2020 ONSC 3968

Court File and Parties

COURT FILE NO.: CR-18-900000-282-00MO DATE: 20200626 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Herman Emmanuel Fankem, Applicant AND: The Minister of Public Safety & Emergency Preparedness Attorney General of Canada, Respondents

BEFORE: S.F. Dunphy J.

COUNSEL: Self-represented applicant Judy Michaely and John Provart, for the Respondents Tom LeRoy and Megan Howatt, Amici Curiae

HEARD at Toronto: June 25, 2020

REASONS FOR DECISION

[1] This is a habeas corpus application brought by Mr. Fankem as a self-represented party. The application was initially brought by Ms. Julie Lassonde on his behalf, Ms. Lassonde having been appointed as his representative in the proceedings underway since 2013 under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 before the Immigration and Refugee Board pursuant to that Act. On June 17, 2020, I accepted the application of Ms. Lassonde and her counsel Ms. Sekhar to withdraw from this application at the request of Mr. Fankem who confirmed that he had not himself retained Ms. Lassonde or her counsel and did not wish to be represented by them. Mr. Fankem confirmed to me that he wished to proceed with the application, that he did not want any delay to permit him to retain or instruct counsel and that he wished for the hearing to proceed as scheduled on June 25, 2020. Accordingly, I amended the style of cause to delete Ms. Lassonde as applicant and authorized Mr. Fankem to continue the application on his own behalf and without counsel. I also advised him that any materials filed by Ms. Lassonde would remain on the record and could be utilized by him if and to the extent he wished to do so after verifying that he did not intend to file any additional evidence in support of the application that he was assuming personal carriage of.

[2] Following the conclusion of the hearing on June 17, 2020, I determined that it would be of considerable assistance in ensuring a fair hearing for Mr. Fankem for the Court to have the benefit of assistance from an amicus curiae. I appointed Mr. Tom LeRoy and Ms. Megan Howett of Legal Aid Ontario to act in that capacity on that day. Amicus was of the view that a short delay to permit counsel to absorb the file in greater detail, a suggestion that was not opposed by the respondents. Mr. Fankem, on the other hand, made it clear on June 17 and then again at the opening of the hearing on June 25 that he would brook no further delay and wished nothing to do with the two amicus counsel I had appointed. The matter proceeded as scheduled on June 25 with amicus providing what assistance the limited time available to them permitted. I am grateful for the willing and speedy assistance of both counsel in such trying circumstances.

Background facts

[3] Mr. Fankem has been detained by immigration authorities since August 20, 2013 following the decision by the Attorney-General of Ontario to stay certain criminal charges. Mr. Fankem had been detained pursuant to those criminal charges since April 9, 2013. Whether the relevant clock for measuring the length of Mr. Fankem’s detention starts ticking on April 9, 2013 or on August 20, 2013, Mr. Fankem has been detained a very long time – whether just over or under seven years is not material for these purposes. The details of how and why he has been for such a long period of time are long and complex. I shall set forth below only a brief summary of a file that has been laid before me comprising two banker’s boxes of material.

[4] I have referred to the applicant in this case as Mr. Fankem. That is the name under which he entered Canada in October 2012, the name under which he was arrested and the only name that he is prepared to answer to today. The evidence before me establishes quite conclusively that this is not the applicant’s true name. During the course of the investigation of his identity by immigration officials, the applicant’s fingerprints have led to him being convincingly matched by authorities in France and in the United Kingdom to a person convicted in those countries of fraud-related charges using a number of aliases including Herman Fankem, Emmanuel Febibouon, Febile Buon Emmanuel, Febie Buon Emmanuel, Herman Kemte, Joseph James, James Joseph, James Emmanuel, Febibouon Joseph to name but the principal variants

[5] I harbour no doubt whatsoever that “Fankem” is not the applicant’s true family name but is merely one of many aliases that he has adopted over the years. Those same records indicate that he has claimed French and Haitian nationality in the past. He continues to claim French nationality today, a claim that France has decisively rejected and in support of which Mr. Fankem has offered no proof beyond a photocopy of a (now-lost) French passport. France has certified this was obtained on the strength of a forged birth certificate. More recently, Cameroon has confirmed that the applicant has obtained two different passports from that country under different (but similar) names and has confirmed that he is in fact a national of Cameroon. His true birth name has yet to be established with certainty, but as shall be seen, immigration authorities are getting very close to the goal of doing so.

[6] For the avoidance of confusion, however, I shall use the name Mr. Fankem continues to use in these reasons. I do so without wishing to imply in any way that I accept that this is in fact his real name.

