Date: 20031021
Docket: IMM-1845-03
Citation: 2003 FC 1225
Ottawa, Ontario, this 21st day of October, 2003
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
REASONS FOR ORDER AND ORDER
[1] Because he is alleged to be the leader of a violent Tamil street gang operating in Toronto and constitutes a flight risk, Mr. Thanabalasingham has been in detention since October 2001 pending his deportation. On March 18, 2003, the Immigration Division of the Immigration and Refugee Board ("Immigration Division") decided that he should be released upon certain terms and conditions. The Minister seeks judicial review of this decision.
I. Facts
[2] Mr. Thanabalasingham is a citizen of Sri Lanka who arrived in Canada in June 1991, and a few months later was deemed to be a Convention refugee. He became a permanent resident on August 31, 1992, and completed a degree in electrical engineering at the University of Ottawa in March 2000. He then worked with Nortel in Ottawa. After being laid off, because of a downturn in the technology sector and until shortly before his arrest, he worked with Hyperchip, another technology company, in Montréal, commuting every day between Ottawa and Montreal. He lived in Ottawa with his mother from 1998 to September 2001 when his wife moved in with him. On October 18, 2001, he was arrested, when the police proceeded to arrest approximately 50 alleged gang members of the two main Tamil street gangs operating in the greater Toronto area, the V.V.T. and the A.K. Kannon, on the basis of immigration warrants.
[3] Mr. Thanabalasingham had his first detention review before Ms. S. Gratton, an adjudicator [s. 2 and s. 63.3 of the Immigration and Refugee Protection Act, R.S.C. 1985, c. I-2 ("the old Act")] on October 28, 2001, and he remained in detention, having produced no evidence (he was not yet represented by counsel) to answer the applicant's allegations that he is a danger to the public because he is the leader of the V.V.T. and was convicted of conspiracy to commit assault in 1998.
[4] On March 18, 2002, adjudicator Gratton, again reviewed the reasons for his detention and confirmed that he should be detained after a seven-day hearing during which two police officers testified that they believed him to be the leader of the V.V.T. On May 28, 2002, Ms. Catherine Simmie, another adjudicator, agreed with adjudicator Gratton that the detention should continue. After the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), Mr. Robert Murrant, as member of the Immigration Division, reviewed the reasons for the continued detention and concluded on August 12, 2002, that it should continue. Ms. Simmie, a member of the Immigration Division, and who was now required to apply the provisions of IRPA for the first time, presided over the next review and on September 9, 2000, held again that it should continue.
[5] On November 5, 2002, Mr. Vladislav Tumir of the Immigration Division reviewed the reasons for detention and ordered that Mr. Thanabalasingham be released on terms and conditions. The Minister sought judicial review of the decision and, in the interim, obtained a stay of the release order "until the next detention review is completed".
[6] At the next detention review, Mr. Iozzo, also with the Immigration Division, confirmed the view of Mr. Tumir and ordered the respondent's release. This order is the subject of the present application for judicial review and of another stay granted by this Court until the next detention review is completed, or until the application for judicial review is finally determined, whichever event occurs first.
[7] The application for judicial review of the Tumir decision, referred to above, was heard at the same time as the application in respect of Mr. Iozzo's decision.
[8] Mr. Thanabalasingham has now been in detention for about two years.
Reasons for Detention and Prior Detention Reviews
[9] Mr. Thanabalasingham has three previous criminal convictions: (1) in 1996, he was found guilty of possession of a weapon; (2) in 1997, he failed to comply with a recognizance by failing to make a required change of address in Ottawa; and (3) in 1998, he pleaded guilty to conspiracy to commit assault.
[10] Two reports were made under former s. 27(1) of the old Act. The first report dated July 8, 1998, alleges that the respondent is removable because of his criminal conviction in 1998. The other report states that Mr. Thanabalasingham is a member of an organization engaged in criminal activities (V.V.T.). A direction for inquiry was signed on February 19, 1999, on the basis of both reports, but the Minister later withdrew the report alleging membership in the V.V.T.
[11] It is on the basis of the direction to report of February 19, 1999, that some two and a half years later, the respondent was arrested.
[12] The order for deportation dated February 14, 2002, is based solely on the conviction of 1998. The respondent filed an appeal from the said order to the Immigration Appeal Division. This appeal was heard in early October 2003.
[13] Prior to the coming into force of IRPA in June 2002, detention reviews were carried out pursuant to ss.103.(6) and 103.(7) of the old Act, which provided that the adjucator could release the respondent if he/she "was satisfied that he was not likely to pose a danger to the public or was not likely to be a flight risk".
[14] It is useful to review briefly the various decisions issued prior to Mr. Iozzo's decision, for they are an important part of the background of that decision.
[15] The first decision of adjudicator Gratton is very brief and contains no relevant findings as substantial evidence was presented only at the second review. She concluded that she had no choice but to confirm the decision to detain him. In her second decision rendered orally after the seven-day hearing, adjudicator Gratton, who heard the only two witnesses produced by the applicant, noted that the testimony of the first police officer, Mr. Gadeshan (also spelled Gandeshan, Ganeshan, Ganashan, Ganishan), was "...limited and at times not candid...", while the testimony of the second police officer, Mr. Furlong, was "...extremely extensive providing a bird's eye view of both organisations but more particularly that of the V.V.T. He, with the aid of the K.G.B. statements[1] and other sources of information, testified that the evidence demonstrates the role of leader was indeed Mr. Thanabalasingham's." (p. 6 of T.R.)
[16] Adjudicator Gratton also says later in her decision, that: "Now clearly, and I don't always take what the police say throughout, you know without any...I take what the police say with a grain of salt." (p. 20 of T.R.)
[17] Nevertheless, despite reservations with respect to the K.G.B. statements, she finds that:
If the statements were each reviewed individually in a vacuum then the statements would not be persuasive. However, when viewing the evidence in totality the statements become persuasive as stated by the Minister's representative there exists a common thread in four of the statements that being that they portray...they put Mr. Thanabalasingham as the leader of the VVT.
(p. 9 of T.R.)
[18] With respect to the testimony of the respondent, Ms. Gratton stated that his testimony was "...at times lacking in credibility". (p. 19 of T.R.)
[19] On the issue of flight risk, adjudicator Gratton said, at p. 21 of T.R.:
If the only issue that I had to deal with was the appearance for removal from Canada it is possible that given sufficient funds and stringent terms and conditions that release may have been appropriate but given that I have found that he has not satisfied that primary ground I am ordering detention.
