CITATION: Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878

COURT FILE NO.: CR-17-9-0000172-00MO

DATE: 2017-10-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EBRAHIM TOURE Applicant

– and –

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, ATTORNEY GENERAL OF CANADA Respondents

Jared Will and Jean Marie Vecina for the Applicant

Judy Michaely and Christopher Crichton for the Attorney General of Canada

HEARD: September 26, 27, 28, 2017

HABEAS CORPUS RULING

A.J. O’Marra J. (Delivered orally)

[1] Ebrahim Toure, as he is known for the purpose of this application, has applied for orders pursuant to s. 5 of the Habeas Corpus Act, R.S.O. 1990, ch. H. 1 that his continued detention for immigration removal from Canada is unlawful and that he be released from detention subject to appropriate terms and conditions as deemed necessary by the court. Further, he seeks an order for a remedy pursuant to s. 24 (1) of the Charter of Rights and Freedoms for violations of his ss. 7, 9, 10, and 12 rights resulting from his unlawful detention.

Factual Background

[2] The applicant has been subject to a removal order under the Immigration and Refugee Protection Act, SC 2001, c. 27 as amended (IRPA) from Canada and he has been in secure custody in a provincial jail for four and a half years pending removal.

[3] The applicant first came to the attention of immigration authorities on February 28, 2011 when he made a refugee claim at an immigration office where he identified himself as a Guinean national born May 22, 1971. He allegedly entered Canada on February 22, 2011 as a visitor using a fraudulent French passport. Officials at Immigration Refugees and Citizenship Canada (IRCC) found him to be inadmissible to Canada as an immigrant without a visa and a conditional removal order was issued.

[4] On June 7, 2012, the refugee protection division of the Immigration and Refugee Board determined that he was neither a convention refugee nor a person in need of protection as described in ss. 96 and 97 of the IRPA. His subsequent application for leave to judicially review the decision was refused by the Federal Court of Canada September 25, 2012.

[5] The applicant was placed on a conditional departure order with terms and conditions pending his removal from Canada. He was required to report for an interview with the Canadian Border Security Agency (CBSA) on November 5, 2012. He failed to attend which resulted in the issuance of a warrant for his arrest.

[6] Almost four months later on February 23, 2013, he was located by the Toronto Police and arrested pursuant to the CBSA warrant. He was transferred by the CBSA to the Toronto Immigration Holding Centre (IHC).

[7] On February 26, 2013 following a detention review, he was found to be a flight risk and his continued detention was ordered.

[8] On the basis of a Guinean birth certificate he had provided, the CBSA attempted to remove the applicant to Guinea on March 26, 2013. He was escorted from Canada to Conakry, Guinea where on arrival at the Conakry airport he was presented to Guinean authorities. The Guinean authorities found that his Guinean birth certificate was fraudulent and refused him entry. Further, he told the Guinean authorities that he was not Guinean, but he had status in The Gambia through his father. It was also noted that he was unable to speak or understand French, the official language of Guinea. On his return to Canada he continued to proclaim that his citizenship was Guinean.

[9] Since 2013 the CBSA has made efforts to identify the applicant through interviews, research, field interviews in the community, third party assessments and enquiries of the Gambian authorities.

[10] The placement of his detention since February 2013 has been imposed by the CBSA pursuant to the IPRA and regulations, SOR/2002 – 227 as amended, and maintained by monthly decisions of the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB).

[11] He has been in three different facilities throughout the course of his detention. After his initial arrest on February 23, 2013 until his attempted removal to Guinea on March 26, 2013, he was detained at the Immigration Holding Centre (IHC) in Toronto, Ontario. Since his detention on his return to Canada from Guinea he has been kept in a Provincial correctional maximum security facility rather than the IHC because in the view of the CBSA he does not meet the criteria for detention in a lower risk facility, the only one of which in Ontario is the IHC.

[12] At his first detention review on the return from Guinea he was found by the Immigration Division (ID) to be a flight risk and his continued detention was ordered. Since April 3, 2013, the applicant has had more than 56 detention reviews all of which have concluded that his continued detention is required because he poses as a flight risk, specifically that he would not appear for removal.

[13] Initially, he was detained at the Toronto West Detention Centre in Mississauga. Then on August 19, 2013 he was transferred to the Central East Correctional Centre (CECC) in Lindsay, Ontario where he has remained to date – more than 4 years.

[14] Little was known about Mr. Toure, other than he arrived in Canada sometime before February 28, 2011, claimed Guinean citizenship, he had a fraudulent Guinean birth certificate in his possession and he was not forthcoming as to his true nationality. Through investigations the CBSA believes the applicant to be Bakaba Touray, a Gambian national.