(a) Mr. Fankem’s arrival in Canada and detention

[7] Mr. Fankem was admitted to Canada through Montreal’s Pierre Elliott Trudeau International Airport on October 28, 2012. Immigration records indicate that he had initially come to Canada on April 24, 2012 and left on October 21, 2012 for a brief trip to Cuba stating that he did so because of the looming expiry of his six-month visitor’s visa. His stated reason for returning to Canada was to attend a funeral of a relative of his girlfriend. He was given only a short visitor’s visa permitting him to remain in Canada until November 7, 2012 and requiring him to contact immigration officials to confirm his departure.

[8] The applicant did not leave Canada as he was required to by November 7, 2012 and has remained in Canada ever since.

[9] The passport presented by Mr. Fankem at this time was issued by France in May 2010 in the name of “Herman Emmanuel Fankem” said to be born on September 12, 1980 at Ivry-sur-Seine. Subsequent inquiries revealed that the passport in question had been issued on the strength of a birth certificate apparently issued in 2009 by the civil registry authorities of that town.

[10] It was later discovered by Canada that the birth certificate in question was a forgery that Mr. Fankem admitted to French authorities he had purchased, that the document was one of at least 42 similar forgery cases that France had been actively investigating involving a number of individuals identified and unidentified and that the passport obtained pursuant to this forged birth certificate was thus fraudulently obtained. Those facts did begin to not come to the attention of Immigration authorities until September 2013 in circumstances I shall relate in a moment.

[11] Mr. Fankem next came to the attention of authorities when he was arrested by Toronto Police on April 9, 2013 and charged with Fraud over $5,000. Two further counts – Fraud under $5,000 and Personation - were subsequently added in relation to a different incident. I do not propose to describe the details of the charges made against him. The amounts involved were significant – over $450,000 none of which has ever been recovered.

[12] Immigration officials were immediately notified of the arrest of Mr. Fankem and commenced their own proceedings. On April 19, 2013, Immigration officials commenced proceedings pursuant to s. 44(1) of the IRPA to obtain a removal order. The resulting report to the Minister gave as the reason for recommending the removal of Mr. Fankem his failure to leave Canada at the end of the authorized period. A removal order was duly issued by the Minister on April 26, 2013. Pursuant to s. 48(2) of the IRPA, Mr. Fankem was obliged by that order to leave Canada “immediately”. That order has not been appealed and remains in force today.

(b) Transfer to immigration detention and investigation of true identity

[13] By reason of the pending criminal charges, the removal order was temporarily stayed pursuant to s. 50 of the IRPA. On August 20, 2013, the provincial Crown exercised its discretion to stay the criminal charges facing Mr. Fankem in order to permit his removal from Canada by immigration authorities. On that date, Mr. Fankem’s detention status changed from criminal detention to immigration detention.

[14] Mr. Fankem’s detention was promptly reviewed by the Immigration Division of the Immigration and Refugee Board as required by the IRPA. The initial review was conducted on August 22, 2013 and concluded that his detention should continue due to flight risk. This status was again reviewed on August 29, 2013 where a similar determination was made.

[15] Officials attempted to undertake a Pre-Removal Risk Assessment to determine whether there were grounds for believe Mr. Fankem would be at risk if removed from Canada. He declined to be interviewed on September 3, 2013 and declined thereafter to apply for such review. He has never advanced any such claim.

[16] On September 12, 2013 the Consulate of France advised Canada Border Services Agency that the French passport that Mr. Fankem had used to enter Canada was fraudulent. It should be noted here that the passport in question was not in Mr. Fankem’s possession when he was arrested nor has it since been located. Its prior existence is not in dispute and photocopies of the relevant pages of it were taken at the time of Mr. Fankem’s entry in October 2012.

[17] A further attempt to interview Mr. Fankem followed the receipt of this information without success. Mr. Fankem refused to provide fingerprints or photographs when asked. At the detention review hearing of October 24, 2013 the Board was advised that Mr. Fankem’s passport had been obtained fraudulently, that he was the object of a criminal investigation in France and that France considered his real name to be Emmanuel Febibouon, born September 13, 1978 in Douala, Cameroon. Mr. Fankem interrupted that hearing continually to the point of having to be removed from it.

