Last Updated on November 2, 2011 by Steven Meurrens

Individuals who have been ordered released from detention by the Immigration and Refugee Board should not always assume that the matter is finished.  The Department of Justice, at the request of its government client, can seek to overturn that decision.  They can also seek a stay of the release from detention pending the resolution of the underlying application to overturn the release order.

The test for a stay of release from detention is the same tripartite test found in all stay applications.  In order to obtain a stay of release, the Department of Justice must show that:

  1. There is a serious issue to be tried;
  2. There is a risk of irreparable harm; and
  3. The balance of convenience favours preventing the release.
There is a Serious Risk to be Tried
There are many reasons why the Government of Canada might seek a judicial review of an Immigration and Refugee Board Member’s decision to release an individual from detention.  One of the more common ones is where a Board Member releases someone who the Immigration and Refugee Board has already ordered an individual detained.  In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Marshall Rothstein stated:

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.

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.

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.

Irreparable Harm

Generally, the release of an individual who has been found to constitute a danger to the public will result in a finding of irreparable harm.  In Canada (Public Safety and Emergency Preparedness) v. Zaw Zaw, the Federal Court noted that:

[Canada] will suffer irreparable harm if the [detained individual] is released from detention. The Respondent’s release from detention is contrary to the legislative objectives set out in the IRPA, particularly the objectives of protecting the safety of Canadians and maintaining the security of Canadian society.

Balance of Convenience


Usually the test is met if there is irreparable harm and a serious issue to be tried.  In addition, the balance of convenience will generally favour the party acting in the public interest as opposed to the individual.
In Dugonitsch v Canada (Minister of Employment and Immigration) (1992), therefore, Justice Andrew MacKay stated:

Absent evidence of irreparable harm, it is strictly speaking unnecessary to consider the question of the balance of convenience. Nevertheless, it is useful to recall that in discussing the test for a stay or an interlocutory injunction in the Metropolitan Stores case Mr. Justice Beetz stressed the importance of giving appropriate weight to the public interest in a case where a stay is sought against a body acting under public statutes and regulations which have not yet been determined to be invalid or inapplicable to the case at hand. That public interest supports the maintenance of statutory programs and the efforts of those responsible for carrying them out. Only in exceptional cases will the individual’s interest, which on the evidence is likely to suffer irreparable harm, outweigh the public interest. This is not such an exceptional case.