Docket: IMM-1505-15
Citation:
2015 FC 1311
Ottawa, Ontario, November 24, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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ABDIRAHMAAN
WARSSAMA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Warssama has been held in jail for more than
five years. Why? Because he will not sign a piece of paper! He does not wish to
return to Somalia and will not sign a declaration that he will cooperate in his
return. Were it not for his criminal record, Canada would not even attempt to
return him at this time.
[2]
The authorities have every reason to believe
that if Mr. Warssama were to be released into the population at large he would
not voluntarily appear for his removal. On the other hand it is common ground
that he is not a danger to the public.
[3]
As of March 2015, Mr. Warssama had been in
detention 57 months. This is the judicial review of the 12 March 2015 decision of
a member of the Immigration Division of the Immigration and Refugee Board of
Canada which maintained his detention. His detention has subsequently been
continued, but the Minister does not, and indeed should not, take the position
that this judicial review is now moot. If there ever was a case in which a live
controversy remains between the parties, this is it (Borowski v Canada
(Attorney General), [1989] 1 S.C.R. 342).
I.
The Issues
[4]
Although not quite framed as the parties have,
the way I see it, the issues are:
a.
Was the decision unreasonable?
b.
Has the continuing detention deprived Mr. Warssama
of his right to life, liberty and security, as guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms?
c.
Is Mr. Warssama being arbitrarily detained or
imprisoned in violation of section 9 of the Charter?
d.
Does his continued detention constitute cruel
and unusual treatment or punishment contrary to section 12 of the Charter?
e.
Is the burden of proof in monthly detention
hearings, which build on earlier decisions, procedurally unfair?
II.
The Facts
[5]
Briefly stated, Mr. Warssama, now 51 years of
age, came to Canada in 1989. His refugee claim was denied. However, he was
later given a ministerial permit which allowed him to apply to remain in Canada
on humanitarian and compassionate grounds. Due to his failure to keep his
address current with the authorities, a number of queries went unanswered, and
so he never obtained permanent resident status. He then got himself in trouble
with the law. He was found inadmissible for criminality and ordered deported in
2009.
[6]
He was arrested the following year and detained
for immigration purposes. He has remained incarcerated ever since. He made an
application for a pre-removal risk assessment, which was dismissed. It is not
in the record. He recently applied to remain in Canada on humanitarian and
compassionate grounds. However, in the normal course a few years will pass by
before a decision is reached on that application.
[7]
There has been a “temporary” administrative stay
on removals to Somalia, but it does not apply to persons found to be
inadmissible on the grounds of criminality or serious criminality (section 230
of the Immigration and Refugee Protection Regulations).
[8]
Upon being detained, Mr. Warssama was entitled
to an initial review thereof within 48 hours, another seven days thereafter,
and 30-day reviews ever since (section 57 of the Immigration and Refugee
Protection Act [IRPA]).
[9]
Notwithstanding that the Regulations permit
Canada to return convicted felons to Somalia against their
will, the immigration authorities first attempted to rely upon the exception in
s 230(3)(f) where a person “…informs the Minister in
writing that they consent to their removal to a country or place to which a
stay of removal applies.” Mr. Warssama does not want to return to
Somalia and, naturally, refused to sign the form.
[10]
By the end of last year, he was offered a new
form to sign. If he signed it, he gave his word that he would cooperate with
his removal. He has refused to sign this form as well. Counsel for the Minister
interprets the form as meaning that not only would Mr. Warssama not cause a
ruckus on the airlines, but also that he would not seek asylum en route.
Currently, Somalians who agree to return there from the Toronto area are first
flown to Turkey, then to Kenya, and from there on an airline known as African
Express to Mogadishu. The Somalian is accompanied by guards on the first two
legs of the trip, but not the last.
[11]
Given that we already spent hundreds of
thousands of dollars in detaining Mr. Warssama, why not charter a plane? Apparently,
because it is too dangerous to send Canadian pilots to Mogadishu!