[18] Thereafter monthly detention review hearings have been undertaken, each of which is recorded and reduced to a transcript. Since April 2014, Mr. Fankem has refused to participate – whether in person or by video conference – in any of his monthly detention reviews by the Board. He has been offered the assistance of Legal Aid or the Refugee Law Office to obtain legal counsel and has declined to follow up on either offer. With one exception, each of the monthly review hearings has concluded that Mr. Fankem should remain in detention until his identity could be established and his removal effected by reason of flight risk. On one occasion, a decision to release Mr. Fankem on terms was made but this decision was promptly overturned by the Federal Court.

[19] I have reviewed the hearing transcripts in some detail. These amount to several bound volumes of transcripts. Prior to his refusal to participate further in the hearings in early 2014, I am satisfied that his behaviour at these hearings was quite often clearly obstructive and disruptive. There is also ample evidence in the record from which I might conclude – as I do – that Mr. Fankem has continually declined to provide any assistance whatsoever to immigration officials seeking to establish his identity or even to contest (beyond blanket denials) any of the conclusions reached by French officials as the investigation unfolded.

[20] I have reviewed the official correspondence of French officials forwarded by France to Canadian immigration officials which were made part of the record at the various Board hearings. I am fully satisfied that there is no basis to doubt any of their conclusions. The conclusions that arise from these documents may be readily summarized as follows: there is no such person as Mr. Herman Emmanuel Fankem born at Ivry-sur-Seine in 1980 or at all. The passport by which Mr. Fankem entered Canada in 2012 was a fraudulently-obtained passport. The birth certificate used to obtain that passport was a forgery from start to finish.

[21] Mr. Fankem declined every opportunity I offered him to explain his side of the story or to contradict the evidence of French authorities. I asked him to provide Canadian officials with the most basic details of his life in France that might enable Canadian officials to correct French officials if there were any error. I suggested to him that he ought be able to provide officials with such innocuous details such as the names of his parents, their birthplace, the names of the schools he attended and degrees if any obtained, etc. all without fear of providing information that might incriminate him in the criminal case that had at all events been stayed. Although he at first agreed to do this, he changed his mind almost as soon as he was outside of the courtroom and has since refused to cooperate in any way.

[22] I have telescoped somewhat the progress of the investigation into the identity of Mr. Fankem. While France first advised Canada of the fraudulent nature of the passport used by Mr. Fankem in September 2013, further details of the internal French investigation were forwarded in throughout 2014 and I shall refer to some of those details below.

[23] To the extent that Mr. Fankem permitted any interviews to take place in 2014, he demanded to be taken to the French Embassy to see the Ambassador in person. French officials were strongly opposed to having anything further to do with him and would not permit him on the grounds of the Embassy. They firmly declared that he would not be permitted to enter France. It was eventually agreed that Mr. Fankem would meet a consular official of France on November 19, 2014 at an Immigration office. Although he initially agreed to attend the meeting – one that he himself had requested – Mr. Fankem ultimately refused to attend the meeting reverting to his demand of a meeting at the French Embassy in Ottawa.

[24] Although Mr. Fankem had declined to permit Immigration officials to take his fingerprints, investigators were eventually able to obtain and forward the prints taken by Toronto Police to French police for investigation.

[25] On December 9, 2014 French officials advised that an individual whose fingerprints matched those of Mr. Fankem’s had been denied boarding on a flight from Paris to Canada bearing a passport in the name of Herman Fankem. The person was arrested on April 26, 2010 for possession of false documents. This person admitted in a signed statement to police on April 29, 2010 that the passport in question had been purchased for 2,500 euros and this his true identity was Emmanuel Febibouon, born September 13, 1978 in Douala, Cameroon. The individual was released on a summons to appear at his trial on March 28, 2011 and, when he failed to appear, was convicted in absentia and sentenced to four months imprisonment. The individual in question – the applicant Mr. Fankem - continues to be the object of a removal order from France that has not been acted upon because he was not located and continues to be subject to his prison sentence in absentia.

[26] The investigation of Mr. Fankem’s identity by Canadian officials continued.

[27] In February 2015, the Liaison Officer of the CBSA at the Canadian Embassy in Accra, Ghana was requested to make inquiries of the government in Cameroon. A formal request was made on March 4, 2015, followed up by a meeting with Cameroon judicial police on March 10, 2015. The police national database was checked, and no record of Mr. Febibouon was located. Multiple efforts to interview Mr. Fankem in 2015 to provide information that might assist in this investigation were met with a refusal on his part.

[28] In 2016, additional contacts were made by Immigration investigators with Cameroon officials seeking information on his identity, providing them fingerprints and photographs to work with. Mr. Fankem continued to refuse to provide Canadian officials with any co-operation and declined every attempt to interview him.