[15] The following is a brief summary of the CBSA investigative efforts to establish the identity and citizenship of the applicant:

• The lead CBSA investigator in April, 2014 conducted interviews of members of the Gambian community in Toronto, learning that the applicant was Gambian from a small village called Sare Gedda, near Basse Santa Su in Gambia. He had a wife and son, his father is believed to be deceased, his mother believed to be alive and living in Gedda. He was open about being Gambian to members of a Muslim association he attended in Toronto. He spoke Soninke and Mandinka, languages of Gambia. He has a brother in Germany and one in the USA. He went by the nickname of Bakaba.
• The applicant was interviewed by analysts employed by SPRAKAB, a linguistic analysis organization. They determined that there was a “very high” degree of certainty Mr. Toure’s linguistic background was Gambian and “very unlikely” Guinean.
• A Facebook page in the name of “Ebrahim Toure” was examined in which 45 of the 48 Facebook “friends were identified as being from Gambia, many with the last name of Touray, the spelling of the name most common in Gambia. At a detention review, he admitted that the page was his, but he knew none of the FB friends personally.
• In 2015 arrangements were made through Interpol and Gambian police to investigate the information that the applicant came from Gedda, Kantora Province. Information and direction received from a cousin of the applicant, Gebrere Mageraga led to the home of applicant’s mother, Miriam Touray. When shown a picture of the applicant she identified him as her son, “Bakaba Touray”, alias “Ebrahim Touray” and “Haruna Touray”.
• Fingerprints were sent to a number of countries and information was received that they matched a person identified as Kebba Touray who was convicted of selling counterfeit “bootlegged” DVDs and CDs in Georgia in 2005 for which he was fined and given 2 years’ probation. Later, an arrest warrant was issued for violation of a number of conditions of his probation order, specifically, failing to report and leaving the jurisdiction without permission.
• When interviewed by the CBSA the applicant admitted he had been in the USA before entering Canada and a resident of Atlanta Georgia for 8 years, but he had no criminal record. He had used the name Kabba Touray, and returned to Guinea in 2007 or 2008 and then travelled to Canada in 2011 from France on a false French passport.
• In 2016 the CBSA was advised to have Global Affairs issue a diplomatic note through the Washington Embassy to the Gambian authorities, there being no Gambian representation in Canada. However, as a result of a change in Gambian government the process needed to be re-instituted in 2017.
• In July 2017 the applicant agreed, after months of refusals, to provide a sampling of bodily fluids (cheek swab) for DNA analysis to determine familial connections – a process requiring up to eight weeks.
• A video-link interview is being arranged with Gambian authorities through the U.S. embassies.

[16] He has had his detention reviewed regularly by the Immigration Division (ID) every 30 days. He denied that he is Gambian and maintained that he is Guinean until an ID review on December 17, 2015, more than two and half years after his initial detention. He continues to deny that he is known Bakaba Touray as believed by the CBSA.

Habeas Corpus Application

[17] The applicant has been in detention in a maximum security facility for more than four and a half years pending removal. He asserts that his detention is unduly lengthy and its continuing duration uncertain. There is no reasonable prospect that he will be deported in the foreseeable future.

[18] The respondent’s position is that despite concerted efforts by the CBSA to establish his identity as a Gambian national, he has thwarted them due to his continued non-cooperation. Even though he admitted to being a Gambian in December 2015 he has refused to confirm any of the information obtained by the CBSA to establish his true identity. The delay in effecting removal has been largely due to his non-cooperation and since his admission of being Gambian arranging the involvement of the Gambian authorities to confirm his citizenship. The only signs of the applicant’s cooperation has been his recent admission he grew up in Geeda in the Province of Kantora in Gambia and in July 2017, shortly before filing his habeas corpus application he agreed to provide a cheek swab for a DNA analysis to assist in the identification process.

General Principles

[19] The Court of Appeal in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 ONCA 700 stated habeas corpus petitions involving immigration detainees should be heard by the court on the merits in exceptional circumstances where the detention has become unduly lengthy and its continuing duration uncertain. In Chaudhary at para 81, Rouleau J.A. stated:

On their habeas corpus applications, the appellants would have to show that reasonable and probable grounds exist for their complaints. The grounds will be the exceptional length of their detentions and their uncertain continued duration. The question the court will then have to address is whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal in violation of the detainees ss. 7 and 9 Charter rights and international instruments to which Canada is a signatory. A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. In responding to the application, the Minister must satisfy a court that, despite its length and uncertain duration, the continued detention is still justified.