[12]
It is said that it is African Express which
requires a signed form of cooperation. It is also said it is the only airline
which will accept unescorted failed refugee claimants on its flight from
Nairobi to Mogadishu. Why unescorted? Because Immigration Canada considers it
too dangerous to send its own people there!
III.
The Law
[13]
To give full effect to IRPA, detentions and
releases are dealt with at section 240 and following of the Regulations.
Counsel for Mr. Warssama does not contest that if he were not in detention he
would unlikely appear voluntarily for his removal (section 244) and is
therefore a flight risk (section 245). He is not a danger to the public (section
246) and his identity has been established (section 247). Without question,
there are grounds for Mr. Warssama’s detention.
[14]
The case turns on the factors set out in section
248 of the Regulations, which were developed in response to the decision of Mr.
Justice Rothstein, as he then was, in Sahin v Canada (Minister of Citizenship
and Immigration), [1995] 1 FC 214, 85 FTR 99. Mr. Justice Rothstein was
well aware that the Charter looms in the background.
[15]
Section 248 reads:
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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:
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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 :
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(a)
the reason for detention;
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a) le motif de la détention;
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(b)
the length of time in detention;
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b) la durée de la détention;
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(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;
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c) l’existence d’éléments permettant
l’évaluation de la durée probable de la détention et, dans l’affirmative,
cette période de temps;
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(d)
any unexplained delays or unexplained lack of diligence caused by the
Department or the person concerned; and
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d) les retards inexpliqués ou le manque
inexpliqué de diligence de la part du ministère ou de l’intéressé;
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(e)
the existence of alternatives to detention.
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e) l’existence de solutions de rechange à
la détention.
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IV.
The Decision Under Review
[16]
A hearing was held on 10 March 2015, followed
two days later by an oral decision.
[17]
The member noted that in the past, Mr. Warssama “refused to sign a statutory declaration required for his
removal from Canada”. What he forgot to say is that this would only apply
if Mr. Warssama intended to voluntarily comply with the enforcement (IRPA,
section 238). The Minister is entitled to remove Mr. Warssama against his will
(IRPA, section 239). The member found, quite reasonably, that if Mr. Warssama
were released from detention, he would not voluntarily appear for removal from
Canada.
[18]
He then referred to section 48 of IRPA which
provides that someone in Mr. Warssama’s position is to be removed from Canada
as soon as possible.
[19]
The member is incorrect in stating that Mr. Warssama is “not willing to sign a statutory declaration that is required
for him to leave Canada.” No statute requires him to sign the
declaration. Only African Express does.
[20]
As to the five factors set out in section 248 of
the Regulations, the first is the reason for his detention. The reason given
was that there was every ground to believe that Mr. Warssama would not
voluntarily appear for removal and so is a flight risk. That factor favours
continued detention. The member also noted that Mr. Warssama does not pose a
danger to the public, and although he has had criminal convictions, the
sentences were very lenient.
[21]
The member went on to say that the length of
time that he has been in detention favours his release. Detention for
administrative purposes is not meant to be punitive. However, that factor has
to be weighed against the others.
[22]
As to the third and fourth factors, the member
concluded that the length of time in detention has been caused by Mr. Warssama
himself by refusing to sign the declaration. Reference was made to the decision
of Mr. Justice O’Keefe in Canada (Minister of Citizenship and Immigration) v
Kamail, 2002 FCT 381, 2002 FCJ No 490 (QL), in which he said at paragraph
33: “I cannot accept that the delay caused by the
respondent’s refusal to sign travel documents can be used to support a finding
that his detention time cannot be ascertained or to support a finding that
further lengthy detention is anticipated.”
[23]
Finally, as to alternatives to detention, he
noted that if Mr. Warssama were released on his own recognizance, the John
Howard Society would provide him with shelter. However, this was not a viable
alternative because it did not guarantee that Mr. Warssama would appear for
removal.
[24]
Finally, he purported to distinguish the
decision of Mr. Justice Mandamin in Panahi-Dargahlloo v Canada (Citizenship and
Immigration), 2009 FC 1114, on which more will be said.
V.
