Canada (Minister of Citizenship and Immigration) v. Thanabalasingham

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham
Court (s) Database
Federal Court Decisions
Date
2003-10-21
Neutral citation
2003 FC 1225
File numbers
IMM-1845-03
Notes
Reported Decision
Decision Content
Date: 20031021
Docket: IMM-1845-03
Citation: 2003 FC 1225
Ottawa, Ontario, this 21st day of October, 2003
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
REASONS FOR ORDER AND ORDER
[1] Because he is alleged to be the leader of a violent Tamil street gang operating in Toronto and constitutes a flight risk, Mr. Thanabalasingham has been in detention since October 2001 pending his deportation. On March 18, 2003, the Immigration Division of the Immigration and Refugee Board ("Immigration Division") decided that he should be released upon certain terms and conditions. The Minister seeks judicial review of this decision.
I. Facts
[2] Mr. Thanabalasingham is a citizen of Sri Lanka who arrived in Canada in June 1991, and a few months later was deemed to be a Convention refugee. He became a permanent resident on August 31, 1992, and completed a degree in electrical engineering at the University of Ottawa in March 2000. He then worked with Nortel in Ottawa. After being laid off, because of a downturn in the technology sector and until shortly before his arrest, he worked with Hyperchip, another technology company, in Montréal, commuting every day between Ottawa and Montreal. He lived in Ottawa with his mother from 1998 to September 2001 when his wife moved in with him. On October 18, 2001, he was arrested, when the police proceeded to arrest approximately 50 alleged gang members of the two main Tamil street gangs operating in the greater Toronto area, the V.V.T. and the A.K. Kannon, on the basis of immigration warrants.
[3] Mr. Thanabalasingham had his first detention review before Ms. S. Gratton, an adjudicator [s. 2 and s. 63.3 of the Immigration and Refugee Protection Act, R.S.C. 1985, c. I-2 ("the old Act")] on October 28, 2001, and he remained in detention, having produced no evidence (he was not yet represented by counsel) to answer the applicant's allegations that he is a danger to the public because he is the leader of the V.V.T. and was convicted of conspiracy to commit assault in 1998.
[4] On March 18, 2002, adjudicator Gratton, again reviewed the reasons for his detention and confirmed that he should be detained after a seven-day hearing during which two police officers testified that they believed him to be the leader of the V.V.T. On May 28, 2002, Ms. Catherine Simmie, another adjudicator, agreed with adjudicator Gratton that the detention should continue. After the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), Mr. Robert Murrant, as member of the Immigration Division, reviewed the reasons for the continued detention and concluded on August 12, 2002, that it should continue. Ms. Simmie, a member of the Immigration Division, and who was now required to apply the provisions of IRPA for the first time, presided over the next review and on September 9, 2000, held again that it should continue.
[5] On November 5, 2002, Mr. Vladislav Tumir of the Immigration Division reviewed the reasons for detention and ordered that Mr. Thanabalasingham be released on terms and conditions. The Minister sought judicial review of the decision and, in the interim, obtained a stay of the release order "until the next detention review is completed".
[6] At the next detention review, Mr. Iozzo, also with the Immigration Division, confirmed the view of Mr. Tumir and ordered the respondent's release. This order is the subject of the present application for judicial review and of another stay granted by this Court until the next detention review is completed, or until the application for judicial review is finally determined, whichever event occurs first.
[7] The application for judicial review of the Tumir decision, referred to above, was heard at the same time as the application in respect of Mr. Iozzo's decision.
[8] Mr. Thanabalasingham has now been in detention for about two years.
Reasons for Detention and Prior Detention Reviews
[9] Mr. Thanabalasingham has three previous criminal convictions: (1) in 1996, he was found guilty of possession of a weapon; (2) in 1997, he failed to comply with a recognizance by failing to make a required change of address in Ottawa; and (3) in 1998, he pleaded guilty to conspiracy to commit assault.
