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IMMIGRATION AND REFUGEE BOARD

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-IMMIGRATION DIVISION-

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Record of Decision of a Hearing in a Detention Review
under the Immigration and Refugee Protection Act, concerning

20
DANIEL REAL MEDINA

HEARING: PUBLIC

25

HELD AT: Immigration Holding Centre (Teleconference)

Toronto, Ontario
30

DATE: March 30, 2020

35BEFORE: Jacqueline Swaisland - Member

APPEARANCES:

Daniel Real Medina - Person concerned

40 Mr. Cole - Minister’s counsel
Mr. Loeb - Counsel
N/A - Interpreter

45

50
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DECISION

So this is the decision in the detention review of Mr. Daniel Real Medina.
5
This is a public hearing.

Sir, you’re not a Canadian citizen or a permanent resident of Canada. You are a citizen of
Mexico.
10
You’ve been detained since March the 19th, 2020 on the grounds that you’re unlikely to
appear for your Minister’s Delegate Review.

This is a seven-day review of the reasons for your decision.

15
So I’ve considered the submissions made by the Minister’s counsel, the information you have
provided, as well as the information I have on my file and the reasons given by my colleague before
me and today I am prepared to order your release.

20 While the Minister is asserting that you are unlikely to appear for your removal, and while I
do find that they have met the burden in establishing so, there’s a joint recommendation for release
which I find offsets those concerns.

So with regards to the Minister’s assertion that you’re unlikely to appear for your removal, I
25do find that this ground has been made out. In particular, because you did remain in Canada without
status for more than 10 years and you admitted to working without status during that time.

On this basis, I find that the Minister has established that you are unlikely to appear for your
removal.
30
I also note that you did not come to the attention of the Canadian Border Services Agency of
your own accord, but as a result of a police investigation, where you were charged with assault and
threats to cause bodily harm.

35 Now, having made that finding, I still must assess the section 248 factors in the regulations to
ensure that your ongoing detention is appropriate and just. And when -- I’m going to go through each
one of these factors with you. And when I balance them all together, I do find that release is
appropriate in the circumstances.

40 So with regards to the first factor, the reason for your detention, as I have just indicated that
you’re unlikely to appear, and I find that this is at the mid-range of the spectrum.

With regards to your length of detention, it has been approximately 11 days.

45 While I don’t find that it has been unduly lengthy at this time, particularly given the
circumstances of your detention and the ongoing pandemic, I do still find that this weighs in favour of
your release today.

With regards to your anticipated length of detention, at this point it’s unknown.
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There is currently no removals occurring and so it could ultimately be lengthy.

And so I do find that this also weighs in favour of your release today.

5 With regards to delay, I don’t find that there has been any by either party.

And like my colleague, I don’t find any reason to depart from her finding that the best
interests of the children weighs in favour your release, given that you have two very young minor
children and do have the ability to still have access to them.
10
With regards to the conditions of detention, I find that this very significantly weighs in favour
of your release today. Particularly given the recent developments that have been set out by your
counsel in Exhibit DR-2.

15 I find that the conditions of your detention are something that I am able to consider, given
that the section 248 factors are not exhaustive and that it is appropriate to do so in these
circumstances. And so I have given significant weight to the conditions, given the current Covid-19
pandemic, which can put your security of the person at risk.

20 I still don’t find that release on your own recognizance, as of today, is appropriate, given the
flight risk that I have identified, but I do have a joint recommendation for release before me, as I
indicated, which involves a bondsperson posting a $500 bond.

The parties are in agreement that this offsets the risk and I agree.
25
The individual is aware of your current immigration situation and criminal charges.

He is posting a significant amount of money to him, given his limited income and savings and
the current difficulties his business is likely facing given the Covid-19 pandemic.
30
He is also offering residency, so I find supervision is also sufficient.

And so I too find that this alternative offsets the flight risk that you pose.

35 So when I weigh all of these factors together, I do find release is appropriate and so will be
ordering your release today.

Now, I’m going to go through the conditions of your release. And it’s really important, sir,
that you listen and that you abide by these conditions, because a failure to do so could result in your
40re-detention; okay?

So the first is that your bondsperson, Mr. Jose Antonio Hernandez Hernandez post a cash
bond in the amount of $500.