Judgment
[25]
I find the decision patently unreasonable, and
shall send it back to another member of the Immigration Division for redetermination
in accordance with the directions set out later on in these reasons. The record
is completely inadequate as to whether or not there are alternate means to
remove Mr. Warssama to Somalia, or if not, alternatives to detention, such as
monitoring devices and restrictions imposed on his movements. In the
circumstances, it is not necessary to consider the Charter. The burden is upon
the Minister to justify the continued detention. Although this burden is often discharged
by building upon earlier detention decisions, with evidence that nothing else has
transpired except the passage of 30 days, there comes a point in time in which
time itself becomes overwhelming, requiring the parties, and the Immigration
Division, to think outside the box.
VI.
Analysis
[26]
As matters presently stand, Somalia is a failed
state and Mr. Warssama may remain incarcerated in Canada for the rest of his
life. I have avoided invoking the Charter, not because I think there are no
Charter issues, but because I think a proper decision should be first made on a
proper record.
[27]
At some point, long before this March 2015
review, the whole process became completely unreasonable. The burden of proof
is upon the Minister at each and every detention review. While it may often be
that it is appropriate for the Minister to simply rely upon earlier decisions (Canada
(Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4,
[2004] 3 FCR 572, the passage of time cumulates with each monthly review.
[28]
The detention reviews of Mr. Warssama have not
been robust for some time. In Charkaoui v Canada (Citizenship and
Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the Supreme Court dealt with
other provisions of IRPA which allow the Ministers of Citizenship and
Immigration and of Public Safety and Emergency Preparedness to issue a
certificate declaring that a foreign national or permanent resident is
inadmissible on security grounds. The person is thereafter detained. The
certificate and the detention are reviewed directly by a judge of the Federal
Court, rather than by a member of the Immigration and Refugee Board of Canada.
Nevertheless, the Board must keep in mind what Chief Justice McLachlin had to
say at paragraph 123:
In summary, the IRPA, interpreted in
conformity with the Charter , permits robust ongoing judicial
review of the continued need for and justice of the detainee’s detention
pending deportation. On this basis, I conclude that extended periods of
detention pending deportation under the certificate provisions of the IRPA
do not violate s. 7 or s. 12 of the Charter, provided that reviewing
courts adhere to the guidelines set out above. Thus, the IRPA procedure
itself is not unconstitutional on this ground. However, this does not preclude
the possibility of a judge concluding at a certain point that a particular
detention constitutes cruel and unusual treatment or is inconsistent with the
principles of fundamental justice, and therefore infringes the Charter
in a manner that is remediable under s. 24(1) of the Charter.
[My emphasis.]
[29]
The member placed undue reliance upon Kamail,
above, and failed to distinguish Panahi-Dargahlloo, above, which is far
more relevant.
[30]
Mr. Kamail’s detention was caused by his refusal
to sign a travel document required by the Iranian authorities. The decision of
the Immigration Division to release Mr. Kamail on the basis that his detention
was indefinite was found to be unreasonable. Mr. Kamail should not benefit from
his failure to cooperate. To find otherwise would encourage deportees to be as
uncooperative as possible. However, the detention review under judicial review
was only the sixth. Mr. Justice O’Keefe said that “the
respondent's stay in detention of approximately four months was not an
unreasonable length of time”.
[31]
The member distinguished Panahi-Dargahlloo,
above, on the grounds that in that case it was the Iranian Embassy which
required him to sign a letter that he was voluntarily returning to Iran.
However, the distinction is really in Mr. Warssama’s favour. There is no
evidence that Somalia is requiring him to sign anything. Rather, it is a
private airline.
[32]
Mr. Panahi-Dargahlloo had been detained for some
21 months. As Mr. Justice Mandamin stated at paragraph 49 of his reasons:
The Member went on to conclude the Applicant
was unlikely to appear for removal given his lack of cooperation in obtaining a
travel document. In my view, the Member did not consider the question of the
length of detention choosing instead to focus on the cause for the continuing
detention.
[33]
He concluded that the member’s failure to
consider the length of detention was unreasonable. He did not find it necessary
to hold that there was a violation of the Charter. Given that in this case Mr.