[10] Two reports were made under former s. 27(1) of the old Act. The first report dated July 8, 1998, alleges that the respondent is removable because of his criminal conviction in 1998. The other report states that Mr. Thanabalasingham is a member of an organization engaged in criminal activities (V.V.T.). A direction for inquiry was signed on February 19, 1999, on the basis of both reports, but the Minister later withdrew the report alleging membership in the V.V.T.
[11] It is on the basis of the direction to report of February 19, 1999, that some two and a half years later, the respondent was arrested.
[12] The order for deportation dated February 14, 2002, is based solely on the conviction of 1998. The respondent filed an appeal from the said order to the Immigration Appeal Division. This appeal was heard in early October 2003.
[13] Prior to the coming into force of IRPA in June 2002, detention reviews were carried out pursuant to ss.103.(6) and 103.(7) of the old Act, which provided that the adjucator could release the respondent if he/she "was satisfied that he was not likely to pose a danger to the public or was not likely to be a flight risk".
[14] It is useful to review briefly the various decisions issued prior to Mr. Iozzo's decision, for they are an important part of the background of that decision.
[15] The first decision of adjudicator Gratton is very brief and contains no relevant findings as substantial evidence was presented only at the second review. She concluded that she had no choice but to confirm the decision to detain him. In her second decision rendered orally after the seven-day hearing, adjudicator Gratton, who heard the only two witnesses produced by the applicant, noted that the testimony of the first police officer, Mr. Gadeshan (also spelled Gandeshan, Ganeshan, Ganashan, Ganishan), was "...limited and at times not candid...", while the testimony of the second police officer, Mr. Furlong, was "...extremely extensive providing a bird's eye view of both organisations but more particularly that of the V.V.T. He, with the aid of the K.G.B. statements[1] and other sources of information, testified that the evidence demonstrates the role of leader was indeed Mr. Thanabalasingham's." (p. 6 of T.R.)
[16] Adjudicator Gratton also says later in her decision, that: "Now clearly, and I don't always take what the police say throughout, you know without any...I take what the police say with a grain of salt." (p. 20 of T.R.)
[17] Nevertheless, despite reservations with respect to the K.G.B. statements, she finds that:
If the statements were each reviewed individually in a vacuum then the statements would not be persuasive. However, when viewing the evidence in totality the statements become persuasive as stated by the Minister's representative there exists a common thread in four of the statements that being that they portray...they put Mr. Thanabalasingham as the leader of the VVT.
(p. 9 of T.R.)
[18] With respect to the testimony of the respondent, Ms. Gratton stated that his testimony was "...at times lacking in credibility". (p. 19 of T.R.)
[19] On the issue of flight risk, adjudicator Gratton said, at p. 21 of T.R.:
If the only issue that I had to deal with was the appearance for removal from Canada it is possible that given sufficient funds and stringent terms and conditions that release may have been appropriate but given that I have found that he has not satisfied that primary ground I am ordering detention.
[20] It appears clearly from her first decision, that Ms. Simmie, considered her review as a hearing de novo. She looked at all the evidence provided at the two reviews held before Ms. Gratton, in addition to the new information and arguments made before her. She then concluded in her decision, that:
...Mr. Thanabalasingham ought to remain in detention both because I am satisfied he would not otherwise make himself available for processes which may in the end result provide for his removal from Canada and quite conceivably his return to Sri Lanka, and because I am of the view that he is a person who is likely to pose a danger to the public if at liberty.
[21] With respect to the flight risk Adjudicator Simmie indicated in her second decision of September 9, 2002:
But there is a substantial amount of guarantees that have been offered on your behalf by members of your family and others who have come forward to suggest that they are prepared to accept responsibility for ensuring that you comply with terms and conditions that may be imposed. The amounts of those guarantees, certain types of conditions that are normally imposed in terms of Immigration- related requirements, in my estimation and as well in Mr. Murrant's would probably offset the appearance concerns that are generated overall by the circumstances of your case.
(p. 6 of T.R.)
[22] In both decisions, she found that she was satisfied that, despite the deficiencies in the K.G.B. statements, there was "substantiation" for the assertion that the respondent was a member and the current leader (at least until his recent arrest) of the V.V.T., because she agrees that when each of the individuals, at different times and in different words, places the respondent as the leader, the "total effect becomes overwhelming". Ms. Simmie does not discuss the impact of any of the new provisions in the IRPA on her assessment of the evidence.
