Date: 20030626
Docket: IMM-3400-02
Citation: 2003 FCT 792
Toronto, Ontario, June 26th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
RUSS ALLAN CARTWRIGHT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Russ Allan Cartwright (the "Applicant") seeks judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 and section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (" IRPA"), of a decision of adjudicator Martine Lavoie (the "Adjudicator") of the Immigration Appeal Division (the "IAD"), dated July 2, 2002. In that decision, the IAD declined to hear the Applicant's appeal against a deportation order due to lack of jurisdiction. The Applicant now seeks an order setting aside the IAD's decision and an order of mandamus compelling the IAD to exercise its jurisdiction to hear the Applicant's appeal on its merits or an order quashing the deportation order made against him.
FACTS
[2] The Applicant was born in the Bahamas. He came to Canada with his mother and two siblings when he was four years old and obtained permanent residence status on August 5, 1973. He never applied for Canadian citizenship.
[3] The Applicant has resided in the Halifax and Dartmouth areas of Nova Scotia since arriving in Canada. He has two children from a former common-law relationship and continues to have contact with each of them. He is currently in a common-law relationship and has frequent contact with his mother and two siblings, who also reside in eastern Canada. The Applicant owns and operates a carpentry business.
[4] The Applicant has a history of criminal offences in Canada, beginning when he was 17-years old. His most serious conviction was for two counts of possession of drugs for the purpose of trafficking, in violation of section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA").
[5] One count was related to cannabis marihuana, not in excess of three kilograms, which is listed in Schedule II of the CDSA and the other to cocaine which is listed in Schedule I of the CDSA. He was sentenced on January 25, 2001 to a four-year term in a federal penitentiary. The punishment for these offences is governed by sections 5(3) and (4) of the CDSA which states:
| (3) Every person who contravenes subsection (1) or (2)
(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life; ...
(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.
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(3) Quiconque contrevient aux paragraphes (1) ou (2) commet_:
(a) dans le cas de substances inscrites aux annexes I ou II, mais sous réserve du paragraphe (4), un acte criminel passible de l'emprisonnement à perpétuité; ...
(4) Quiconque contrevient aux paragraphes (1) ou (2) commet, dans le cas de substances inscrites à la fois à l'annexe II et à l'annexe VII, et ce pourvu que la quantité en cause n'excède pas celle mentionnée à cette dernière annexe, un acte criminel passible d'un emprisonnement maximal de cinq ans moins un jour.
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[6] The Applicant was granted day parole on December 4, 2001, after serving about ten months of his sentence. He was granted full parole on May 27, 2002.
[7] On May 2, 2001, a report under section 27 of the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") was written which stated that the Applicant was a person described in section 27(1)(d), that is, a permanent resident who had been convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed, or a term of five years or more may be imposed.
[8] On June 19, 2001, the Immigration and Refugee Board, Adjudication Division conducted an inquiry pursuant to section 27 (3) of the former Act. An adjudicator determined that the Applicant was a person described in section 27(1)(d) and issued a deportation order against him at the conclusion of the inquiry, pursuant to section 32(2) of the former Act.
[9] That same day, June 19, 2001, the Applicant filed a Notice of Appeal to the IAD of this deportation order. An automatic stay pursuant to section 49(1)(b) of the former Act prevented the Applicant from being removed pending his appeal to the IAD.
[10] The Applicant's hearing was scheduled for May 24, 2002, but it was postponed by the IAD due to "administrative problems".
[11] On July 2, 2002, an IAD hearing was held. The Adjudicator was in Montreal and the Applicant and his counsel appeared by video-conference from Halifax, Nova Scotia. The Respondent made a preliminary motion requesting that the appeal be dismissed for lack of jurisdiction pursuant to section 196 of IRPA, which had become effective, on June 28, 2002, a few days prior to the hearing. The Adjudicator dismissed the Applicant's request for an adjournment to respond to the motion, allowed the Respondent's motion, and dismissed the Applicant's appeal on the ground that the IAD lacked jurisdiction.
[12] On July 17, 2002, the Applicant filed this application for leave and judicial review relative to the July 2, 2002 decision. On January 9, 2003, Justice Layden-Stevenson granted a stay of execution of the removal order against the Applicant, pending the final determination of this application for judicial review.
