Page: 3I. The Guiding Principles
As in any motion for a stay or for an interlocutory injunction the moving party mustestablish a serious issue, irreparable harm and that the balance of convenience is in his favour(
Toth v Canada (Minister of Employment and Immigration)
(1988), 86 NR 302 (FCA) and
RJR-MacDonald Inc v Canada (Attorney General)
,  1 SCR 311).
The second guiding principle is that there must be clear and compelling reasons to departfrom previous detention decisions. This was established by the Federal Court of Appeal in
Canada(Minister of Citizenship and Immigration) v Thanabalasingham
, 2004 FCA 4,  3 FCR 572.In speaking for the Court Mr. Justice Rothstein, as he then was, answered a certified question asfollows:At each detention review made pursuant to sections 57 and 58of the
Immigration Refugee Protection Act
, S.C. 2001, c. 27, theImmigration Division must come to a fresh conclusion whetherthe detained person should continue to be detained. Although anevidentiary burden might shift to the detainee once the Ministerhas established a
case, the Minister always bears theultimate burden of establishing that the detained person is a dangerto the Canadian public or is a flight risk at such reviews. However,previous decisions to detain the individual must be considered atsubsequent reviews and the Immigration Division must give clearand compelling reasons for departing from previous decisions.
I think it fair to say there has been some inconsistency with respect to the treatment of thoseon board the
. Their stories differ, the appreciation thereof by different members of the IADmay differ, and as well different judges have come to different conclusions in assessing decisionsof the IAD be it on stay motions, such as this, or on judicial review. This is quite understandablebecause there is intense pressure to render a decision before the next 30-day detention review.