Thursday, February 17, 2011

The Court dismissed a judicial review of the Minister challenging the release order:
[14] In the context of a mandated detention review every 30 days, the Minister’s position would allow the Crown to obtain a prolonged if not indefinite stay of release order(s) through the court process. This is evident in the current proceedings relating to the Respondent. The Minister has filed applications for leave and for judicial review of three successive orders of the ID releasing the Respondent from detention. Accepting the Minister’s submission would mean that because the Court’s decision upholding the November 19, 2010 Release Order was not rendered prior to the December detention review, it has no effect, since the next release order of the ID is now the operative order. The December release order has also been stayed subject to final determination of the underlying application for leave and for judicial review, or the next detention review. Potentially, this cycle could be unending and the Respondent would never benefit from a positive decision of the Court upholding a release order. This cannot be what was intended by Parliament. The purpose of requiring a detention review every 30 days was to protect the Respondent’s liberty interests by affording him a timely review of his detention and clearly not to provide a mechanism to prolong that detention or keep the Respondent in indefinite detention. Yet, this would be the effective result if we accept the Minister’s submission. In my view, this would result in nothing short of an abuse of the court process.
[15] It must be remembered that the intervening detention reviews, which also resulted in release orders of the Respondent by the ID, would not have occurred had the Respondent not been detained at the time. The IRPA does not require a review once the Respondent is released from detention. Subject to the conditions of release, the release is indefinite. Consequently, the applications for leave and for judicial review of the subsequent decisions releasing the Respondent were only made possible by reason of his continued detention and would never have been filed had the November 19, 2010 Release Order, now upheld, not been challenged.
[16] The Respondent’s case presents a unique fact scenario. If successful on this stay application, the Applicant will have denied the Respondent the benefit of three release orders, and a positive Court decision, through consecutive judicial review proceedings.
[17] Even if the case law cited by the Applicant was not distinguishable and the original release order has been superseded, given the fact scenario at play in this case, I am of the view that application of the cited jurisprudence would be contrary to the interests of justice and result in an abuse of process. The Respondent’s liberty interests in this case outweigh the enforcement of this jurisprudence (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 120; Canada (MCI) v. Parekh, 2010 FC 692 at para. 24).

2011 FC 175
Key Issues: 
Detention Review, abuse of process