APPLICANT'S SUBMISSIONS
[13] The Applicant raises three issues in this judicial review. First, he argues that the IAD violated a principle of procedural fairness. He relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and states that the procedural fairness principles outlined in Baker, supra, apply to his situation. Relying on five factors set out in Baker for the determination of the content and scope of procedural fairness, the Applicant says that a high degree of procedural fairness should be applied in his case.
[14] The Applicant argues that he was denied procedural fairness in the way that the Respondent's motion for lack of jurisdiction was brought and heard which resulted in the Applicant being prevented from fully assessing and responding to the motion. Further, the motion extinguished, in a final way, the Applicant's case.
[15] The Applicant argues that there was a duty of the Adjudicator to follow the procedure contained in the former Immigration Appeal Division Rules, SOR/93-46 (the "former IAD Rules"). Rule 27 of those Rules provided a clear procedure that governed motions and the Respondent failed to comply with this in bringing the motion orally at the hearing on July 2, 2002.
[16] The Applicant says that the Respondent did not comply with Rule 27. The Respondent did not contact the Applicant's counsel seven clear days prior to the hearing but instead contacted him over the telephone a "few days" before the IAD hearing. The Respondent failed to serve the Applicant with a notice of motion, an affidavit supporting the motion or a statement of law and argument supporting the motion.
[17] The Applicant also says that Rule 27 of the former IAD Rules did not grant the Adjudicator the power to decide motions regarding jurisdiction made at the time of the hearing. The discretion to decide oral motions, "in the interests of justice", was intended for the disposition of less important issues without having to follow the formal Rule 27 procedure.
[18] Given that a high degree of fairness applies in the Applicant's case, the Adjudicator should have allowed his request for an adjournment in order to allow him to respond to the Respondent's motion pursuant to Rule 27 of the former IAD Rules. The Adjudicator should have considered the interests of Applicant's children in making her decision: Baker, supra. The Applicant says that extinguishing his appeal without hearing its merits required the Adjudicator to consider the interests of Applicant's children.
[19] Second, the Applicant argues that the Adjudicator was incorrect in finding that the IAD did not have jurisdiction to hear the Applicant's appeal. He says he does not fall under section 64(2) of IRPA because although he was sentenced to more than a six-month term of imprisonment, which placed him within section 27(1)(d) of the former Act, he did not suffer punishment of a term of imprisonment of at least two years as per the wording of section 64(2).
[20] The Applicant argues that the former Actspoke of imprisonment that may be imposed, whereas section 64(2) of IRPA states "was punished in Canada by a term of imprisonment of at least two years". He says that under section 64(2) of IRPA the actual length of time imprisoned is the unit of measurement for determining serious criminality. This is a reasonable interpretation of the section, according to the Applicant, because the actual period of time served in prison goes to the issue of rehabilitation. The Applicant was not "punished" by "a term of imprisonment of at least two years" because he was sentenced to four years imprisonment but only served about ten months, after being granted parole at the earliest opportunity.
[21] The Applicant argues that he still has the right to appeal to the IAD because he does not fall under section 64(2) and therefore section 196 of IRPA is not applicable to his situation.
[22] Third, the Applicant says that the dismissal of the his right to appeal to the IAD violated his rights pursuant to sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter"). The Applicant lives in Nova Scotia. In order for residents of Nova Scotia to be heard by the IAD, they must participate in a video conference hearing, as the Adjudicator sits in Montreal.
[23] The Applicant argues that this administrative arrangement results, generally, in delay for persons who live in Nova Scotia between the time of filing their Notice of Appeal and the actual hearing before the IAD. In addition to this delay for all applicants who live in Nova Scotia, the Applicant's hearing was further delayed due to "administrative problems" as noted in the reasons for decision.
[24] The Applicant submits that such delay was not caused by any action of his and the result of the delay was that the hearing took place a few days after the enactment of the new legislation. The delay directly led to the Respondent's motion, which could not have been brought before the coming into force of IRPA, and the dismissal of the Applicant's appeal on the issue of jurisdiction, without having his appeal heard on its merits.