[29] The investigation did not proceed at a rapid pace in Cameroon. The initial response – that there was no record of Mr. Fankem in Cameroon – required additional follow-up requests from Canada to seek a further investigation employing other databases. This follow-up request in August 2016 bore some fruit. In September 2016, Cameroon national police advised of a possible match to the photographs forwarded by Canada with records of an individual with a similar-sounding name who was thought to be living in the United Kingdom. Following up on this information, Canadian officials were able to obtain the co-operation of United Kingdom Home Office officials who matched Mr. Fankem’s fingerprints to a Cameroon national named “Mr. FEBILE Buoun Emmanuel” born September 13, 1978. Further investigations in British records revealed other identities used by this same individual: Mr. Herman Kemte born 13 September 1979 and Mr. Joseph James of Haiti born 20 July 1979.

[30] In early November 2016, Canadian investigators were informed of (and received certificates evidencing) two criminal convictions involving the applicant in the United Kingdom:

a. April 11, 2007 – conviction in the name of James Joseph, aka James Emmanuel, aka Febibouon Joseph, aka Emmanuel Emmanuel, born September 13, 1978 for possession of identity documents with intent for which a sentence of eight months was given; and

b. April 1, 2009 – conviction in the name of Herman Kemte also with the same September 13, 1978 birthdate for possession of articles used in frauds for which he was given a 12-month sentence and in respect of which a bench warrant for his arrest was issued (and it appears remains outstanding).

[31] I shall not list each time Mr. Fankem declined to be interviewed by Canadian immigration investigators with a view to establishing his true identity. Investigators persisted in attempting to interview Mr. Fankem throughout 2016 and early 2017 and he declined to co-operate on each occasion.

[32] In the first quarter of 2017 efforts were made to seek records of Mr. Fankem in Belgium, Germany, Switzerland, Spain, Italy and the Netherlands. Follow-up inquiries were made of Cameroon. By April 2017 negative reports had been received back from all save Germany. Various follow-up inquiries, including through Interpol and Homeland Security in The United States were attempted without result through the rest of 2017. Additional attempts to interview Mr. Fankem continued to be rebuffed.

[33] In the meantime, the monthly detention reviews before the Board continued in Mr. Fankem’s absence given his refusal to attend. At each hearing, an update on the status of the investigation was given, including a description of the attempts to secure the cooperation of Mr. Fankem. Alternatives to detention were considered and rejected at each hearing (save the one hearing that ordered his release on terms in a decision swiftly overturned by the Federal Court). The outcome of each of these reviews was an order that Mr. Fankem’s detention be continued by reason of the flight risk he presented.

[34] In September 2017, Ms. Lassonde was appointed as his representative. She was not the first representative appointed by the Board, prior representatives having been replaced or removed for a variety of reasons. None appear to have had any particular level of success in communicating with Mr. Fankem. Ms. Lassonde attempted to represent his interests in the on-going hearings thereafter as best she was able in the circumstances. She was handicapped in her efforts by Mr. Fankem’s refusal to speak to her – a refusal that he maintained with a very few (and short in duration) exceptions up until her application to be removed from the record of this application last week.

[35] Frequent efforts by investigators to secure the cooperation of Mr. Fankem continued throughout 2018 on a frequent basis and entirely without success. According to the lead investigator, Mr. Donaldson, Mr. Fankem declined to speak to investigators, officers or staff on at least 54 occasions.

[36] In December 2018, investigators obtained possession of the telephones seized by police at the time of Mr. Fankem’s 2013 arrest. Mr. Fankem has declined to provide DNA samples to enable global databases of such things to be consulted and has declined to be interviewed by a linguistic expert who might be able to verify his nationality in this fashion.

[37] The two seized cell phones have provided some useful information which has materially advanced the investigation of his identity. They contain records of what appear to be exchanges of text messages by Mr. Fankem with his mother and sister among other friends and family members. None of the messages address him by his name “Herman”, all using Emmanuel or a diminutive of this name (his mother calls him “Emanu”). Those friends who investigators have contacted thus far have confirmed that Mr. Fankem is from Cameroon.

[38] On February 4, 2020, Cameroonian officials confirmed to the lead investigator, Mr. Donaldson, that Mr. Fankem had received two Cameroonian passports in 1997 and 2002 respectively, each bearing a slightly different name (not “Fankem”) and with variations on the stated date of birth. Both passports list the same person as Mr. Fankem’s mother, but one indicates a father’s name while the other indicates no declared father.