[20] Thus on habeas corpus applications, the applicant has the onus to demonstrate that his detention has been both exceptionally lengthy and its future duration uncertain. If the applicant establishes both the duration is exceptionally lengthy and indeterminate, the onus then shifts to the respondent to establish that the applicant’s detention remains “reasonably necessary to further the machinery of immigration control”, his continued detention with the purpose of removal is justified.

i) Unduly Lengthy Detention

[21] In this instance, the four and a half years the applicant has spent in detention in a maximum security facility is prima facie of an exceptional length.

[22] However, the respondent Attorney General argues that to determine whether it is “an unexceptionally lengthy detention” is not simply a question of counting days. Rather, the complexity of effecting removal in the particular circumstances of this case and the extent to which the applicant has contributed to prolonging his own detention by failing to cooperate with removal efforts must be taken into account.

[23] The Attorney General submits that the “length of detention” should be calculated to commence as of when the applicant meaningfully cooperates in the removal process.

[24] In Canada v. Dadzie, 2016 ONSC 6045 where the applicant had been in immigration custody for 31 months the court determined that he had been detained for only a four month period during which he started to assist CBSA’s efforts to identify and lawfully remove him. As if on remand in a criminal matter, the court gave him advanced credit of 1 to 1.5 calculating detention at 6 months.

[25] In that instance, the detention was not considered exceptionally lengthy. The court relied on the observation made in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 that “unexplained delay or lack of diligence should count against the offending party”. In Dadzie, para 36, Clark J. stated:

If unexplained delay is to be held against the party responsible for the delay, it seems obvious that where, as here, I find as a fact that the applicant is deliberately trying to frustrate the ability of the authorities to identify him and, in turn, secure a TD (travel document) for him, then, a fortiori, the delay is to be held against him.”

[26] In Ali v. Canada (Minister of Public Safety and Emergency Preparedness) 2017 ONSC 2660, Nordheimer J. noted in reference to this issue as considered in Dadzie, it is the individual facts of each case as to whether the detainee’s failure to cooperate with the authorities is sufficient to justify his continued detention.

[27] In Dadzie the court found that the applicant “continually and steadfastly failed to assist the authorities in any meaningful way”, which contributed to the length of delay, whereas in Ali Nordheimer J. observed it was just the opposite. He found that it could not be said that the applicant in that case had failed in any meaningful way to cooperate.

[28] Here, from the applicant’s initial detention until December 17, 2015 he maintained he was Guinean, “100% Guinean”. Even when the CBSA authorities and at detention reviews, he was confronted with information from members of the Gambian community; information the Gambian Police obtained from a Miriam Touray, the person said to be his mother, he was her son; most of his Facebook friends were from Gambia; the linguistic analysis showing he was “very likely” Gambian, he remained steadfast he was Guinean. Any information which contradicted his assertion that he was Guinean he declared to be untrue. Anyone who had said he was Gambian or identified him as being known by a name other than as Ebrahim Toure was lying, including a woman identified by the Gambian police as his mother. Clearly, the applicant was not being cooperative.

[29] His lack of cooperation and inconsistencies in the information he provided are recounted, un-contradicted on this application, in the ID reasons and decision of the detention review held June 15, 2017 under the heading “Any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned”, attached as Appendix “A”.

[30] In January 2017 CBSA asked the applicant to provide a DNA swab for a “family tree” test to help identify familial connections and origins. He refused until just recently in July, 2017 when he provided a cheek swab. The respondent contends that it is the first true indication of cooperation.

[31] He has feigned cooperation a number of times saying he wants to be returned to The Gambia, but there are too many inconsistencies and reversal of positions and information provided by Mr. Toure to say that he has been cooperative in a meaningful way up until then. The respondent submits, as such the length of detention as in Dadzie should only be calculated as being a few months.

[32] Counsel for the applicant argues that his declaration in December 2015 he is a Gambian, and later, he wants to return to The Gambia and that he has offered information, provided DNA are all indications of his cooperation.

[33] In April 2017, he admitted to the investigating officer that he had been born in Gedda, Gambia. Even though there was conflicting information as to whether his mother was alive or not and whether his wife was alive and had a son, there was basic information as to where he was from in Gambia – all of which could presumably be assessed by Gambian authorities when they are engaged.

[34] More recently, in preparation for the application, Counsel arranged for Mr. Toure to be assessed by a psychiatrist, Dr. Donald Pearce, as to the psychological effect of the circumstances of his detention. In the interview as contained in the report, the applicant provided the psychiatrist information he had grown up on a farm in a rural area of Gambia. He did not receive any schooling as there was no schooling in the village he lived in. He has two younger brothers.

[35] Counsel for the applicant submits his detention should be calculated as being approximately twenty-one months starting from the time he admitted he was Gambian, December 2015, which in and of itself should be considered to be of an exceptional length by the court. I agree.

