomes a closed circle of self-referential and circuitous logic from which there is no escape.

[75] The British Columbia Court of Appeal noted in Chambers v. Daou, 2015 BCCA 5, at paras 51, 56, that declaratory relief is not available to supplement the jurisdiction of this Court on a habeas corpus application. It is, however, worth reiterating in these reasons that a lawful detention is a purposive one, and that continued detention does not meet this requirement where it essentially embodies the responses of a law enforcement agency to unintentional, technical breaches. These represent neither the moral culpability which is a necessary ingredient to a just incarceration, nor the preventative immigration enforcement rationale reflected in the statutory authority to detain. They therefore violate the Charter without any grounds of justification.

[76] Without meaning to state and re-state the obvious, arrest and criminal charges without a conviction amount to innocence; a breach of bail conditions that turn out to no longer be in force is a non-breach of bail; pre-trial custody is not a change of address; an inadvertent error is not an intentional, morally culpable act. These cannot logically and legally be held against a detainee on an ongoing basis. At some point, the adjudicator hearing a detention review under the IRPA must step back from the thick foliage of technical enforcement and have look at the trees.

VI. Disposition

[77] Mr. Scotland’s application for habeas corpus is hereby granted. I order that he be released.

[78] Counsel for the Attorney General of Canada has suggested that, should I reach this conclusion, I leave the terms and conditions of release to be determined by the CBSA. As Nordheimer J. observed in Ali, at para 40, that is not appropriate. In fact, it is emblematic of the very procedural injustice about which Mr. Scotland complains. The CBSA is a law enforcement agency and plays an adversarial role in detention proceedings. It is not a neutral arbiter of justice and cannot make a decision that is for an adjudicator to make.

[79] Under the circumstances, I cannot think of many conditions that would be appropriate for Mr. Scotland. After all, he was detained for no cogent reason, and, accordingly, I have no purpose in mind in fashioning any terms and conditions of release. I will simply say that Mr. Scotland is to keep the peace and to attend all immigration proceedings and to present himself to immigration authorities as and when required by law.

[80] Counsel may make written submissions with respect to costs, which should be no longer than 3 pages in length. I would ask that counsel for Mr. Scotland provide me with submissions within two weeks of today, and that counsel for the Attorney General provide me with responding submissions within one week thereafter.

E.M. Morgan, J.

Released: August 14, 2017