Warssama had been detained for almost five years at the time of the detention
hearing under review, the member was wrong to conclude that the other section
248 factors outweighed the length of his detention.
[34]
Furthermore, inadequate consideration was given
to alternatives to detention. For example, in Re Charkaoui, 2005 FC 248,
Mr. Justice Simon Noël authorized Mr. Charkaoui’s release on certain conditions
notwithstanding that he, unlike Mr. Warssama, constituted a threat to national
security. A number of the 16 conditions are not relevant to Mr. Warssama’s
situation but some are, such as a requirement that he reside at a specific
address, that he not wander too far therefrom, that he wear an
electronic monitoring device, that he allow employees of the Canada Boarder
Services Agency access to his residence at any time, that he undertakes to be
present at further hearings, that he keep the peace, that he be required to
report at a specific place at regular intervals to be identified by an officer
of the Canada Boarder Services Agency, and that if he not observe the
conditions, he may again be incarcerated. See also Majhoub (Re), 2013 FC
10.
VII.
Habeas Corpus-Obiter Dicta
[35]
This was an application for judicial review
under section 72 of IRPA. The usual remedy, and indeed the one granted in this
case, is to quash the decision and refer it back for redetermination. This is
not an application for a writ of habeas corpus.
[36]
I draw this distinction in light of the recent
decision of the Ontario Court of Appeal in Chaudhary v Canada (Public Safety
and Emergency Preparedness), 2015 ONCA 700, which held that the Ontario Superior
Court’s habeas corpus jurisdiction with respect to detention decisions
of the Immigration Division of the Immigration and Refugee Board of Canada, should
be exercised notwithstanding that the Federal Court has exclusive jurisdiction
to judicially review decisions of federal boards, commissions and tribunals (Federal
Courts Act, s 18 and s 18.1).
[37]
Mr. Chaudhary and the other appellants had been
in detention awaiting deportation from just over two years to in excess of
eight years. Mr. Justice Rouleau defined the issue as being “whether the appellants can, instead of seeking judicial
review in the Federal Court, apply to the Superior Court of Justice for habeas
corpus to challenge their continued detentions”. He departed from the
Court’s earlier decision in Peiroo v Canada (Minister of Employment and
Immigration), 69 OR (2d) 253, which established that in immigration matters
habeas corpus should not be issued because there is a statutory scheme
providing for review at least as broad and no less disadvantageous than habeas
corpus.
[38]
I have no doubt that in certain circumstances habeas
corpus is a more appropriate remedy. Under IRPA, an applicant must first
obtain leave to have the decision reviewed judicially. If that hurdle is
overcome, the Federal Court is charged with reviewing the reasonableness of the
underlying decision, and must show deference. The Court is not making its own
decision. There is no appeal unless a serious question of general importance
which could support an appeal is certified.
[39]
Finally, as aforesaid, the usual remedy is to
refer the matter back for redetermination. The new decision maker may well
continue the detention. Indeed, the remedies are discretionary. It is open to
the Court to make a declaration without imposing any other remedy (MiningWatch
Canada v Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6).
[40]
What causes me concern is that at paragraph 68
of Chaudhary, Mr. Justice Rouleau stated that the Federal Court had no
jurisdiction to grant habeas corpus in immigration matters.
[41]
Indeed, Mr. Justice Rouleau finds himself in
good company. In Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR
502, a habeas corpus case in a penitentiary context, Mr. Justice LeBel,
speaking for the Court stated at paragraph 32:
However, habeas corpus was
“deliberately omit[ted]” from the list of writs set out in s. 18 of the FCA.
This means that although the Federal Court has a general review jurisdiction,
it cannot issue the writ of habeas corpus (Miller, at pp.
624-26). Jurisdiction to grant habeas corpus with regard to inmates
remains with the provincial superior courts.