[36] The respondent submits, in terms of the length of time it has taken fallowing his admission he is Gambian, the court should also take into account the added complexity and difficulty the CBSA has had in trying to establish the identity of Mr. Toure and dealing with a country such as The Gambia that does not have an embassy or consular representation in Canada. The CBSA is required to work with officials of those countries that have embassies in Washington, D.C., U.S.A. as in this instance. Moreover, after the CBSA obtained Interpol information and was confident that circumstantial evidence it gathered proves that the applicant is Bakaba Touray, a national of The Gambia, they have yet to secure some documentation from him or the Gambian authorities necessary to procure a Gambian travel document to facilitate his removal.

[37] The Gambian embassy in Washington has stated that to secure a travel document the application must be accompanied by supporting documentation of Gambian nationality or citizenship. No such documentation has been obtained given the difficulties in establishing the identity of the applicant.

[38] In March 2016 a liaison officer of the CBSA, Jean Christian Premont stationed at the Canadian Embassy in Rabat, Morocco, was tasked with traveling to The Gambia to interview family and friends in an attempt to formalize the identity of the applicant. He was able only to visit Banjul in March 2016 but unable to travel further to meet with any of the applicant’s suspected relatives. He was advised that in order to solicit further assistance from the Gambian government in identifying and returning the applicant, the CBSA needed to pursue diplomatic channels in The Gambia rather than the law enforcement as approached earlier.

[39] To that end a diplomatic note was sent March 21, 2016 however, by December 2016 there was a major government change in The Gambia which required a new diplomatic process and approach to be undertaken. Since the spring of 2017 efforts have been made through the CBSA national headquarters to organize communications and resources to involve a Gambian delegation to either travel to Canada or to conduct an interview via satellite video link with the applicant. Much will depend on the applicant’s cooperation.

ii) Uncertain Duration

[40] The applicant having provided a DNA swab in early July 2017, confirmed he is from Gedda Gambia and the pending interview with Gambian authorities, show there are now avenues available to confirm his identity - a necessary pre-condition to securing a travel document for removal. As long as the applicant continues to assist the CBSA with its reasonable requests for help, his removal becomes more likely. Unlike the situation in Ali the removal process is not at an impasse where it can be said that there is no reasonable prospect that some development is likely to occur that will provide the necessary documentation that would permit the applicant to be removed.

[41] I agree with the respondent that the applicant does not satisfy the uncertain duration criteria simply by asserting that no scheduled date for removal has been set. The issue is whether removal will occur within a reasonable time. What will be considered reasonable will depend on the circumstances, which includes the applicant’s emerging cooperation with the removal process, the direct participation of the country to which he will be removed and satisfying its requirements to obtain the necessary travel documents.

[42] This case is unlike Ali relied on by the applicant in that Mr. Ali was found by Nordheimer J. to have been generally consistent in providing information about his background and was otherwise not “intentionally withholding critical information that if revealed would break the log jam in obtaining the necessary documentation to permit his removal”.

[43] In this instance, the applicant’s failure to cooperate in the past with the CBSA is a significant factor in deciding what constitutes a reasonable amount of time before removal will proceed. I agree with the submission that in this matter a “breakthrough” will occur as soon as the applicant confirms identifying information and provides truthful and accurate information about his history in Gambia, necessary to assist in securing his travel document, particularly when interviewed by the Gambian authorities, an interview which is pending.

[44] It cannot be said that there is no reasonable prospect that some development is likely to occur that will provide the necessary documentation to permit the applicant to be removed, rendering his detention indeterminate.

[45] In the result the applicant has not satisfied the criteria that his detention, although lengthy, is of uncertain duration.

[Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) and [9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[46] If, however, I am in error in the assessment the applicant has not established reasonable probable grounds his detention is both exceptionally lengthy and indeterminate, I shall consider whether the Attorney General has established that his detention is lawful.

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

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

[48] Mr. Toure’s detention has been authorized under the IRPA and at each of his monthly detention reviews on the basis that he is unlikely to appear for removal as a flight risk.

[49] Section 245 of the IRPA outlines a number of factors to be considered in assessing whether a detainee is likely to appear for removal, some of which apply according to ID decisions:

• he is a fugitive because there is a warrant from Georgia, (even though it was noted on the application to have expired in 2006);
• he has not voluntarily complied with a previous departure order;
• he did not appear for a pre-removal interview with the CBSA as required on November 5 2012;
• he demonstrated a strong desire not to be removed to The Gambia for at least two and a half years by having denied he was Gambian, and as untrue any statement by members of the Gambian community, linguistic analysis or any information he was Gambian;
• his true identity is contentious and he has been successful in obtaining false documents facilitating his entry into other countries, such as purportedly purchasing and using another person’s Sierra Leon passport to enter the USA, and entering Canada on a false French passport; having a false Guinean birth certificate, obtaining a false Georgia driver’s license in name of Kebba Touray;
• he previously fled from a law enforcement officer when arrest in Georgia;
• he lacks credibility having claimed to have been from Guinea, provided a false birth certificate, asserting his parents were Guinean, then claiming on arrival in Guinea his father was from the Gambia, then on being returned to Canada claiming his mother was from Gambia not his father, later reversing it and claiming both parents were from Guinea;
• he has displayed a strong motivation to remain in Canada by his having provided false and inconsistent information about his nationality and identity, his family in Gambia and elsewhere.

