A MAN FROM RWANDA — OR PERHAPS TANZANIA — WILL STAY IN PRISON EVEN THOUGH HIS SENTENCE IS COMPLETE, A FEDERAL COURT JUDGE HAS RULED. THAT’S BECAUSE HE WON’T CO-OPERATE IN HIS DEPORTATION.
Man will not co-operate in his deportation
Five separate decisions by the Immigration and Refugee Board to release an imprisoned refugee — who is considered a danger for sexual assault and randomly attacking people on the street — have been overturned by the Chief Justice of the Federal Court, revealing growing conflict over how to handle violent refugees who cannot be deported.
In overruling release decisions for a man who has been in prison for more than three years because he won’t co-operate with his deportation, Chief Justice Paul S. Crampton issued a call to reconcile “the tensions in this court’s jurisprudence” on the thorny issue.
He landed soundly on the side of detention.
To do otherwise, he wrote, “would have the perverse effect of rewarding the detainee for his failure to co-operate with his removal.”
Such immigration conundrums are emerging with increasing frequency, with each individual case appearing as a bizarre oddity where a refugee is ordered out of Canada but cannot be deported.
As the cases accumulate, however, the IRB and the Federal Court are grappling with how long an unremovable non-citizen can be incarcerated before the government throws in the towel and lets him out.
The latest case, which drew Crampton into the fray, is that of Jacob Damiany Lunyamila, 40, of Vancouver.
Lunyamila arrived in Canada without any documentation after jumping off a ship and claiming refugee status in 1994 as a citizen of Rwanda. He was granted asylum in 1996.
From 1999 to 2013, he amassed 54 criminal convictions; 10 of which are for assaults, four for uttering threats and 13 for failing to appear in court. His most recent conviction, in 2014, is for sexual assault.
Court heard how he was found carrying a concealed axe and attacking strangers on the street in downtown Vancouver without provocation. Vancouver police called him a chronic offender and a persistent criminal.
He has, however, served his time for each conviction.
As Justice Sean Harrington said in an earlier Federal Court decision on his case: “If he were Canadian he would be free today to roam the streets as he has served his sentences. However, he is not Canadian. He came here as a refugee from Rwanda.”
Because of his criminality, Lunyamila was deemed inadmissible to Canada by the Canada Border Services Agency.
He was ordered deported, but that has so far been impossible as he refuses to sign documentation required by the Rwandan government to re-enter Rwanda.
Lunyamila vowed he will never co-operate.
CBSA officials believe Lunyamila is from Rwanda, but are also investigating if he is from Tanzania after a linguistics analysis pointed to the neighbouring country in east Africa.
Lunyamila denied being Tanzanian, but he has also insisted he was “a citizen of the earth.”
He has been incarcerated June 19, 2013, but for two days of release in September 2013 after which he was rearrested for breaching his release conditions.
He has detention review hearings every 30 days. For years, he was routinely kept locked up as a flight risk and as a danger. After a while, however, the IRB started to think he was never going to be deported.
As time passed, it raised the prospect that Lunyamila’s stay in prison was, in fact, “indefinite,” which runs afoul of the Charter of Rights and Freedoms. Starting in January 2015, IRB members started ordering him released. At least five different IRB adjudicators made at least seven release decisions.
Each time, the government scrambled to file court motions to keep him inside before he was freed. Each court review overturned the IRB’s decision.
(During one appeal, Judge Sean Harrington said the view by IRB decisionmaker Otto Nupponen that Lunyamila appeared to be a changed man was only “based on a hope and a prayer.”)
It has created what Crampton calls “a stalemate.”
In response, he overturned each of the IRB decisions as unreasonable and laid down a framework for future decisions to be decided.
“To permit someone in these circumstances to take the position that he should be released on the grounds that his detention had become indefinite would be effectively to allow that person to frustrate the will of Parliament and, in essence, ‘take the law into his own hands,’ ” wrote Crampton.
“That would undermine the integrity of our immigration laws and public confidence in the rule of law.”
Crampton ruled that a balance between public safety and the concern of indefinite detention must be struck.
“The indefinite nature of an individual’s detention under the (Immigration Act) is only one factor to be considered when conducting a detention review, and cannot be treated as determinative.
“Resolving a stalemate” — when a detainee refuses to co-operate with the government to allow his removal from Canada — Crampton ruled, demands a decision “in favour of continued detention.”
Crampton’s attempt to create landmark rules for handling these cases was made Oct. 27, 2016, but only published in the Federal Court decision registry on Tuesday. (The court said the decision was inadvertently omitted at the time.)
Neither the IRB nor CBSA could provide comment on the decision Tuesday. Lunyamila’s lawyer, Robin Bajer, could not be reached.
IF HE WERE CANADIAN, HE WOULD BE FREE TODAY …