45 The second condition is that you present yourself at the date, time, and place that a Canadian
Border Services Agency officer or the Immigration Division requires you to appear to comply with
any obligation imposed on you under the Immigration and Refugee Protection Act, including removal
if necessary.
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That you provide the Canadian Border Services Agency, prior to your release, with your
residential address and advise the Canadian Border Services Agency in writing of any change in
address prior to that change being made.

5 And, sir, I really want to emphasize that you do that before the changes being made, because
oftentimes, people get themselves in trouble when they fail to do that and they wait too long to
change their address.

I’m also requiring you to report by telephone to the Canadian Border Services Agency on or
10before a date that will be determined, and twice a month thereafter.

A Canadian Border Services Agency officer may, in writing reduce the frequency or change
the reporting location.

15 I’m also requesting that you reside at all times with your bondsperson, Mr. Hernandez.

That you fully cooperate with the Canadian Border Services Agency with respect to obtaining
travel documents.

20 That you not engage in any activity subsequent to release which results in a conviction under
any Act of Parliament.

And that you not work or study without authorization in accordance with the Immigration
and Refugee Protection Act.
25
And if you are charged with an offence under an Act of Parliament, or offence that if
committed in Canada would constitute an offence under an Act of Parliament to inform the Canadian
Border Services Agency of that charge in writing and without delay.

30 And finally, that you abide by all of your conditions of your criminal recognizance.

Sir, are you -- do you understand all of these conditions? Mr. Medina?

Hi everybody, this is the Member. So I just gave my entire decision while I was on mute. So
35I’m going to go ahead and give it again. Is everybody ---

COUNSEL: We can hear you now.

MEMBER: Okay.
40
COUNSEL: And I’ve been there before, so don’t worry.

MEMBER: So this is the decision -- and the recording will now have two decisions on it.

45 This is the decision in the detention review of Mr. Daniel Real Medina.

This is a public hearing.

Sir, you’re not a Canadian citizen or a permanent resident of Canada. You’re a citizen of
50Mexico.
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You’ve been detained since March the 19th, 2020 on the grounds that you are unlikely to
appear for your Minister’s Delegate Review.

5 This is a 30-day review of the reasons for your detention.

So, sir, I’ve considered the submissions made by the Minister’s counsel, the information you
have provided, as well as the information I have on file and the release order of my colleague and
today I am prepared ---
10
COUNSEL: Sorry to interrupt. It is a seven-day.

MEMBER: Oh, sorry, yes. This is a seven-day review.

15 COUNSEL: Sorry about that.

MEMBER: No, I appreciate the interjection.

This is a seven-day review of the reasons for your detention.

20
So, sir, I am prepared to order your release today, and I’m going to go ahead and explain the
reasons for my decision.

So the Minister has found that you are -- or has submitted that you are unlikely to appear for
25your Minister’s Delegate Review. And I do find that they have made this ground out on a balance of
probabilities. That is to say that it’s more likely than not that you won’t appear for the Minister’s
Delegate Review.

And the primary reason for this is the fact that you have lived without status for more than 10
30years in Canada and have gone without being detected during that time.

You’ve admitted to working without authorization, contrary to the Immigration laws of

Canada.

35 And you did not come to the attention of the Canadian Border Services Agency of your own
accord, but as a result of a police investigation in which charges were laid.

So on this basis, I do find that the Minister has established that it’s more likely than not that
you are unlikely to appear for your Minister’s Delegate Review.
40
So having made that finding, I next have to assess the section 248 factors. And these are -- in
the regulations.

And these are the factors that I have to assess in order to determine whether or not your
45ongoing detention is just and constitutional in the circumstances.

So the first -- I’m going to go through each one of these factors.

The first of these factors is the reason for your detention. And this is that you’re unlikely to
50appear for your Minister’s Delegate Review. And I do find that this risk is at the mid-range of the
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spectrum and does weigh somewhat in favour of your ongoing detention, although I note it is not to
be weighed as strongly as other grounds, such as danger.

With regards to your length of detention, it’s been approximately 11 days.

5
And while I note that this is not an unduly long period of time, given the current situation and
the Covid-19 pandemic I do find that it still does weigh somewhat in favour of your release.

With regards to your anticipated length of detention, right now it’s unknown and it could be
10lengthy, given that currently all removals have been put on hold.