(c) Habeas corpus application

[39] Ms. Lassonde commenced this application on Mr. Fankem’s behalf (but without his instructions) in December 2018. The application came before me on May 13, 2019. After consulting with counsel, I addressed Mr. Fankem directly during the hearing. I explained the purpose and nature of the hearing to him. I discussed the question of cooperation and how this might offer a simple avenue to end his state of detention. I explained to him that immigration officials wished only to interview him to discuss the question of his identity – no questions would be asked regarding the prior criminal charges. When he assured me that he was indeed a French citizen, I secured his agreement to provide investigators with the sort of details that would enable investigators to prove that fact to the French government if it were true – details such as the date and place of birth, the names of his parents and the schools he attended, etc. The hearing was adjourned at that time on the understanding that the log jam had been broken and that Mr. Fankem would now co-operate in enabling investigators to establish his identity.

[40] The agreement of Mr. Fankem to co-operate did not last much past the court-room doors. As soon as an interview was attempted, Mr. Fankem once again refused to co-operate. The renewed impasse continued for several months.

[41] On November 19, 2019, Ms. Lassonde appeared before me on a fresh application seeking an order that Mr. Fankem be referred for a psychiatric assessment for the purposes of the still-pending habeas corpus application. Mr. Fankem declined to participate in the hearing, and it was adjourned, ultimately to March 27, 2020 in order to ensure that Mr. Fankem could be heard.

[42] At the return of the matter on March 27, 2020, I found that there was no evidence of any lack of capacity of Mr. Fankem and that he had already declined to participate in a psychological evaluation that Immigration authorities had attempted to arrange already. It appeared likely that an evaluation would proceed on a consensual basis so no formal order on my part to require one was needed. I ordered the habeas corpus application to return on the merits before me as soon as practicable given the pandemic emergency. Following a scheduling hearing in May, the matter was scheduled for a hearing on the merits on June 25, 2020. I directed the parties to ensure the file was properly assembled for the hearing with – if possible – a compendium of the relevant documents either side expected to need to refer to.

[43] As indicated at the beginning of these reasons, Mr. Fankem withdrew what limited co-operation he had shown Ms. Lassonde and her counsel Ms. Sekhar in the proceedings thus far, necessitating their withdrawal from the case on June 17, 2020.

[44] Prior to this, however, Mr. Fankem did relent to the point of permitting an in-depth interview with a psychologist arranged by Ms. Lassonde’s counsel on the consent of the respondents. I received the report of Dr. Tyagi dated June 1, 2020 and this forms part of the record of my hearing on June 25, 2020.

[45] This report, based on a file review plus three clinical interviews of Mr. Fankem spanning approximately nine hours in April and May 2020, made a number of preliminary findings. These included an assessment that Mr. Fankem does not appear to have any problems with memory or cognition nor to be suffering from a major mental illness even if “he likely faces problems in higher order reasoning”. There were a number of areas of concern noted that resulted in a provisional diagnosis of paranoid personality disorder as well as a delusional disorder, persecutory type. These provisional diagnoses came with the significant caveat that there is no developmental or psycho-social-educational history of Mr. Fankem available and there is only limited data available from Mr. Fankem’s self-reporting given his very guarded disclosures and the fact that he has been a poor historian in providing details. It is also to be noted that throughout Mr. Fankem maintained throughout that he was born in France despite the significant evidence to the contrary and does not appear to have volunteered any of the details regarding his legal entanglements in France and the United Kingdom under different names.

[46] Before proceeding further, it must be noted that Mr. Fankem has not made my task an easy one. I had hoped that the log jam preventing him from providing information to verify his identity had been broken upon the initial return of this application before me in May 2019. Unknown to me, that hope appears to have been dashed within a few days even though no steps were taken to bring the application back before me until December 2019. While I have the benefit of the materials his former representative filed, Mr. Fankem himself has filed nothing since assuming carriage of this application and pointedly declined my offers of time to seek counsel or to prepare submissions. Indeed, on the return of the application on June 25, 2020 he declined to make any submissions at all beyond demanding a decision from me. I appointed amicus to assist the court and, perhaps, to assist him. He refused to communicate with them and objected even to their presence at the hearing. The two appointed counsel did their best to provide me with some assistance based on the limited time they had but their ability to assist was necessarily constrained.

Issue to be argued

[47] The issue in this case is whether the continued detention of Mr. Fankem is lawful.

Discussion and analysis

(a) Relationship between Habeas Corpus and IRPA

[48] Until last year, there was some lingering controversy surrounding the question of whether the IRPA detention review process is to be viewed as a complete and comprehensive procedure governing the detention review process to the partial or total exclusion of the remedy of habeas corpus. That controversy was laid to rest by the Supreme Court of Canada with its decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29.