[25] The Applicant says he suffered substantial adverse effect discrimination as a result of residing in Nova Scotia. Here, he relies on Andrews v. Law Society of British Colombia, [1989] 1 S.C.R. 143, where the Supreme Court of Canada recognized that section 15(1) of the Charter applies to non-citizens. The Applicant states that Andrews, supra, held that "intent" was not important to find discrimination contrary to section 15(1) of the Charter. The Applicant further says that pursuant to the "three step analysis" set out in Egan v. Canada, [1995] 2 S.C.R. 513, he experienced discrimination contrary to section 15(1).
[26] Applying Egan, supra, the Applicant submits that the procedure for IAD hearings draws a distinction between individuals on the basis of where they live in Canada. While it is not the intent of the legal system to draw this discriminatory distinction, it nonetheless exists. Second, the system imposes a burden on certain people that is not imposed on others. Here, the Applicant carried a substantial burden that was not imposed on those applicants who live in urban centres. Third, the place of residence in Canada is an irrelevant personal characteristic which is analogous to the enumerated grounds of section 15(1) of the Charter.
[27] The Applicant also argues that the delay in hearing his IAD appeal resulted in a violation of his section 7 Charter rights. In support of the section 7 argument, he relies on Nisbett v. Manitoba (1993), 101 D.L.R. (4th) 744 (Man. C.A.) and Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.).
[28] The Applicant says that the delay caused him major prejudice and adverse consequences. If the hearing had proceeded on May 24, 2002, the Respondent would not have been able to bring the motion to dismiss the Applicant's appeal on jurisdictional grounds pursuant to section 196 of IRPA, as IRPA was not then in force. The delay resulted in the Applicant losing his only opportunity to have his case heard on its merits.
[29] The Applicant argues that in demonstrating that his section 7 rights were violated, he must only show that he suffered prejudice or unfairness in the hearing based on the result of the delay; the length of the delay is not important: Akthar, supra, and Nisbett, supra. Further, he argues that he does not have to demonstrate that there was any malicious intent on the part of the Respondent or the IAD in causing the delay.
[30] In reply to the Respondent, the Applicant argues that if the Respondent argues that the "newness" of IRPA made it impossible for the Respondent to file his motion within the time period set out in Rule 27 of the former IAD Rules, then the Respondent cannot also argue that the Applicant should have known of the possibility of such a motion since IRPAhad been a public document since November 2001.
[31] The Applicant argues that the Respondent does not address why Parliament, if it had wanted section 64(2) of IRPA to have the same meaning as section 27(1)(d) of the former Act, did not use the same or similar wording. The wording of section 64(2) is not "very clear", as the Respondent asserts.
RESPONDENT'S SUBMISSIONS
[32] The Respondent says that the process followed by the Adjudicator in dismissing the Applicant's appeal did not violate the duty of fairness. The Respondent's motion was brought pursuant to IRPA, which came into force on Friday June 28, 2002. The Applicant's IAD hearing took place on July 2, 2002, the next business day after IRPA came into force. It was impossible for the Respondent to file the motion at any point prior to the hearing, as the legislation was not then in force.
[33] The Respondent notified Applicant's counsel, by telephone, that the motion was going to be brought at the hearing. The Respondent gave the Applicant as much notice as was practical in the circumstances. Further, the Respondent submits that IRPA, including section 64, has been a public document since November 1, 2001.
[34] The Respondent says that the wording of section 196 does not permit any exercise of discretion and the IAD had no choice but to dismiss the appeal when it was clear that the Applicant fell within section 64(2).
[35] The Respondent argues that the wording of the former IAD Rules allows for the disposition of a motion at a hearing, if it is in the "interests of justice" to do so. The decision as to whether to hear the motion at the hearing was within the discretion of the Adjudicator of the IAD.
[36] Next, the Respondent says that the IAD was correct in its application of the provisions of IRPA. The entire legislative context of IRPA must be considered when determining whether section 196 applied to the Applicant's situation. The objectives of IRPA, as set out in subsections 3(1)(h) and (i), must be kept in mind when reading subsection 36(1). The objectives of subsections 36(1)(h) and (i) are the protection of the security of the Canadian public and promotion of international justice and security by denying access to Canada to persons who are serious criminals. The objective of subsection 36(1) is to make permanent residents and foreign nationals inadmissible on grounds of serious criminality.
[37] To further the above objectives, section 64 establishes that a person found to be inadmissible due to serious criminality may not appeal to the IAD if a sentence of two years or more was imposed. Section 196 requires that this new regime of more limited appeal rights be applied to all appeals that were outstanding before the IAD on June 28, 2002. The Respondent says that section 196 is clear that IRPA eliminates any appeal to the IAD for a person described in subsection 64(2) as a serious criminal.
