Date: 20110217
Docket: IMM-472-11
Citation: 2011
FC 175
Vancouver, British
Columbia, February 17, 2011
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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B386
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
In a
motion dated February 3, 2011, the Applicant seeks the following:
1. An Order pursuant to s. 18.2 of the Federal
Courts Act upon short notice pursuant to Rule 362(2) of the Federal
Courts Rules, staying the Order of Immigration Division (ID) Member Tessler
dated January 25, 2011, until the application for leave and for judicial review
is determined on its merits;
2. An Order pursuant to Rule 55 of the Federal
Courts Rules, dispensing with the need to perfect the application for leave
and for judicial review, granting the application for leave and thereafter
abridging the time limits for the parties to file and serve their materials and
to expedite the hearing of the judicial review application to be scheduled
forthwith;
3. In the alternative, an Order pursuant
to Rule 21(2) of the Federal Courts Immigration and Refugee Protection Rules,
abridging the time limits for the parties to serve and file their application
records for the application for leave and for judicial review to enable the
Court to determine whether to grant leave, and if leave is granted to hear the
matter on an expedited basis.
4. An Order that all documents filed or
delivered to the Court in the Applicant’s application for leave and for
judicial review of the Division member’s decision be treated as
confidential.
Procedural and Factual
Background
[2]
On January
25, 2011, Justice Noël ordered a stay, on an interim basis, of the January 25,
2011 Release Order to allow for a full hearing on an expedited basis on the
merits of the Applicant’s stay motion. The Court considered the motion records
and heard the parties on the merits of the stay motion in Vancouver, British Columbia, on February 9, 2011.
[3]
The
Respondent is the subject of two other judicial review applications before the
Court, namely: IMM-6839-10 and IMM-7338-10, challenging release orders of
the ID dated November 19, 2010 and December 23, 2010, respectively, issued
following detention reviews. In both IMM-6839-10 and IMM-7338-10, stays of
the release orders of the ID were granted on December 9, 2010 and January 14,
2011, respectively.
[4]
On
February 8, 2011, the Chief Justice issued Reasons and an Order dismissing the
application for judicial review challenging the November 19, 2010 Release Order
(MCI v. B386, 2011 FC 140).
[5]
At the
outset of the hearing of the within motion, counsel for the Respondent moved to
have the motion dismissed on the grounds that the Court has no jurisdiction to
hear the motion since the January 25, 2011 Release Order for which relief is
sought is a nullity.
[6]
Subsequent
to the hearing, by letter dated February 10, 2011, counsel on behalf of the
Applicant sought leave to file supplementary submissions and authorities on the
issue of mootness. The Court directed that the parties file their respective
written submission on mootness no later than February 14, 2011.
Applicant’s Submissions
[7]
The Applicant submits this motion should
be heard because it concerns the only release order in effect with respect to
the Respondent. In a succession of detention review orders made by the ID, each
successive order supersedes its antecedent: when the ID first orders the
release of a person on terms and conditions and that order is stayed or remains
unperfected before a second statutorily mandated hearing, the second hearing
and its resulting order supersede the first. Thus, the November 19, 2010
ID order considered on judicial review by Chief Justice Lutfy ceased to have
effect when the ID issued a subsequent order on December 23, 2010. The dismissal
of that application thus poses no barrier to the hearing of this motion.
[8]
The Applicant
contends that his position is consistent with the jurisprudence of the Federal
Court of Appeal and the Federal Court, and the recently stated view of the ID.
Moreover, it is consistent with the fact that circumstances arising between
detention review hearings are always subject to change. Hence, an order to
release or detain the Respondent at one point in time is not determinative of a
subsequent detention review.
Respondent’s Submissions
[9]
The Respondent
maintains the position adopted at the hearing of the motion; that the Court
does not have the jurisdiction to hear the Minister’s application for a stay of
the release order issued by the Immigration Division on January 25, 2011, on
the following two grounds. First, that the principles of res judicata
and issue estoppel apply because the issue of whether the November 19, 2010
release was moot was decided at a pre-hearing conference held on January 18,
2011, at the direction of the Chief Justice. Second, that the Minister’s motion
amounts to an abuse of process. The Respondent contends that the Minister
is asking the Court to endorse a position that would result in rendering moot
every judicial review application of a release order for which a stay has been
granted; as such reviews cannot fairly be done within 30 days.
Analysis
[10]
I do not agree with
the Respondent’s submission that the issue of mootness was finally decided by
the Chief Justice in the pre-hearing conference or in the judicial review of
the Respondent’s November 19, 2010 detention review. At paragraph 2 of his
decision, the Chief Justice clearly states that he continues to have doubts
about mootness. Furthermore, his decision does not address the issue of whether
the most recent release order supersedes the earlier release orders. As a
result, I reject the Respondent’s res judicata argument.
[11]
I do agree, however,
with the Respondent, that much of the case law cited by the Minister is
distinguishable on the grounds that it concerned a judicial review of a
detention order, and the issue of mootness does not appear to have been fully
canvassed. This is the case in Lai v. Canada (MCI), 2001 FCA 222. In
these cases, mootness and judicial economy issues arise because the remedy
sought is another detention review, which must take place within 30 days in any
case. I would add that in these cases, the detainee’s liberty interests are not
impacted in the same way that they are when the Minister brings an application
for judicial review of a release order. If a detained person brings a judicial
review application of a detention order, the judicial review proceedings do not
extend the applicant’s detention, as they would remain in detention until they
obtain a release order on a subsequent detention review. The spectre of an
abuse of process does not arise in the same way as it has in the Respondent’s
case. When the Minister brings an application for judicial review of a release
order, the detained person would have been released but for the
Minister’s application for judicial review and for a stay, subject to their
ability to meet any terms and conditions imposed. Thus, judicial review
proceedings of release orders directly engage the detained person’s liberty
interests as they have the potential to extend the period of detention.
