[1995] 1 F.C. 251
IMM-3333-94
Minister of Citizenship and Immigration (Applicant)
v.
Jose Adalberto Salinas-Mendoza (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Salinas-Mendoza (T.D.)
Trial Division, Noël J.—Vancouver, September 28 and October 3, 1994.
Citizenship and Immigration — Immigration practice — Detention review by Adjudicator under Immigration Act, s. 103 — Adjudicator erred in considering self bound by Provincial Court decision under Criminal Code to conditionally release respondent pending hearing of sexual assault charge — Legislative context, burden of proof, evidentiary standards under Criminal Code and Immigration Act different.
An Adjudicator under the Immigration Act determined that the respondent was a person described in paragraph 19(2)(a) of the Act and issued a conditional deportation order. She also ordered that the respondent be detained on the basis that he was likely to pose a danger to the public. Subsequently, a Judge of the Provincial Court of British Columbia before whom the respondent appeared upon a charge of sexual assault ordered his release under subsection 515(10) of the Criminal Code (which compels the release of an accused unless the Crown can demonstrate that detention is necessary for public safety). Finally, a second Adjudicator under the Immigration Act was called upon to review the original detention order. The Adjudicator indicated that she was satisfied that the terms of the release ordered by the Provincial Court Judge made it unlikely that the respondent would pose a danger to the public and released the respondent from custody. This was an application to review the second Adjudicator’s decision. The respondent submitted the following question for certification: “Is the standard for release under section 103 of the Immigration Act different than that for release pursuant to the bail provisions of the Criminal Code?”
Held, the application should be allowed and the request for certification denied.
The Adjudicator abdicated her role in some essential aspects in the face of the decision of the Provincial Court Judge. She failed to exercise her jurisdiction by omitting from her order terms and conditions which she considered essential for the release of the respondent.
This error was symptomatic of a more fundamental error, namely the excessive deference which the Adjudicator exhibited towards the decision of the Provincial Court Judge and the consequential failure to focus on the specific authority which she was called upon to exercise.
The mandate of the Provincial Court Judge was fundamentally different from that of the Adjudicator, the statutory context being totally different. The Judge was compelled by law to release the respondent unless the Crown could demonstrate that the detention was necessary for the protection or safety of the public.
On the other hand, the respondent appeared before the Adjudicator as a person under detention pursuant to a decision of another Adjudicator. The Adjudicator was called upon to review the reasons for the detention of the respondent and determine whether or not to continue it. In this context, the burden was on the respondent to satisfy the Adjudicator that he did not pose a danger to the public. The Adjudicator, however, felt that the Provincial Court Judge’s decision was determinative of the issue which she had to decide and gave no weight to the reasons for which a detention order had been issued. This was a reviewable error. The Adjudicator further erred in deferring to the Judge’s decision and in failing to bring her own independent mind to bear on the issue which she had to decide.
The Adjudicator also erred in failing to apply the evidentiary standard mandated by the Immigration Act. She chose to discard evidence by reference to her perception of what was and what was not admissible before the Provincial Court Judge whereas she had the duty under the Immigration Act to consider all the evidence which had been received and determine whether the evidence in question could be considered trustworthy or credible.
The question, which was submitted for certification, as to whether the standard for release under the Immigration Act and under the Criminal Code was the same did not have to be answered but the standard was essentially the same. It was, however, to be applied independently in each case by reference to the particular legislative context in which it arose.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, ss. 515(10), 518(1)(e).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(2)(a) (as am. by S.C. 1992, c. 49, s. 11) , 80.1(5) (as enacted idem, s. 70), 103(6) (as am. idem, s. 94), (7) (as am. idem).
APPLICATION FOR JUDICIAL REVIEW of the order of an Adjudicator under the Immigration Act, upon review of a detention order, releasing the respondent from custody.
COUNSEL
Esta Resnick for applicant.
Samuel D. Hyman and Rod Holloway for respondent.
SOLICITORS
Deputy Attorney General of Canada for applicant.
Hyman, L. & Associates, Vancouver, and Legal Services Society of B.C. Immigration Appeals Department, Vancouver, for respondent.
The following are the reasons for order rendered in English by
Noël J.: I have concluded that the order of the Adjudicator releasing the respondent from custody should be quashed, and that the matter should be sent back for re-hearing before a different adjudicator.