[50] The applicant complains that he was not provided with disclosure requested either by the review board or on application to this court prior to the commencement of the habeas corpus application. He has provided a list of materials he requires disclosure of to challenge information said to have been obtained during the CBSA investigation here and through Interpol, failing disclosure of which he has been denied a fair hearing in violation of s.7 of the Charter.

[51] In Toure v. Minister of Public Safety and Emergency Preparedness et al. 2017 ONSC 5533, Himel J. held the applicant had been provided sufficient disclosure to bring the application and respond to the respondent’s arguments on relevant matters concerning his confinement or restraint of liberty. The disclosure provided was described as being voluminous, detailed and informative on the relevant issues for the hearing. It was left open for the applicant to argue before the hearing judge after cross-examination whether further documents relevant to the issue of legality of the continued detention of the applicant should be disclosed, subject to any claim of privilege.

[52] Counsel notes that in Brown v. Canada (Minister of Citizenship and Immigration) 2017 FC 710, Fothergill J. at para 159 set out the legal minimum requirements for a lawful detention, one of which is:

g) The Minister of PSEP must provide reasonable notice of the evidence or information that will be relied upon at the detention review. Detainees or their representatives may request further disclosure, and ask that the enforcement officer be summonsed to appear at the hearing.

[53] The applicant made both requests for the June 2017 ID hearing, both of which were denied.

[54] However, counsel for the Attorney General notes that under the list of requirements in Brown the next requirement states:

h) If insufficient disclosure is provided, the detainee or representative may ask the ID to briefly adjourn the hearing, or to bring forward the date of the next review. If necessary, an application for judicial review may be brought in this court on an expedited basis.

[55] The applicant did not utilize the adjournment and/or review procedures available. Further, as held in Brown the immigration detention scheme itself does not violate s. 7 of the Charter.

[56] The applicant responded he brought the habeas corpus application instead of commencing the legislated review process.

[57] On the hearing, counsel for the applicant cross-examined at length both the hearing officer with carriage of the matter on behalf of the Minister at detention reviews, Mr. James Oliveira and the senior CBSA lead investigator, Mr. Dale Lewis.

[58] Counsel argued that Mr. Lewis was not credible because he had not disclosed any of his notes, emails or correspondence relating to the investigation into the information obtained concerning the applicant’s nationality and/or identity. He provided just his affidavit in which he recounted his updates of the information given to the hearings office as to the investigation. Counsel points to the Interpol report as a document for which he required disclosure. Mr. Lewis testified that his understanding was that the document itself had a restricted access designation, however, the content was disclosable, all of which was recounted in his affidavit.

[59] Further, counsel argued Mr. Lewis was not diligent because he had not interviewed a number of people said to have been relatives of the applicant during the investigation.

[60] I find no merit in the position of counsel that the applicant lacked sufficient disclosure to bring his application and to respond to the respondent’s arguments as to the justification for his detention.

[61] In my view, the criticism of Mr. Lewis lacking diligence is unfounded. He had displayed a diligent and continuing effort in attempting to establish the identity of the applicant, the information of which the applicant continued to deny or claim to be untrue when he was made aware of it in interviews with Mr. Lewis or when confronted with it on ID review hearings.

[62] In Chaudhary, at para 81, the Court of Appeal held that even a lengthy detention of uncertain duration will be Charter compliant with ss. 7 and 9 of the Charter if it is reasonably necessary to further the machinery of immigration control. There must be a reasonable prospect that removal will occur within a reasonable period of time considering the circumstances of the case.

[63] For the purposes of ss. 7 and 9 of the Charter an indeterminate detention will only become unconstitutional where there is no longer a reasonable necessity for detention to effect removal. This exceptional circumstance will only arise where all parties are acting diligently and in good faith, but yet there is no reasonable prospect that the detention’s immigration-related purpose will be achieved within a reasonable period of time. Only then will the detention become unhinged from its immigration purpose.

[64] Such was found to be the case in Ali in which the court concluded that the detention was arbitrary and of indeterminate length because there was “no reasonable prospect that some development was likely to occur that would provide the necessary documentation for Mr. Ali to be deported. The court specifically found Mr. Ali had not been actively thwarting the efforts of the authorities to remove him from Canada solely for the purpose of remaining in Canada. In effect there was an impasse, a stalemate in the authorities being able to determine his country of citizenship and not being the result of his being un-cooperative. Such is not the case in this instance.

