Date: 20041217
Dockets: IMM- 3876-04 & IMM-8256-04
Citation: 2004 FC 1756
Ottawa, Ontario, December 17, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JOTHIRAVI SITTAMPALAM
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2002 c. 27 (Act). Jothiravi Sittampalam (respondent) is alleged to be the leader of a violent street gang in Toronto. On October 18, 2001 the respondent was arrested in connection with this allegation. Since that time, the respondent has been held in detention pending an admissibility hearing on the grounds that he is a danger to the public and unlikely to appear. The Minister of Citizenship and Immigration (applicant or the Minister) applied for judicial review of two release orders of the Immigration and Refugee Board (Board) for the respondent's release from detention. The first order was made by C.A. Simmie, dated April 22, 2004, and was the subject matter of judicial review IMM-3876-04 (First Decision). The subsequent release order was made by W.K. Willoughby, dated September 27, 2004, and is now the subject matter of judicial review IMM-8256-04 (Second Decision, collectively the Decisions).
[2] By order of Simpson J., dated September 28, 2004 the judicial reviews of both release orders were consolidated.
FACTUAL BACKGROUND
[3] The respondent is a Tamil citizen of Sri Lanka. On July 17, 1992, he was successful in his application to stay in Canada as a Convention refugee.
[4] The respondent is the son of one of the leaders of a political group in Sri Lanka. It is this connection which the police speculate has carried old hostilities to Canada.
[5] While residing in Canada the respondent has compiled a criminal record, having been convicted more than once, including a conviction for trafficking narcotics in 1996, for which he was sentenced to two years less one day. He has been a suspect in numerous other gang-related crimes. In the last few years he married and had children.
[6] The respondent has also been the subject of two reports under section 21 of the old Immigration Act, now subsection 44(1) of the Act. The first report, dated July 2, 1997, identified the respondent as subject to deportation by virtue of his conviction for drug trafficking. The second report, dated September 21, 2001, identified the respondent as subject to deportation by virtue of his leadership role in a criminal organization.
[7] In addition, the respondent has twice been the target of assassination attempts, allegedly due to his involvement in gang activity. In April of 2001, the respondent and two passengers in his vehicle were shot at by assailants in a following vehicle. The victims contacted the police by cell phone but the assailants escaped. The respondent sustained only minor injuries. In September of 2001, the respondent was again the victim of a shooting attack, this time while travelling alone in his vehicle. Two assailants shot at the respondent and his vehicle. The respondent did not report this attack. Rather, a parking control officer noticed the bullet holes and contacted the police, who then questioned the respondent regarding the incident.
[8] On October 18, 2001, the respondent was arrested during a large-scale police operation targeting approximately fifty members of two rival Tamil street gangs operating in Toronto. He was detained under the Immigration Act in force at that time, pending the determination of an inquiry (now an admissibility hearing). During the interim, a number of detention reviews have been held. While it is the two most recent of those detention reviews that are the subject matter of this judicial review, a brief history of the detention reviews is helpful.
History of Detention Reviews
October 29, 2001: Initial detention review, heard by Member Simmie: respondent detained further on the grounds that he represents a danger to the public and is unlikely to appear. (Paragraphs 58(1)(a) and (b)) of the Act)
June 21, 2002: Second detention review, heard by Member Willoughby: the hearing, spanning 7 months, included testimony from a number of individuals, including police officers, speaking to the respondent's history in gang involvement. Detention order maintained on the same grounds.
August 2002 Third detention review by unacknowledged Member: detention order maintained on the same grounds.
September 2002 Fourth detention review heard by Member Walkinshaw: detention order maintained on the same grounds. The respondent argues that the Member considered the grounds of unlikely to appear of minor concern compared to the risk to the public.
Oct./02-June/03 Seven subsequent reviews return the same result, relying on the case history and the absence of any substantive changes.
July 2003 Detention review heard by Member Martens: detention order maintained on the same grounds. Counsel for the respondent requests that no further reviews be conducted until a determination is made in the ongoing judicial review of the similar-fact case of Minister of Citizenship and Immigration v. Thanabalasingham 2003 F.C. 1225 (Thanabalasingham FCT).
