Category: Detention

The Court dismissed an application for an interim stay holding that it would be an abuse of process. In so doing the court noted that the applicant had received three release orders and the Minister had sought judicial review and a stay of the first and second and was seeking a stay of the third. In the interim the court had dismissed the judicial review of the first. To allow a further stay in these circumstances would be an abuse of process:[14] In the context of a mandated detention review every 30 days, the Minister’s position would allow the Crown to obtain a prolonged if not indefinite stay of release order(s) through the court process. This is evident in the current proceedings relating to the Respondent. The Minister has filed applications for leave and for judicial review of three successive orders of the ID releasing the Respondent from detention. Accepting the Minister’s submission would mean that because the Court’s decision upholding the November 19, 2010 Release Order was not rendered prior to the December detention review, it has no effect, since the next release order of the ID is now the operative order. The December release order has also been stayed subject to final determination of the underlying application for leave and for judicial review, or the next detention review. Potentially, this cycle could be unending and the Respondent would never benefit from a positive decision of the Court upholding a release order. This cannot be what was intended by Parliament. The purpose of requiring a detention review every 30 days was to protect the Respondent’s liberty interests by affording him a timely review of his detention and clearly not to provide a mechanism to prolong that detention or keep the Respondent in indefinite detention. Yet, this would be the effective result if we accept the Minister’s submission. In my view, this would result in nothing short of an abuse of the court process. [15] It must be remembered that the intervening detention reviews, which also resulted in release orders of the Respondent by the ID, would not have occurred had the Respondent not been detained at the time. The IRPA does not require a review once the Respondent is released from detention. Subject to the conditions of release, the release is indefinite. Consequently, the applications for leave and for judicial review of the subsequent decisions releasing the Respondent were only made possible by reason of his continued detention and would never have been filed had the November 19, 2010 Release Order, now upheld, not been challenged. [16] The Respondent’s case presents a unique fact scenario. If successful on this stay application, the Applicant will have denied the Respondent the benefit of three release orders, and a positive Court decision, through consecutive judicial review proceedings. [17] Even if the case law cited by the Applicant was not distinguishable and the original release order has been superseded, given the fact scenario at play in this case, I am of the view that application of the cited jurisprudence would be contrary to the interests of justice and result in an abuse of process. The Respondent’s liberty interests in this case outweigh the enforcement of this jurisprudence (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 120; Canada (MCI) v. Parekh, 2010 FC 692 at para. 24).

The Court dismissed a judicial review of the Minister challenging the release order: [14] In the context of a mandated detention review every 30 days, the Minister’s position would allow the Crown to obtain a prolonged if not indefinite stay of release order(s) through the court process. This is evident in the current proceedings relating to the Respondent. The Minister has filed applications for leave and for judicial review of three successive orders of the ID releasing the Respondent from detention. Accepting the Minister’s submission would mean that because the Court’s decision upholding the November 19, 2010 Release Order was not rendered prior to the December detention review, it has no effect, since the next release order of the ID is now the operative order. The December release order has also been stayed subject to final determination of the underlying application for leave and for judicial review, or the next detention review. Potentially, this cycle could be unending and the Respondent would never benefit from a positive decision of the Court upholding a release order. This cannot be what was intended by Parliament. The purpose of requiring a detention review every 30 days was to protect the Respondent’s liberty interests by affording him a timely review of his detention and clearly not to provide a mechanism to prolong that detention or keep the Respondent in indefinite detention. Yet, this would be the effective result if we accept the Minister’s submission. In my view, this would result in nothing short of an abuse of the court process. [15] It must be remembered that the intervening detention reviews, which also resulted in release orders of the Respondent by the ID, would not have occurred had the Respondent not been detained at the time. The IRPA does not require a review once the Respondent is released from detention. Subject to the conditions of release, the release is indefinite. Consequently, the applications for leave and for judicial review of the subsequent decisions releasing the Respondent were only made possible by reason of his continued detention and would never have been filed had the November 19, 2010 Release Order, now upheld, not been challenged. [16] The Respondent’s case presents a unique fact scenario. If successful on this stay application, the Applicant will have denied the Respondent the benefit of three release orders, and a positive Court decision, through consecutive judicial review proceedings. [17] Even if the case law cited by the Applicant was not distinguishable and the original release order has been superseded, given the fact scenario at play in this case, I am of the view that application of the cited jurisprudence would be contrary to the interests of justice and result in an abuse of process. The Respondent’s liberty interests in this case outweigh the enforcement of this jurisprudence (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 120; Canada (MCI) v. Parekh, 2010 FC 692 at para. 24).