[20] It appears clearly from her first decision, that Ms. Simmie, considered her review as a hearing de novo. She looked at all the evidence provided at the two reviews held before Ms. Gratton, in addition to the new information and arguments made before her. She then concluded in her decision, that:
...Mr. Thanabalasingham ought to remain in detention both because I am satisfied he would not otherwise make himself available for processes which may in the end result provide for his removal from Canada and quite conceivably his return to Sri Lanka, and because I am of the view that he is a person who is likely to pose a danger to the public if at liberty.
[21] With respect to the flight risk Adjudicator Simmie indicated in her second decision of September 9, 2002:
But there is a substantial amount of guarantees that have been offered on your behalf by members of your family and others who have come forward to suggest that they are prepared to accept responsibility for ensuring that you comply with terms and conditions that may be imposed. The amounts of those guarantees, certain types of conditions that are normally imposed in terms of Immigration- related requirements, in my estimation and as well in Mr. Murrant's would probably offset the appearance concerns that are generated overall by the circumstances of your case.
(p. 6 of T.R.)
[22] In both decisions, she found that she was satisfied that, despite the deficiencies in the K.G.B. statements, there was "substantiation" for the assertion that the respondent was a member and the current leader (at least until his recent arrest) of the V.V.T., because she agrees that when each of the individuals, at different times and in different words, places the respondent as the leader, the "total effect becomes overwhelming". Ms. Simmie does not discuss the impact of any of the new provisions in the IRPA on her assessment of the evidence.
[23] Mr. Murrant, who like his predecessors, renders his decision orally at the end of the hearing, was also of the view that:
...the bonds that are proposed today would be sufficient to overcome my concerns because they are substantial and meaningful. And even if there would be some risk that he would not appear, I'm willing to accept that the amounts of money and guarantees posted would be sufficient for that concern to be overcome...It is an option.
With regard to danger to the public, I am of the opinion that Mr. Thanabalasingham has not satisfied me that he does not pose a danger to the public. He has been convicted in Canada of conspiracy to commit an assault in 1998 and possession of a weapon in 1999 (sic)*. Simply because these took place some time ago doesn't mean that they do not count against him. They do count against him. Especially when I take into consideration all of the other information.
* Should have read "1996".
(p. 91 of T.R.)
[24] In his decision, Mr. Murrant expressly agreed with Ms. Gratton that the common thread indicates that Mr. Thanabalasingham is not only a member, but also the leader of the V.V.T. Again, it is clear that Mr. Murrant considered that he had to reassess all the evidence put before him and he appears to have treated his review as a hearing de novo. Because his review was the first one carried out after the coming into force of the IRPA, s. 322(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), provided that he should still apply the provisions of the old Act and determine if he was satisfied that the respondent was not likely to be a danger to the public or a flight risk.
[25] Mr. Tumir then wrote a 26-page decision in which he states that because each detention review is a hearing de novo, he has to carefully review all of the evidence put forward by the applicant in order to assess "if he is satisfied that Mr. Thanabalasingham is a danger to the public in order to render his decision pursuant to s. 58 of IRPA". (Mr. Tumir's emphasis)
[26] With respect to the two police officers' testimonies, he notes that officer Gadeshan testified that the police investigation on the Tamil gang and Mr. Thanabalasingham was still under way (that is back on October 31, 2001), and that the final results would be revealed at the immigration inquiry. However, Mr. Gadeshan was not participating in such an investigation, because he had been reassigned to other tasks back in January 2001, that is well before the arrest of the respondent. Given his lack of direct knowledge and the fact that he was essentially basing his conclusion on what he described, as the "word on the street", that the respondent was a member and the current leader of the V.V.T., Mr. Tumir found this testimony not credible as to the current state of affairs with respect to the respondent.
[27] Like Ms. Gratton, Mr. Tumir states that police officer Furlong appeared to be "better informed and refreshingly candid". He reviews many details in his testimony and cross-examination, noting that the officer had admitted that the police were still seeking evidence that would enable them to lay a criminal charge against the respondent. In the opinion of Mr. Tumir, this statement further confirmed that the K.G.B. statements and the rest of the evidence before him is in fact the best evidence the police and the Minister have. He concludes that he could not agree with Mr. Furlong's opinion which was based, to a large extent, on unreliable sources such as informants and alleged co-conspirators (the K.G.B. statements).
[28] Mr. Tumir clearly states that, under the law, he has no authority to detain a person for being a danger to the public on anything less than credible and trustworthy evidence and that the results of the police investigation, as presented in this case, fall short of that standard by a considerable margin. He also says:
My finding that he is not a danger to the public in the context of this detention review is based on my view that there is insufficient credible or trustworthy evidence to support such a finding, not that there is no evidence at all.
(p. 26 of the decision)
[29] In coming to his conclusion, Mr. Tumir makes it clear that he considered the past convictions in light of the Federal Court jurisprudence and he states that, on a balance of probabilities, he is not satisfied that the respondent is a danger to the public.
[30] With respect to the flight risk, Mr. Tumir notes that he agrees with his two colleagues who carried out the detention reviews in August and September 2002, that the proposed alternative to his continued detention is sufficiently substantial and meaningful to offset any concern in that respect. He expressly notes the arguments presented by the applicant with respect to the family members and their potential lack of influence on the respondent, but concludes:
Having reviewed the relevant testimony and affidavits, I am satisfied that the proposed bondspersons have the ability and the willingness to discharge their responsibilities. I have no reason to doubt their sincerity or good faith, and the fact that both Mr. Thanabalasingham's and Ms. Theiventhiran's families are united in their support for him bolsters the viability and credibility of the proposed arrangement.
(p. 26 of his decision)
II. The Issues
[31] The Minister submits the following issues:
(1) Nature of the detention review under sections.57-58 of the IRPA and burden of proof
[32] Mr. Iozzo erred in finding that he was conducting a hearing de novo and that the burden of establishing, on a balance of probability, that the respondent is a danger to the public rested on the applicant.
(2) Assessment of the Evidence
[33] (a) It is patently unreasonable to reject the K.G.B. statements and the testimonies of the police officers on the basis that they do not constitute credible and trustworthy evidence.
(b) It is patently unreasonable to reject or give no weight to the opinions expressed by the police officers simply because they were based on the K.G.B. statements.
(c) Mr. Iozzo erred in believing that he was in the same or an equal position as those police officers to assess the validity on credibility of the K.G.B. statements. Thus, he gave insufficient weight to their testimonies.
(3) Previous convictions
[34] Mr. Iozzo erred in suggestingthat previous convictions in themselves could not substantiate a finding that the respondent is a danger to the public.
(4) Flight risk and detention
[35] Mr. Iozzo erred in blending the issue of whether the respondent is likely to appear with the issue of whether he should be detained.
(5) Bondspersons
[36] Mr. Iozzo failed to assess whether the persons posting the guarantees would be able to ensure compliance in accordance with paragraph 47(2)(b) of the Regulations and, if he did, he erred in his assessment.
