A-479-03
2004 FCA 4
The Minister of Citizenship and Immigration (Appellant)
v.
Kaileshan Thanabalasingham (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (C.A.)
Court of Appeal, Stone, Rothstein and Sharlow JJ.A.--Ottawa, December 9, 2003 and January 9, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Appeal on certified question from F.C. decision affirming Immigration Division decision releasing, on conditions, suspected Tamil gang leader while awaiting deportation -- Issues: (1) are IRPA, ss. 57(2), 58 detention reviews hearings de novo; (2) has detainee burden of establishing neither flight risk nor public danger -- History of case briefly reviewed -- Appeal dismissed -- Meaning of term "de novo" clarified -- While immigration detention reviews, strictly speaking, not hearings de novo, Court rejecting MCI's argument prior review findings not to be disturbed absent new evidence -- Detention review decisions fact-based, deference normally shown -- If previous decisions to detain departed from, member to state clear, compelling reasons why disagreed with -- But, reasons may be implicit in reasons for decision -- Cursory decision not adverting to prior reasons unacceptable -- Immigration detention decisions to take into account Charter, s. 7 requirements -- MCI must establish, on balance of probabilities, danger to public for continued detention -- Once prima facie case made out, detainee risks continued detention if leading no evidence -- In establishing prima facie case, MCI may rely on reasons for prior detention orders -- Open to member to reject "common thread" on which previous decisions based -- Did not err in concluding, in particular circumstances, detainee's record not alone supporting danger finding -- Whether guarantors able to control detainee if released was considered by member, not unreasonable to conclude posting of bonds addressing concern.
This was an appeal on a certified question from the Federal Court decision dismissing an application for judicial review of an Immigration Division decision that respondent should be released from detention while awaiting deportation. The question was whether Immigration and Refugee Protection Act, subsection 57(2) and section 58 detention reviews are hearings de novo and whether the detained individual bears the burden of establishing that he is neither a danger to the public nor a flight risk.
Respondent, a permanent resident, had been arrested as a public danger, being a leader of a Toronto area Tamil gang. His continued detention was ordered at five detention reviews but at the sixth review Immigration Division member Tumir ordered his release subject to conditions. The Minister, however, sought judicial review and secured a stay. At the next detention review, member Iozzo ordered his release but once again the Minister applied for judicial review and secured a stay. The decision of member Iozzo was affirmed by Federal Court.
The Minister argued that, (1) under the new legislation, detention reviews are not de novo; and that (2) the detainee bears the burden of proving previous decisions to detain should be set aside. It was submitted that member Iozzo had committed errors of law as well as patently unreasonable errors of fact.
Held, the appeal should be dismissed.
It was important to clarify the term de novo. Strictly speaking, it is a hearing at which an entirely fresh record is developed and no regard is had to any prior decision. That is not what takes place at a detention review. Indeed, in the Canada (Minister of Citizenship and Immigration) v. Lai, Campbell J. held that all existing factors must be taken into account, including the reasons for previous detention orders. Though this was said in relation to the former Act, it was applicable to the new legislation. Even so, this Court could not agree with the Minister's proposition that the findings at prior reviews should not be disturbed unless new evidence was brought forward. As was held by MacKay J. in Salilar v. Canada (Minister of Citizenship and Immigration), "It is not sufficient . . . that the adjudicator proceed . . . by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision". Under the current legislation, at each hearing, the member's duty is to decide afresh whether continued detention is justified.
Decisions at detention reviews are essentially fact-based and deference is normally shown to such decisions. The Court agreed with the Minister's submission that if a member decides to depart from previous detention decisions, clear and compelling reasons must be set out. The member ought to expressly explain what the former decision stated and why this is disagreed with. But, even if not explicitly stated, his reasons for departing may be implicit in his reasons for decision. A cursory decision failing, in any meaningful way, to advert to the prior reasons for detention could be unacceptable.
Given that under sections 57 and 58 persons can be detained for indefinite periods without being found guilty or even being charged, detention decisions must be made with Charter, section 7 considerations in mind. The holding of Campbell J. in Lai, that the initial onus of proving continued detention is warranted rests on the proposer of detention, applies even more strongly to section 58 of the current statute which provides that "the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied" that one of the listed conditions is met. The Federal Court Judge did not err in holding that it is the Minister who must establish, on a balance of probabilities, that the individual is a danger to the public if detention is to be continued. But, once the Minister has made out a prima facie case, the individual must lead some evidence or risk continued detention. In establishing a prima facie case, the Minister may rely upon the reasons given for prior detention orders.
Member Iozzo paid appropriate regard to the prior decisions and his reasons for disagreeing with them were implicit in his decision. He noted that at the previous reviews credibility problems with the evidence adduced by the Minister had been identified and even counsel to the Minister acknowledged contradictions and inconsistencies. Iozzo implicitly rejected the "common thread" approach upon which were based the previous decisions. The decision he arrived at was one that was open to him and the Federal Court Judge was correct in not disturbing it. It was also open to him to find that, in the particular circumstances, respondent's criminal record could not alone support a danger finding.
Finally, the member did consider whether the proposed guarantors would be capable of controlling respondent if released. It was not unreasonable for him to have relied upon the conclusions reached by colleagues, that the posting of substantial bonds would sufficiently address that concern.
In answer to the certified question, at each detention review, the Immigration Division must come to a fresh conclusion as to continued detention and the Minister bears the ultimate burden of establishing that the detainee is a danger to the public or a flight risk. Still, prior detention decisions must be considered and clear, compelling reasons given for departing therefrom.