[23] Mr. Murrant, who like his predecessors, renders his decision orally at the end of the hearing, was also of the view that:
...the bonds that are proposed today would be sufficient to overcome my concerns because they are substantial and meaningful. And even if there would be some risk that he would not appear, I'm willing to accept that the amounts of money and guarantees posted would be sufficient for that concern to be overcome...It is an option.
With regard to danger to the public, I am of the opinion that Mr. Thanabalasingham has not satisfied me that he does not pose a danger to the public. He has been convicted in Canada of conspiracy to commit an assault in 1998 and possession of a weapon in 1999 (sic)*. Simply because these took place some time ago doesn't mean that they do not count against him. They do count against him. Especially when I take into consideration all of the other information.
* Should have read "1996".
(p. 91 of T.R.)
[24] In his decision, Mr. Murrant expressly agreed with Ms. Gratton that the common thread indicates that Mr. Thanabalasingham is not only a member, but also the leader of the V.V.T. Again, it is clear that Mr. Murrant considered that he had to reassess all the evidence put before him and he appears to have treated his review as a hearing de novo. Because his review was the first one carried out after the coming into force of the IRPA, s. 322(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), provided that he should still apply the provisions of the old Act and determine if he was satisfied that the respondent was not likely to be a danger to the public or a flight risk.
[25] Mr. Tumir then wrote a 26-page decision in which he states that because each detention review is a hearing de novo, he has to carefully review all of the evidence put forward by the applicant in order to assess "if he is satisfied that Mr. Thanabalasingham is a danger to the public in order to render his decision pursuant to s. 58 of IRPA". (Mr. Tumir's emphasis)
[26] With respect to the two police officers' testimonies, he notes that officer Gadeshan testified that the police investigation on the Tamil gang and Mr. Thanabalasingham was still under way (that is back on October 31, 2001), and that the final results would be revealed at the immigration inquiry. However, Mr. Gadeshan was not participating in such an investigation, because he had been reassigned to other tasks back in January 2001, that is well before the arrest of the respondent. Given his lack of direct knowledge and the fact that he was essentially basing his conclusion on what he described, as the "word on the street", that the respondent was a member and the current leader of the V.V.T., Mr. Tumir found this testimony not credible as to the current state of affairs with respect to the respondent.
[27] Like Ms. Gratton, Mr. Tumir states that police officer Furlong appeared to be "better informed and refreshingly candid". He reviews many details in his testimony and cross-examination, noting that the officer had admitted that the police were still seeking evidence that would enable them to lay a criminal charge against the respondent. In the opinion of Mr. Tumir, this statement further confirmed that the K.G.B. statements and the rest of the evidence before him is in fact the best evidence the police and the Minister have. He concludes that he could not agree with Mr. Furlong's opinion which was based, to a large extent, on unreliable sources such as informants and alleged co-conspirators (the K.G.B. statements).
[28] Mr. Tumir clearly states that, under the law, he has no authority to detain a person for being a danger to the public on anything less than credible and trustworthy evidence and that the results of the police investigation, as presented in this case, fall short of that standard by a considerable margin. He also says:
My finding that he is not a danger to the public in the context of this detention review is based on my view that there is insufficient credible or trustworthy evidence to support such a finding, not that there is no evidence at all.
(p. 26 of the decision)
[29] In coming to his conclusion, Mr. Tumir makes it clear that he considered the past convictions in light of the Federal Court jurisprudence and he states that, on a balance of probabilities, he is not satisfied that the respondent is a danger to the public.
[30] With respect to the flight risk, Mr. Tumir notes that he agrees with his two colleagues who carried out the detention reviews in August and September 2002, that the proposed alternative to his continued detention is sufficiently substantial and meaningful to offset any concern in that respect. He expressly notes the arguments presented by the applicant with respect to the family members and their potential lack of influence on the respondent, but concludes:
Having reviewed the relevant testimony and affidavits, I am satisfied that the proposed bondspersons have the ability and the willingness to discharge their responsibilities. I have no reason to doubt their sincerity or good faith, and the fact that both Mr. Thanabalasingham's and Ms. Theiventhiran's families are united in their support for him bolsters the viability and credibility of the proposed arrangement.
