- 1 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

IMMIGRATION AND REFUGEE BOARD

- IMMIGRATION DIVISION -

Record of Decision of a Detention Review held under the

Immigration and Refugee Protection Act, concerning

DWAYNE RAYON HIBBERT

HEARING: PUBLIC

HELD AT: Teleconference

DATE: March 26, 2020

BEFORE: Karri-Lynn Hennebury - Member

APPEARANCES:

Dwayne Rayon Hibbert - Person Concerned

Simon Wallace - Counsel
J. Novais - Minister’s Counsel
N/A - Interpreter
 - 2 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

DECISION

MEMBER: This is the decision in the 7-day detention review of Dwayne Rayon Hibbert.

Sir, you are not a Canadian citizen nor a permanent resident.

You are a citizen of Jamaica.

You have been detained since March 17th on the finding that you are unlikely to appear for your
removal and the decision I have to make today is whether to order your continued detention or whether to
order your release, this is a public hearing.

Sir, I have considered the submissions from both counsel today, this is a joint recommendation
put before me for your release, which I will be, as I said going along with, I do find it to be reasonable, I
will be following the guidelines in guideline two on detention.

And I will accept the joint recommendation.

That being said sir, I still have some considerations that I have to go through, sir just please be
patient I have to explain first of all why I find any release would be necessary or considered or any
conditions because I have to explain why I find on a balance of probabilities you are unlikely to appear.

Now, I do make that finding sir based largely upon your previous actions noting first of all that
you had overstayed, you know, your being a farmworker, that you were placed on terms and conditions in
the past with the posting of a bond, you violated that, you failed to appear for your removal despite
signing a direction to report and also purchasing your own ticket.

So, you know, sir, I am not going to go through all of your history, certainly my colleague did
fulsome job at the last hearing, I am just hitting the high notes that I think there is more than enough
evidence to establish on a balance of probabilities that you are unlikely to appear.

And then by extension why a release on your own in that situation is inappropriate.

That being said sir there is other considerations that I need to make.

And --- so I will go through those factors, they are set out in regulation 248.

First of all, there is no best interest of any directly affected child.

At this point sir your detention has been just --- actually 9 days, not quite 10 days, 9 days.
 - 3 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

Now, certainly sir, I am going to recognize for you that is a meaningful period of time with the
understanding that this is in the midst of a global pandemic and any time spend in detention while that is
the case certainly is difficult.

And I accept that.

That being said, I am required to put your detention at least at this time on a timeline of short-
term detention to long term detention.

And in my view, nine days, even in the current climate is a neutral factor, it does not necessarily
favour your release.

In terms of the future anticipated length of detention, basically sir it is just unknown, I think it is
the fairest way to assess.

Certainly, we know that there is --- Canada Border Services Agency is not going to remove you
for three weeks.

Now, I note my previous colleague had said that she could not --- and maybe even health
professionals cannot ascertain to what degree that will last or what will happen within three weeks, I think
that is the point for me sir, is that it is unknown.

When it is unknown I think that makes it indeterminate, not indeterminate when you look at the
lengthy but it makes it unknown, there is no real clear answer of when you would be removed or could be
removed, and to me that favours release.

I also looked at any delay, at least up until this point, I mean it is --- the moratorium on the
removal at this point has resulted in a delay in the sense that you have not been removed, it is not
necessarily undue diligence, it is just that by the Minister’s actions you are being removed.

So I did factor that into my analysis.

Now, all of this is being balanced against you being unlikely to appear and the fact that you on
your --- you know, under a bond in the past failed to appear for your removal, I think that puts you
towards the higher end of the flight risk in which I do agree with my colleague.

Now, that being said sir, I do have the alternative to your detention before me, I have somebody
who is a family friend, somebody who, as I was advised by your counsel borders on family relation to
you, this is somebody who is senior to you, this is an individual who is offering his residence to you, I
think even the fact that he took it seriously enough not to offer until he spoken to his wife is indicator of
how he would be in terms of his supervision.

So, I think he is a suitable bondsperson, he is also offering $5000 performance bond and a $2500
cash deposit.
 - 4 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

I want to make some comments about that, because my view of the money is slightly different
than the view that my colleague took on the last occasion.

I accept that the global pandemic would impact an individual’s ability to post a significant
amount of money any more than the $5000.

I think it is a reflection of somebody’s understanding of the meaningfulness of what is required

for them in addition to the realities that it is completely unknown for most people how this is going to
affect the economy.

And I think it is reasonable to be careful with what money is put upfront, especially because this
individual is still willing to post a promise to pay $5000.

Now, whether or not the minister is able or chooses to collect upon that is not within the grasp of
the bondsperson.

So, in my view that does not necessarily factor into my analysis as it may have my colleague.

So, I think the money is sufficient that is being proposed as well.

I also now have the addition of the fact that residential component is added that Mr. Hibbert is
now able to live with Mr. Johnson, I think that adds to the supervision, obviously in the past when he was
on a bond with his wife, Mr. Hibbert you demonstrated that you did not comply with what was required
of you, even your wife in speaking with Canada Border Services Agency suggested she does not want
you to leave.

Now, you have a neutral bondsperson who is willing to ensure that you do, putting up more
money and it is clearly based off of his income and based off of what he is putting forward,, it is
meaningful amount of money to him.

So, I do not take issue with any of that.

So, I also, as I think I have noted.