In my view, the Adjudicator abdicated her role in some essential aspects in the face of the decision of the Provincial Court of British Columbia to release the respondent, pending the hearing of the sexual assault charge laid against him. If, as the Adjudicator indicated, she was satisfied that the terms of the release ordered by the Provincial Court made it unlikely that the respondent would pose a danger to the public, she, at the very least, had to make those terms part of the order which she issued in the purported exercise of her jurisdiction under the Immigration Act [R.S.C., 1985, c. I-2].
As the matter presently stands, these terms, while they were considered by the Adjudicator as essential prerequisites for the issuance of her release order, are nowhere to be found in the order which she gave. It is therefore apparent, on the face of the record, that the Adjudicator failed to exercise her jurisdiction by omitting from her order terms and conditions which she considered essential for the release of the respondent. One of the obvious consequences which flow from this error is that if, for any reason, the terms and conditions imposed by the Provincial Court should cease to have effect, public safety concerns under the Immigration Act will be left unattended. Indeed, no independent order imposing these terms has been made under the Immigration Act.
This error is symptomatic of a more fundamental error, namely the excessive deference which the Adjudicator exhibited towards the decision of the Provincial Court and the consequential failure, on her part, to focus on the specific authority which she was called upon to exercise. In her reasons, she stated:
The issue of your detention or release in terms of that custody was reviewed by Judge Smyth and you were released subject to very appropriately restrictive terms and conditions.
She later went on to state:
I carefully reviewed that section and found that he has power to order your detention if he found it to be necessary in the public interest or for the protection or safety of the public having regard to all the circumstances including any substantial likelihood that you will, if released from custody, commit a criminal offence or any interference with the administration of justice. I see this as being a much broader power than what I have. It is the criminal justice system that is charged with the responsibility of dealing with alleged criminal behaviour whereas my mandate is much more restrictive.
before concluding that:
I am satisfied that given the terms of your release by Judge Smyth, it is unlikely that you would pose a danger to the public if released from detention under the Immigration Act.
It is clear from the reasons that, in so far as the pending charge was concerned, the Adjudicator was of the view that the decision of Judge Smyth had conclusively dealt with the public safety concern which she was called upon to assess under the Immigration Act. It is also clear that in so holding the Adjudicator considered Judge Smyth’s task as more encompassing than hers and that he was in a better position to deal with alleged criminal behaviour than she was.
While Judge Smyth, in rendering his decision, was also concerned with the public safety issue arising from the actions of the respondent, he addressed it in a totally different statutory context. He was not, contrary to what is asserted by the Adjudicator, mandated to consider the broader issue of public interest. Furthermore, his mandate was fundamentally different from that of the Adjudicator.
The decision of Judge Smyth was made under the authority of subsection 515(10) of the Criminal Code [R.S.C., 1985, c. C-46]. It provides:
515. …
(10) For the purposes of this section, the detention of an accused is justified only on either of the following grounds:
…
(b) … that his detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including the substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice.
The respondent appeared before Judge Smyth in relation to the single offence of sexual assault with respect to which he was presumed innocent. Judge Smyth was compelled by law to release him unless the Crown could demonstrate that the detention was necessary for the protection or the safety of the public. That is the context in which he released the respondent. He gave no reasons.
The respondent appeared before the Adjudicator as a person under detention further to the earlier decision of Adjudicator Shaw Dyck. Adjudicator Shaw Dyck had determined that the respondent was a person described in paragraph 19(2)(a) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act and issued a conditional deportation order. At the conclusion of that inquiry, Adjudicator Shaw Dyck ordered the respondent detained on the basis that he was likely to pose a danger to the public.
The Adjudicator was called upon to review the reasons for the detention of the respondent and determine whether or not to continue it. The review authority is found in subsections 103(6) [as am. idem, s. 94] and (7) [as am. idem] of the Immigration Act. They provide:
103. …
(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days … at which times the reasons for continued detention shall be reviewed.
(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public … the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances …
As this was a review proceeding, the burden was on the respondent to satisfy the Adjudicator that he did not pose a danger to the public. Adjudicator Shaw Dyck had, a few days earlier, decided that he did on the basis of the same evidence as that which was now before the Adjudicator.