(p. 26 of his decision)
II. The Issues
[31] The Minister submits the following issues:
(1) Nature of the detention review under sections.57-58 of the IRPA and burden of proof
[32] Mr. Iozzo erred in finding that he was conducting a hearing de novo and that the burden of establishing, on a balance of probability, that the respondent is a danger to the public rested on the applicant.
(2) Assessment of the Evidence
[33] (a) It is patently unreasonable to reject the K.G.B. statements and the testimonies of the police officers on the basis that they do not constitute credible and trustworthy evidence.
(b) It is patently unreasonable to reject or give no weight to the opinions expressed by the police officers simply because they were based on the K.G.B. statements.
(c) Mr. Iozzo erred in believing that he was in the same or an equal position as those police officers to assess the validity on credibility of the K.G.B. statements. Thus, he gave insufficient weight to their testimonies.
(3) Previous convictions
[34] Mr. Iozzo erred in suggestingthat previous convictions in themselves could not substantiate a finding that the respondent is a danger to the public.
(4) Flight risk and detention
[35] Mr. Iozzo erred in blending the issue of whether the respondent is likely to appear with the issue of whether he should be detained.
(5) Bondspersons
[36] Mr. Iozzo failed to assess whether the persons posting the guarantees would be able to ensure compliance in accordance with paragraph 47(2)(b) of the Regulations and, if he did, he erred in his assessment.
(6) Bias or irrelevant consideration
[37] His overall approach and his comment that the respondent did not have to prove "his innocence" suggests that Mr. Iozzo failed to consider the safety of the Canadian public as the paramount issue and that he did not have an open and balanced mind. This error viciates his whole conclusion on whether or not the respondent is a danger to the public.
III. Standard of Review
[38] The standard of review applicable to decisions of the Refugee Protection Division ("R.P.D.") and of the Immigration Appeal Division ("I.A.D.") of the Immigration Refugee Board ("I.R.B.") have been considered and applied regularly by our Court. However, the standard of review applicable to decisions by the third division of the I.R.B., the Immigration Division, has not yet been determined by applying the pragmatic and functional approach set out by the Supreme Court of Canada in many of its recent decisions (see for example Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18 (QL), Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17 (QL).
[39] Following this principled approach and keeping in mind that the ultimate question is always what the legislator intended (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3 (QL) at para. 30), I shall consider the following contextual factors: (i) The presence or absence of a privative clause or statutory right of appeal; (ii) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (iii) the purposes of the legislation and the provision in particular; and (iv) the nature of the question - law, fact or mixed law and fact: (Ryan, supra, at para. 27 and Dr. Q., supra, at para. 26).
[40] Both parties presented very articulated views on how those factors should be assessed and agreed on what standard of review should be applied to questions of law, facts and mixed law and fact. But, they did not agree on the characterization of many of the issues presented to this Court. I will deal with this later.
(1) Privative Clause and Statutory Right of Appeal:
[41] There is no applicable privative clause or statutory right of appeal. This factor is neutral. There is, however, a right to seek judicial review, but leave is required under s. 72.1 of IRPA. There is no right to appeal the decision of the Federal Court on such request for leave, s. 72.2(e) of the IRPA. This limited right of review suggests some deference was intended (Suresh, supra, at para. 31).
(2) Relative Expertise:
[42] Like the other two branches of the I.R.B., the Immigration Division is a tribunal of some expertise. However, unlike the other two branches of the I.R.B., members of the Immigration Division are not Governor in Council appointees. As career civil servants, they are in a position to acquire significant expertise over the years. In fact, with respect to detention reviews, previous adjudicators which have now become members of the Immigration Division have potentially acquired numerous years of dealing with similar problems under ss. 103(6) and (6) of the old Act. This relative "institutional expertise" (Dr. Q., supra, at para. 29) suggests some deference. This is especially so when one considers that, with respect to some criteria set out in the Regulations (such as the likely length of time the person will be detained), members of the Immigration Division have definitely better knowledge and expertise than this Court. This expertise favors a more differential approach, particularly on questions of facts.