[12]
In XXXX v. MCI, 2011 FCA
27, the central reason why the proceedings were found to be moot was the
fact that the appellant had already been released from detention. Justice
Pelletier’s decision in Canada v. Zhang, 2001 FCT 521 does concern a release order,
but the issue of indefinite detention may not have arisen because Justice
Pelletier found that the decision to release was unreasonable. The detained
person was not denied the benefit of a positive court decision.
[13]
The 30-day delay
between detention reviews renders impracticable, even with the best
of intentions of all concerned, to have an application for leave and for
judicial review of a detention review decision heard and decided before the
conduct of another detention review. These are the circumstances which underlie
the current matter. Two detention reviews relating to the Respondent were
conducted and decided since the stay motion relating to the November 19, 2010
Release Order was granted.
[14]
In the context of a
mandated detention review every 30 days, the Minister’s position would allow
the Crown to obtain a prolonged if not indefinite stay of release order(s)
through the court process. This is evident in the current proceedings relating
to the Respondent. The Minister has filed applications for leave and for
judicial review of three successive orders of the ID releasing the Respondent
from detention. Accepting the Minister’s submission would mean that because the
Court’s decision upholding the November 19, 2010 Release Order was not rendered
prior to the December detention review, it has no effect, since the next
release order of the ID is now the operative order. The December release order
has also been stayed subject to final determination of the underlying
application for leave and for judicial review, or the next detention review.
Potentially, this cycle could be unending and the Respondent would never
benefit from a positive decision of the Court upholding a release order. This
cannot be what was intended by Parliament. The purpose of requiring a detention
review every 30 days was to protect the Respondent’s liberty interests by
affording him a timely review of his detention and clearly not to provide a
mechanism to prolong that detention or keep the Respondent in indefinite
detention. Yet, this would be the effective result if we accept the Minister’s
submission. In my view, this would result in nothing short of an abuse of the court
process.
[15]
It must be remembered
that the intervening detention reviews, which also resulted in release orders
of the Respondent by the ID, would not have occurred had the Respondent not
been detained at the time. The IRPA does not require a review once the
Respondent is released from detention. Subject to the conditions of release,
the release is indefinite. Consequently, the applications for leave and for
judicial review of the subsequent decisions releasing the Respondent were only
made possible by reason of his continued detention and would never have
been filed had the November 19, 2010 Release Order, now upheld, not been
challenged.
[16]
The
Respondent’s case presents a unique fact scenario. If successful on this stay
application, the Applicant will have denied the Respondent the benefit of three
release orders, and a positive Court decision, through consecutive judicial
review proceedings.
[17]
Even
if the case law cited by the Applicant was not distinguishable and the original
release order has been superseded, given the fact scenario at play in this
case, I am of the view that application of the cited jurisprudence would be
contrary to the interests of justice and result in an abuse of process. The
Respondent’s liberty interests in this case outweigh the enforcement of this jurisprudence
(Blencoe v. British
Columbia
(Human Rights Commission), 2000 SCC 44 at para. 120; Canada (MCI) v. Parekh,
2010 FC 692 at para. 24).
[18]
The
Minister has raised a policy argument in favour of sequentially superseding
detention review decisions. The Minister emphasizes that circumstances change,
and new evidence is brought forward. I do not find this argument persuasive.
[19]
All
of the significant information underlying the new grounds for detention raised
in the December and January detention reviews was available to the Minister as
early as the end of September. The Minister did not raise the Respondent’s
connections with the smugglers until the December detention review, but the
information regarding his connections with smugglers was largely obtained in an
interview that took place on September 20, 2010. Similarly, although the
Minister did not raise danger to the public until the December detention
review, the Respondent’s connections with the LTTE were also fully canvassed in
the September 20, 2010 interview, and the s. 44 report against the Respondent
was written on October 27, 2010. In any event, should new evidence arise, which
raises a ground for detention, the Minister has the statutory authority to
re-arrest the Respondent (s. 55 of IRPA). This was addressed in Canada v.
Thanabalasingham, 2004 FCA 4, in which Justice Rothstein stated:
[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.
Conclusion
[20]
The relief sought in this motion has
become moot by reason of the February 8, 2011 decision of the Chief Justice,
dismissing an application for judicial review of the November 19, 2010 Release
Order of the Immigration Division releasing the Respondent. The decision
essentially maintains that release order and renders it operative.
[21]
The motion at bar
seeks to stay one of these subsequent release orders pending judicial review of
the underlying application challenging the release order. In my view, in the
unusual circumstances surrounding proceedings relating to the Respondent’s
detention, I find the Release Order challenged in the underlying application to
the within motion to be a nullity. To find otherwise would be to give no effect
to the Court’s decision maintaining the November 19, 2010 Release
Order. Consequently, I find the motion and the relief sought therein to be
moot.
[22]
For the above
reasons the Applicant’s motion will be dismissed.
ORDER
THIS COURT ORDERS that the motion is dismissed.
“Edmond P. Blanchard”
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