[42]
S 18(1)(a) of the Federal Courts Act provides
that this Court has, subject to section 28, “exclusive
original jurisdiction…to issue an injunction, writ of certiorari, writ
of prohibition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, commission or other
tribunal.” No mention is made of habeas corpus. However, s 18(2)
goes on to provide that this Court “has exclusive
original jurisdiction to hear and determine every application for a writ of habeas
corpus ad subjiciendum… in relation to any member of the Canadian Forces
serving outside Canada.” Many have concluded that the Federal Court
therefore has no habeas corpus jurisdiction at large.
[43]
With the greatest respect, R v Miller,
[1985] 2 S.C.R. 613, may be read another way. What was at issue in that case, was
whether the Federal Court Act ousted the jurisdiction of provincial
superior courts to issue writs of habeas corpus. The ability of the
Federal Court to issue writs of habeas corpus other than in relation to
the Armed Forces was not discussed. Indeed, Mr. Justice LeDain referred to the reasons
of Chief Justice Laskin in Mitchell v The Queen, [1976] 2 S.C.R. 570 in
which he simply said that the Federal Court Act was silent on that
subject.
[44]
The bulk of the case law compares the benefits
of habeas corpus with that of judicial review in the Federal Court,
rather than deal with the issue as to whether the Federal Court has habeas
corpus jurisdiction.
[45]
One Federal Court case which may have dealt with
the issue is Henry v Canada (Minister of Justice) (1989), 24 FTR 223,
[1989] FCJ No 117 (QL). At issue was a motion for a writ of habeas corpus ad
testificandum. Mr. Justice Paul Rouleau stated:
Section 18 of the Federal Court Act
confers jurisdiction in the area of certain extraordinary remedies of the
Superior Courts of Common Law, but habeas corpus is not included
therein. Accordingly, the Federal Court, although a superior court, has the authority
conferred explicitly by its own establishing statutes or other federal statutes
and does not have the power to issue a writ of habeas corpus.
[46]
The Court of Appeal came to a different
conclusion in Henry v Canada (Minister of Justice) (1991), 131 NR 395,
[1991] FCJ No 553 (QL). This is what Mr. Justice Hugessen had to say:
We are all of the view that the Motions
Judge erred. While the specific relief sought by the appellant was perhaps not
the correct one, it is clear that what he wanted was to be present at the trial
of his action and to present his case to the judge. We consider that justice
requires no less. The Motions Judge should have issued an order of the same
nature as the one issued by this Court under which the appellant has been
brought before us in custody today to argue the present appeal. Such an order
is a normal incident of the Court's power to control its own process. Any
concerns with regard to security or order in the courtroom can be dealt with by
the presiding judge in the exercise of that same power.
[47]
These cases were decided before Idziak v
Canada (Minister of Justice), [1992] 3 S.C.R. 631, where Mr. Justice Cory
stated at page 651:
The Federal Court Act does not remove
the historic and long standing jurisdiction of provincial superior courts to
hear an application for a writ of habeas corpus. To remove that
jurisdiction from the superior courts would require clear and direct statutory
language such as that used in the section referring to members of the Canadian
Forces stationed overseas. It follows that the respondents fail in their
contention that the Federal Court has exclusive jurisdiction in this matter. Rather
it is clear that there is concurrent jurisdiction in the provincial superior
courts and the Federal Court to hear all habeas corpus applications other than
those specified in s. 17(6) of the Federal Court Act.
[My Emphasis.]
[48]
Idziak was not
mentioned in Khela, and only in passing in Chaudhary to note it
was a penitentiary case.
[49]
In the circumstances, did the Supreme Court overrule
Idziak without even mentioning it? As stated by Chief Justice McLachlin
in R v Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paragraph 59:
I add this. This Court does not and should
not lightly overrule its prior decisions, particularly when they have been
elaborated consistently over a number of years and when they represent the
considered view of firm majorities: see, e.g., Ontario (Attorney General)
v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 56-57; Canada v.
Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 27. Deciding whether to
do so requires us to balance correctness against certainty: Craig, at para.
27; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R.
1101, at para. 47. We must be especially careful before reversing a precedent
where the effect is — as it would be here — to diminish Charter
protection: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 44.