Feb. 7, Mar. 16/04 First and second detention reviews following the resolution of the Thanabalasingham FCT case, both heard by Member Simmie: counsel for the respondent declined to make any submissions regarding the release of her client. Detention order maintained on the same grounds in the absence of any substantive change in the circumstances.
April 16, 2004 Detention review which leads to the First Decision by Member Simmie, the first of the two decisions under review in this case.
Sept. 27, 2004 Detention review which leads to the Second Decision by Member Willoughby, the second of the two decisions under review in this case.
History of Admissibility Hearing
[9] The admissibility hearing commenced in August of 2002. It eventually concluded with a decision dated October 4, 2004 finding the respondent inadmissible due to his conviction for drug trafficking and his involvement in a criminal organization. It should be noted that the result of the admissibility hearing was not known at the time of the making of either the First or Second Decisions.
THE STANDARD OF REVIEW
[10] The standard of review for a release order made under sections 57 and 58 of the Act, as determined under the pragmatic and functional approach, was recently canvassed by Gauthier J. in Thanabalasingham FCT., supra, at paragraphs 38-59.
[11] The Court concluded that the standard of review is closely linked to the nature of the question involved. On questions of fact, a patent unreasonableness standard should be applied. On questions of law, a correctness standard should be applied. On questions of mixed fact and law the standard ought to depend on whether the question is factually or legally intensive.
ANALYSIS
[12] I have considered the written and oral submissions of the parties. The applicant takes issue with a number of the Members' findings. I conclude that the following are live issues in this judicial review:
1. Did the Members err in law by considering the time in detention or the potential time of detention given the progress of other proceedings?
2. Did the Members err in law by providing inadequate reasons for departing from the Board's earlier decisions?
3. Did the Members err in law by relying on speculation as grounds to conclude that the respondent is no longer a danger to the public and likely to appear?
4. Was the Member's finding that the sureties were adequate to ensure the respondent's compliance patently unreasonable?
[13] I have considered the standard of review to be applied to each issue. I will apply the correctness standard to issues 1-3, and the patent unreasonableness standard to issue 4.
1. Did the Members err in law by considering the time in detention or the potential time of detention given the progress of other proceedings?
[14] It is very clear by the wording of subsection 248(a) of the Regulations that length of time in detention is a mandatory consideration in determining whether a release order is appropriate. Similarly, it is clear by the wording of subsection c)
that Members are obliged to speculate on how long that detention may continue given whatever information is known of other pending proceedings, so long as the speculation is grounded in reliable information and an informed opinion.
[15] That being said, there is still a valid point to be made, and a settled principle of procedural law, that a party should not benefit from complaints against delay when the delay is of their own design.
[16] Therefore, with regard to time of detention, it would be an error for the Members to conclude, in these circumstances, that the respondent should be released because the length of time he has been detained is somehow unfair to him and is a burden on his rights. I accept that the respondent may have had significant points of law to argue with regards to the admissibility proceedings. However, I am satisfied that, in any event, a significant amount of delay in resolving the respondent's case was due to the respondent's own actions. The respondent can not claim that the length of detention is unfair in these circumstances.
[17] This is not to say, however, that the length of detention is a completely irrelevant factor here. If one of the grounds for detaining the respondent is that he is a danger to the public, it may be that the danger to the public dissipates due to the length of time in detention, or that the evidence supporting a detention order will turn stale. Length of detention is properly considered with regard to a dissipated threat or stale evidence regardless of whether the length of time in detention was by virtue of the respondent's own delay in the matter. The responsibility of the Board if it does conclude that evidence is stale by virtue of the passing of time is a different matter and will be dealt with below.
[18] As for the consideration of subsection 248c), it is properly limited to requiring only that the adjudicator consider whether changing an order with regards to detention, an order not lightly made in the first place, is necessary in view of the practical realities of the individual's case. That is to say, if a final determination of the main proceeding is on the very near horizon, it may be wiser to let the detention order stand pending final resolution of the matter. If, however, there is no end in sight, the rigour on which the existing detention order is examined should be intensified.
