Category: Detention

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."

The Court overruled an order granting release. The Minister had sought detention argung that there were reasonable suspicion that the respondent was a member of the LTTE. The Member ordered release finding that the evidence was insufficient to justify detention. The Court overturned the order noting: 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: see R. v. Jacques, [1996] 3 S.C.R. 312 at 326, [1996] S.C.J. No. 88 (QL) (S.C.C.).

The Court set aside a refusal to release. The Board erred in failing to consider alternatives to detention. The Court noted: "Because of the unsuitability of these proposed bondspersons, the Board concluded that there was no meaningful alternative to Mr. Sittampalam's continued detention and, therefore, there was no option but to keep him in custody. Counsel had proposed a range of other means of ensuring that Mr. Sittampalam would appear -- house arrest, supervision by family members, and the wearing of an electronic bracelet. The Board addressed only the latter possibility in its reasons. It stated that, because it was not ordering Mr. Sittampalam's release, it was "not considering the use of an electronic bracelet as a measure of control". Clearly, the Board did not consider the possibility that Mr. Sittampalam could be released and his appearance for removal vouchsafed by means other than the posting of bonds. In my view, the Board did not fully analyze the available means of ensuring Mr. Sittampalam's appearance for removal."

The Court upheld a decision of the Member who refused to alter the conditions of release. The Minister alleged breaches but had failed to raise them at a previous detention review. The Member held that the Minister had forgiven the breaches and declined to alter the conditions.