Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews?

FACTS

[2] The facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.

[3] The next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal.

ISSUES

[4] The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision.

RELEVANT PROVISIONS

Immigration and Refugee Protection Act

57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.

(2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.

...

57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite.

(2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent.

...

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);

...

(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.

...

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);

...

(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.

...

Immigration and Refugee Protection Regulations, SOR/2002-227

47(2) A person who posts a guarantee must

...

(b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and

...

47(2) La personne qui fournit la garantie d'exécution doit :

...

b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées;

...

244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person

(a) is 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) of the Act;

(b) is a danger to the public;

...

244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation :

a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi;

b) du danger que constitue l'intéressé pour la sécurité publique;

...

245. For the purposes of paragraph 244(a), the factors are the following:

...

(d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;

(e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;

... (g) the existence of strong ties to a community in Canada.

245. Pour l'application de l'alinéa 244a), les critères sont les suivants :

...

c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle;

d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi;

e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...

g) l'appartenance réelle à une collectivité au Canada.

246. For the purposes of paragraph 244(b), the factors are the following:

...

(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;

...

(d) conviction in Canada under an Act of Parliament for

...

(ii) an offence involving violence or weapons;

...

246. Pour l'application de l'alinéa 244b), les critères sont les suivants :

...

b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi;

...

d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :

...

(ii) infraction commise avec violence ou des armes;

...

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.

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.

Immigration Act

103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where

(a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and

(b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada.

...

(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.

(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond.

...

103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi.

...

(6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois:

a)dans la période de sept jours qui suit l'expiration de ce delai;

b)tous les trente jours après l'examen effectué pendant cette période.

(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution.

...

THE CERTIFIED QUESTION

[5] There are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review.

Nature of the Hearing

[6] I think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, "all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made." Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.

[7] On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that:

... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).

[8] Nothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews "the reasons for the continued detention" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted.

The Treatment of Prior Decisions

[9] The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.

[10] Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.

[11] Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.

[12] The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.

[13] However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.

Burden of Proof

[14] When determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).

[15] Subsection 103(7) of the former Act provided that an adjudicator shall order release if "satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal." Under that provision, Campbell J. held that "the initial onus of proving continued detention is warranted rests with the proposer of such an order", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that "the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.

[16] The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75:

... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review.

MR. IOZZO'S DECISION

[17] The Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.

[18] Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated:

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. ... Deference must be shown to previous decisions, but "error" cannot be continued for the sake of consistency.¹⁰ 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 [Emphasis in original].

¹⁰Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.

[19] From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that "at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements."

[20] Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that "non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth" (page 15). He therefore implicitly rejected the "common thread" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.

[21] The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that:

Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124).

Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.

[22] Finally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were "able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.

[23] Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point.

CONCLUSION

[24] The reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows:

At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.

[25] The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention.

"Marshall Rothstein"

J.A.

"I agree

A.J. Stone J.A."

"I agree

K. Sharlow J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-479-03

STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Kaileshan Thanabalasingham

PLACE OF HEARING: Ottawa, Ontario

DATES OF HEARING: December 9, 2003

REASONS FOR JUDGMENT

BY: ROTHSTEIN J.A.

CONCURRED IN BY: STONE J.A.

SHARLOW J.A.

DATED: January 9, 2004

APPEARANCES:

Mr. Donald MacIntosh and

Mr. Greg George FOR THE APPELLANT

Ms. Barbara Jackman FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario FOR THE APPELLANT

Barbara Jackman

Toronto, Ontario FOR THE RESPONDENT

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