[43] However, as noted by the applicant, only 10% of the members of the Immigration Division must be members of a provincial bar association or notaries with at least five years standing at the Chambre des notaires du Québec (ss. 153(4) of the IRPA). Thus, on questions of law, this tribunal has little expertise compared to the Federal Court of Canada and there appears to be no particular reason to accord any deference.
[44] Rules of evidence applicable to detention reviews are more relaxed than in other judicial forums. Members of the Immigration Division may consider any credible or trustworthy evidence (s. 173 IRPA). This would normally suggest more deference. However, the Federal Court of Canada has expertise in similar detention reviews made under the old Act, (subsection 40(9)) and now under the IRPA, (sections 83 and 84).
[45] The overall impact of my remarks on the relative expertise of the Immigration Division will, therefore, greatly depend on the nature of the questions under review.
(3) Purpose of the Provisions Under Review and the Legislation:
[46] The Court agrees with the parties that this factor does not favour deference. The provisions dealing with detention reviews are not polycentric. Their purpose is to balance the right of a person who poses a danger to the Canadian public, or a flight risk, against the need to protect the said public. In fact, as submitted by the applicant, they deal with rights of individuals vis-à-vis the State and are adversarial. The purposes of the legislation are described at subsection 3(1) of IRPA. In relation to the detention reviews, the most relevant objective is at paragraph 3(1)(b), that is "to protect the health and safety of Canadians and maintain the security of Canadian society". The situation is closer to that reviewed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL) at para. 48, and Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C. No. 84 (QL) at para. 26, than to the situation in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL).
(4) Nature of the Questions:
(a) Questions of Law:
[47] As indicated earlier, the Immigration Division does not have any particular expertise in this field and this Court is in a better position to deal with those issues. I see no reason to depart from the standard of correctness applied by the Supreme Court in respect of the decisions of the R.P.D. and the I.A.D. on those questions. This is especially so when one considers questions of law certified to the Court of Appeal.
[48] I will apply such standards to issues (1) and (4) mentioned at pages 11-13 above.
(b) Questions of Fact:
[49] What standard should be adopted with respect to a finding by the Immigration Division that a detainee is or is not a member of a criminal organization (s. 246(b) of the Regulations) or that a witness or other evidence is not credible or trustworthy.
[50] When a tribunal has a certain institutional expertise, such as this one has, questions of fact, including questions of credibility and weight to be given to the evidence, are normally subject to a standard of patent unreasonableness (Suresh, supra, at para. 29, 31 and 38).
[51] As noted by the applicant, this is especially so when one considers that the only right of appeal with respect to those decisions is by way of a judicial review upon leave by this Court and that the Federal Court Act, R.S.C. 1985, c. F-7, codifies at subsection 18.1(4) the standard of review applicable to findings of facts. This section provides that this Court may grant relief when a tribunal based its decision on an "erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it". The Federal Court of Appeal has said on numerous occasions that this standard is the same as the patently unreasonable standard. (Powell v. Canada (Minister of Human Resources Development), [2000] F.C.J. No. 1008 (F.C.A.) (QL); Mugesara v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1292 (F.C.A.) (QL) at para. 25; and Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 18 (QL) (F.C.A.) at para. 18).
[52] Such deference is granted to most, if not all finders of facts, whether they had an opportunity to hear witnesses or not. This standard has been applied even to decisions made on the basis of written records without the benefit of an interview or of hearing witnesses.
[53] In this particular case, the Court also notes that the legislator provided for a continuous review mechanism that ensures that questions of facts, including credibility and weight, are regularly reassessed at each detention review. (See my comments at para. 69 to 72). This factor militates in favour of deference.
[54] Finally, as I said, both parties agreed that it is the standard of patent unreasonableness that I should apply to the decisions of the Immigration Division.
[55] I will apply this standard to the issues listed under (2) (at pp. 11 and 12 above).
