CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Canada (Minister of Citizenship and Immigration) v. Ambrose
IMM-831-03
2003 FC 865, Layden-Stevenson J.
7/10/03
6 pp.
Application for judicial review of Immigration Division of Immigration and Refugee Board (tribunal member) decision ordering release of respondent from detention--In October 2001, respondent, British subject, convicted of conspiring to import cannabis resin, sentenced to 7 years, 8 months' imprisonment in federal institution--After Immigration Act, s. 27 report, respondent ordered detained pursuant to Immigration Act, s. 105(1) in June 2002, shortly before coming into force of Immigration and Refugee Protection Act (IRPA)--Removal order issued in October 2002 but IRPA, s. 50(b) prohibiting applicant from effecting removal until sentence completed-- Respondent eligible for day parole January 25, 2002 but remained in detention pursuant to s. 105(1) order--On January 27, 2003, at 48-hour detention hearing, tribunal member determined respondent flight risk, danger to public, and ordered continued detention--Tribunal member also indicating respondent would not be eligible for day parole due to Corrections and Conditional Release Act (CCRA) amendments--At detention review hearing, 7 days later, even though of opinion respondent constituted danger to public, flight risk, same tribunal member ordered respondent released from detention, based on interpretation of CCRA, s. 128(4), as amended by IRPA, that day parole has become inoperative--No need to deal with interpretation of s. 128 as clear tribunal member did not order continued detention as of view respondent would be detained in federal penitentiary in any event--Not so--In arriving at finding, tribunal member ignored initial approval of respondent's day parole, ignored January 25, 2003 day parole eligibility document, ignored evidence as to manner in which Correctional Service Canada (CSC) approached issue of day parole for those sentenced prior to coming into force of IRPA and amendment to CCRA, June 28, 2002--Tribunal member ignored contents of case management bulletin before him, ignored fact respondent would be day paroled on January 25--Erroneously concluded respondent would be detained by CSC despite overwhelming evidence to contrary before him--Having reached erroneous finding of fact, tribunal member then based his decision upon it--Finding patently unreasonable, made in perverse or capricious manner--Application allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 50(b)--Immigration Act, R.S.C., 1985, c. I-2, s. 105(1) (as am. by S.C. 1995, c. 15, s. 20)--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 128(4) (as am. by S.C. 2001, c. 27, s. 242).