[50]
In Canada (Attorney General) v TeleZone Inc,
2010 SCC 62, [2010] 3 S.C.R. 585, the Supreme Court held that the Federal Court’s
exclusive jurisdiction to judicially review decisions of federal board,
commissions and tribunals did not require a party to exhaust that remedy before
taking an action in damages in a provincial superior court.
[51]
In coming to that conclusion, Mr. Justice
Binnie, speaking for the Court, stated at paragraph 18:
This appeal is fundamentally about access to
justice. People who claim to be injured by government action should have
whatever redress the legal system permits through procedures that minimize
unnecessary cost and complexity. The Court’s approach should be practical and
pragmatic with that objective in mind.
[52]
He added at paragraph 32:
The enactment of the Federal Court Act
, S.C. 1970-71-72, c. 1, and the subsequent amendments in 1990 were designed to
enhance government accountability as well as to promote access to justice. The
legislation should be interpreted in such a way as to promote those objectives.
[…]
[53]
In the early days of detention, the length of
detention itself is hardly an issue. Thus, it is the other factors set out in
section 248 of the Regulations which are more relevant, and should usually be
considered by the Federal Court by way of judicial review. There is no judicial
economy by beginning in one court and then, after a passage of time, going to
another.
[54]
The Federal Court owes its existence to section
101 of the Constitution Act, 1867. As such, it only has the jurisdiction
and power that Parliament may lawfully confer upon it (ITO-International
Terminal Operators Ltd v Miida Electronics Inc, [1986] 1 S.C.R. 752). However,
that is not to say that it does not, by implication, have such power as is
reasonably necessary to accomplish its mandate. As stated by Chief Justice
McLachlin in R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 S.C.R. 575, at
paragraph 70:
It is well established that a statutory body
enjoys not only the powers expressly conferred upon it, but also by implication
all powers that are reasonably necessary to accomplish its mandate: Halsbury’s
Laws of England (4th ed. 1995), vol. 44(1), at para. 1335. In other words,
the powers of a statutory court or tribunal extend beyond the express language
of its enabling legislation to the powers necessary to perform its intended
functions: Bell Canada v. Canada (Canadian Radio-Television and
Telecommunications Commission), [1989] 1 S.C.R. 1722.
Is it not what Mr. Justice Hugessen said in Henry,
above?
[55]
It seems somewhat peculiar that the Federal
Court has exclusive jurisdiction to grant a writ of habeas corpus with
respect to members of the Armed Forces serving outside Canada, but otherwise
cannot issue a writ of habeas corpus at all, notwithstanding that it is
dealing with detention in immigration and penitentiary matters day in and day
out.
[56]
Perhaps the last word has yet to be written,
either by the courts or by Parliament.
VIII.
Certified Question
[57]
My decision is final unless I certify a serious
question of general importance which would support an appeal (IRPA, s 74(d);
Valera v Canada (Minister of Citizenship & Immigration) 2009 FCA
145; and Zhang v Canada (Minister of Citizenship & Immigration),
2013 FCA 168).
[58]
The parties did not propose such a question. In
any event, as I have found in Mr. Warssama’s favour through the traditional
route of judicial review there is no question to certify.
IX.
Directions
[59]
At the hearing de novo, the Minister is
required to produce information as to all steps he has taken to explore the
possibility of returning Mr. Warssama to Somalia other than via African
Express. In the aftermath of Jilaow v Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 238, [2007] FCJ No 299 (QL), Mr. Jilaow
was eventually returned via Djibouti. The Minister shall provide
evidence in support of the proposition that it is too dangerous to send
Canadians to Somalia. The Minister shall provide evidence that he has explored
the possibility of hiring foreign nationals who would be less at risk than
Canadians to escort Mr. Warssama to Somalia.
[60]
Given that Mr. Warssama has already cost the
Canadian taxpayers hundreds of thousands of dollars, the Minister shall explain
why a plane cannot be chartered to fly him directly to Somalia under escort.
[61]
If he cannot be returned, as required under
section 48 of IRPA, the member must consider other alternatives to detention such
as those set out in Charkaoui, above.
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