I note that at this point, we are just waiting for the Minister’s Delegate Review, however, and
so it’s not expected that that period of time will be long. So it just favours your release somewhat at
this point.
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With regards to delay, I don’t find that there has been any delay by either party.

With regards to the best interests of your children, I have no reason to depart from my
colleague, who found that this did weigh in favour of your release.
20
I note you have two very minor children and that you are able to have some access to them.
And so I do find that this factor weighs in favour of your release.

I also considered the conditions of your detention, something I find I am able to consider as
25the list of section 248 factors the Court has repeatedly found to be non-exhaustive. And this is
something that does go to the proportionality of your ongoing detention, as well as the fact that your
security of the person rights under the Charter have also been engaged in this case.

And I do find, given the seriousness of the pandemic and the evidence that has been
30submitted by your counsel on the risks inherent in the detention setting, that this factor does weigh
very strongly in favour of your release today.

Now, as of today, I don’t find that release on your own recognizance is appropriate, given the
flight risk that you pose, and given that at this point, your detention has not been overly lengthy and
35your Minister’s Delegate Review is to be scheduled quite shortly.

But there has been a joint recommendation for release that has been put before me. And this
is on the basis of a proposed bondsperson, Mr. Jose Hernandez Hernandez. And the parties before me
are in agreement that this bondsperson offsets the risk that you pose. And I am in agreement.
40
Mr. Hernandez understands your current immigration and criminal situation.

He is offering a significant amount of money, $500, given his income and savings, and
especially given that his business interests are likely to be adversely impacted with the current
45pandemic.

He is also offering residency, which is a significant level of supervision.

And so I find that he is a suitable bondsperson and that the alternative presented does offset
50the flight risk in this case.
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And so when I weigh all of these factors together, I do find that release is appropriate. And
so I will be releasing you on terms and conditions.

5 Now, Mr. Real Medina, I’m going to go through these terms and conditions now. And it’s
really important that you understand them, because if you fail to abide by any one of them, it could
result in your re-detention. Okay?

PERSON CONCERNED: Okay.

10
MEMBER: So the first factor is that you present yourself at the date, time, and place that a
Canadian Border Services Agency officer or the Immigration Division requires you to appear to
comply with any obligation imposed on you under the Immigration and Refugee Protection Act,
including removal if necessary.
15
The second is that you provide the Canadian Border Services Agency, prior to your release,
with your residential address and advise the Canadian Border Services Agency, in writing, of any
change in address prior to the change being made.

20 And I really want to emphasize this, because many people get themselves in trouble if they
don’t change their address before they make the change.

You also have to report to an officer by phone to the Canadian Border Services Agency on or
before a date that will be determined, and twice a month thereafter.
25
You have to reside at all times with your bondsperson, Mr. Hernandez.

You must fully cooperate with the Canadian Border Services Agency with respect to
obtaining travel documents.
30
You must not engage in any activity subsequent to release which results in a conviction under
any Act of Parliament.

You must not work or study without authorization in accordance with the Immigration and
35Refugee Protection Act.

If you are charged with an offence under an Act of Parliament, you have to inform the
Canadian Border Services Agency of that charge in writing and without delay.

40 And finally, you must abide by all conditions of your criminal recognizance.

Sir, do you understand these conditions?

PERSON CONCERNED: Yes.

45
MEMBER: Okay. So I am ordering your release on these terms and conditions.

However, if for some reason you’re not released, as was the case last time, generally we
would schedule you a 30-day review. But in the circumstances, I am going to schedule you a review
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in about a week. So I am going to schedule your next detention review for -- just give me one second
-- Wednesday April 8th at 9:00 a.m.

At this time, if you aren’t released, another Member of the Division will review the reasons
5for your detention.

Okay. So thank you to all the parties. The order will be sent to each one of you by the end of
this day. And thank you for your assistance during this hearing.

10- - - HEARING CONCLUDED - - -

I HEREBY SWEAR THAT THIS IS A TRUE

TRANSCRIPT OF THE RECORDING
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___________________________________
MARIE RAINVILLE, TRANSCRIPTIONIST
SECURITY NO.: 95329740
20INTERNATIONAL REPORTING INC

APRIL 04, 2020