The detainee, Brian, is a citizen of Hungary. He is 54 years old. He initially came to Canada as a visitor a little over 16 years ago. He made a claim for refugee protection when he arrived based on his Roma identity, but his application for protection was denied. He did not leave Canada after his removal order came into effect and did not report to CBSA as required when they tried to initiate removal proceedings against him. He has been living underground in Canada since. Brian has a history of several poverty-related criminal convictions for minor thefts, but he has never served any jail time. He has worked odd jobs as a cleaner and handyman during his time in Canada. Two days ago, he walked into the CBSA office at Airport Road to "turn himself in". He told the officers that he just couldn't continue as he'd been going and wants to turn his life around. CBSA detained him.

Minister's Counsel's Submissions:

In their opening submissions, Minister's counsel argues that Brian poses a very serious flight risk and should be detained. To establish that he is unlikely to appear for his removal, they rely on the fact that he failed to appear for his previous removal and has been in Canada now without status for almost 14 years. They point to the fact that he made a refugee claim in Canada and therefore has asserted a fear of return to his home country and that this is ongoing motivation for him to not show up for his removal again. They also point to the fact that he has been working without authorization and has racked up several criminal convictions which demonstrates that he does not have respect for Canada's criminal or immigration laws. They note that for most of his time in Canada he has lived a transient lifestyle and therefore is highly mobile and will likely be hard to find if he attempts to go underground again.

The Minister's Counsel submits that, given all these factors, Brian' flight risk is at the high end of the spectrum. He notes that, as this is the 24-hour detention review, that detention has not been lengthy which weighs in favour of detention being continued. He states that given that the PC does not have a valid Hungarian passport that it may take some time to effect removal, but he does not anticipate that it will be too long if the PC cooperates. The Minister notes that all of the PC's children appear to be above the age of 18 and therefore BIOC is not engaged.

Minister's Counsel reserved their arguments on the alternative to detention (ATD) until after hearing testimony from the Person Concerned (PC) and evidence from the potential surety.

Testimony of Person Concerned:

At the hearing, Brian admits that he has been living without status in Canada for "many years". He testifies how hard life has been for him and how he has barely been able to get by.

Brian testifies that he is in a serious committed relationship with a Canadian permanent resident named Angela. He explains that he moved in with her two months ago. He says that she has helped him to realize that there is more to life than just getting by and that she is "a rule follower" and wants him to be, too. He testifies that he and Angela met with an immigration lawyer, and their intention is to have her sponsor him once they are eligible to do so that he can become a permanent resident and finally start a real life in Canada.

He testifies that he has two children back in Hungary who are "all grown up" who he has only a limited relationship with but that he has started to develop a close relationship with his partner Angela's young children.

When asked by the Minister if he was still scared of going back to Hungary, Brian testified that it is a terrible place for Roma people but that the life he has had in Canada hasn't been much of a life either. When asked directly if he would go back to Hungary, he said he wanted to stay with Angela, but if he had to, he would.

With respect to the proposed release plan, he testified that he has known Angela for 6 months and is in love with her. He says that he wouldn't do anything to hurt her. He said that she is the one that has helped him to turn his life around and he cannot imagine his life without her.

Testimony of the Potential Bondsperson Daniel:

You put Angela forward as a potential bondsperson for Brian. She testifies that she wants to be with him for the rest of her life. She confirms that she has known him for about 5-6 months and has been living with him for about two months. She noted that Brian is committed to turning his life around and will do what the authorities tell him to. She proposed putting up $2000 as a cash bond. She said she has about $5,000 in savings and makes about $45,000 a year as a personal support worker working shift work at a local hospital. She rents her apartment. She testified that Brian could continue to reside with her in her three-bedroom apartment that she shares with her 8 and 9 year old children. She testified that her kids get along well with Brian and would miss him if he wasn't there.

When asked if she will ensure that Brian will leave Canada she broke down in tears and says it will be really hard for her if Brian has to leave but she says she will do it if she has to. She testifies that she does not have a criminal record and has never acted as a bondsperson before.

Under cross examination by the Minister's counsel, when asked about Brian' criminal history, Angela testified that she didn't know anything about it, but that she didn't care because it was in the past. When asked about his immigration history, she said she knew that he had been here for a long time and had been living without status but didn't know exactly when he arrived. When asked about whether he would be safe if he returned to Hungary, she said it would be hard because they would be separated. She said he did not really like to talk about his life in Hungary, so she didn't really know much about it.

Minister's Submissions on Release Plan :

At the end of Angela's testimony, the Minister's Counsel submits that Angela is not a suitable surety particularly given the high flight risk that Brian poses. The Minister's Counsel argues that she has only known Brian for a few short months and, while they do not doubt her feelings for him, that Angela does not actually know much about him. Minister's Counsel points to the fact that she didn't know that he has had multiple run ins with the criminal justice system or the fact that he made a refugee claim in Canada and is scared to go back to Hungary. Minister's Counsel states that she therefore does not actually know what she is getting into.

Minister's counsel further submits that given her desire to have him in his life, she is not a suitable person to ensure that he shows up for removal. Minister's Counsel points to the fact that both testified how hard it would be to be apart and how Angela actually broke down crying when she was asked about it. Minister's Counsel asserts that when push comes to shove, Angela will not be able to make sure that Brian leaves Canada.

Moreover, the Minister's counsel notes that given that Angela works shift work that she will also not be home often and so will not be able to provide the supervision that Brian requires. Finally, the Minister asserts that the amount of the bond is not sufficient to motivate compliance given her close attachment to Brian. The Minister states that losing that much money would probably be "worth it" to Angela if it meant being able to stay with Brian.

The Minister's Counsel concludes by noting that given the high flight risk that Brian poses and the lack of suitability of the bondsperson, that the release plan does not offset the risks and therefore that detention should be maintained.

In point form , outline the structure and content of your oral submissions based on the Case Study "Brian" below.

Your submissions must include:

1. The key legal elements that need to be addressed at the detention review.
2. Strong arguments made in favour of your client's release based on the facts provided and the applicable legal framework including both legislation and guidelines.

Please explain a draft for oral submission