[1] This is a motion by the applicant for an order staying the order of Vladislav Tumir, a member of the Immigration and Refugee Board, Immigration Division, dated November 5, 2002, until the respondent's next statutorily required detention review or until the Court is able to deal with the underlying application for leave and for judicial review. The order of Vladislav Tumir directed that the respondent be released from detention, subject to the payment of a deposit, the posting of a guarantee and other terms and conditions.

[2] The respondent, Kaileshan Thanabalasingham, is a citizen of Sri Lanka and a permanent resident of Canada, having been landed on August 31, 1992. The respondent is a recognized Convention refugee. He is subject to a deportation order issued on February 14, 2002.

[3] The respondent is married to a Canadian citizen. His mother and two sisters reside in Ajax, Ontario.

[4] The respondent has three criminal convictions:

1. 1996 - Possession of a weapon;

2. 1997 - Failure to comply with a recognizance;

3. 1998 - Conspiracy to commit assault

The conviction in 1998, which was based on charges laid in 1997, was the basis for the deportation order issued against the respondent.

[5] In 1994, the respondent moved from Toronto to Ottawa to attend the University of Ottawa. After his 1998 conviction, he returned to Ottawa where he continued his studies. In March 2000, he graduated in Applied Science, electrical engineering. The respondent registered his marriage in April 1999 and celebrated a traditional wedding in September 2001.

[6] The respondent is the subject of a report dated July 8, 1998, under subsection 27.(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, which alleged him to be removable from Canada because of his criminal conviction of conspiracy to commit assault. The direction for inquiry was signed on February 19, 1999. It is this report on which the deportation order was based.

[7] Issue

Should the stay be granted?

[8] It must be remembered that on this motion, all that is being decided is whether or not a stay of the decision should be granted. The merits of the judicial review application will be determined at the hearing of that application should leave be granted.

Analysis and Decision

[9] The Federal Court of Appeal has outlined a tri-partite test in Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (QL) (C.A.) that must be met in order to grant a stay. The applicant must satisfy all three parts of the tri-partite test, which is summarized as follows:

1. Has the applicant demonstrated that it has a serious issue to be tried?

2. Has the applicant demonstrated that it would suffer irreparable harm if the stay order was not granted?

3. Has the applicant demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?

[10] Serious Issue

I am satisfied that the applicant has shown that there are serious issues to be tried. These serious issues include:

1. Whether the previous convictions can be used to find that the respondent is currently a danger to the public?

2. Can unproven charges be considered in determining whether a person is currently a danger to the public?

3. Can evidence be considered credible or trustworthy for the purpose of a detention review hearing if it was not subject to cross-examination?

[11] Irreparable Harm

The applicant argues that should the respondent be released from detention, the safety of the Canadian public will be put at risk and this would constitute irreparable harm. There is no dispute regarding the evidence that the VVT is one of the two street gangs that operate in Toronto. According to the evidence of Officer Furlong, he did investigations of the groups relating to homicides, weapons offences, attempted homicides, kidnappings, abductions, offences related to credit cards, offences related to passports and offences related to forged documents (applicant's motion record, pages 242 to 243). The material filed on the motion also shows that the respondent was one of the persons who the former leader of the VVT was prohibited from having contact with by the Judge who sentenced the former leader. The respondent urged upon me that the last conviction against the respondent was in 1998. That, however, is not the end of the matter. The material filed states the police believe the respondent to be a leader of the VVT. The testimony of Officer Furlong also discloses that some time in 1999, when he received a telephone call about a sawed-off shot gun being transported, he saw the respondent at the scene in Toronto. No gun was found at the time. On January 15, 2001, Officer Furlong was involved in the arrest of several individuals that were associated with Gilder Boys (a group that was allied to the VVT (applicant's motion record, pages 242 and 284)), and two firearms were later seized. One of those present indicated that the respondent owned the guns. On August 18, 2001, Toronto police received a call about an armed person and when they arrived, they found the respondent and another VVT associate at the scene, along with four other individuals. No gun was located (applicant's motion record, page 280). On June 19, 1999, the respondent was seen in Toronto (applicant's motion record, pages 288 to 289).

[12] The March 18, 2002 decision of Adjudicator Gratton at page 3, summarizes other evidence that was presented in this file:

The documents entered are as follows: Attachment 1, the interview of Bimal Hasan Mohanrajah (phonetic), dated the 6^th day of February 1999; Attachment 2, the affidavit of Jaykumar Munaswara Kumar (phonetic) dated the 7^th day of May 1999, Attachment number 2 [sic], the affidavit of Vival Maharajah (phonetic), the 3^rd day of June 1999, Attachment number 4, the affidavit of Sassytharan Sassykumar (phonetic) dated the 16^th of June 1999, Attachment 5, the affidavit of Probaken Giva (phonetic), dated the 4^th of February 2002, Attachment 6, the intereview of Paranrupatan Ariaratnam (phonetic), dated the 22^nd of February 2001.

And at pages 5 to 6:

It has been alleged that Mr. Thanabalasingham is a current leader of the VVT. He has been described as a hands off back room leader who directs the violent activity of other members of the organisation.

The persons whose statements and affidavits stated that the respondent was active in the VVT recanted their story. It is significant that all of these persons originally suggested that the respondent was still active in the VVT.

[13] Based on the evidence of Officer Furlong and on other evidence presented in this motion, I am of the opinion that the applicant has shown that irreparable harm could occur if the respondent was released.

[14] Balance of Convenience

I am satisfied that the balance of convenience favours the applicant on this motion as the public interest, which the applicant seeks to maintain, is in this case, the prevailing factor.

[15] The applicant's motion for a stay is granted and the order of Vladislav Tumir, dated November 5, 2002, is stayed until a decision is made in the respondent's next statutorily required detention review. I am not prepared to grant a stay until the judicial review application is dealt with as I do not know when that will be. Additionally, I am reluctant to interfere with the respondent's statutory right to a review of his detention every 30 days.

[16] As the issue of an expedited hearing was not fully argued before me, I will not deal with that issue and the issue may be dealt with in a future motion.

ORDER

[17] IT IS ORDERED that the applicant's motion for a stay is granted and the order of Vladislav Tumir, dated November 5, 2002, is stayed until a decision is made in the respondent's next statutorily required detention review.

"John A. O'Keefe"

J.F.C.C.

Ottawa, Ontario

November 15, 2002

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5518-02

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

- and -

KAILESHAN THANABALASINGHAM

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: Saturday, November 9, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: Friday, November 15, 2002

APPEARANCES:

Mr. Greg G. George

FOR APPLICANT

Ms. Barbara Jackman

FOR RESPONDENT

SOLICITORS OF RECORD:

Department of Justice

Suite 3400, Box 36, The Exchange Tower

130 King Street West

Toronto, Ontario

M5X 1K6

FOR APPLICANT

Barbara Jackman

Unit #3

596 St. Clair Avenue West

Toronto, Ontario

M6C 1A6

FOR RESPONDENT

FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20021115

Docket: IMM-5518-02

BETWEEN:

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Applicant

- and -

KAILESHAN THANABALASINGHAM

Respondent

REASONS FOR ORDER AND ORDER

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Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2002 FCT 1196

Citations2002 FCT 1196

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2002 FCT 1196