But if I have not, at least in these reasons, this is a joint recommendation, I do give that
significant weight, obviously the Minister’s counsel has had the opportunity to assess this.

And I do note as well in reference to the money at the last hearing, the Minister’s counsel did not
have any degree of difficulty with the sums proposed in light of the global pandemic.

So, all of that being said, I will be making an order for your release today sir.

I am going to ask Mr. Hibbert that you listen quite carefully here, because I am going to go
through the conditions of your release and I am just going to ask at the end if you understand these
conditions and then also if you are willing to comply with these conditions, okay?
 - 5 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

PERSON CONCERNED: Okay.

MEMBER: All right.

So, sir, you will be ordered released on the posting of a $5000 performance bond and a $2500
cash deposit by Donald Johnson.

You will --- sir, these conditions will apply to you.

So you will present yourself at the date, time or place that a Canada Border Services Agency
officer or the Immigration Division requires of you in order to comply with any obligation imposed on
under Canadian immigration law.

That includes removal if it is necessary.

So, what that means sir is that if a Canada Border Services Agency officer tells you, you have to
be somewhere for an immigration purpose you have to be there.

The next condition I have imposed is a slight modifier on what was proposed, but I will explain
why.

I am adding the condition that you provide Canada Border Services Agency prior to your release
with your residential address and advise them in person of any change in address prior to the change
being made.

But I am adding the modifier, unless the office is closed, then in writing, the reason why I am
doing that sir, is again, in light of the global pandemic if you were to be moving and the office of the
Canada Border Services Agency were to be closed you would not be able to tell them and then you would
technically be in breach of this release order, of course I do not want that to happen.

So, if the close is closed, and only if the office is closed, then you may tell them in writing that
you need to move, otherwise sir you have to tell them in person.

Do you understand that?

PERSON CONCERNED: Yes.

MEMBER: At all times you must tell them before you move where you are going.

Do you also understand that?

Sir, do you understand that?

PERSON CONCERNED: Yes ma’am, I do.

MEMBER: All right.

 - 6 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

You are to report to an officer at the Canada Border Services Agency office at 6900 Airport
Road.

The full address of where you are to report will be given to you upon your release.

And on that you will also receive the date that you are first scheduled to report, and then you are
to report once every two weeks thereafter.

Now, Canada Border Services Agency may in writing reduce the frequency or change the
location that you report.

I am also adding the condition that you are to confirm your departure with the Canada Border
Services Agency officer prior to leaving Canada, if you for any reason, although highly unlikely, you are
to leave you must notify Canada Border Services Agency.

PERSON CONCERNED: Okay.

MEMBER: You are to reside at all times with Donald Johnson, that is your bondsperson sir,
if the circumstances change for you and the situation becomes that you cannot reside there, something
like that, you are to required to live there.

So you have to seek a change in the conditions of this release order, before you are able to move,
I just want to make that very clear.

Do you understand that?

PERSON CONCERNED: Yes ma’am.

MEMBER: You are to fully cooperate with Canada Border Services Agency with respect to
obtaining travel document.

Now, I understand sir there is an expired passport on file and it does indicate that you are eligible
to be removed on that.

However, I just want to add this condition, given that there is an expired document, if there is any
difficulty in that removal and a new document is required, you are to cooperate in order to allow that to
happen.

Do you understand?

PERSON CONCERNED: (Inaudible).

MEMBER: I am also adding that you are not to engage in any activity subsequent to release
which results in a conviction under any act of parliament, so that means anything at all that would result
in a conviction is --- you cannot do sir.
 - 7 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

And then you are not work or study without authorization in accordance with Immigration and
Refugee Protection Act.

Do you understand?

PERSON CONCERNED: Yes.

MEMBER: Okay.

And then the last thing I am going to say is I do note Mr. Novais had indicated he would like ---
just a reminder for you that you comply with public health, again I am in agreement with counsel, I do not
think this is necessarily for a such condition.

Certainly, I think as it was noted by counsel it is already recommended to the general public, it is
a recommendation, it is not a condition, of which arrest would be --- should be enforced based off of
violating it.

So Mr. Hibbert, I am not going to impose that condition, so those are all the conditions that I am
going to impose.

Sir, do you understand all of the conditions I have read to you today?

PERSON CONCERNED: Yes ma’am.

MEMBER: And are you willing to comply with these conditions’ sir?

PERSON CONCERNED: Yes ma’am.

MEMBER: All right.

Now, if for any reason, for example, your bondsperson is not able to post the bonds and you
remain in detention, I am required to set a review of the reasons for your detention within 30 days from
today.

So, I will be scheduling your review on April 24th at 9 a.m.

However, sir, it may be that you are released shortly and you would not still be in detention.

That hearing would only take place if you remain in detention on that day.

All right. So, otherwise, that does conclude the hearing.

Thank you very much to both counsels, I do appreciate your reasonableness.

Mr. Hibbert I wish you the best of luck sir, take care.
 - 8 - 0003-B6-01224-02-26-Mar-20-DR-HENNKL-58(1)(b)

PERSON CONCERNED: Thank you ma’am.

----------REVIEW CONCLUDED----------

I HEREBY DECLARE THAT THIS IS A TRUE

TRANSCRIPT OF THE RECORDING AND THAT I HAVE
SWORN THE OATH OF SECRECY

_____________________________________
Valerie Pienne – Transcriptionist
For DigitScribe Inc.
Security # 95320455-0000759120

April 3, 2020