The fact that she was sitting in a review proceeding seems to have escaped the Adjudicator. During the hearing she stated:
Adjudicator: Just so that there’s no doubt, as well, in terms of the decision reached, all of the decisions reached last week by Adjudicator Shaw Dyck. I will not be revisiting her decision that it was appropriate for her to consider the issue of taking Mr. Salinas-Mendoza into custody. If you wanted to challenge that decision, the proper form would have been to take an application to the Federal Court. But I, as an Immigration Adjudicator, I do not believe that I have the power to sit in review of any decision that she has made.
There is no doubt that the Adjudicator was not sitting in an appellate or judicial review capacity. But she was charged with the mandate to reassess the reasons for the detention ordered by Adjudicator Shaw Dyck, and determine whether or not the detention ought to be continued. As that last order stood before her as valid and binding, the burden was on the respondent to demonstrate that it ought not to be continued, and not on the Minister. The Adjudicator could not ignore the fact that a detention order had been issued on the basis of the same evidence as that which the Minister was now presenting before her. Yet, her reasons make no mention of the prior order nor does it deal in any way with the strongly worded reasons which had been given in support of its issuance. Obviously, the Adjudicator felt that Judge Smyth’s decision was determinative of the issue which she had to decide and gave no weight to the reasons for which a detention order had been issued in the first place.
Judge Smyth was not sitting in a review proceeding. He was assessing first hand the question as to whether the respondent ought to be released in the context of the sexual assault charge which was pending against him. The burden sat squarely on the Crown. Judge Smyth had to order the release of the respondent unless the Crown could convince him otherwise. He may have been very ambivalent about his decision to release the respondent and may indeed have released him only because the onus confronting the Crown compelled him to do so. Properly understood, while his decision was of interest to the Adjudicator, it had little relevance to the particular decision which she had to make in the context of the review proceedings before her.
In my view, the Adjudicator committed a reviewable error in treating the decision of Judge Smyth as determinative of the issue which she had to decide. She committed a further error in deferring to his decision in the belief that he was more apt, or better positioned jurisdictionally, to assess the potential risk to the public. In so doing, she failed to bring her own independent mind to bear on the issue which she had to decide.
It is also apparent from the reasons that the Adjudicator chose to discard evidence by reference to her perception of what was and what was not admissible before Judge Smyth. She did so in the following terms:
Some very subjective statements were attached to the reports to the Crown counsel and as indicated by Mr. Hynan last week, there are good reasons why they are not acceptable evidence in the criminal court setting. Many of the incidents referred to did not result in convictions, and our system of justice in Canada is based on the premise that a person is innocent until proven guilty, making it quite understandable that counsel would find much of this information to be prejudicial and highly inflammable.
I note that the evidence so described may well have been admissible in a criminal court setting.[1] But, notwithstanding that, while it was quite open to the Adjudicator to ultimately reject evidence by reference to the rationale behind the criminal rules of evidence, she could not do so before first ascertaining whether the evidence in question could be considered credible or trustworthy. Subsection 80.1(5) [as enacted idem, s. 70] of the Immigration Act reads:
80.1 …
(5) An adjudicator is not bound by any legal or technical rules of evidence and, in any proceedings, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
In enacting subsection 80.1(5) of the Immigration Act, the legislator obviously contemplated that evidence which is inadmissible under the legal or technical rules of evidence could nevertheless be relied upon, if found to be credible or trustworthy. It follows that the Adjudicator had the duty to consider all the evidence which had been received and determine whether the evidence in question could be considered trustworthy or credible. This, she did not do on the erroneous assumption that she could apply an evidentiary standard that is not mandated by the Immigration Act.
At the close of the hearing, counsel for the respondent submitted the following question for certification: “Is the standard for release under section 103 of the Immigration Act different than that for release pursuant to the bail provisions of the Criminal Code?”
I do not believe that this question calls for an answer in the context of this judicial review proceeding because, irrespective of the answer, the decision under review ought to be quashed.
However, I believe that it is incumbent for me to say, albeit in obiter, that in my view the standard is essentially the same under both Acts. It is, however, to be applied independently in each case by reference to the particular legislative context in which it arises.
For these reasons, the request for certification is denied; the decision of the Adjudicator is quashed; the order of Adjudicator Shaw Dyck made on June 17, 1994, is reinstated and the matter is referred back for a new detention review hearing before a different adjudicator.