[49] It is now clear that the IRPA procedure does not operate to the exclusion of the important remedy of habeas corpus. Rather, the Supreme Court recognized that there are significant advantages to the applicant available in a habeas corpus application that are not available in proceedings pursuant to the IRPA even if the latter has been designed with Charter compliance in mind.

[50] Among the advantages presented by a habeas corpus application is the matter of onus. The applicant is required only to show a deprivation of liberty and a legitimate ground for questioning the legality of that deprivation before the onus shifts to the state to demonstrate the lawfulness of detention by showing that the decision to detain was the product of a fair decision-making process and that the decision itself was both reasonable and Charter-compliant.

[51] It is also important to recognize that the process before me – habeas corpus – has quite a different focus compared to the process under the IRPA. The issue before me is a narrow one – the legality of Mr. Fankem’s detention but the lens to be applied to that examination is a broader one being the Charter-protected rights of liberty and the right to be secure against arbitrary detention. My examination of the issue is not limited by the objects of the IRPA alone. At the same time, any decision that I might render in this application would not impact upon Mr. Fankem’s immigration status since that is a matter reserved to the Board. A decision on my part to liberate Mr. Fankem from detention would not confer upon him the legal right to remain in Canada. An order of this court terminating his detention would leave intact his continuing obligation to leave the country immediately including the obligation to take steps to obtain the travel documents necessary to do so.

[52] A further observation regarding the limited nature of habeas corpus is in order at this juncture. While the legality of the detention of an individual may well entail a consideration of Charter issues, this is cannot be confused with a Charter application. As I have discussed, the onus is quite different on a habeas corpus application and the remedy to be granted in a procedure that examines the legality of detention is an order bringing an end to any unlawful state of detention that is found to exist. I agree with the respondents’ submission that the terms to be attached to any release I might order are properly within the jurisdiction of the Board to determine.

(a) Applicant’s onus

[53] There can be little doubt in this case that Mr. Fankem’s application has satisfied the onus upon the applicant in a habeas corpus application. He has been detained for seven years at this point – whether a few months over or under that bar is of no moment. Since August 20, 2013, the only immigration objective being served by his continued detention has been the question of his removal order. He is under an obligation to remove himself from Canada “immediately” and has no right to be present in Canada. He has been detained because of a succession of findings that he represents a significant flight risk who also lacks valid travel documents permitting him to go anywhere and has declined to take any steps necessary to obtain them in order to comply with that removal order.

[54] However, Canada has also known since September 2013 – one month into what has become a seven-year detention – that Mr. Fankem was not recognized as a French citizen by France despite the passport he entered Canada with and that he was considered by that country to be national of Cameroon. It has taken almost seven years for investigators to obtain from Cameroon confirmation that Mr. Fankem is indeed a national of that country but the timeline for delivering travel documents that would permit him to travel continues to remain uncertain.

[55] In short, there has been a detention of apparently unreasonable duration coupled with a lack of clarity as to when and how that period of detention will ever be ended. In my view these circumstances satisfy the threshold of establishing legitimate grounds for questioning the legality of the deprivation of liberty in this case. An apparently indeterminate detention is a quintessentially legitimate basis upon which to found a habeas corpus application.

(b) Respondents’ onus

[56] Having found that the applicant has discharged his onus in bringing this application, the onus shifts to the respondent Minister to establish to my satisfaction that the decision-making process that had resulted in his detention has been a fair one and that the decision to detain (and continue to detain) Mr. Fankem is both reasonable and Charter-compliant. This Charter inquiry requires the court to take a broader view of the situation that is not constrained to the four corners of the IPRA.

(i) Fairness of decision-making process

[57] I do not propose to spend much time analysing the first prong of that inquiry. The record of Mr. Fankem’s various detention-review hearings is an extensive one and my examination of it confirms that it has been a broadly fair and reasonable process. Mr. Fankem has been accorded all of the due process that the IRPA can provide.

[58] His detention has been the object of continual and frequent review by a professional and independent Board. He has been offered access to Legal Aid. Hearings and decisions have been recorded and transcribed. Mr. Fankem has not been denied the opportunity to be heard nor the opportunity to understand the nature of the proceedings or what was required from him to end his detention. He has been offered every opportunity to hear the case against him and to respond to it. Attempts were made to obtain a psychological evaluation of Mr. Fankem that were rebuffed by him. Attempts were made to discover whether there were grounds to examine whether Mr. Fankem would be in jeopardy if returned to France that were similarly thwarted by Mr. Fankem’s failure to cooperate. The criteria reviewed at each hearing are broadly Charter-compliant even if somewhat broader in scope as was noted by the Supreme Court in Chhina. Reasons for each decision have been given and none of them can be viewed as unreasonable in the context of the criteria established by the IRPA.