[65] Here, although the applicant had not been cooperating for more than two and a half years, he has been cooperating recently, as counsel for the applicant has argued. As noted earlier, where there is a reasonable prospect removal will take place with his continued cooperation, the detention will remain compliant with ss. 7 and 9 of the Charter even if its future duration is uncertain.

[66] There is a reasonable prospect that removal will be achieved considering the circumstances of the case. The continued detention of the applicant has been necessary to further the legitimate immigration purpose of his removal. The applicant’s past non-compliance and non-cooperation as noted earlier in the removal process is symptomatic of his flight risk as they demonstrate his unreliability and show that he is not amenable to obeying the instructions or requirements. Detention has not become unhinged from its purpose. Accordingly, his detention has not infringed his rights under ss. 7 or 9 of the Charter.

Section 12 - Cruel and Unusual Treatment

[67] The applicant contends that his detention in a maximum security provincial facility for an extended period of time constitutes cruel and unusual punishment and therefore contrary to s. 12 of the Charter of Rights and Freedoms.

[68] In Charkaouri, v. Canada (MCI), 2007 SCC 9 at para 107 the Supreme Court found that while indefinite detention may constitute cruel and unusual treatment, the detention review scheme established under the IRPA and its regulations is consistent with s. 12 because it provides a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.

[69] However, the court also noted in Charkaoui at para 123 that while the IRPA procedure itself is not unconstitutional it 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 infringes the Charter in a manner that is remedial under s. 24(1) of the Charter.

[70] In the criminal context, in Regina v. Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045 at p. 1067 the Supreme Court has established that a term of imprisonment will infringe s.12 of the Charter 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 imprisonment is “so excessive as to outrage standards of decency” and “abhorrent or tolerable to society”.

[71] In this case, there has been an ongoing process of review that has considered the issue of detention. However, the form of detention has not been considered on the reviews. While the order of detention is made by the ID, the form of detention is an administrative decision of the CBSA. The CBSA decides whether to direct the detainee to be detained in a provincial maximum security facility or a location with a lesser degree of security.

[72] Counsel for the applicant argues that his detention at a maximum security provincial jail rather than the immigration holding centre is not prescribed or governed by law. There is no legal basis for the decision to house him in a criminal jail rather than in a facility dedicated to immigration detention. As there is no legal basis for the determination of his placement the applicant has also no means to challenge his placement in the much harsher conditions of provincial jail. As noted in Charkaouri at para. 107, in order to comply with the Charter the conditions of ongoing detention “must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.” (Emphasis added.) The regime under which he is detained contains no mechanism to ensure proportionality between the flight risk which he has been found to be and the actual conditions of his detention. I agree.

[73] In Ontario there are only two types of facilities utilized for the purpose of housing detainees, the Immigration Holding Centre (IHC) and any one of a number of provincial detention centres, such as the Central East Correctional Centre, designed for prisoner remands pending trial on criminal charges and prisoners serving sentences of less than two years.

[74] The National Risk Assessment for Detention Guide (NRAD) of the CBSA sets out the criteria to be considered as to where a detainee is placed. The IHC is capable of housing detainees considered medium risk who have exhibited minor criminality, individuals with known or probable mental health issues and even those considered a flight risk and there are identity concerns. Provincial facilities with maximum security or the IHC “where risk can be mitigated” are to be utilized for individuals subject to security certificates, human or international right violations, serious criminality, involved in organized crime, dangerous to the public, an immediate risk of suicide or there is the existence of an “international warrant”.

i) Context and Circumstances of the Individual Case

[75] The applicant has been detained for more than four years at the Central East Correctional Centre, a maximum security facility in which prisoners are maintained on remand or to serve provincial reformatory periods of incarceration of less than two years.

[76] On the application, evidence was heard from Dr. Donald Payne, a specialist in psychiatry qualified since 1971 that on his assessment of Mr. Toure on August 14, 2017 without prior history of any treatment received by Mr. Toure that he displayed symptoms of a dissociative state having intruding auditory and visual hallucinations. Also, he was of the view that Mr. Toure, in addition to psychotic episodes, has problems with his cognitive functioning. He presented with a schizophrenic like appearance. Dr. Payne was of the view that the stress of his detention will have a negative effect on the mental health of someone with Mr. Toure’s vulnerabilities.