[38] The Respondent submits that the Applicant's interpretation of the wording of section 64(2) should be rejected. The wording of section 64(2) is clear, namely, that the focus is on the sentence imposed, not the sentence actually served. The words of section 64(2) do not refer to consideration of when a person is paroled; if Parliament had intended this to be a consideration, it would have added it to the legislation. The Applicant's interpretation imports an element to section 64(2) that does not exist.
[39] Since the Applicant's crime was punished by the imposition of a sentence of more than two years, he clearly falls within section 64(2) and the IAD was correct in deciding that it no longer had jurisdiction to hear his appeal.
[40] The Respondent also argues that the second part of section 196 of IRPA, that is, the requirement that an applicant be granted a stay under the former Act, was not met in this case. The Respondent says that the Applicant was not "granted" a stay under the former Act. The Respondent argues that on both a plain word and purposive reading of the legislation, section 196 of IRPA cannot be interpreted as referring to automatic stays of removal, provided in subsections 49(1)(a) and (b) of the former Act.
[41] The Respondent also says that a person in Applicant's position has the option of applying for a Pre-Removal Risk Assessment ("PRRA") prior to being removed and a removal order is stayed until completion of the PRRA. Additionally, the Applicant could apply to remain in Canada owing to humanitarian and compassionate considerations. Pursuant to section 25(1) of IRPA, the best interests of a child affected by such a decision would have to be considered in making a decision under section 25(1).
[42] In response to the Applicant's Charter arguments, the Respondent submits that the use of video-conferences for IAD hearings does not raise a discriminatory application of a law pursuant to section 15(1) of the Charter. The Respondent relies on Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, where the Supreme Court of Canada provided the current three-step approach to be used when analysing a section 15(1) equality claim, as follows:
(1) Does the challenged law draw a formal distinction between the complainant and others on the basis of a personal characteristic?
(2) If there is differential treatment of the claimant by the law, is it on the basis of an enumerated (or analogous) ground of section 15(1) of the Charter?
(3) Does the differential treatment on a section 15(1) ground actually discriminate by violating human dignity and freedom, through the imposition of disadvantage, stereotyping or political or social prejudice?
[43] Here, the Respondent argues that the original hearing was postponed due to an administrative problem and there is no indication that this postponement had anything to do with the video-conferencing medium or the fact that the Applicant resided in Nova Scotia.
[44] Further, the Respondent argues that administrative delays are not distinctions made on a personal characteristic. The law did not treat the Applicant differently, as the delay arose from an administrative difficulty, rather than from the application of the law.
[45] Concerning the Applicant's section 7 Charter allegation, the Respondent says that the delay in hearing the Applicant's IAD appeal does not engage rights under section 7 of the Charter. Fundamental justice does not require that the Applicant possess appeal rights. There is no constitutionally protected right to an appeal and it is constitutional for Parliament to deny the right to appeal: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, Huynh v. Canada, [1996] 2 F.C. 976 (C.A.) and R. v. Meltzer, [1989] 1 S.C.R. 1764.
[46] The Respondent, relying on Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307 and R. v. Beare, [1988] 2 S.C.R. 387, states that the section 7 analysis is two-step process.
[47] The Respondent also relies on Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), for the proposition that section 7 is not engaged by the deportation of a serious criminal. The Respondent submits that a section 7 "liberty" interest does not include the right to stay in Canada for permanent residents who have violated an essential condition under which they were permitted to remain: Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.).
[48] The Respondent says that there was no unreasonable delay in this case, and in any event, the delay did not result in a violation of fundamental justice. There was no evidence of "inordinate" delay, to the point of tainting the proceedings: Blencoe, supra, paras. 101 and 121. The Applicant filed his Notice of Appeal on June 19, 2001, the hearing date was scheduled for May 24, 2002, and that was postponed to July 2, 2002.
[49] In Rabbat v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 46 (T.D.), aff'd [1987] F.C.J. No. 22 (C.A.), the Court held that a two year delay before making a request for an immigration inquiry did not result in a denial of fundamental justice.