(6) Bias or irrelevant consideration
[37] His overall approach and his comment that the respondent did not have to prove "his innocence" suggests that Mr. Iozzo failed to consider the safety of the Canadian public as the paramount issue and that he did not have an open and balanced mind. This error viciates his whole conclusion on whether or not the respondent is a danger to the public.
III. Standard of Review
[38] The standard of review applicable to decisions of the Refugee Protection Division ("R.P.D.") and of the Immigration Appeal Division ("I.A.D.") of the Immigration Refugee Board ("I.R.B.") have been considered and applied regularly by our Court. However, the standard of review applicable to decisions by the third division of the I.R.B., the Immigration Division, has not yet been determined by applying the pragmatic and functional approach set out by the Supreme Court of Canada in many of its recent decisions (see for example Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18 (QL), Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17 (QL).
[39] Following this principled approach and keeping in mind that the ultimate question is always what the legislator intended (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3 (QL) at para. 30), I shall consider the following contextual factors: (i) The presence or absence of a privative clause or statutory right of appeal; (ii) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (iii) the purposes of the legislation and the provision in particular; and (iv) the nature of the question - law, fact or mixed law and fact: (Ryan, supra, at para. 27 and Dr. Q., supra, at para. 26).
[40] Both parties presented very articulated views on how those factors should be assessed and agreed on what standard of review should be applied to questions of law, facts and mixed law and fact. But, they did not agree on the characterization of many of the issues presented to this Court. I will deal with this later.
(1) Privative Clause and Statutory Right of Appeal:
[41] There is no applicable privative clause or statutory right of appeal. This factor is neutral. There is, however, a right to seek judicial review, but leave is required under s. 72.1 of IRPA. There is no right to appeal the decision of the Federal Court on such request for leave, s. 72.2(e) of the IRPA. This limited right of review suggests some deference was intended (Suresh, supra, at para. 31).
(2) Relative Expertise:
[42] Like the other two branches of the I.R.B., the Immigration Division is a tribunal of some expertise. However, unlike the other two branches of the I.R.B., members of the Immigration Division are not Governor in Council appointees. As career civil servants, they are in a position to acquire significant expertise over the years. In fact, with respect to detention reviews, previous adjudicators which have now become members of the Immigration Division have potentially acquired numerous years of dealing with similar problems under ss. 103(6) and (6) of the old Act. This relative "institutional expertise" (Dr. Q., supra, at para. 29) suggests some deference. This is especially so when one considers that, with respect to some criteria set out in the Regulations (such as the likely length of time the person will be detained), members of the Immigration Division have definitely better knowledge and expertise than this Court. This expertise favors a more differential approach, particularly on questions of facts.
[43] However, as noted by the applicant, only 10% of the members of the Immigration Division must be members of a provincial bar association or notaries with at least five years standing at the Chambre des notaires du Québec (ss. 153(4) of the IRPA). Thus, on questions of law, this tribunal has little expertise compared to the Federal Court of Canada and there appears to be no particular reason to accord any deference.
[44] Rules of evidence applicable to detention reviews are more relaxed than in other judicial forums. Members of the Immigration Division may consider any credible or trustworthy evidence (s. 173 IRPA). This would normally suggest more deference. However, the Federal Court of Canada has expertise in similar detention reviews made under the old Act, (subsection 40(9)) and now under the IRPA, (sections 83 and 84).
[45] The overall impact of my remarks on the relative expertise of the Immigration Division will, therefore, greatly depend on the nature of the questions under review.
(3) Purpose of the Provisions Under Review and the Legislation:
[46] The Court agrees with the parties that this factor does not favour deference. The provisions dealing with detention reviews are not polycentric. Their purpose is to balance the right of a person who poses a danger to the Canadian public, or a flight risk, against the need to protect the said public. In fact, as submitted by the applicant, they deal with rights of individuals vis-à-vis the State and are adversarial. The purposes of the legislation are described at subsection 3(1) of IRPA. In relation to the detention reviews, the most relevant objective is at paragraph 3(1)(b), that is "to protect the health and safety of Canadians and maintain the security of Canadian society". The situation is closer to that reviewed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL) at para. 48, and Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C. No. 84 (QL) at para. 26, than to the situation in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL).
(4) Nature of the Questions:
(a) Questions of Law:
[47] As indicated earlier, the Immigration Division does not have any particular expertise in this field and this Court is in a better position to deal with those issues. I see no reason to depart from the standard of correctness applied by the Supreme Court in respect of the decisions of the R.P.D. and the I.A.D. on those questions. This is especially so when one considers questions of law certified to the Court of Appeal.
[48] I will apply such standards to issues (1) and (4) mentioned at pages 11-13 above.
(b) Questions of Fact:
[49] What standard should be adopted with respect to a finding by the Immigration Division that a detainee is or is not a member of a criminal organization (s. 246(b) of the Regulations) or that a witness or other evidence is not credible or trustworthy.
[50] When a tribunal has a certain institutional expertise, such as this one has, questions of fact, including questions of credibility and weight to be given to the evidence, are normally subject to a standard of patent unreasonableness (Suresh, supra, at para. 29, 31 and 38).
[51] As noted by the applicant, this is especially so when one considers that the only right of appeal with respect to those decisions is by way of a judicial review upon leave by this Court and that the Federal Court Act, R.S.C. 1985, c. F-7, codifies at subsection 18.1(4) the standard of review applicable to findings of facts. This section provides that this Court may grant relief when a tribunal based its decision on an "erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it". The Federal Court of Appeal has said on numerous occasions that this standard is the same as the patently unreasonable standard. (Powell v. Canada (Minister of Human Resources Development), [2000] F.C.J. No. 1008 (F.C.A.) (QL); Mugesara v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1292 (F.C.A.) (QL) at para. 25; and Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 18 (QL) (F.C.A.) at para. 18).
[52] Such deference is granted to most, if not all finders of facts, whether they had an opportunity to hear witnesses or not. This standard has been applied even to decisions made on the basis of written records without the benefit of an interview or of hearing witnesses.
[53] In this particular case, the Court also notes that the legislator provided for a continuous review mechanism that ensures that questions of facts, including credibility and weight, are regularly reassessed at each detention review. (See my comments at para. 69 to 72). This factor militates in favour of deference.
[54] Finally, as I said, both parties agreed that it is the standard of patent unreasonableness that I should apply to the decisions of the Immigration Division.
[55] I will apply this standard to the issues listed under (2) (at pp. 11 and 12 above).
(c) Mixed Questions of Fact and Law:
[56] The standard to be applied to such questions depends greatly on the extent to which the question under review is factually intensive or legally inclusive (Dr. Q., supra, at para. 34; Suresh, supra, at para. 31; Pushpanathan, supra, at para. 47).
[57] Because I find that, as a matter of fact, Mr. Iozzo did consider paragraph 47(2)(b) of the Regulations, the issue to be decided under no. 5 at paragraph 36 herein, which is: did Mr. Iozzo err in his assessment of whether the facts before him met the legal test set out in the IRPA. This is a mixed question of fact and law that is much more focussed on the facts than anything else. I will apply to it the standard of patent unreasonableness.
[58] With respect to issue no. 3, the Court finds that Mr. Iozzo did not make any general statement of law in his decision that can be extricated from what otherwise appears to be a question of mixed fact and law, that is whether his criminal record justified a finding that he is a danger to the public. Issue no. 3 is also largely fact-based and the patently unreasonable standard should be applied to it.
[59] It is to be noted that the application of this standard to issues no. 3 and 5 above will not be determinant in this case given that I am satisfied that the two findings of Mr. Iozzo in that respect were reasonably open to him.
IV. Analysis
(1) Nature of the detention review under sections.57-58 of IRPA and burden of proof
Relevant statutory scheme
[60] Subsection 57(1) of the IRPA provides that within 48 hours after a permanent resident is taken into detention, or without delay thereafter, the Immigration Division must review "the reasons for the continued detention". Subsection 57(2) provides for further periodical reviews. On each such occasions, the Immigration Division reviews "the reasons for the continued detention". These provisions are similar to former s.103(6) of the old Act.
[61] Section 58 prescribes what the Immigration Division must decide on each such review. It says:
| Release - Immigration Division 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);
...
Detention - Immigration Division (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.
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Mise en liberté par la Section de l'immigration 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);
[...]
Mise en détention par la Section de l'immigratin (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.
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[62] Section 246 of the Regulations sets out factors that shall be considered in determining whether a detained person constitutes a danger to the public pursuant to s. 58 of the IRPA and s. 244(b) of the Regulations.
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Danger to the public
246. For the purposes of paragraph 244(b), the factors 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; (c) engagement in people smuggling or trafficking in persons; (d) conviction in Canada under an Act of Parliament for (i) a sexual offence, or (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), (ii) section 6 (importing and exporting), and (iii) section 7 (production) (f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for (i) a sexual offence, or (ii) an offence involving violence or weapons; and
(g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking), (ii) section 6 (importing and exporting), and (iii) section 7 (production)
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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; c) le fait de s'être livré au passage de clandestins ou le trafic de personnes; 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), (ii) article 6 (importation et exportation), (iii) article 7 (production); f) la déclaration de culpabilité ou la mise en accusation à l'étranger, quant à l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale : (i) infraction d'ordre sexuel, (ii) infraction commise avec violence ou des armes; g) la déclaration de culpabilité ou la mise en accusation à l'étranger de l'une des infractions suivantes qui, si elle était commise au Canada, constituerait une infraction à l'une des dispositions suivantes de la Loi réglementant certaines drogues et autres substances : (i) article 5 (trafic), (ii) article 6 (importation et exportation), (iii) article 7 (production).
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[63] Section 248 of the Regulations provides that 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, by:
| Other factors
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.
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Éléments particuliers : mineurs
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. |
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[64] The applicant suggests that the wording of section 57(2), which provides for the review of the "reasons for detention", clearly indicates that they are not hearings de novo but only reviews to see if anything has changed that would justify altering the previous decisions. It is argued that this approach is supported by the decision of Noël J. (as he then was) in Canada (Minster of Canadian Citizenship and Immigration) v. Salinas-Mendoza , [1995] 1 F.C. 251, [1994] F.C.J. No. 1485 (QL). The applicant further submits, on the basis of that authority, that as a result the burden of proof is not on the Minister but on the respondent to show that something has changed since the last review or to otherwise show that the previous members of the Immigration Division misconceived the facts or erred in law.
[65] Mr. Thanabalasingham submits that Mr. Iozzo correctly applied the law. He relies on the decision in Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150, [1995] F.C.J. No. 1043, where MacKay J. clearly states that hearings pursuant to s.103(6) of the old Act are de novo hearings. He also argues that the decision of this Court in Canada (Minister of Citizenship and Immigration) v. Lin, 2001 FCT 838, [2001] F.C.J. No. 1202 (QL), closes the debate as to the nature of those proceedings and who bears the burden of proof.
[66] With respect to the nature of a detention review under the old Act, and the duty of adjudicators in that context, the Court notes that in Sahin v. Canada (Minister of Citizenship and Immigration) (T.D.), [1995] 1 F.C. 214, [1994] F.C.J./A.C.F. No. 1534 (QL) , Rothstein J. (as he then was) also states at para. 34:
It is the adjudicator himself or herself who must decide whether he or she is satisfied that the applicant would not pose a danger to the public. The fact that the CRDD made findings on this point may be relevant to the adjudicator's conspiration of the matter, but it is not conclusive. The issue is an open one on each detention review and must be decided by the adjudicator each time. The applicant and the respondent are free to bring forward whatever evidence or information is relevant to assist the adjudicator in reviewing a detention.
(my emphasis)
[67] As to Lin, supra, it is to be noted that the Minister argued in that case that reviews under s. 103(6) of the old Act were hearings de novo and that the adjudicator had erred in proceeding as if the hearing was an appeal of the first adjudicator's decision.
[68] Heneghan J. agreed with the Minister on this point and cited Campbell J., who, in Canada (Minister of Citizenship and Immigration) v. Lai, [2001] F.C.J. No. 441 (QL), held that the discretion of an adjudicator must not be fettered by earlier decisions because at each review he or she must reach his or her own decision after considering all existing factors relating to custody, including the reasons of other adjudicators at previous reviews.
[69] I am satisfied that the jurisprudence of this Court with respect to the nature of the hearing under ss. 103(6) of the old Act was constant and clearly indicates that each such review was a hearing de novo where the adjudicator had to reassess the whole evidence presented (whether it be new or old) and this included the decisions at previous reviews, and determine if he or she was satisfied that it met the threshold set in the old Act. This also appears to have been the understanding of all the adjudicators involved in the detention reviews of Mr. Thanabalasingham. I note that the transcripts of the evidence given by witnesses at previous hearings are used to avoid unnecessary and lengthy duplication, but this sensible practice does not change the nature of the hearing.
[70] The legislator is presumed to have known how the old Act had been construed and applied by our Court. There is nothing in the new ss. 57(1) and (2) that indicates any intention of the legislator to change the law. The legislator used the same wording in the IRPA as it used in the old Act. The Immigration Division, like the adjudicators of the past, reviews "the reasons for the continued detention". Also, the new s. 58 applies to each review whether it be the first or the fourth. The task to be performed is exactly the same each time.