The experience of detention for him is isolating with very limited meaningful social interaction. This would increase his preoccupation with thinking and things in his mind rather than having this balanced and stabilized by meaningful interactions in the external world. Being detained with hardened criminals who talk about their offences would increase his fears, rather than him feeling secure, and would potentiate fears of being attacked. As well as being relatively new to Canada, he had no previous experience of being detained, adding to the psychological pressure in having to adjust to his new and strange situation in detention. …If it is true that he did not have any psychological problems prior to his detention, the circumstances of his detention could be precipitating and perpetuating causes of a dissociative order. DSM – 5 states that “dissociative orders are characterized by the disruption of and/or discontinuity in the normal integration of conscientious, memory, identity, emotion, perception and body representation, motor control and behaviour. Dissociative symptoms can potentially disrupt every area of psychological functioning.” … His disorder is characterized by marked cognitive difficulties and auditory visual hallucinations…Dissociative disorders are relatively rare in sophisticated Canadian society, but there are cultural factors involved and they are more common in individuals coming from simpler, less sophisticated cultural backgrounds. If his disorder is a maladapted psychological adjustment to being in maximum security detention, his symptoms should resolve relatively rapidly when he is released or is held in a more normal social environment.

[77] On receipt of the institutional medical records after his assessment of Mr. Toure, Dr. Payne noted that he had been prescribed throughout his period of detention Olanzapine and Seroquel, anti-psychotic medication and Sertraline an anti-depressant.

[78] Dr. Payne found no evidence of malingering, a feigning of psychotic effects, by Mr. Toure on examination or on a review of the medical records.

ii) Conditions of Detention

[79] There is no mechanism to ensure proportionality between the flight risk concerns and his actual conditions of detention. In P.S. v. Ontario, 2014 ONCA 900, a decision made with respect to a committal of the person to a treatment facility under the Mental Health Act, the court stated:

Where an individual is not being detained for punishment following conviction, but rather is detained simply because he or she poses a risk to public safety, the Charter’s guarantee of fundamental justice requires that there be a fair procedure to ensure, on the regular and ongoing basis that…the individual’s liberty is being restricted no more than is necessary to deal with that risk.

[80] Although Mr. Toure is considered a flight risk by the ID as a result of his failure to report in 2013 and as a result of a warrant issued in Georgia in 2005, there has been no assessment as to whether his imprisonment in a maximum security institution is the most minimally impairing and proportionate disposition to deal with his risk.

[81] There is no evidence that Mr. Toure presents as a danger to the public. His only known conviction is for a minor non-violent property offence 12 years ago in Georgia, USA. There is no history of violence in the institutional records provided on the application.

[82] With respect to the warrant issued 2005 even if it is still extant is not an “international warrant” noted as a consideration in the NRAD criteria for a provincial jail placement. Nor is it a warrant that would result in an extradition request to the USA, let alone as between States.

[83] Based on the criteria set out in the CBSA National Risk Assessment for Detention Guide, he more qualifies for placement in a lesser secure environment such as the IHC, than a provincial detention centre.

[84] On the application counsel submitted a report prepared at the applicant’s request as to the number of lockdown periods he has been subjected to during his incarceration at the Central East Correctional Centre, from August 19, 2013 when he was first detained in that institution to July 26, 2017, the date of the report.

[85] As general information it was reported in the covering letter, “Inmates were normally released from their cells to a common day room for approximately eight hours per day. On August 6, 2016, day room was increased to ten hours per day. This would be the maximum number of hours of “lockdown” each day.”

[86] Further,

• when a unit is locked down for a full day (8/10 hours) there may be no access to visits, phones, showers. There is no day room or yard during the period of lockdown;
• lockdowns for lesser periods still permit access and/or participation to the above;
• standard cells are 7 feet wide by 15 feet long and contain two bunk style beds.

[87] On a search of the records relating to Mr. Toure’s incarceration and the units in which he was housed in the CECC from August 19, 2013 to July 26, 2017 there were 531 days of lockdowns of varying lengths from the minimum of three hours to ten hours, the majority of which were due to staff shortages. In effect, over the four years covered by the report, while at the Central East Detention Centre Mr. Toure spent almost one and a half years in lockdown. Mr. Toure has spent more time in a maximum security facility than someone convicted of a serious crime of violence.

[88] The duration and conditions in which Mr. Toure has been kept has made his detention both cruel and unusual. The condition and duration of his detention is “so excessive to be considered abhorrent and intolerable to our society”. The applicant’s s. 12 rights have been breached as a result.

[89] In Ali, Nordheimer J. raised the question as to why immigration removal detainees are not housed in federal institutions or facilities as immigration is a matter of federal jurisdiction.

[90] If detainees such as Mr. Toure have not been placed in the only IHC for lack of space, and simply warehoused in a detention centre for convenience, it is an inexcusable institutional dereliction of responsibility of the federal authorities to protect the interests of those in its care and control. The federal correctional system has vast array of half-way houses and other facilities that could be utilized for placements with close monitoring other than in a maximum security lock up pending removal.

[91] Where circumstances permit house arrest, considered a custodial sentence in the criminal context, consideration should be given to electronic monitoring where flight risk is of concern, which one would think to be a far less expensive and humane alternative to detention in a maximum security detention centre.

[92] In the result, I make the remedial order under s. 24 (1) of the Charter for the violation of his s. 12 right that Mr. Toure be removed forthwith from the maximum security provincial facility to the Immigration Holding Centre, pending future detention reviews and removal.

[93] This order should not be taken to preclude alternate forms of community-based control measures where considered appropriate and necessary to minimize flight risk pending removal.

A.J. O’Marra J.

Delivered Orally: October 5, 2017

Appendix “A”

Excerpt from the Immigration Division Reasons and Decision, dated July 7, 2017 under the heading: “Any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned”.

The PC (person concerned) has caused significant delay and his removal lacked diligence in providing CBSA with information to establish his identity to help facilitate his removal.

For more than two and a half years in detention, the applicant maintained that he was Guinean. After it was discovered that his Guinean birth certificate was fraudulent, he still claimed he could provide proof of his Guinean citizenship.

The PC admitted to being Gambian at his detention review on December 17, 2015. But when asked why he waited so long to admit this he refused to answer saying “you must ask my lawyer, my lawyer will tell you that.” CBSA attempted to contact his then lawyer, Ms. Amanda Bitton of the Refugee Law Office. They were told she was on vacation until January 25, 2016. CBSA reached her on January 26, 2016 advised her of the PC’s admission and invited her to be present for an interview of the person concerned regarding his identity. On February 4, 2016 she advised CBSA that she was no longer representing the PC. The PC has never explained why he denied being Gambian for so long.

When CBSA officers interviewed the PC in March 2016 and asked about his family he responded that, “you have all this information”, which they did not. When CBSA interviewed him again on April 21, 2016 and asked him basic questions he replied “that is your job.” He even most recently on June 2, 2017 cut the interview short getting up and saying “you ask the same bullsh.. all the time.”

There is nothing in evidence that shows that the PC is incapable of providing consistent, fulsome and verifiable information about himself, his family and anyone who knows him, his personal history or his activities. Based on his claim date of birth, he was about 36 years old when he made his refugee claim in Canada and in his early 20s when he went to the U.S. There is no evidence that he has any kind of mental incapacity. There is, however, ample evidence that the PC has a long history of hiding who he is.

Given the PC’s reticence during interviews, in the fall of 2016 the PC’s counsel Mr. Scott, offered to go in person to see the PC and get information requested by Officer Lewis at the November 15, 2016 detention review, Mr. Scott indicated he had seen the PC, that the PC confirmed his date of birth, gave information about his parents, the names of family members and general information about his village. The PC also said he knows people in Europe he can contact who can confirm his identity. There is no explanation of why the person concerned did not simply provide the information to Officer Lewis during one of his many interviews.

Mr. Scott said that Officer Lewis received this information and wanted to interview the PC again and talk with people who can identify the PC. It is reasonable that the CBSA wanted to verify information the person concerned provided given his history of misrepresentation.

Officer Lewis located Mr. Abu Sesay, the PC’s former roommate. Mr. Sesay was shocked to learn that the PC is Gambian and said that the PC had always told him he was Guinean. Mr. Sesay said that when the PC was arrested, the PC’s uncle in Spain came to the apartment with Mr. Adam Adama Tunkara, the husband of Ms. Haja Sumareh, and collected the PC’s property, including some documents.

Officer Lewis put this information to the PC. The PC responded by saying Mr. Sesay is lying. He has never explained why Mr. Sesay would lie.

…The PC has continued to maintain that his mother’s name is “Fatu” even though both Ms. Sumareh and Mr. Mageraja said that the PC’s mother’s name is “Miriam”. At the time when he admitted being Gambian when asked if he had any brothers or sisters he said he has two brothers named Hassana and Lameen (phonetic). He now claims to have a sister in the Gambia. Meanwhile, the PC brought forward Mr. Mageraja who testified that five of the PC’s siblings are named Mohammed, Ayesha, Suleiman, Almami and Fatima. Ms. Sumareh confirmed that Kalagie Touray is the PC’s brother and that the PC called her asking her to pass a message along to him. The PC continues to deny that he knows any Kalagie Touray despite him being one of his Facebook friends. The person concerned has not provided any explanation for all these discrepancies.

CITATION: Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EBRAHIM TOURE Applicant

– and –

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, ATTORNEY GENERAL OF CANADA Respondents

habeas corpus RULING

A.J. O’Marra J.

Delivered Orally: October 5, 2017