(c) Mixed Questions of Fact and Law:
[56] The standard to be applied to such questions depends greatly on the extent to which the question under review is factually intensive or legally inclusive (Dr. Q., supra, at para. 34; Suresh, supra, at para. 31; Pushpanathan, supra, at para. 47).
[57] Because I find that, as a matter of fact, Mr. Iozzo did consider paragraph 47(2)(b) of the Regulations, the issue to be decided under no. 5 at paragraph 36 herein, which is: did Mr. Iozzo err in his assessment of whether the facts before him met the legal test set out in the IRPA. This is a mixed question of fact and law that is much more focussed on the facts than anything else. I will apply to it the standard of patent unreasonableness.
[58] With respect to issue no. 3, the Court finds that Mr. Iozzo did not make any general statement of law in his decision that can be extricated from what otherwise appears to be a question of mixed fact and law, that is whether his criminal record justified a finding that he is a danger to the public. Issue no. 3 is also largely fact-based and the patently unreasonable standard should be applied to it.
[59] It is to be noted that the application of this standard to issues no. 3 and 5 above will not be determinant in this case given that I am satisfied that the two findings of Mr. Iozzo in that respect were reasonably open to him.
IV. Analysis
(1) Nature of the detention review under sections.57-58 of IRPA and burden of proof
Relevant statutory scheme
[60] Subsection 57(1) of the IRPA provides that within 48 hours after a permanent resident is taken into detention, or without delay thereafter, the Immigration Division must review "the reasons for the continued detention". Subsection 57(2) provides for further periodical reviews. On each such occasions, the Immigration Division reviews "the reasons for the continued detention". These provisions are similar to former s.103(6) of the old Act.
[61] Section 58 prescribes what the Immigration Division must decide on each such review. It says:
Release - Immigration Division
58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
...
Detention - Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
(my emphasis)
Mise en liberté par la Section de l'immigration
58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_:
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
[...]
Mise en détention par la Section de l'immigratin
(2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
(mes soulignés)
[62] Section 246 of the Regulations sets out factors that shall be considered in determining whether a detained person constitutes a danger to the public pursuant to s. 58 of the IRPA and s. 244(b) of the Regulations.
Danger to the public
246. For the purposes of paragraph 244(b), the factors are the following:
(a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;
(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;
(c) engagement in people smuggling or trafficking in persons;
(d) conviction in Canada under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons;
(e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely:
(I) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production)
(f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons; and
(g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production)
Danger pour le public
246. Pour l'application de l'alinéa 244b), les critères sont les suivants :
a) le fait que l'intéressé constitue, de l'avis du ministre aux termes de l'alinéa 101(2)b), des sous-alinéas 113d)(i) ou (ii) ou des alinéas 115(2)a) ou b) de la Loi, un danger pour le public au Canada ou pour la sécurité du Canada;
b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi;
c) le fait de s'être livré au passage de clandestins ou le trafic de personnes;
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
(i) infraction d'ordre sexuel,
(ii) infraction commise avec violence ou des armes;
e) la déclaration de culpabilité au Canada quant à une infraction visée à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances :
(i) article 5 (trafic),
(ii) article 6 (importation et exportation),
(iii) article 7 (production);
f) la déclaration de culpabilité ou la mise en accusation à l'étranger, quant à l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale :
(i) infraction d'ordre sexuel,
(ii) infraction commise avec violence ou des armes;
g) la déclaration de culpabilité ou la mise en accusation à l'étranger de l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances :
(i) article 5 (trafic),
(ii) article 6 (importation et exportation),
(iii) article 7 (production).
[63] Section 248 of the Regulations provides that if it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release, by:
Other factors
248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
Éléments particuliers : mineurs
248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
a)le motif de la détention;
b) la durée de la détention;
c)l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
d)les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
e) l'existence de solutions de rechange à la détention.