[71] In his decision, Mr. Iozzo says:
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. The principle of stare decisis is a noble and valuable one, the principle of justice is nobler and a more essential ideal. Deference must be shown to previous decisions, but "error" cannot be continued for the sake of consistency. 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.
Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.
[72] The Court finds that Mr. Iozzo made no reviewable error in assessing his task under s. 57 and s. 58 of the IRPA. I agree that he is not bound by the previous decisions.
[73] Before concluding on this ground, I note that in his Memorandum of Argument, the applicant also said that Mr. Iozzo erred in concluding that the principle of stare decisis is less noble and valuable than the principle of justice. I do not intend to discuss this argument because it is an obiter that appears to have absolutely no bearing on his assessment of the duty he had to perform. I shall only say that this comment certainly indicates that he was fully aware of the decisions rendered on previous detention reviews but had some difficulty with certain findings which he did not find persuasive.
[74] I will now consider the second ground raised by the applicant under this heading, the burden of proof.
[75] First, it appears that the decision in Salinas-Mendoza, supra, and Salilar, supra, are reconcilable with respect to the burden of proof. Like Heneghan J. (para. 15) in Lin, supra, and Campbell J. in Lyle, supra, (also at para. 15), I take them to mean that, 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 the review.
[76] Obviously, if an adjudicator decided to release a person which had been ordered detained by a previous adjudicator, he or she could not ignore in his or her decision that a detention order had been issued. If that previous detention order had been issued on the basis of the same evidence, one had to explain why one came to a different conclusion. This is also true if the different assessment was reached on the basis of new evidence.
[77] Be it as it may, one must remember that the wording of ss.103(7) of the old Act was very different from the wording of the new s. 58 of the IRPA. In effect ss. 103(7) read:
| 103. ...
Release from detention by adjudicator (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.
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103. [...]
Mise en liberté par l'arbitre (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. |
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[78] Whereas, as mentioned by Mr. Iozzo in his decision, he "shall now release a person unless...he is satisfied that...he is a danger to the public" (see the text of s. 58 at para. 61).
[79] In my view, the wording of s. 58 makes it quite clear that it is the Minister that must establish, on a balance of probability, that Mr. Thanabalasingham is a danger to the public if he wants the detention to continue.
[80] In that respect, I find that the decision in Ahani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1114 (QL) (C.A.), quite helpful. In that case, the Federal Court of Appeal was reviewing a decision of Campbell J. who had determined that the burden of proof rested on the person detained in a review made under ss. 40.1(9) of the old Act. That subsection provided for reviews of detention orders by the Chief Justice or a Judge designated by him and prescribed that a person could be released if the Chief Justice or the designated Judge "is satisfied that...the person released would not be injurious to the national security or to the safety of persons".
[81] Because of the plain reading of that subsection, Campbell J. had found that:
...Had Parliament intended to put the onus on the respondents, it would have put the obligation in a positive instead of a negative form. Had the sentence read "... if the Chief Justice of designated judge is satisfied that ...and (b) the persons release would be injurious to national security or to the safety of person ', the burden would then clearly have been on the Minister's shoulders.
[82] Linden J. on behalf of the Federal Court of Appeal indicated that he was in agreement with this specific passage and the interpretation given to this provision.
[83] The same reasoning applies here. I therefore conclude that Mr. Iozzo made no reviewable error of law when he put the burden of proof on the applicant.
[84] Finally, although it was not raised by the parties, the Court wishes to confirm that the standard of proof (balance of probability) applied by Mr. Iozzo is the correct standard to apply (see Ahani, supra, at para. 80). In that respect, no change is mandated by the new provisions in the IRPA.
(2) Assessment of the evidence
[85] I will deal with the issues described as no. 2 (a), (b) and (c) together because they require a review of the same evidence and of related findings.
[86] The applicant submits that it was patently unreasonable to reject the K.G.B. statements and the evidence of the police officers as not credible or trustworthy, because at previous detention hearings members of the Immigration Division actually held that these K.G.B. statements were trustworthy and Ms. Gratton found that the evidence of officer Furlong was compelling.
[87] First, the Court notes that in fact Mr. Iozzo was confronted with contradictory findings with respect to the credibility or trustworthiness of the K.G.B. statements.
[88] Second, the three members who relied on the K.G.B. statements expressed reservations about their trustworthiness and only accepted them as trustworthy with respect to the allegation that the respondent was a member and a leader of the V.V.T. because they agreed with the common thread theory put forth by the applicant.
[89] Also, the members who were satisfied that the respondent was the leader, or at least a member of the V.V.T., based their conclusions first and foremost on the KGB statements using the testimonies of the police officers as evidence confirming their views.[2]
[90] With respect to the quality of the testimony of Mr. Furlong, Mrs. Gratton who heard his evidence said at p. 592 T.R.:
That evidence coupled with what I view as the compelling testimony of officer Furlong, whose knowledge of the community and the organization was extensive has led me to find that it is not an unreasonable conclusion that Mr. Thanabalasingham is entrenched in the VVT organization.
(my emphasis)
[91] Her actual finding certainly puts her comment about the compelling quality of this testimony in its proper context.
[92] None of those members stated that their conclusion would have remained the same, had they not considered the K.G.B. statements worthy of their trust.
[93] Ms. Gratton did not have before her all of the evidence presented to Mr. Iozzo for much had been added in the subsequent reviews. She was told by officer Gadeshan that the police investigation was still under way.
[94] With that background in mind, Mr. Iozzo reviewed all of the evidence before him knowing that he was now required to release Mr. Thanabalasingham unless he was satisfied by credible and trustworthy evidence that he was a danger to the public. In that respect, he did not simply rely on Mr. Tumir's comments on the K.G.B. statements or the police officers' testimonies, he made his own assessment of the evidence.
[95] Mr. Iozzo could decide to accept the common thread theory but he was not obliged to do so. He did explain in his decision (at p. 15) that the respondent had challenged the validity of this argument on the basis that non-credible statements cannot become credible by their number, or that a lie many times told by different people becomes the truth. He also noted that such a position would put counsel in an impossible situation no matter how well counsel might be able to undermine the witness' credibility, it would all be to no avail if a number of witnesses chose to implicate someone. (Footnote 15 of Mr. Iozzo's decision).
[96] His approach in assessing the evidence presented to him is described in his decision as follows:
No court can confidently establish rules determining what is believable and what is not. Each finder of fact must use his own experience and wisdom and reasonableness to determine credibility and trustworthiness as each witness, circumstances and context is different in each individual story and case. In fact, when analyzing evidence, a word or statement by an untrustworthy person may allow the decision maker to spot the truth in a stream of lies. Even the testimony of a jailhouse informant or accomplice, motivated by self-interest and unreliable, cannot be dismissed a priori. Of course the decision maker must be aware of the dangers associated with accepting such evidence. When the flower of truth is discovered in a field of weeds, it is incumbent to establish that it is a flower and not another weed.