[19] In summary, time in detention is properly considered to infer that a danger to the public may have lessened, if this lessening is logically supported by the datedness of evidence. (As noted, the Board's duty once this inference is made is another consideration, dealt with later.) The potential duration of other proceedings should only be considered to determine whether the final determination of the matter is so close as to render a change of the existing detention order impractical.
[20] I find that, for all important purposes, the Decisions relied on the time in detention to reason that the respondent's danger to the public may have dissipated over time. I do not find considering time in detention in this manner to be an error.
2. Did the Members err in providing inadequate reasons for departing from the Board's earlier decisions?
[21] At paragraph 10 of Canada v. Thanabalasingham, [2004] 3 F.C.R. 572 (Thanabalasingham FCA), the Federal Court of Appeal confirmed that "if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out." The rationale behind this principle is to safeguard the findings of a previous Member who was in a better position to hear original evidence and assess credibility. New evidence, new arguments or a different assessment on the same evidence which may give rise to a change in the status quo should be clearly laid out by the Member departing from the prior decision. However, even if explicit reasons for departing from the previous decisions are not provided, it will suffice where the reasoning is implicit in the subsequent decision. The Court sets a threshold: "What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way." (Thanabalasingham FCA, at paragraph 13)
[22] In my opinion the statement above reflects a fairly low threshold for satisfaction of this requirement. I agree with the respondent that the Members made sufficiently clear statements with regard to why they were departing from previous decisions. It was very clear in both Decisions that time had passed; the Members questioned whether a danger to the public remained and concluded that a release on terms and conditions was now appropriate.
3. Did the Members err in law by relying on speculation as grounds to conclude that the respondent is no longer a danger to the public and likely to appear?
[23] The turning point of both Decisions was simple. After over two years in detention, the Members felt that the danger to the public as initially described by the Minister had more likely than not subsided to the point where release on terms and conditions had become appropriate.
[24] The Minister claims that there is no evidence to back up this proposition. The issue of new evidence and burden of proof was recently canvassed in Thanabalasingham FCA, supra, at paragraph 24:
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] Simply because the Minister established a prima facie case at one time does not mean it stands indefinitely. There will be a time, dependent on the facts of each particular case, where a danger will be perceived to have dissipated at some point in the future. If, at that point in the future, the Minister wishes the continued detention of the respondent, it is entirely reasonable that evidence of a current danger to the public must be presented.
[26] The Federal Court of Appeal has determined that while the presiding member must decide afresh at each hearing whether continued detention is warranted, a detention review is not precisely a trial de novo because the Board is expected to take into account the evidence and reasons pertaining to previous detention orders (Thanabalasingham FCA, supra).
[27] It is clear that once the Minister has made out a prima facie case, the onus shifts to the detainee to provide grounds for release. If the detainee fails in this onus, he will remain detained. In time, however, the evidence that once formed the foundation for the Minister's prima facie case may become outdated, and the Board may no longer find that it meets the prima facie threshold.
[28] Nevertheless, the Board is not entitled to rely on speculation instead of evidence, in finding that the prima facie case has become outdated.
[29] From the First Decision:
I think as well that his absence from the gang scene for at least the last two and a half years is a factor that must be accounted for...I think this also mitigates the likelihood he would be subject to any assassination attempt again.
I also believe that having spent this amount of time in detention to date, Mr. Sittambalam [sic] would have to appreciate the seriousness of the situation and would presumably therefore be reluctant in the future to take actions that might jeopardize his liberty or future in Canada. (See paragraph 15 of the First Decision.)
[30] From the Second Decision:
And what's happened, in my estimation, in two and a half years, because I believe the information that Ms. Jackman [respondent's counsel] gave in her submissions, is that your gang, which I do believe has dissipated, it's not the same. There are other gangs...but I don't believe that it's very easy for you to get your organization back together.
I was fairly specific about what danger I thought you posed to the public. I thought that what would happen is that that other gang that shot at you...would try to do that again, or that you would organize yourself and retaliate...I don't think that's still the situation.
...I don't believe that you have the same kind of influence. You might be able to, I don't know, but I doubt it very much... (See paragraphs 4 and following of the Second Decision.)