The Court overturned a release order where the Member had concluded that the efforts of the Minister to obtain the identity were not reasonable.

The Court denied an application for an interim stay of removal holding that as there was no danger to the public in this case there was no irreparable harm. As the member had concluded the bond would ensure compliance in the event the member was wrong the worst that would happen is that the minister would have to take the person back into custody. The court noted but did not decide that on the issue of serious issue it might be appropriate to apply the Wang test.

The Court held that the applicant was detained when he was held in a detention facility by CBSA and hence had a right to counsel. As a result of the breach of his right to counsel the exclusion order was set aside: 28 In the circumstances of the present matter, I adopt the conclusions of Justice MacKay in Dragosin at paragraph that the Applicant's right to counsel arose from the moment he was ordered to be detained which, in effect, was on July 8, 2006, when he was arrested by the CBSA Officer. This arrest triggered the duty to provide advice about, and to facilitate access to, legal counsel (Dragosin, above, at para. 16). Potential access to a telephone in the detention area, or merely asking the Applicant if he knew a particular lawyer that he wished to contact, was insufficient to discharge the obligation to facilitate access to legal counsel. The failure to do so in the circumstances of this matter was not consistent with the Applicant's section 10(b) Charter rights, and constituted a legal error (Dragosin, above, at paras. 16, 20).

The Court set aside a decision refusing release holding that the member failed to consider the length of detention: [31] However, section 248 of the Regulations adds the length of detention as a consideration to be taken into account even if the person detained is considered to be a flight risk, as in this case. The length of the applicant's detention has to be considered against other factors besides his refusal to cooperate with Immigration Officials and to reveal his true identity. These other factors would include the immigration status of the applicant, the fact that this was the 38th detention review, the passage of time since his last criminal conviction, etc. I am of the view from a close reading of the member’s reasons that the 3-year detention of the applicant was not considered against these factors: Panahi-Dargahlloo, above, at para. 50. [32] Reaching a conclusion similar to that of my colleague Justice Mandamin in Panahi- Dargahlloo, above, at para. 51, I find that the member's failure to consider the length of the applicant’s detention in his assessment of whether or not to continue with detention was unreasonable and outside of the range of possible and acceptable outcomes

The Court found no reviewable error in a decision to release. The Court held that the Member had not erred in releasing the applicant; that the Minister had had an opportunity to make submissions on all issues and that the decision was reasonable

The Court of Appeal Set aside a release order holding that the Member erred in speculating as to the length of detention.

The court has concluded that on the facts the minister was denied fairness... because certain issues were not raised in the discussions and submissions around amendments to the terms of release and were then made the subject of a release order without notice.

The Court overturned an order for release. The Court considered the provision which allows for the detention of a person where the Minister has a reasonable suspicion that the person may be inadmissible on grounds of security. The Court held that the Immigration Division is required to give deference to the Minister's conclusion that there is a reasonable suspicion and not make a de novo determination. "[16] The question that must be answered by the Board is not whether the evidence relied upon by the Minister is true or compelling, but whether that evidence is reasonably capable of supporting the Minister’s suspicion of potential inadmissibility. Evidence which is objectively ascertainable may be circumstantial, as it was in this case, and it may be open to more than one interpretation. It may also be contradicted by other available evidence. But the question that remains is whether the evidence, when considered globally, could support the possibility of inadmissibility."