The Minister may, of course, re-arrest respondent at any time and have him detained on the basis of adequate evidence of his danger to the public.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
| Immigration Act, R.S.C., 1985, c. I-2, ss. 103(1) (as am. by S.C. 1995, c. 15, s. 19), (6) (as am. idem), (7) (as am. S.C. 1992, c. 49, s. 94). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 57, 58. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 47(1), 244, 245, 246, 248. |
cases judicially considered
applied:
Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326; (2001), 201 F.T.R. 106 (T.D.); Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150; (1995), 31 Imm. L.R. (2d) 299 (T.D.).
referred to:
Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145; (2000), 252 N.R. 91; 5 C.P.R. (4th) 180 (C.A.); Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; (1994), 24 C.R.R. (2d) 276; 85 F.T.R. 99; 30 Imm. L.R. (2d) 33 (T.D.); Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 0003-A1-02365, I.R.B. (Adj. Div.), March 18, 2002; Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 0003-A1-02365, I.R.B. (Adj. Div.), May 28, 2002; Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 0003-A1-02365, I.R.B. (Imm. Div.), August 12, 2002; Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 0003-A1-02365, I.R.B. (Imm. Div.), November 5, 2002.
APPEAL on certified question from the Federal Court decision dismissing an application for judicial review of an Immigration Division decision that respondent should be released from detention while awaiting deportation ([2004] 3 F.C.R. 523; (2003), 32 Imm. L.R. (3d) 269; affg [2003] I.D.D. No. 2 (QL)). Appeal dismissed.
appearances:
Donald A. MacIntosh and Gregory G. George for appellant.
Barbara Jackman for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Barbara Jackman, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
[1]Rothstein J.A.: This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003 [[2004] 3 F.C.R. 523 (F.C.), at paragraph 152]. The certified question is:
Are the detention reviews made pursuant to subsection 57(2) and section 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?
FACTS
[2]The facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 [as am. by S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19] of the Immigration Act, R.S.C., 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act [S.C. 2001, c. 27] (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.
[3]The next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released [[2003] I.D.D. No. 2 (QL)]. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject-matter of the order of Gauthier J. of October 21, 2003, and which gives rise to this appeal.
ISSUES
[4]The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision.
RELEVANT PROVISIONS
Immigration and Refugee Protection Act
57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.
(2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.
. . .
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);
. . .
(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.
Immigration and Refugee Protection Regulations, SOR/2002-227
47. (1) . . .
(2) A person who posts a guarantee must
. . .
(b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and
. . .
244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person
(a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;
(b) is a danger to the public;
. . .
245. For the purposes of paragraph 244(a), the factors are the following:
. . .
(c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
(d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
(e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;
. . .
(g) the existence of strong ties to a community in Canada.
246. For the purposes of paragraph 244(b), the factors are the following:
. . .
(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;
. . .
(d) conviction in Canada under an Act of Parliament for
. . .
(ii) an offence involving violence or weapons;
. . .
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.
Immigration Act
103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where
(a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and
(b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada.
(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.
(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.
THE CERTIFIED QUESTION
[5]There are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review.
| Nature of the Hearing |
[6]I think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 (F.C.A.), at page 156; Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.), at page 166). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 (T.D.), at paragraph 15, Campbell J. held that in a detention review, "all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made." Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.
[7]On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150, at page 159):
. . . the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator 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. It is not sufficient, in my opinion, that the adjudicator proceed . . . by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision.
[8]Nothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As adjudicators did under the former Act, the Immigration Division reviews "the reasons for the continued detention" (emphasis added). Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the member must decide afresh whether continued detention is warranted.
| The Treatment of Prior Decisions |
[9]The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.
[10]Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a member, I agree with the Minister that if a member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.
[11]Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.
[12]The best way for the member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current member disagrees.
[13]However, even if the member does not explicitly state why he or she has come to a different conclusion than the previous member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.
| Burden of Proof |
[14]When determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), at pages 225-231).
[15]Subsection 103(7) of the former Act provided that an adjudicator shall order release if "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." Under that provision, Campbell J. held that "the initial onus of proving continued detention is warranted rests with the proposer of such an order", i.e. the Minister (Lai, at paragraph 15). If anything, this holding applies even more strongly to section 58 which provides that "the Immigration Division shall order the release of the permanent resident or a foreign national unless it is satisfied" that one of the listed conditions is met (emphasis added). I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.
[16]The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie case in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75:
. . . 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 over the review.
MR. IOZZO'S DECISION
[17]The Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.
[18]Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated [at paragraph 22]:
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. . . . Deference must be shown to previous decisions, but "error" cannot be continued for the sake of consistency. (Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.) 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. [Emphasis in original.]
[19]From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. At paragraph 25 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at paragraph 33 that "[a]t the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements."
[20]Where Mr. Iozzo differed from the decisions of the members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that "non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth" (paragraph 34). He therefore implicitly rejected the "common thread" approach on which the previous decisions were based (see Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 (I.R.B. (Adj. Div.), at pages 9 and 19), Ms. Gratton; Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 (I.R.B. (Adj. Div.), at page 3), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 (I.R.B. (Imm. Div.), at page 92), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.
[21]The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. (at paragraph 124) that:
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.
Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.
[22]Finally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were "able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.
[23]Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (November 5, 2002), Milton 0003-A1-02365, I.R.B. (Imm. Div.), at pages 25-26) and Mr. Murrant, supra, at pages 90-91, had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point.
CONCLUSION
[24]The reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows:
At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.
[25]The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention.
Stone J.A.: I agree.
Sharlow J.A.: I agree.