ANALYSIS
[50] This application for judicial review raises four issues. First, whether the jurisdictional motion of the Respondent was fairly dealt with by the Adjudicator at the IAD hearing. Secondly, what is the correct interpretation of section 64(2) of IRPA. Third, does section 196 of IRPA refer to "automatic" stays pursuant to section 49(1) of the former Act. Fourth, whether the manner in which the IAD arranged the Applicant's hearing violated his Charter rights.
1. Motion before the IAD
[51] Prior to June 28, 2002, a motion before the IAD had to be brought in accordance with Rule 27 of the former IAD Rules. Rule 27 provided as follows:
MOTIONS
27. (1) Every application that is not provided for in these Rules shall be made by a party to the Appeal Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner.
(2) The motion shall consist of
(a) a notice specifying the grounds on which the motion is made;
(b) an affidavit setting out the facts on which the motion is based; and
(c) a concise statement of the law and of the arguments that are relied on by the applicant.
(3) The motion shall be
(a) served on the other party to the proceeding; and
(b) filed, together with proof of service, at the registry within five days after the date of service.
(4) Evidence in support of a motion shall be introduced by affidavit, unless the Appeal Division decides that, in the interests of justice, the evidence should be introduced in some other manner.
(5) The other party may, within seven days after being served with a motion, file at the registry a reply stating concisely the law and arguments relied on by the party, accompanied by an affidavit setting out the facts on which the reply is based.
(6) The applicant may, within seven days after being served with a reply, file a response thereto at the registry.
(7) A copy of the reply and affidavit filed pursuant to subrule (5) and of the response filed pursuant to subrule (6) shall be served on the other party within seven days after the date of service of the motion or reply, as the case may be.
(8) The Appeal Division may dispose of a motion without a hearing where no injustice is likely to be caused.
[52] The Applicant's hearing was held on July 2, 2002. The usual way to bring a motion was in writing, prior to the hearing, with at least a seven-day notice period, giving the other party a chance to respond.
[53] However, the wording of Rule 27(1) in the former IAD Rules afforded an adjudicator discretion to deal with a motion brought by one of the parties at the hearing, if it was in the "interests of justice" to do so. Rule 43 of the current Immigration Appeal Division Rules, SOR/2002-230 (the "current IAD Rules"), in force at the date of the hearing, provides that the IAD can allow an application to be made orally at a proceeding after considering any relevant factors, including whether the party bringing the application could have, with reasonable effort, made the application in writing before the proceeding.
[54] The relevant sections of the current IAD Rules are as follows:
| 42. Unless these Rules provide otherwise (a) a party who wants the Division to make a decision on any matter in an appeal, including the procedure to be followed, must make an application to the Division under rule 43; ...
43 (1) An application must be made in writing and without delay unless (a) these Rules provide otherwise; or (b) the Division allows it to be made orally at a proceeding after considering any relevant factors, including whether the party with reasonable effort could have made the application in writing before the proceeding. ...
60. These Rules come into force on the day on which section 161 of the Act comes into force.[Section 161 of IRPA came into force on June 28, 2002]
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42. Sauf indication contraire des présentes règles : a) la partie qui veut que la Section statue sur toute question soulevée dans le cadre d'un appel, notamment sur le déroulement de celui-ci, lui en fait la demande selon la règle 43; ... 43. (1) Toute demande est faite sans délai par écrit sauf si : a) les présentes règles indiquent le contraire; b) la Section permet qu'elle soit faite oralement pendant une procédure après qu'elle ait considéré tout élément pertinent, notamment le fait que la partie n'aurait pu, malgré des efforts raisonnables, le faire par écrit avant la procédure. ... 60. Les présentes règles entrent en vigueur à la date d'entrée en vigueur de l'article 161 de la Loi. [Le 28 juin 2002, l'article 161 de la Loi sur l'immigration et la protection des réfugiés est entré en vigueur.] |
[55] In my opinion, the Adjudicator had the discretion to permit the Respondent's motion to be brought at the hearing. This holds true if Rule 27 of the former IAD Rules applies to the process, or if Rule 43 of the current IAD Rules applies.
[56] A tribunal's decision on procedural matters is entitled to a high degree of deference by a reviewing court. Only where a decision on such matters is unauthorized by the enabling statute, the tribunal's rules of procedure or the rules of fairness will the decision be set aside: see Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560. Further, the Applicant has not provided any authority for his proposition that Rule 27(1) of the former IAD Rules, where an application could be brought orally at the hearing if it was found by an adjudicator to be in the "interests of justice" to do so, was meant to address only minor, procedural matters.