[64] The applicant suggests that the wording of section 57(2), which provides for the review of the "reasons for detention", clearly indicates that they are not hearings de novo but only reviews to see if anything has changed that would justify altering the previous decisions. It is argued that this approach is supported by the decision of Noël J. (as he then was) in Canada (Minster of Canadian Citizenship and Immigration) v. Salinas-Mendoza , [1995] 1 F.C. 251, [1994] F.C.J. No. 1485 (QL). The applicant further submits, on the basis of that authority, that as a result the burden of proof is not on the Minister but on the respondent to show that something has changed since the last review or to otherwise show that the previous members of the Immigration Division misconceived the facts or erred in law.
[65] Mr. Thanabalasingham submits that Mr. Iozzo correctly applied the law. He relies on the decision in Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150, [1995] F.C.J. No. 1043, where MacKay J. clearly states that hearings pursuant to s.103(6) of the old Act are de novo hearings. He also argues that the decision of this Court in Canada (Minister of Citizenship and Immigration) v. Lin, 2001 FCT 838, [2001] F.C.J. No. 1202 (QL), closes the debate as to the nature of those proceedings and who bears the burden of proof.
[66] With respect to the nature of a detention review under the old Act, and the duty of adjudicators in that context, the Court notes that in Sahin v. Canada (Minister of Citizenship and Immigration) (T.D.), [1995] 1 F.C. 214, [1994] F.C.J./A.C.F. No. 1534 (QL) , Rothstein J. (as he then was) also states at para. 34:
It is the adjudicator himself or herself who must decide whether he or she is satisfied that the applicant would not pose a danger to the public. The fact that the CRDD made findings on this point may be relevant to the adjudicator's conspiration of the matter, but it is not conclusive. The issue is an open one on each detention review and must be decided by the adjudicator each time. The applicant and the respondent are free to bring forward whatever evidence or information is relevant to assist the adjudicator in reviewing a detention.
(my emphasis)
[67] As to Lin, supra, it is to be noted that the Minister argued in that case that reviews under s. 103(6) of the old Act were hearings de novo and that the adjudicator had erred in proceeding as if the hearing was an appeal of the first adjudicator's decision.
[68] Heneghan J. agreed with the Minister on this point and cited Campbell J., who, in Canada (Minister of Citizenship and Immigration) v. Lai, [2001] F.C.J. No. 441 (QL), held that the discretion of an adjudicator must not be fettered by earlier decisions because at each review he or she must reach his or her own decision after considering all existing factors relating to custody, including the reasons of other adjudicators at previous reviews.
[69] I am satisfied that the jurisprudence of this Court with respect to the nature of the hearing under ss. 103(6) of the old Act was constant and clearly indicates that each such review was a hearing de novo where the adjudicator had to reassess the whole evidence presented (whether it be new or old) and this included the decisions at previous reviews, and determine if he or she was satisfied that it met the threshold set in the old Act. This also appears to have been the understanding of all the adjudicators involved in the detention reviews of Mr. Thanabalasingham. I note that the transcripts of the evidence given by witnesses at previous hearings are used to avoid unnecessary and lengthy duplication, but this sensible practice does not change the nature of the hearing.
[70] The legislator is presumed to have known how the old Act had been construed and applied by our Court. There is nothing in the new ss. 57(1) and (2) that indicates any intention of the legislator to change the law. The legislator used the same wording in the IRPA as it used in the old Act. The Immigration Division, like the adjudicators of the past, reviews "the reasons for the continued detention". Also, the new s. 58 applies to each review whether it be the first or the fourth. The task to be performed is exactly the same each time.
[71] In his decision, Mr. Iozzo says:
The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. The principle of stare decisis is a noble and valuable one, the principle of justice is nobler and a more essential ideal. Deference must be shown to previous decisions, but "error" cannot be continued for the sake of consistency. In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence.
Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.
[72] The Court finds that Mr. Iozzo made no reviewable error in assessing his task under s. 57 and s. 58 of the IRPA. I agree that he is not bound by the previous decisions.
[73] Before concluding on this ground, I note that in his Memorandum of Argument, the applicant also said that Mr. Iozzo erred in concluding that the principle of stare decisis is less noble and valuable than the principle of justice. I do not intend to discuss this argument because it is an obiter that appears to have absolutely no bearing on his assessment of the duty he had to perform. I shall only say that this comment certainly indicates that he was fully aware of the decisions