The approach I have used is to receive and consider all the evidence that was presented by both parties. I have not rejected any evidence on the basis that it may not have been under oath or that it was simply charges, or statements not subjected to cross-examination. I have not quibbled that some of the evidence would not have been accepted in Court and I have not rejected hearsay evidence. I have not considered technical deficiencies of the evidence to be determinative, nor rejected the substance for the form. I have attempted to analyze the evidence from an unbiased, unemotional stance, guided by the belief that even the devil must be given his due. In assessing the credibility or trustworthiness of the evidence, all elements, factors and circumstances of that evidence have been weighed and considered.
[97] His decision to reject this theory and the findings of three of his four colleagues with respect to the trustworthiness of the K.G.B. statements was not unreasonable, let alone patently unreasonable.
[98] Insofar as the weight given to the testimony of the two police officers is concerned, the applicant had the burden of convincing the Court that Mr. Iozzo's finding was unreasonable on its face.
[99] The applicant submits that there was no basis for Mr. Iozzo to suggest that the respondent's counsel did "a masterful job of undermining the police officers' opinion and challenging the accuracy of their information and conclusions." He argues that only a complete reading of the transcript shows that this finding is patently unreasonable because it is without foundation.
[100] The Court notes that a "patently unreasonable" defect once identified can be explained simply and easily leaving no reasonable possibility of doubting that the decision is defective...no amount of curial deference can justify letting it stand: (Ryan, supra, at para. 52) "This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine their record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. ...But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident." (Southam, supra, at para. 57).
[101] Having read the transcript, as suggested, the Court was not dazzled by the cross-examination but cannot conclude either that Mr. Iozzo's finding is evidently unreasonable.
[102] The Court agrees with the respondent that the applicant is really asking the Court to re-weight the evidence. I do not intend to do so and I will not substitute my own judgment for that of Mr. Iozzo.
[103] Mr. Iozzo was clearly aware that the police officers were not basing their opinion solely on the K.G.B. statements. At p. 13 of his decision, he says:
The police officers who testified on 051101, 101201 and 111201, officer Gadeshan and officer Furlong based on statements referred to above, on interviews of the same people where no transcript is available, and on informants...
[104] The applicant further argues that Mr. Iozzo erred in believing that he was on the same or equal footing as the officers to assess the K.G.B. statements and the other evidence. In doing so, he ignored the years of experience and the knowledge these witnesses had gained in dealing with Tamil gangs. They refer the Court to the following passage from Sopinka J., The Law of Evidence in Canada (2ed), at p. 609:
Courts now have greater freedom to receive lay witnesses' opinions if: (1) the witness has personal knowledge; (2) the witness is in a better position than the trier of fact to form the opinion; (3) the witness has the necessary experimental capacity to make the conclusion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[105] There is a difference between the admissibility of opinion evidence from a lay person and the final weight to be given to such opinions. The passage cited above deals with the first issue.
[106] Like any other lay person giving an opinion, the police officers had to persuade the trier of fact of the correctness of their conclusions. In order to do so, they could convince him that they were right because of their years of experience and the quality of their investigation. Clearly, in this case, these witnesses did not succeed.
[107] The legislator gave the Immigration Division the statutory power and the duty to assess the evidence presented at detention hearings, including such sensitive material as K.G.B. statements, evidence of informants or of other community sources. It would have been wrong for Mr. Iozzo to abdicate his duty by adopting blindly the assessment of the police.
[108] Mr. Iozzo could not capriciously put aside the police officers' evidence and he did not do so. The fact that some of the evidence, he refers to in his decision, may be open to different interpretations does not viciate his decision because his conclusions are not patently unreasonable. I find them in fact reasonable.
[109] The Court concludes that there are no reviewable error in Mr. Iozzo's assessment of this evidence..
(3) Previous convictions:
[110] In his decision, Mr. Iozzo said, at p. 19:
I do not believe that it has been established that Mr. Thanabalasingham is a danger to the public. There is no question that Mr. Thanabalasingham has been convicted of serious offences of possession of weapons dangerous on 20/11/96 and conspiracy to commit assault on 30/06/98. However, no serious offences have been registered against Mr. Thanabalasingham since. The debt to society has been paid and it is not to be assumed, without additional evidence, that Mr. Thanabalasingham poses a danger to the public on the basis of those convictions.
The evidence presented to show that Mr. Thanabalasingham is the leader of the VVT and that he is still involved in the gang's activities, and has conspired to commit murder and has taken part in shootings is not credible or trustworthy.
(My emphasis)
[111] The applicant submits that in the above passage Mr. Iozzo erred in suggesting that previous convictions cannot alone substantiate a finding that a person is a danger to the public. It would also indicate that Mr. Iozzo closed his mind to the possibility of forecasting future conduct on the basis of previous conduct and he made an error of law because this is not correct. The applicant relies on Williams v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 393 (F.C.A.) (QL).
[112] The respondent argues that whether or not a person poses a danger to the public is a question of fact. Framing an issue as a question of law, i.e. whether alone criminal convictions support a finding of danger, does not convert it into a different issue. Mr. Iozzo was aware of the criminal convictions and he gave them little weight in his overall assessment of the evidence. In doing so, he did not make a reviewable error because his conclusion is not patently unreasonable.
[113] The Court notes that in their submissions on the standard of review, the applicant argues that a decision on whether or not a person is a danger to the public is a mixed question of fact and law that is largely fact-based and to which the standard of patent unreasonableness should apply. He relies on Suresh, supra.
[114] The Court finds that in determining whether the respondent was a danger pursuant to s. 58 of the IRPA taking into account the prescribed factors of s. 246 of the Regulations (a prior conviction involving violence or weapon is listed at s. 246(b)) is a mixed question of fact and law. It is indeed largely fact-based although it does include an important legal component which is the duty to consider each of those criteria to come to one's conclusion.
[115] I do not believe that s. 58 and s. 246 of the Regulations mandate the Immigration Division to automatically conclude that a person is a danger because it has been established that one of the factors listed in s. 246 exists. The weight to be given to each such factor in a particular case is left to the discretion of the Immigration Division. It is not a question of law.
[116] Having said that, I read this passage of the decision as meaning that Mr. Iozzo was not willing to assume in this particular case that the respondent was a danger on the sole basis of those particular criminal convictions. I do not read it to mean that Mr. Iozzo states that, as a matter of law, one could never conclude that a person poses a danger to the public on the basis of a criminal conviction without evidence of other prescribed factors, or of special circumstances.
