Can the Federal Court Order Continued Detention

Meurrens LawImmigration Trends

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Lunyamila has certified the following question of general importance:

Does the Federal Court have jurisdiction to usurp the jurisdiction of the Immigration Division of the Immigration and Refugee Board of Canada to order the release of the detainee pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27, by ordering that the detainee shall remain in detention until further Court order?

The timeline giving rise to the question was as follows:

5 January 2016 Mr. Lunyamila is ordered released from detention. The very same day the Minister applied for leave and judicial review under docket number IMM-63-16 and obtained an interim stay from Madam Justice Simpson.
8 January 2016 Mr. Justice Shore extended the interim stay to 19 January as a transcript of the hearing was not yet available.
20 January 2016 Mr. Justice Shore granted an interlocutory stay. While he noted that there would be another 30-day review upcoming and that the case might possibly be heard on an expedited basis he stayed the release “until the application for leave and judicial review is determined on the merits.”
2 February 2016 Mr. Lunyamila was again ordered released by the IRB. The Minister again was able to file an application for leave and judicial review that day under IMM-502-16 and obtain an interim stay of release from Mr. Justice Mosley, in effect until 16 February.
16 February 2016 Mr. Justice Simon Noël set a timetable with respect to both the January and February decisions, leading to the applications for leave to be heard on 3 March 2016, and if granted, immediately followed by a hearing on judicial review. His order in both docket numbers provides, “the interim stay of the release is extended until a final determination…”
1 March 2016 Mr. Lunyamila was again ordered released and again the Minister applied for leave and for judicial review. He also applied for a stay of the release which normally would have gone to the ROTA judge in Vancouver. However, as I was already in Vancouver on other matters, and assigned to hear the applications for leave and judicial review on 3 March, it was I who reviewed the matter and granted an interim stay of the release. The docket number in question is IMM-913-16.
3 March 2016 I granted leave to judicially review the January and February decisions and then granted the applications, with reasons to follow. I simply stayed proceedings with respect to the March decision.

As Justice Harrington noted:

I find it somewhat disconcerting that an individual who has been held in detention for more than two years as being a danger to the public can be ordered released with immediate effect. This lead to a mad scramble on the part of the Department of Justice, which fortunately was able to obtain an ex parte interim stay of that release. While the liberty of the individual is most important, so too is the safety of the public. Surely it would be better to delay the release, even if only for 24 hours, in order to allow the Minister to assemble a more complete record.

Fortunately the Minister was able to repeat the same process with respect to the February decision. However, it is always possible that there be a slip up and that the detainee be released before the Minister is able to obtain a stay. In that case what is the jailer to do? On the one hand the IRB has ordered his release; on the other hand this Court has ordered that his release be stayed. It of course can be argued that the January decision had become moot. However, a decision in that regard is to be made by this Court, not by the IRB, and not by the jailer. If I were the jailer and released someone like Mr. Lunyamila, I would be concerned that I would be brought before the Court to show cause why I should not be held in contempt of court.

There is no clear statement in this judgment that the Immigration Division of the IRB can trump an order of this Court. It seems to me it would be far better if one were to order the release in a subsequent detention review subject to the outcome of the judicial review in which this Court had already granted a stay of release. It would then fall upon the detainee, not the Minister, to move the Court to have the earlier stay set aside in accordance with section 50 of the Federal Courts Act.

I shall post the Federal Court of Appeal’s answer once it is available.