[57] The Respondent argued that the Applicant should have been prepared for the motion on jurisdiction, because IRPA was available in the public domain for many months prior to the hearing on July 2, 2002. I find no merit in this argument. IRPA was neither applicable nor effective until June 28, 2002. In practical terms, there was nothing the Applicant could have done in relation to IRPA until it came into effect.
2. Interpretation of section 64(2) of IRPA
[58] Section 64(1) and (2) of IRPA state as follows:
| 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
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64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans. |
[59] The wording of subsection 64(2) is not immediately clear. It states that a person will fall within the definition of "serious criminality" and have his or her appeal rights curtailed before the IAD, with respect to "a crime" that "was punished" in Canada "by a term of imprisonment" of at least two years. The words "was punished" are very different from the wording of the inadmissibility provisions of the former Act, where the maximum term of imprisonment that may be imposed for a particular crime was often the governing consideration (sections 19(1) and (2) of the former Act).
[60] Justice Iacobucci for the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, held that the court must do more than simply analyse words in statutes in their ordinary sense. A court must also evaluate the context of the statute as a whole, having regard to the scheme of the Act and the intention of Parliament. He stated at paragraphs 20- 21:
At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
[61] The interpretation of the words of section 64(2) in their "grammatical and ordinary sense" means that it is the actual punishment which an individual received in Canada which is determinative. The introductory wording of subsection 64(2), "For the purpose of subsection 1...", suggests, in my view, that this provision is to be read separately from subsection 36(1)(a) of IRPA, which defines serious criminality for the purpose of inadmissibility and speaks in terms of possible sentences which may be imposed for an offence.
[62] That is not to say that section 36 is irrelevant to the interpretation of section 64(2), but rather that where there is wording that a provision is to apply in respect to one area of a statute, then this wording must be respected and given meaning, and an interpretation which is in harmony with other sections of the legislative scheme should be preferred.
[63] Subsection 64(2) deals with the definition of serious criminality in the context of curtailing appeal rights. Section 36(1) defines serious criminality in the context of inadmissibility. If Parliament had wanted the same definition to apply for both areas, then the definitions for both areas of IRPA would have been the same or similar.
[64] Instead, in my opinion, section 64 provides that appeal rights of foreign nationals, their sponsors, and permanent residents should not be curtailed on the basis of the wider, section 36(1) definition of "serious criminality" but rather based on the section 64(2) definition. Section 36(1)(a), for example, casts a wider net than section 64(2) in defining "serious criminality" for offences which take place within Canada. Section 36(1)(a) provides that permanent residents or foreign nationals convicted in Canada of an offence under an Act of Parliament for which a maximum term of imprisonment of at least ten years may be imposed, or an offence for which a term of imprisonment of more than six months is actually imposed, are defined as "serious criminals" who are inadmissible to Canada.
[65] Despite the fact that subsection 64(2) cannot be interpreted along the same lines as section 36(1)(a) of IRPA and the fact that the definition differs from the former Act's definition of criminality, in my view, the interpretation urged by the Applicant cannot be accepted. It is the term of imprisonment imposed which subsection 64(2) describes, rather than the actual length of time served in prison prior to being granted parole.
[66] The Oxford English Dictionary (2nd ed., 1989) defines "punish" as follows:
1. a. trans. As an act of a superior or of public authority: To cause (an offender) to suffer for an offence; to subject to judicial chastisement as retribution or requital, or as a caution against further transgression; to inflict a penalty on. b. To requite or visit (an offence, etc.) with a penalty inflicted on the offender; to inflict a penalty for (something). c. absol. To inflict punishment.
2. a. To fine (a person). b. To exact (money due) from a person. Obs. 3. transf. To handle severely; to inflict heavy damage, injury, or loss on.
[Emphasis added]
[67] To "punish" a person for a crime is to impose judicial sanction; it is to pronounce a sentence relative to the crime for which a conviction has been entered. In my opinion, this definition of "punish" supports the interpretation that the Applicant was "punished" at the time of his sentencing, when the Supreme Court of Nova Scotia convicted and sentenced him to four years imprisonment in a federal penitentiary. The wording of the Applicant's Record of Conviction supports this conclusion. It states, in part:
AND FURTHER on the 25th day of January 2001, Russell Allan Cartwright was convicted of the the [sic] said offence and the following punishment was imposed on him, namely, that he be imprisoned in a Federal Penitentiary for a period of 4 years.
