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OFFENCES AND ENFORCEMENT - Arrest and detention - Review - Release from detention

Wednesday, November 22, 2017 @ 8:29 AM  


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Appeal by the Crown from two decisions involving the detention of the respondent, Ogiamien. The first decision granted Ogiamien’s habeas corpus application for his release. The second decision granted Ogiamien’s request for re-release after his re-arrest by immigration officials. Ogiamien came to the US from Africa as a child with his uncle, as an undocumented immigrant. In 2001, Ogiamien fled from criminal proceedings in the US and entered Canada without permission under an assumed name. He was ordered deported in 2002 because he had misrepresented his identity and because he incurred two criminal convictions in Canada. He was returned to the US in July 2002 to face outstanding criminal charges. He was deported back to Canada from the US in 2005. He was detained for identity purposes by the Canada Border Services Agency (CBSA), then released in January 2006. He moved to Montreal, had a son, established a business and established contact with siblings in Canada from whom he had been separated as a child. He made irregular reports to the CBSA. He faced several Canadian criminal charges between 2009 and 2012, although the CBSA took no steps to re-incarcerate him. Ogiamien was detained on criminal charges in Ontario in April 2013. Because this resulted in his failure to report to the CBSA, an arrest warrant was issued in February 2014. This warrant was executed upon Ogiamien’s May 2014 release on bail, and he was detained by immigration authorities. The criminal charges were withdrawn in July 2014, but Ogiamien remained detained until June 2016, upon his successful habeas corpus application. The judge found that his detention was of lengthy and uncertain continued duration, and that the Crown failed to establish that continued detention was necessary to further the machinery of immigration control. Five months later, Ogiamien was re-arrested by a CBSA officer, because the officer believed Ogiamien breached the conditions of his release by completing an application for a Nigerian travel document. Ogiamien successfully applied for judicial interim release.

HELD: Appeal from the first order dismissed; appeal from the second order allowed in part. In the first proceeding, the judge was entitled to consider the entire history of the immigration proceedings and the conduct of the CBSA to assess the length of Ogiamien’s detention. She did not err in finding that Ogiamien cooperated to some extent with the CBSA regarding his identity, such that the fault for the length of his detention could not be laid solely at his feet. There was nothing to suggest that Ogiamien had access to any identity documents from his country of origin, or that such documents would be forthcoming in a timely manner from the Nigerian authorities. The judge was justified in finding that Ogiamien’s risk of flight was not such that his continued detention was warranted, given his establishment of family and business ties. The judge had authority to impose conditions on Ogiamien’s release, but she erred in assuming power to review any attempt by the CBSA to arrest or detain Ogiamien for breach of such conditions. Because the Crown had consented to Ogiamien’s second application for review, the judge was entitled to determine it, but the conditions she imposed on this second release were set aside insofar as they governed the way the immigration authorities could deal with Ogiamien in future.

Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services), [2017] O.J. No. 5702, Ontario Court of Appeal, R.J. Sharpe, P.S. Rouleau and K.M. van Rensburg JJ.A., November 2, 2017. Digest No. TLD-November202017007