[31] With all due respect to the Members, this reasoning is not adequate in these circumstances. The original detainment order was properly made and confirmed relying on a significant evidentiary record. A release order in the face of such evidence should relate specifically to new evidence or specifically to a lack of current evidence. There is no indication that the Board considered or invited any current evidence before making its decision. If it found the previous evidence stale, this was the proper approach in order to obtain a proper foundation in which to base these critical findings.
[32] With particular regard to Member Willoughby's findings in the Second Decision as quoted above, it should be noted that I have considered that he believed "the information that Ms. Jackman [respondent's counsel] gave in her submissions." While I am certain that Ms. Jackman was persuasive, the Member should not have accepted as true, counsel's oral evidence regarding the dissipation of the respondent's gang, without corroboration by witnesses and/or affidavits, either of which would have been a more appropriate means.
[33] The situation would be different if, after considering the current evidence, or lack of it, the Board concluded that the Minister had not shown on the balance of probabilities that the respondent's gang was active, that he could reform it, that he would not comply with the terms of an order or that he would be a danger to the public generally, then the Members could rely on evidence instead of speculation to arrive at a finding that the Minister had not made out a prima facie case, or that terms and conditions on a release order would suffice.
[34] What is not acceptable is the conclusion arrived at by the Members; one based on speculation, a hunch really, that time in detention has lessened the danger to the public, a danger that is evident on the record before the Board and remains unchallenged by the respondent. In my view, it is an error that justifies this Court's intervention.
4. Was the Member's finding that the sureties were adequate to ensure the respondent's compliance patently unreasonable?
[35] Seeing as to how the proposed sureties differed between the time of the First and Second Decisions, I will concentrate on the reasons set forth in the Second Decision.
[36] On the issue of sureties, Member Willoughby noted at pages 6 and 7 of the Second Decision that at past detention hearings he had not accepted the proposed sureties. In this instance though, due to the passage of time, he found that the respondent was less likely to engage his gang or be threatened himself by another assassination attempt. In addition, although he previously rejected one of the proposed sureties, Mr. Ponnamapalum, because his lack of knowledge of the respondent's gang involvement made the Member speculate on his effectiveness in supervising the respondent, the Member now found that "in the passage of time [Mr. Ponnamapalum] must have come to...at least believe that it's very likely that [the respondent was] a leader of the AK Cannon (ph) gang."
[37] With regards to Mr. Ponnamapalum's ability to ensure compliance, given the totality of the evidence I do not find it reasonable to conclude that he has the ability to ensure the respondent's compliance. It is speculated that, at one time, he has attempted to play a supervisory role in the respondent's life. While I respect those attempts, I see no indication that in the past he was able to supervise the respondent, as is evident by the situation the respondent is in today.
[38] Further, I believe that Member Willoughby was correct in the first instance when he decided that Mr. Ponnamapalum's lack of knowledge of the respondent's involvement in gangs indicated he could not supervise the respondent. The Member says that he is quite certain that now, after the bulk of proceedings in the respondent's case, that Mr. Ponnamapalum is aware that the respondent was likely involved in gangs.
[39] In my opinion there is no logical connection between Mr. Ponnamapalum now being aware of the respondent's gang involvement (knowledge that had to be finally obtained by observing legal proceedings while the respondent was detained) and his ability to supervise. The reasoning behind the Member's former finding was that the lack of knowledge indicated that Mr. Ponnamapalum and the respondent did not have a relationship of such an intimate nature as to allow Mr. Ponnamapalum to adequately supervise him. There is no indication of any evidence that this has changed. To depart from his earlier position the Member must provide clear and compelling reasons for doing so. While the threshold for doing so may be low, I find that the Member has not met it.
[40] As discussed, conclusions that the respondent was less likely to be involved in gang activity due to the passage of time were not open to the Members without considering current evidence, and they cannot support the position that the sureties were adequate.
CONCLUSION
[41] For the reasons above, I find that the Members erred in granting the release of the respondent. The matter should be reheard by a differently constituted Board in light of these reasons.