[117] He had read the Tumir's decision in which he discusses some decisions of the Federal Court relevant to this issue. Even though, he does not refer specifically to the decision in William, supra, he does cite McKay J. in Salilar, supra, who said at paragraphs 17 and 18:
For example, while in this case the criminal offences committed by the applicant were serious enough that he would not be a person admissible to Canada and therefor a subject to removal, yet the mere fact that he was convicted of those offences does not in itself result in a determination that he is likely to pose a danger to the public or even that he "may" pose a danger to the public. Conviction for criminal offence and sentencing for it do not in our society lead to the conclusion that when the sentence is served there is a continuing likelihood of danger to the public warrantying continued detention. The probability of such danger has to be determined from the circumstances of each case.
(my emphasis)
[118] In Williams, supra, the Federal Court of Appeal had to decide whether the expression "danger to the public" was too vague and whether it was open to the Minister to make a finding of danger on the basis that Mr. Williams had been convicted five times within a period of five years (four of those offences involved trafficking in narcotics) and one of the sentencing judges had characterized him as "a deliberate and determined narcotic trafficker". In 1992, he was sentenced to 4 years in jail and in 1995, presumably before he was released or shortly thereafter, the Minister issued his opinion. In that context, the Federal Court of Appeal said:
In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven " indeed it cannot be proven " that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible reoffender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson casethat "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court.
(my emphasis)
[119] The Court is satisfied that the law as described in Salilar, supra, above, was not changed by the decision of the Federal Court of Appeal in Williams, supra, and there is no reason to presume that Mr. Iozzo was not aware of the law or did not apply it correctly.
[120] The applicant stated that he agrees that criminal convictions do not automatically lead to a finding of danger. Thus, circumstances such as the age of the convictions, the character of the accused (for example, drug or alcohol addiction or any other chronic condition), his behaviour in society, if any, since his convictions need to be assessed.
[121] As mandated by s. 246 of the Regulations, Mr. Iozzo considered the charges; he found them dated. He clearly knew what the respondent had been doing since 1998. He studied, worked as an engineer and got married.
[122] It appears that the applicant had argued before Mr. Iozzo and the other adjudicators that his dated convictions had to be looked at in the context of his continuous involvement with the V.V.T. Mr. Iozzo dealt with this argument by saying that he did not find credible or trustworthy the evidence produced to establish his continuous involvement in gang activities including a conspiracy to commit murder and taking part in a shooting.
[123] The applicant gave the Court no other example of circumstances they had raised with Mr. Iozzo to illustrate why the respondent's convictions should alone justify a finding of danger. The only one the Court could think of was the context of the 1998 conviction which involved members of the V.V.T. Mr. Iozzo refers to the evidence relating to this conviction at p. 15 of his decision and to the 1996 conviction at p. 19, footnote 21. The Court is satisfied that he had a good grasp of all the circumstances relating to those convictions and did not ignore this evidence.
[124] 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 the 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. Such a finding was reasonably open to him.
(4) Flight risk and detention:
[125] The applicant argues that pursuant to s. 248 of the Regulations (see text at para. 61 above) Mr. Iozzo had to make a finding as to whether or not the respondent could be detained because he was a flight risk pursuant to paragraph 58(1)(b) or ss. 58(2), before he could even consider possible terms or conditions for his release. He failed to do so, blended the two issues and therefore erred in law.
[126] The Court agrees with the applicant's interpretation of s. 248 of the Regulations. However, it cannot agree with the applicant's interpretation of Mr. Iozzo's decision. At p. 19, he clearly says "there is of course a serious likelihood that Mr. Thanabalasingham may not appear for removal if, years down the road, it is finally determined that he must be removed from Canada...I am in agreement, however, with all previous members who concluded that substantial bonds..."
[127] The Court is satisfied that there was no blending of the issues as alleged by the applicant and no reviewable error in that respect.
(5) Bondspersons:
[128] The Court agrees with the applicant that Mr. Iozzo had to determine whether the persons offering to post a guarantee on behalf of the respondent met the requirements set out in s. 47 of the Regulations.
[129] This includes consideration of their capacity to adequately supervise and compel Mr. Thanabalasingham to comply with the conditions to be set by the Immigration Division (paragraph 47(2)(b)). However, there was no need for him to expressly refer to this paragraph in his decision.
[130] Mr. Iozzo says that he is "in agreement with all previous members who concluded that substantial bonds would provide the necessary incentive for Mr. Thanabalasingham to report and for family members who post the bonds to adequately supervise and compel him to comply with the conditions."(pp. 19-20 of his decision). Mr. Tumir in his decision expressly refers to the applicant's argument that the family members of the respondent have no influence over him and could not ensure his compliance. After reviewing the relevant testimonies and affidavits he concludes:
I am satisfied that the proposed bondspersons have the ability and willingness to discharge their responsibility.
[131] Later on, he expressly mentions that: "...after considering all the relevant factors, including the requirements set out in s. 47 Regulations (there is no evidence before me that any of them apply), I have decided to accept the offer of cash deposit and conditional guarantees to be posted by several named bondspersons, and to impose other appropriate terms and conditions specified in the attached Order for Release." (p. 26 of Tumir's decision.)
[132] The applicant says that Mr. Tumir's decision is flawed because of his comment in the brackets.
[133] The above comment cannot, as suggested by the applicant, refer to the question of whether or not, as a matter of law, s. 47 applied to Mr. Tumir's review because to answer such a question, he would need no evidence. Section 46 of the Regulations clearly states that s. 47 to 49 apply to deposit and guarantees required under ss. 58(3) of the IRPA. In the context, it can only refer to factors such as those set out at paragraph 47(1)(a) (a person must not have signed or co-signed any guarantee that is in default) or ss. 47(3) (there must not be reasonable grounds to believe that the money offered was not legally obtained).
[134] In the same fashion, Mr. Murrant specifically refers to the concern expressed by the applicant about how much control his wife, his sister, or his mother would have over the respondent should he be released, but he too was of the view that the substantial and meaningful bonds proposed would be sufficient to overcome any concern. Ms. Simmie agreed with Mr. Murrant's opinion.
[135] In light of the above, the Court is satisfied that Mr. Iozzo did consider the ability of the bondspersons to discharge their responsibility as per paragraph 47(2)(b) and that his conclusion on the facts in this respect was not unreasonable.
(6) Bias or irrelevant consideration:
[136] The applicant submits that detention under the IRPA is not a punishment but a means for protecting the Canadian public (see MacInnis v. Canada (Minister of Citizenship and Immigration), [1997] 1 C.F. 115 and Ahani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 833 (QL) (FCA)) and that the paramount issue in a detention review should be the safety of the Canadian public. He argues that Mr. Iozzo failed to recognize this and that his comments about liberty, freedom and the wrongfully convicted and in his comment that it was not up to the respondent to prove his innocence in the case (p. 14 of his decision) indicate that his approach to the case was wrongfully conceived and tainted his whole conclusion that the respondent should not be detained.