[68] The punishment that the Applicant received was a four year prison term, not a ten month term. While the fact that he was released on parole at the earliest opportunity, after about ten months, may reflect that he was not a significant risk to society, it does not change the fact that he was punished in Canada for a crime by a term of imprisonment of at least two years.
[69] Parole eligibility is governed by Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Further, there are different types of parole, with varying conditions imposed. If the Applicant's interpretation of section 64(2) is accepted, an offender's "term of imprisonment", as it is so defined in IRPA, would be determined by the National Parole Board or provincial parole boards, as the case may be, rather than by the criminal courts upon sentencing.
[70] I agree with the Applicant that the length of time actually served is one indicator of the level of rehabilitation of an individual. However, there is no indication that Parliament's intent in enacting section 64(2) was to use such parole determinations as the litmus test for serious criminality.
[71] In my opinion, section 64(2) must be interpreted as referring to the term of imprisonment for which an offender was sentenced, that is, the punishment imposed, rather than the actual amount of time served prior to being granted parole.
3. Interpretation of section 196 of IRPA
[72] Section 192 and 196 of IRPA provide as follows:
| 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
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192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.
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| 196. Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi. |
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[73] Sections 192 and 196 are transitional provisions of IRPA. Section 196 strips the IAD of jurisdiction to hear certain appeals which were commenced under the former Act. For section 196 to apply to the Applicant, the following pre-conditions must exist:
I) the Applicant has "not been granted a stay under the former Act"
AND
ii) the Applicant could not have made an appeal under IRPA because of section 64
[74] The Applicant argues that he was granted a stay pursuant to section 49(1)(b) of the former Act. Under that section, the execution of a removal order was automatically stayed where an appeal was filed with the IAD of a removal order, until such time as the appeal had been heard and disposed of or declared abandoned by the IAD.
[75] The Respondent argues that on both a plain word and purposive reading of the legislation, section 196 of IRPA cannot be interpreted as speaking to automatic stays of removal as set out in subsections 49(1)(a) and (b) of the former Act.
[76] The Respondent says that the Applicant's interpretation of section 196 would mean that "virtually every" applicant who had filed a Notice of Appeal with the IAD prior to the coming into force of IRPA, would not be caught by the section 196 exception, given it is a conjunctive test. Therefore, such exception would really be of little purpose or effect, or as stated by the Respondent, section 196 would be rendered "pointless". The Respondent refers to a principle of statutory interpretation that legislative provisions cannot be read to reach absurd or meaningless results.
[77] The interpretation urged by the Respondent is that the stay referred to in section 196 must be one which "was granted" by the IAD under the former Act. Interpreted this way, section 196 limits the right of appeal to those "serious criminals" who have not been granted a stay by the IAD, "based on the meritorious circumstances of their case."
[78] The Respondent also points to a variety of provisions in the former Act where the word "grant" was used. The Respondent says that "grant" was used to refer to the conferment of a right or privilege upon an individual by an officer or body. In contrast, the word "grant" (or "granted") is not used in section 49(1)(b). That section did not involve the granting of a stay by an officer or body but rather related to a statutory entitlement which was automatically triggered upon a certain condition being met.
[79] The Respondent does not identify any sections of the former Act to which section 196 purportedly speaks. That is, under which section of the former Act could a person in the Applicant's circumstances have been granted a stay by the IAD? From my reading of the former Act, the only sections which may apply, on first blush, are sections 73(1)(c) and 74(2) of that Act. Section 73(1)(d) could not have been invoked because the Applicant was not appealing a conditional removal order.
[80] However, sections 73(1)( c ) and 74(2) of the former Act were only applicable as possible relief upon disposition of an appeal by the IAD. They did not apply to the interim period, while an applicant's appeal was pending. That was the situation of this Applicant. Further, the wording of these sections of the former Act does not include language that a stay was to be "granted" but rather that the IAD should "direct" that the execution of removal order be stayed.