[59] The main ground found in each case for the continued detention of Mr. Fankem has been the conclusion that Mr. Fankem presents a flight risk. There is overwhelming evidence justifying that conclusion. Mr. Fankem did not leave Canada when required to do so, has taken no steps to assist in verifying his true identity and has operated under a dizzying variety of aliases. The evidence before the Board at each hearing presented an evolving but consistent portrait of an individual that has left a trail of fraud and dishonesty in his wake in multiple jurisdictions with the obvious danger that this poses to the community as well. The Board relied upon criteria that it was entitled to examine under the IRPA in each case and the determination was amply justified by the evidence on each hearing. Further, The Board consistently examined the matter of alternatives to detention and the role Mr. Fankem has played in the length of his detention by reason of his failure to provide any cooperation in confirming his identity.

[60] There can be no question that the administrative process that resulted in his detention and the maintenance of that status over a period of nearly seven years has been a fair one from an administrative law point of view.

[61] My decision in this regard is not a close-run thing. A fair, objective and professional process has been maintained by the Board throughout despite the significant challenges posed by the wall of active obstruction or passive non-cooperation erected by Mr. Fankem. The Board has had regard to appropriate criteria in reaching its determinations and has done son on a reasonable basis having regard to the evidence before it.

(ii) Reasonableness and Charter-compliance of detention decision

[62] The administrative fairness of the process leading to the decision to detain and continue the detention of Mr. Fankem is not the sole issue about which the Minister is required to satisfy me. The Minister must also satisfy me that the substantive outcome of that administratively-fair process is one that can be characterized as reasonable and Charter-compliant. While this examination is not limited to lengthy detentions of uncertain future duration, that is clearly the most relevant issue in this particular case.

[63] On the facts of this case, I find that the relevant provisions of the Charter to be reviewed are s. 7 (right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice) and s. 9 (the right not to be arbitrarily detained or imprisoned). These considerations in turn lead me to examine the reasonableness of the length of the detention to date and any uncertainty as to its continued duration in the context of the necessity of the immigration objects such detention is designed to secure: Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 at para. 81. Reasonable of course is always a context-specific inquiry. I must examine the factual background to determine the degree to which the immigration-related purposes of the Minister can reasonably be expected to be achieved within a reasonable time frame.

[64] While I have characterized the length of Mr. Fankem’s detention as satisfying the applicant’s preliminary onus on this application, that conclusion is not the end of the inquiry. It merely shifts the onus to the applicant to justify that length having regard to the objects being pursued and the Charter-protected rights being defended.

[65] In my view the Minister has discharged that onus. There can be no doubt that seven years is a very long time to hold someone for the sole purpose of removing him from the country. However, a close examination of the facts demonstrates that this time, while long, is nevertheless reasonable in the circumstances. I reach this conclusion for the following reasons:

a. Mr. Fankem knowingly entered this country using a fraudulent passport and under a name that the evidence in the record firmly establishes is not and was not his own;

b. The Minister has made a lawful removal order against Mr. Fankem under the IRPA which order has not been appealed or challenged and remains in full force and effect;

c. From the time that removal order was made until the present time, Mr. Fankem has been under a continuing obligation to remove himself from Canada “immediately”;

d. That obligation carries with it the obligation to take such reasonable steps as are within his power to comply including, without limitation, the obligation to obtain travel documents to which he is legitimately entitled;

e. Mr. Fankem has continued refused to take any steps to obtain legal travel documents or to provide immigration investigators with the information necessary to enable the government of Canada to obtain these on his behalf; and

f. While it might be possible to question aspects of the speed of the investigation in hindsight, any such criticism must take proper account of Mr. Fankem’s obstruction and lack of cooperation as well as the fact that the assistance of officials and agencies of a number of other countries has been required to pursue what has been a complex and difficult investigation over three continents with multiple aliases to be sorted through.

[66] In short, the length of this determination is reasonable when Mr. Fankem’s role in the length of that process is examined.

[67] This case bears considerable similarities to the case of Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681 where the decision of the applications judge to deny relief under habeas corpus in the case of a detained individual who had also failed to provide cooperation or assistance in establishing his identity was upheld.