[137] The use of the word "innocence" was wrong but that alone is not sufficient to vitiate the decision.
[138] Having read the decision as a whole, I am not persuaded that Mr. Iozzo failed to consider the safety of the public as the prime issue before him. He did perform the analysis he had to do pursuant to s. 58 of the IRPA. He did consider on a balance of probability whether the respondent represented a danger.
[139] I also note that at pp. 6 and 7 of his decision he clearly acknowledges that:
It is correctly argued that an Immigration detention review is not a trial, that Immigration detention is not a punishment, nor a sentence, that the rules of evidence pertaining to trials do not apply to administrative tribunals. In addition, it is appropriately pointed out that an offence must be proven beyond a reasonable doubt, while under IRPA, the test for detention is on the balance of probabilities...
[140] I do agree that many of the references with respect to punishment of innocent persons and wrongful convictions of Paul Guy Morin, Donald Marshall, David Milgaard and numerous others as well as the elements found in the footnotes 5, 6 and 7, constitute transgression from the task at hand and should be avoided.
[141] However, I note that after his somewhat lengthy dissertation, Mr. Iozzo concludes that "what this means is that in deciding whether to detain or release, we must be ever more vigilant". Our Court often refers to those same principles of fundamental justice. There is little doubt that, even though strong emphasis is put on the safety to the public during a detention review, those principles still need to be considered and a proper balance maintained.
[142] In Sahin, supra, (at para. 24-25), Rothstein J. (as he then was) did say, in the context of a similar detention review, that principles of fundamental justice should always be kept in mind and that the power of detention under s. 103 of the former Act cannot be said to be trivial.
[143] As mentioned, Mr. Iozzo describes his overall approach as follows:
The approach I have used is to receive and consider all the evidence that was presented by both parties. I have not rejected any evidence on the basis that it may not have been under oath or that it was simply charges, or statements not subjected to cross-examination. I have not quibbled that some of the evidence would not have been accepted in Court and I have not rejected hearsay evidence. I have not considered technical deficiencies of the evidence to be determinative, nor rejected the substance for the form. I have attempted to analyze the evidence from an unbiased, unemotional stance, guided by the belief that even the devil must be given his due8. In assessing the credibility or trustworthiness of the evidence, all elements, factors and circumstances of the evidence have been weighed and considered.
8. It is obviously not to be implied that I am equating Mr. Thanabalasingham to the devil.
[144] The applicant is surely not proposing that because of the strong emphasis on societal interest in safety, the actual assessment of the evidence presented at a detention hearing should be influenced by such consideration tipping the balance in favour of detention.
[145] The importance of ensuring that as much information as possible is available to the Immigration Division to ensure that societal interest in safety is properly protected is already reflected in the latitude given to the Immigration Division as to the source and type of evidence it can consider (s. 173 of the IRPA). Therefore, when it comes to actually assessing whether or not the evidence presented is trustworthy or credible, one must be satisfied that it is probably trustworthy not only possibly trustworthy (Orelien v. Canada, [1992] 1 F.C. 592 (C.A.) at para. 20).
[146] In light of the foregoing and using the test for reasonable appreciation of bias (Ahani v. Minister of Citizenship and Immigration), [1998] F.C.J. No. 1765 (QL) (aff'd [2000] F.C.J. No. 1114, at para. 7), the Court is not convinced that the somewhat lengthy display of erudition by Mr. Iozzo is sufficient evidence to conclude that he was biased in his evaluation of the evidence and in his conclusion.
[147] The applicant has not convinced the Court that despite some flaws, misquotes and some inaccuracies that often occur in a file of this magnitude, the findings of Mr. Iozzo were unreasonable, let alone patently unreasonable.
[148] This application is dismissed.
Certifiable questions
[149] The applicant proposed the following questions for certification:
(1) What is the applicable standard of review for detention review decisions made by Immigration Members of the IRB?
(2) After a person is first ordered detained, are the subsequent detention reviews hearings de novo? In the same vein, is the onus on the detained person to show that he or she is not a danger to the Canadian public or not a flight risk at subsequent detention reviews?
(3) Can previous convictions in themselves support a conclusion that a person is a danger to the Canadian public such that he or she should be detained?
[150] With respect to the first question, the Court and the two parties agree on the standard applicable to questions of fact and question of law. The standard to be applied to questions of mixed fact and law is very much influenced by the particulars of the issue under review and would thus not be of general application or broad significance.
[151] As to the third question, the law is well established and the issue was addressed by the Court of Appeal in Williams, supra. Given that I will certify the next question with respect to the nature of the detention review, the Federal Court of Appeal will be at liberty in any event to offer any additional comments they see fit.
[152] The wording of s. 58 of IRPA is new and there has been no pronouncement by the Federal Court of Appeal on the nature of such detention reviews. These issues are of broad significance and general application and would be determinative of the appeal. Thus, I shall certify the following question:
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?
ORDER
THIS COURT ORDERS that :
1. The application is dismissed.
2. The following question is certified:
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?
"Johanne Gauthier"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1845-03
STYLE OF CAUSE: MCI v. Kaileshan Thanabalasingham
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 7, 2003
REASONS FOR ORDER BY: Gauthier J.
DATED: October 21, 2003
APPEARANCES BY:
Ms. Barbara Jackman For the applicant
Mr. Greg G. George For the respondent
SOLICITORS OF RECORD:
Ms. Barbara Jackman For the applicant
596 St. Clair Avenue West, Unit 3
Toronto, Ontatio M6C 1A6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario M5X 1K6
FEDERAL COURT
Docket: IMM-1845-03
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
REASONS FOR ORDER AND ORDER
1 These are the statements of four alleged members of the V.V.T. who gave various information to the police in 2000 and 2001 about criminal activities taking place in 1997. The nickname given to those statements refers to the decision of the Supreme Court in R.v. B. (K.G.) [K.G.B.], [1993] 1 S.T.R. 740, [1993] S.C.J. No. 22 (QL) dealing with hearsay evidence, but that does not mean that strictly speaking they meet the criteria set out by the Supreme Court of Canada in that case.
2. Mr. Murrant said: "Added to this is the testimony of the police officers... p. 160 of T.R.
Ms. Gratton said: "That evidence (the KGB statements) coupled with what I view as the compelling testimony of officer Furlong ..." see p. 592 T.R.
Ms. Simmie said: "This information (the KGB statements) appears to also be consistent with the information otherwise obtained by the police as attested to by officers Gadeshan and Furlong." p. 1566 of T.R.