[42] Counsel for the applicant suggested three questions for certification:
1. Where delay in litigation proceedings is attributable to the detainee, does the Immigration Member err by relying on that delay as the grounds for the detainee's release?
2. Where the Immigration Member previously determined the sureties to be ineffective, does the Member err by reversing this determination in the absence of evidence to support the reversal and by failing to give clear and compelling reasons for doing so?
3. Where the Immigration Division is satisfied that the person detained, on release, will attempt to break the law, does the Immigration Division err in concluding that the detainee does not represent a danger because they are unlikely to succeed in breaking the law?
[43] Counsel for the respondent suggested two questions for certification:
1. Does an Immigration Member err in law in taking into account the likelihood of further delays in the process or in effecting removal caused by the detainee's taking of further legal steps as a factor in determining to release the person from detention?
2. Is a general negative credibility finding necessarily determinative of the issue of whether a person would comply with terms and conditions imposed on release?
[44] In my view, questions 1 and 2 of the applicant, as well as question 1 of the respondent, are case specific. As for the remaining two questions, I am not convinced that they are of a general importance. Therefore, no question will be certified.
O R D E R
THIS COURT ORDERS THAT:
- This application for judicial review is granted;
- The decisions are quashed in both files IMM-3876-04 and IMM-8256-04;
- The matter is returned to be heard by a differently constituted panel;
- No question for certification.
"Pierre Blais"
J.F.C.
RELEVANT LEGISLATION
Immigration and Refugee Protection Act
| 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); c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or (d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention -- Immigration Division
58(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.
Conditions
(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions. |
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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); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux; d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
58(2) Mise en détention par la Section de l'immigration (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.
58(3) Conditions
(3) Lorsqu'elle ordonne la mise en liberté d'un résident permanent ou d'un étranger, la section peut imposer les conditions qu'elle estime nécessaires, notamment la remise d'une garantie d'exécution. |
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Immigation and Refugee Protexction Regulations
| 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; or
c) is a foreign national whose identity has not been established.
Flight risk
245. For the purposes of paragraph 244(a), the factors are the following: (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament; (b) voluntary compliance with any previous departure order; c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (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; (f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and (g) the existence of strong ties to a community in Canada.
Danger to the public
246. For the purposes of paragraph 244(b), the actors 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; ... (d) conviction in Canada under an Act of Parliament for (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),
. . . 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.
47. (1) A person who pays a deposit or posts a guarantee
(2) A person who posts a guarantee must (a) be a Canadian citizen or a permanent resident, physically present and residing in Canada; (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 c) present to an officer evidence of their ability to fulfil the obligation arising from the guarantee. |
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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; c) de la question de savoir si l'intéressé est un étranger don't l'identité n'a pas été prouvée.
Risque de fuite
245. Pour l'application de l'alinéa 244a), les critères sont les suivants : a) la qualité de fugitif à l'égard de la justice d'un pays étranger quant à une infraction qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale; b) le fait de s'être conformé librement à une mesure d'interdiction de séjour; 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; f) l'implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l'intéressé à se soustraire aux mesures visées à l'alinéa 244a) ou le rendrait susceptible d'être incité ou forcé de s'y soustraire par une organisation se livrant à de telles opérations; g) l'appartenance réelle à une collectivité au Canada.
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; [...] 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), [...] 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.
47. (1) La personne qui fournit la garantie d'exécution :
(2) La personne qui fournit la garantie d'exécution doit : a) être citoyen canadien ou résident permanent effectivement présent et résidant au Canada; b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; c) fournir à un agent la preuve qu'elle peut s'acquitter de ses obligations quant à la garantie fournie. |
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FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3876-04 and 8256-04
STYLE OF CAUSE: MCI v. JOTHIRAVI SITTAMPALAM
DATE OF HEARING: Tuesday December 7, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND ORDER BY: Blais J.
DATE: December 17, 2004
APPEARANCES BY: Ms. Mielka Visnic
For the Applicant
Ms. Barbara Jackman
For the Respondent
SOLICITORS OF RECORD:
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Applicant
Barbara Jackman
Jackman and Associates
Toronto, Ontario
M6C 1A6
For the Respondent