[68] It is important to note that the detention of Mr. Fankem is not grounded upon his lack of co-operation. The sole basis for his detention has ever been the conclusion that there was a well-founded fear that he would fail to remove himself from Canada as required by the removal order if released. He is not being “punished” for failure to cooperate; failure to cooperate is relevant only in examining the reasonableness of the length of time he has been detained. That time has been prolonged because of the difficulties that this applicant has strewn in the path of the Minister’s agents in their quest to determine his true identity and arrange the travel documents necessary to enforce the removal order. His multiple aliases used in multiple countries have required time and the wearing out of proverbial shoe leather to unravel.

[69] The Minister has been seeking only to establish the actual identity of Mr. Fankem in order to obtain travel documents enabling him to return to whichever country has an obligation to receive him under international law. Mr. Fankem has been under a continuing obligation to provide that assistance and it has always been within his power to provide it. Honest and truthful answers to such simple questions as: “Where were you born?”, “What was your mother’s name?”, “What was your father’s name?”, “Where did you go to school and when?”, “What passports have you held and when?” have always been within his power to provide.

[70] There is every reason to believe that honest and truthful answer to these and similar questions have always been within his capacity to provide and, if provided, would have swiftly resulted in the obtaining of a travel documents enabling his detention to be brought to an end.

[71] While unexplained delay counts against the offending party, I am satisfied here as was the Court in Toure, that the Minister has adequately explained the delay by reference to the conduct of Mr. Fankem. A similar conclusion was reached by Clark J. in Canada v Dadzie, 2016 ONSC 6045. I am satisfied that the delay in this case and to this point in time has been reasonably necessary to secure the objects of the IRPA being the removal of Mr. Fankem from this country in accordance with the removal order made.

[72] The past delay in removing Mr. Fankem is of course not the only consideration in this case. I must also consider the matter of future delay. Travel documents have not yet been obtained for Mr. Fankem and it is not known when if ever these will be delivered. Does the remaining uncertainty as to the timing of the delivery of travel documents constitute an unreasonable deprivation of liberty having regard to s. 7 and s. 9 of the Charter?

[73] In my view it does not and for many of the same reasons I gave in relation to past delay. It has taken a long time to get this far and it may take longer still to obtain the travel documents necessary to enforce the removal order. While the prospect of detention without end would clearly be a Charter violation, two factors militate against that conclusion at this stage.

[74] First, Mr. Fankem has been and remains a key factor in the duration of any future delay in obtaining travel documents. He continues to cling to a story that is clearly and demonstrably false and no assistance to validate his true identity.

[75] Second, the process does appear to be drawing towards a close even if Mr. Fankem could accelerate it with a modicum of self-help. Cameroon has now recognized that Mr. Fankem is a national of that country and is trying to sort out which of the identities Mr. Fankem has used in the past is a valid one. The Minister does not control Cameroon’s actions or the speed with which Cameroon is acting. I am nevertheless satisfied at this point at least that the Minister is acting with diligence, that Cameroon is fulfilling its international obligations to Mr. Fankem and to Canada by moving towards the issuance of a valid travel document that will enable the removal order to be executed and the process has a reasonable prospect of bearing fruit within a reasonable time frame.

(iii) Concluding observations regarding reasons for detention

[76] For the foregoing reasons, I find that the Minister has discharged the onus of establishing the legality of the detention of Mr. Fankem on the facts of this case and the application must accordingly be dismissed.

[77] Mr. Fankem has had within his power the ability to procure his release from detention with minimal effort. The key to his cell has always been sitting there in his own pocket. He has only ever had to take it out and turn it in the lock. He cannot decline to take the key out of his pocket in order to obtain something that he has no right to – Canadian residence – nor can he describe as a breach of Charter rights a situation of his own making that is due to his own wilful refusal to take simple steps that have always lain entirely within his power and which he had a positive duty to undertake.

[78] The process of determining the applicant’s true identity and arranging legitimate travel documents for him is now showing definite forward momentum and there are reasons to believe that the immigration objects of the respondents can be expected to be accomplished within a reasonable time frame despite the lack of cooperation from Mr. Fankem. It lies within Mr. Fankem’s power to accelerate that process at any time through simple actions on his part if he chooses to take them.

Disposition

[79] This application is accordingly dismissed but without prejudice to it being brought back on should it later appear that forward progress will not be made in the quest to obtain legal travel documents within a reasonable time.

[80] In the circumstances, and having regard to the submissions of the respondents, there shall be no order as to costs.

S.F. Dunphy J. Date: June 26, 2020