[81] I am not convinced by the Respondent's arguments. First, if Parliament had wanted section 196 to apply only to those people with outstanding appeals who actually had stays "granted" under the former Act, then there must have been some provision in the former Act for some Applicants to receive such "granted stays". The Respondent in this case has not referred to any section or manner in which a stay could have been granted to an individual in the Applicant's circumstances. If the Respondent is relying on sections 73(1)( c) and 74(2) of the former Act, I have outlined how these sections do not include the word "grant" in relation to stays and that these sections were inapplicable to applicants prior to the IAD hearing the disposition of their appeals.
[82] Second, under the former Act, since the Applicant's removal was automatically stayed, pending his IAD appeal, could he have obtained a judicially "granted" stay? At the hearing of this matter, I brought the case of Solis v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 693 (T.D.), to the parties' attention and provided them with an opportunity to present written comments on it.
[83] In Solis, supra, this Court rejected an application for a judicial stay, finding that the section 49(1)(b) statutory stay remained in effect. The Court held that since the statutory stay was in effect, there was no need for the Court to grant a discretionary stay.
[84] The Respondent submits that Solis, supra, does not affect the argument relative to section 196 because it was decided prior to the enactment of IRPA and could not have contemplated the present situation. The Respondent also says that Solis, supra, does not address the argument that IRPA must be interpreted in a purposive manner and avoid the creation of an absurdity. The Applicant did not provide submissions on Solis, supra.
[85] The question that arises is whether the Applicant had a "stay" for the purposes of IRPA, pursuant to the Immigration Act, supra. In light of the decision in Solis, supra, it is reasonable to conclude that if he had applied for a stay in the usual way, that is pursuant to a Notice of Motion, it would have been dismissed on the ground that a statutory stay was in place. On the other hand, if he had brought a motion for a stay under IRPA, then that motion would likely have been dismissed on the basis of prematurity since IRPA did not come into effect until June 28, 2002. In short, the Applicant was left with few options as the legislative regime under the former Immigration Act, supra came to an end and the new regime began.
[86] In my opinion, the government, and not the individual, should be held accountable for ambiguous drafting, particularly when it is unclear that the Applicant had any chance of obtaining a "granted stay". This finding accords with the principle that the government should treat individuals equitably when drafting new legislation that will have some retrospective effect, extinguishing processes afforded to applicants that existed under previous legislation. This is particularly so when the ability to appeal has such significant consequences for an applicant, as it does in the realm of immigration law, and where such process was already underway pursuant to the former Act.
[87] Therefore, I conclude that the Adjudicator erred in law in finding that section 196 applied to the Applicant and that the IAD lacked jurisdiction to hear his appeal.
4. Charter Issues
[88] The final issue raised in this application for judicial review relates to the Applicant's claim that his section 7 and 15(1) Charter rights were violated by the IAD hearing process. Specifically, the Applicant claims that his IAD appeal was delayed because of where he lives in Canada and such delay resulted in the loss of his appeal rights, due to the coming into force of IRPA on June 28, 2002.
[89] In light of my finding that the Adjudicator erred in her interpretation of section 196, it is unnecessary to deal with the Charter arguments raised by the Applicant.
[90] Neither party requested that a question be certified in this matter, therefore, none will be certified. I note that a question related to whether section 49(1)(b) stays under the former Act apply to section 196 of IRPA has been certified in the case of Medovarski v. Canada (Minister of Citizenship and Immigration), 2003 FCT 634, [2003] F.C.J. No. 811 (T.D.)(QL).
ORDER
This application for judicial review is allowed and the matter is remitted to a different panel of the IAD, to be adjudicated pursuant to section 192 of IRPA. Section 196 does not apply to the Applicant. No question is certified.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3400-02
STYLE OF CAUSE: RUSS ALLEN CARTWRIGHT v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: MARCH 4 AND 17, 2003
REASONS FOR ORDER
AND ORDER : HENEGHAN J.
APPEARANCES:
MR. M. LEE COHEN FOR APPLICANT
MS. MELISSA CAMERON FOR RESPONDENT
SOLICITORS OF RECORD:
M. LEE COHEN FOR APPLICANT
HALIFAX, NOVA SCOTIA
MORRIS ROSENBERG, Q.C. FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
FEDERAL COURT OF CANADA
Date: 20030626
Docket: IMM-3400-02
BETWEEN:
RUSS ALLAN CARTWRIGHT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER