Date: 20060131
Ottawa, Ontario, the 31st day of January 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
JUAN MIGUEL BENAVIDES LIVORA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of R. Néron, a member of the Immigration Appeal Division (IAD), dated June 7, 2005. By that decision, the IAD member dismissed the appeal by Juan Miguel Benavides Livora (the applicant) from a decision by Rolland Ladouceur, a member of the Immigration Division of the Immigration and Refugee Board (IRB), dated January 14, 2005. The decision to dismiss the appeal was based on the following two points:
- under subsections 64(1) and (2) IRPA, the right of appeal to the IAD does not exist for permanent residents inadmissible for serious criminality;
- there is no basis for examining the constitutional validity of these subsections, as the applicant failed to provide all Attorneys General with copies of the notice of constitutional question required under section 52 of the Immigration Division Appeal Rules.
ISSUE AND RELIEF SOUGHT
[2] The only issue is the following:
- did the IAD member err in law when he ruled that he did not have jurisdiction to rule on the constitutional validity of subsections 64(1) and (2) IRPA, as the applicant had failed to send a notice of a constitutional question?
[3] The applicant is asking this Court to:
- quash the decision of June 7, 2005 dismissing the applicant’s appeal from the deportation order made against him on January 14, 2005;
- declare that under various constitutional provisions and international law arguments subsections 36(1) and 64(1) and (2) of the IRPA are of no force or effect and inapplicable in the case at bar;
- stay his removal.
[4] In the alternative, the applicant asked the Court to order the IAD to hear the applicant and to rule on the constitutional question.
BACKGROUND TO PROCEEDINGS
[5] The applicant is 50 years old and was born in Peru. He came to Canada in 1983 and became a permanent resident on November 2, 1991. The background to the proceedings is as follows:
- on January 9, 2004 a term of three years’ imprisonment was imposed on the applicant when he was convicted of various cocaine trafficking offences;
- on January 14, 2005, following an inquiry to determine whether the applicant should be deported from Canada, Rolland Ladouceur, a member of the IRB, made a deportation order against him pursuant to subsections 36(1)(a) and 45(d) of the IRPA (inadmissible for serious criminality);
- on January 18, 2005, the applicant appealed from this decision to the IAD;
- on June 7, 2005, IAD member R. Néron dismissed the appeal on the ground that, under subsections 64(1) and (2) IRPA, such a right of appeal was not available for permanent residents inadmissible for serious criminality. The member also decided not to rule on the applicant’s constitutional arguments as the latter had failed to forward copies of the notice of constitutional question required under section 52 of the Immigration Appeal Division Rules (IAD Rules) to the Attorneys General of all the provinces;
- on June 21, 2005, the applicant filed this application for judicial review;
- on November 8, 2005, the applicant was granted leave to submit his application for judicial review;
- on December 23, 2005, the applicant filed a pre-removal risk assessment application (PRRA application);
- on January 9, 2006, the applicant was released from jail;
- on January 10, 2006, the PRRA application was dismissed;
- on January 12, 2006, the undersigned made an order to stay the applicant’s removal, scheduled for January 13, 2006, until the application for judicial review had been decided;
- the hearing on this application for judicial review took place on January 26, 2006.
ANALYSIS
[6] Subsections 64(1) and 64(2) IRPA read as follows :
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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.
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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.
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(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. |
(2) L’interdiction de territoire pour grande criminalité vise l’infraction punie au Canada par un emprisonnement d’au moins deux ans. |
[7] It is not disputed that the IAD did not have jurisdiction to hear the appeal. The applicant alleged that the IAD should still have ruled on the constitutional validity of these provisions, despite the applicant’s failure to send copies of the notice of constitutional question to the Attorneys General of each of the provinces, as required under section 52 of the IAD Rules. The relevant portions of that section read as follows:
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52. (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
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52. (1) La partie qui veut contester la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, d’une disposition législative établit un avis de question constitutionnelle.
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. . .
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[…]
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(3) The party must provide |
(3) La partie transmet : |
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(a) a copy of the notice of constitutional question to the Attorney General of Canada and to the attorney general of every province and territory of Canada, according to section 57 of the Federal Court Act; |
a) au procureur général du Canada et au procureur général de chaque province et territoire du Canada, en conformité avec l’article 57 de la Loi sur la Cour fédérale, une copie de l’avis; |
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(b) a copy of the notice to the other party; and |
b) à l’autre partie une copie de l’avis; |
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(c) the original notice to the Division, together with a written statement of how and when a copy of the notice was provided under paragraphs (a) and (b).
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c) à la Section l’original de l’avis, ainsi qu’une déclaration écrite indiquant à quel moment et de quelle façon une copie de l’avis a été transmise aux destinataires visés aux alinéas a) et b). |
[8] Subsections (1), (2) and (3) of section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7 (FCA), read as follows:
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57. (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
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57. (1) Les lois fédérales ou provinciales ou leurs textes d’application, dont la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, est en cause devant la Cour d’appel fédérale ou la Cour fédérale ou un office fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n’aient été avisés conformément au paragraphe (2).
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(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise.
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(2) L’avis est, sauf ordonnance contraire de la Cour d’appel fédérale ou de la Cour fédérale ou de l’office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l’objet doit être débattue.
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(3) The Attorney General of Canada and the attorney general of each province are entitled to notice of any appeal or application for judicial review made in respect of the constitutional question. |
(3) Les avis d’appel et de demande de contrôle judiciaire portant sur une question constitutionnelle sont à signifier au procureur général du Canada et à ceux des provinces. |
[9] As the point is one of law, the applicable standard of review is that of correctness. The language of the sections quoted is clear and the notice of a constitutional question is not usually regarded as a formality which can be lightly disregarded (see e.g. Bekker v. Canada, 2004 FCA 186, [2004] F.C.J. No. 819, at paragraph 8).
[10] In any event, even if the notice of a constitutional question had been sent, the IAD could not have ruled on the constitutional question since it lacks the necessary jurisdiction in the case of permanent residents found inadmissible on grounds of serious criminality (see Ferri v. Canada (Minister of Citizenship and Immigration), 2005 FC 1580, [2005] F.C.J. No. 1941, and Kroon v. Canada (Department of Citizenship and Immigration), 2004 FC 697, [2004] F.C.J. No. 857). In the latter case, Rouleau J. wrote at paragraph 33:
In the present case, once the factual determination was made that the applicant was inadmissible for serious criminality, a decision the applicant does not dispute, the IAD lost any mandate to hear an appeal. Since the IAD does not have the power to decide legal questions arising under section 64, it therefore has no power to hear constitutional challenges to that provision.
[11] I would add that the applicant’s arguments seeking to invalidate subsections 64(1) and (2) are without basis, as the point has essentially been decided by the Supreme Court of Canada in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] S.C.J. No. 31.
[12] The parties were invited to submit questions for certification. The applicant asked that the following question be certified:
- did the Immigration Appeal Division of the Immigration and Refugee Board have a duty to hear the appellant in respect of his notice of appeal resulting from a removal order made by the Immigration Division of the IRB, regarding supra-legislative law containing principles of natural justice such as procedural fairness and the duty to act fairly?
- if so, do the protection provisions contained in section 7 of the Canadian Charter of Rights and Freedoms become applicable to protect the applicant’s personal safety?
[13] As the respondents submitted, this question does not meet the criteria laid down by the courts, in particular in Canada (Department of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question must transcend the interests of the parties to the litigation, contemplate issues of broad significance and be determinative of the appeal. In view of the foregoing, the applicant’s question has already been settled by the courts and fails to mention that the applicant is inadmissible for serious criminality. Accordingly, there is no basis for certifying the question.
[14] For these reasons, the application for judicial review is dismissed and no question will be certified. The deportation order made by Mr. Ladouceur on January 14, 2005 is accordingly in effect. In view of the foregoing, the interim stay ordered by the undersigned on January 12, 2006 is also terminated and the application for a stay dismissed.
ORDER
THE COURT ORDERS THAT:
- the application for judicial review is dismissed;
- no question is certified;
- the interim removal stay granted to the applicant is cancelled and the deportation order made is in effect.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3785-05
STYLE OF CAUSE: JUAN MIGUEL BENAVIDES LIVORA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 26, 2006
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Simon Noël
DATED: January 31, 2006
APPEARANCES:
DANIEL DROUIN FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
DANIEL DROUIN FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec