Ottawa, Ontario, January 16, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Arman Bautista (the Applicant) seeks judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Protection Board dated April 8, 2005, wherein the IAD determined that the appeal of the removal order issued against the Applicant was terminated and that the stay of his removal order was cancelled.
[2] The Applicant is a Filipino citizen who came to Canada in 1994, as a permanent resident. The Applicant received six criminal convictions in 1997 and 1998, two of which resulted in sentences of 2 years and 6 months imprisonment each. Based on these two convictions and pursuant to the provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"), the Immigration Division of the Immigration and Refugee Protection Board issued a deportation order against the Applicant on May 23, 2000.
[3] As provided for in the former Act, the Applicant appealed his deportation order to the IAD. After reviewing the circumstances of his case, by Order dated May 29, 2001, the IAD stayed the Applicant's deportation order, subject to a number of conditions, and set a review date for May 14, 2005. The Applicant received six new criminal convictions between May 21, 2003 and July 8, 2004, for which he was sentenced to pay fines, to serve probation and to be incarcerated for a total period of time amounting to less than six months of imprisonment.
[4] On June 28, 2002, the former Act was repealed and the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") came into force. On May 18, 2004, the Solicitor General of Canada moved to dismiss the Applicant's appeal and remove the stay of his deportation order.
The IAD Decision
[5] Having heard that application on January 14, 2005, the IAD determined that the Applicant's appeal was terminated and his stay removed by operation of law. The IAD concluded that ss. 197, 64, and 68(4) of the IRPA applied on the grounds of "serious criminality", which means a conviction punished by a term of imprisonment of at least two years.
[6] The IAD relied on the rulings in Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85 (hereinafter "Medovarski (F.C.A.)"), aff'd [2005] S.C.J. No. 31, 2005 SCC 51 (hereinafter "Medovarski (S.C.C.)") and Psyrris v. Canada(Minister of Citizenship and Immigration), 2004 FC 1443. Since the Applicant had been granted a stay under the former Act and had breached the conditions of that stay by committing new crimes, s. 197 of the IRPA applied and brought ss. 64 and 68(4) into play. The IAD ruled that ss. 64 and 68(4) extinguished the right of appeal and terminated the stay where a person had been punished for a conviction by a term of imprisonment of at least two years. The IAD noted that the Applicant had received a punishment of two years and six months. Therefore, the IAD found that it had no jurisdiction to exercise discretionary relief; that is, it could not consider "all the circumstances of the case" as it would have done under s. 70(1)(b) of the former Act.
Issues
[7] The issue in this application is whether s. 197, a transitional provision of the IRPA, removes the right to continue an appeal to the IAD where:
- Prior to the coming into force of IRPA, the person had committed a crime that resulted in imprisonment of at least two years;
- A removal order had been issued as a result of this conviction;
- The person had, as allowed by the provisions of the former Act, appealed his removal order to the IAD;
- The IAD, after considering all of the circumstances of the case, had granted a stay, subject to conditions, which permitted the person to remain in Canada in spite of the criminal conviction;
- The person had breached conditions of the stay but had not committed any further offences that resulted in sentence of more than six months imprisonment.
[8] In the application before me, there is no question as to the facts. That is, the Applicant does not dispute that he breached the conditions of his stay. The question boils down to the effect of the timing of the Applicant's two-year conviction. On the Applicant's interpretation of the relevant statutory provisions, s. 197 does not apply where the conviction took place before the IAD stay was granted and, therefore, his right of appeal to the IAD continues. The Respondent argues, in effect, that it is irrelevant whether the conviction for which the Applicant received a two-year sentence was prior to his stay; ss. 64 and 197 operate to remove his right to continue his appeal to the IAD.
[9] The parties acknowledge that the standard of review to be applied to the IAD's decision, which is a question of law, is one of correctness. I agree. Questions of statutory interpretation are questions of law to be reviewed on a correctness standard (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 8).
Relevant Legislation
IRPA
| 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force. |
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. |
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| 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.
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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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| 197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act. |
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable. |
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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.
(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. |
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. |
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| 68. (4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated. |
68. (4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l'étranger est reconnu coupable d'une autre infraction mentionnée au paragraphe 36(1), l'appel étant dès lors classé. |
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| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed[.]
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36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé[.]
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Analysis
[10] At the heart of this conflict is an issue of statutory interpretation. Very recently, the Supreme Court of Canada at para. 8 of Medovarski (S.C.C.), provided guidance on the approach to take on a closely-related question:
The words of this statute, like any other, must be interpreted having regard to the object, text and context of the provision, considered together: E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. In interpreting s. 196 to determine whether it eliminates appeals for permanent residents for whom a stay from an order for removal had been granted, I consider the purpose of the IRPA and its transitional provisions, the French and English text of s. 196, the legislative context of s. 196, and the need to interpret the provision to avoid an absurd, illogical or redundant result. Finally, I deal with concerns about unfairness to the appellants caused by the transition to the new IRPA.
[11] In Medovarski (S.C.C.), above, the Supreme Court concluded that s. 196 of the IRPA removed an appellant's right to appeal the order for removal for serious criminality. The Applicant points out that the application before me involves a different transitional provision of the IRPA - specifically, s. 197 - and that the proper interpretation of s. 196 was not settled by the Medovarski (S.C.C.) decision. I agree that the specific question before me was not addressed by the Supreme Court. However, like s. 196, s. 197 is part of a broader package of transitional provisions that are nested within the IRPA and that deal with serious criminality. Thus, the principles and approach utilized by the Supreme Court in its analysis are helpful and directly relevant. Accordingly, I will follow a similar approach, applying the conclusions of the Supreme Court where they are applicable.
Purpose of the IRPA and its transitional provisions
[12] In Medovarski (S.C.C.), above, the first step in the Supreme Court's analysis was a review of the purpose of the applicable transitional provisions of the IRPA. In doing so, Chief Justice McLachlin, speaking for the unanimous court, made comments that were general in nature and are not confined to an interpretation of s. 196. Beginning at para. 9, Chief Justice McLachlin stated:
¶ 9 The IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA, the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA.
¶ 10 The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g. see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
¶ 11 In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA, s. 36(1)(a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA, s. 64. Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal.
¶ 12 In introducing the IRPA, the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that "those who pose a security risk to Canada be removed from our country as quickly as possible".
¶ 13 In summary, the provisions of the IRPA and the Minister's comments indicate that the purpose of enacting the IRPA, and in particular s. 64, was to efficiently remove criminals sentenced to prison terms over six months from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by serious criminals), it seems that the transitional provisions should be interpreted in light of these legislative objectives.
[13] These cited paragraphs refer to the general intent of Parliament to enact a scheme of legislation that efficiently removes criminals who have been sentenced for "serious criminality". As part of the scheme, Parliament included s. 64 which bars appeals to the IAD in such cases. Section 197 refers to s. 64 and, as the Supreme Court did in Medovarski (S.C.C.), above, with respect to s. 196, s. 197 should be interpreted in light of the legislative objectives.
Overview of the IRPA scheme
[14] It is useful to review the treatment, under the IRPA, of permanent residents who have received criminal convictions. Under the current regime of the IRPA, a foreign national who is inadmissible because of an offence for which a maximum term of imprisonment is at least 10 years and for which a term of imprisonment of 2 years or more is imposed has no right to an appeal to the IAD (s. 36(1) and s. 64). Thus, this foreign national would have no right to a statutory stay from the IAD as provided for in s. 68 of the IRPA. It should be noted that, while the definition of serious criminality includes a sentence of 6 months or more (s. 36(1)), the right of appeal is only removed for serious criminality if the sentence imposed is greater than 2 years (s. 64(2)).
[15] Another aspect of the IRPA scheme is dealt with in s. 68, which addresses the jurisdiction of the IAD to stay removal orders. Section 68(4) operates to cancel the stay and terminate the appeal of a foreign national who: (a) was found inadmissible on grounds of criminality or serious criminality; (b) is the subject of a stay of the removal order; and (c) is convicted of another offence referred to in s. 36(1).
[16] Accordingly, under the provisions of the IRPA, a foreign national who meets the criteria of either s. 64 or s. 68(4) will have no right to plead special circumstances to the IAD. This is so regardless of the personal circumstances of the person and regardless of when the convictions occurred.
[17] As of June 2002, when the IRPA came into force, there were many permanent residents who were subject to the stay provisions of the former Act. That is, in spite of valid removal orders, the IAD had, pursuant to s. 70(1)(b) of the former Act, considered "all the circumstances of the case" and, pursuant to s. 73(1) and s. 74(2) of the former Act, stayed the execution of the removal order subject to such terms and conditions as the IAD considered necessary or advisable. The removal orders could have resulted from convictions for offences punishable by a maximum term of imprisonment of 10 years or more (former Act, s. 19(1)(c)). For illustrative purposes, consider these examples of three individuals who could have been the subject of removal orders and stays under the former Act:
- Permanent resident A was convicted of an offence with a maximum term of ten years and sentenced to three months imprisonment. A could have been the subject of a removal order and a stay granted by the IAD. If considered under the IRPA, however, the offence of A would not meet the criteria of either serious criminality in s. 36(1) or the two-year minimum sentence set out in s. 64 that would have removed his right of appeal.
- Permanent resident B was issued a removal order based on an offence with a maximum term of imprisonment of ten or more years; he received a sentence of eight months. If considered under the IRPA, B would meet the criteria for serious criminality in s. 36(1) but would not be subject to the automatic removal of an appeal right under s. 64.
- Permanent resident C was convicted of an offence with a maximum term of ten years and sentenced to more than two years imprisonment. Under the IRPA, his criminality would be included as serious criminality as set out in s. 36(1) and, because of the two-year term of imprisonment, he would have no right of appeal to the IAD (s. 64(1)). The Applicant's situation falls within the description of permanent resident C.
[18] In sum, the class of persons subject to stays under the former Act includes but is broader than those who would be caught by either s. 64 or s. 36(1) of the IRPA, or both.
The Text of Section 197
[19] The next step of the analysis is to consider the words used in s. 197. What do the words "the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act" mean?
[20] The Applicant asserts that, because his two-year conviction took place before the coming into force of the IRPA and the grant of his stay by the IAD, s. 197 is not applicable to him. As I understand his submissions, he relies on two principle arguments related to the meaning of the words used in s. 197:
- Since there is an omission of any explicit reference to a discontinuance of an IAD appeal, s. 197 cannot mean that a hearing that has been stayed is discontinued;
- The Applicant must meet the criteria of both s. 64 and s. 68(4) before s. 197 operates to remove his appeal to the IAD and, on his facts, s. 68(4) does not apply to him.
[21] I will deal with each of these arguments.
No explicit reference to discontinuance of IAD appeal
[22] As noted in Medovarski (S.C.C.), at para. 37, the granting of a stay under the former Act was "merely a temporary measure". The IAD retains an ongoing supervisory jurisdiction and the appeal to the IAD can only be "disposed of, or terminated, when the appeal is allowed or dismissed".
[23] The Applicant argues that, by not including words that would explicitly discontinue an ongoing appeal to the IAD, s. 197 cannot operate to discontinue the appeal of the Applicant that had been stayed in 2001. Thus, he submits, his appeal rights that commenced in 2001 with the granting of a stay have not been extinguished. In support of this reading of s. 197, the Applicant refers to the explicit use of the words in s. 196 that state that "an appeal . . . shall be discontinued". In drafting s. 197, Parliament could have but did not provide for a discontinuance of the appeal. Accordingly, the Applicant asserts that the plain meaning of the words of s. 197 does not capture his situation; only if s. 68(4) is engaged (which it is not in this case), are the stay and appeal right terminated.
[24] This argument takes a very limited and narrow view of the task of statutory interpretation. The Applicant would have me infer, from the omission of one word, that the opposite is true.
[25] In my view, one cannot take such an isolated view of s. 197. Rather, it must be read and interpreted in context. Essentially, ss. 190, 192 and 197 operate together to define the rights of persons who commenced appeals to the IAD prior to the coming into force of IRPA and whose appeals have not been finally determined (Singh v. Canada (Minister of Citizenship and Immigration) 2005 FCA 417, at para. 39). Read in sequence, each of these three transitional provisions covers a progressively smaller group of persons. Section 190 mandates that the IRPA, rather than the former Act, applies to all of those who had proceedings pending or in progress under the former Act. Section 192 carves out a group of these individuals to whom the IRPA does not apply and permits an appeal to be continued under the former Act. Finally, s. 197 selects a smaller group of individuals and dictates that ss. 64 and 68(4) of the IRPA apply to selected individuals in the s. 192 group.
[26] Thus, by definition, the group of persons to whom s. 197 applies includes only persons whose appeals are continuing or, stated in other words, whose appeals have not been finally determined. When the word "continued" is used to apply to the group of persons defined by s. 192, it logically follows that the effect of carving out a special group for purposes of s. 197, by utilizing the words "despite section 192", is to discontinue or terminate their appeals.
[27] For appeals to continue to a final disposition, the IAD must retain its jurisdiction. In other words, appellants must continue to enjoy a right of appeal. Should the right of appeal be lost, as provided for in s. 64, however, the appeal must be dismissed for lack of jurisdiction. Accordingly, I conclude that the better meaning of these provisions is that, whenever an appellant meets the criteria set out in s. 197 and s. 64, s. 197 would operate to discontinue or terminate the appeal that was still ongoing.
[28] In my view, this is the only interpretation that gives effect to the entire package of ss. 190, 192 and 197. While Parliament could have used language in s. 197 that made clearer this result, I do not believe that its failure to do so alters the logical meaning of the provisions in question.
Use of "and" in s. 197
[29] The Applicant highlights the use of the conjunctive "and" in s. 197. He submits that, by making an appellant "subject to the provisions of section 64 and subsection 68(4) of the Act", an appellant must meet the requirements of both provisions. That is, s. 197 would only operate to cancel a stay in situations where:
- An appellant had been granted a stay under the former Act and breached the conditions of that stay;
- The appellant had been convicted of an offence that meets the criteria of serious criminality set out in s. 64(2) (a term of imprisonment of at least two years); and
- Since the granting of the stay, the Appellant had been convicted of an offence that meets the criteria set out in s. 68(4), that being an offence referred to in s. 36(1) of the IRPA (a maximum term of imprisonment of at least 10 years for which a term of imprisonment of more than six months has been imposed).
[30] In the Applicant's case, only the first two factors are satisfied; the imprisonment sentences imposed since the grant of the stay do not meet the threshold set out in s. 36(1) of the IRPA. He argues that his stay would only automatically be cancelled and his appeal terminated if his offences since 2001 were such that terms of imprisonment of at least 10 years could have been imposed and he had been subject to at least six months imprisonment. According to the Applicant, this means that s.197 does not apply to him and that the IAD retains jurisdiction to consider "all the circumstances" of his case.
[31] First, I agree with the Applicant that s. 68(4) does not apply to his case. Sections 62 to 69 of the IRPA provide a framework in which the IAD may hear appeals, including appeals of removal orders. Section 68 deals specifically with the granting of a stay of a removal order. Section 68(4) only applies to cancel the stay granted pursuant to s. 68(1) if the foreign national is convicted of another offence referred to in s. 36(1)(a). None of the Applicant's convictions after the granting of his stay were in respect of offences punishable by a maximum term of at least ten years or for which a term of imprisonment of six months was imposed. Thus, those offences and convictions do not meet the threshold of "serious criminality" set out in s. 36(1)(a) and s. 68(4) does not, on the facts of this case, have any applicability.
[32] In spite of this conclusion, the Applicant's overall argument can only succeed if he is correct that s. 197 requirements are met only if both s. 64 and s. 68(4) must apply to him. For the reasons that follow, I do not accept this interpretation, either on the specific words used in s. 197 or when the provision is read with the principles of statutory interpretation in mind.
[33] I first note that s. 197 does not state directly that the appeal is discontinued if the provisions of ss. 64 and 68(4) are met. Were the provision worded in such a manner, the Applicant's argument might have some merit. Rather, the words of the provision are directed at who is included in a particular group of persons. Specifically, s. 197 applies to "an appellant who has been granted a stay under the former Act [who] breaches a condition of the stay". The provision, as worded, is not triggered by the application of ss. 64 and 68(4); the trigger is the breach of a stay. If an appellant breaches a condition of the stay, s. 197 provides that he will be subject to ss. 64 and 68(4). A reasonable interpretation of this is that, once the IAD concludes that the conditions of a stay have been breached, the IAD must look to each of ss. 64 and 68(4) to determine whether either of those provisions is applicable. This is not a statement that both sections must be applicable. Just because one of those provisions does not apply to an appellant does not automatically mean that s. 197 is inapplicable. On a plain meaning of s. 197, the Applicant is subject to both s. 64 and s. 68(4). If only s. 64 applies to the facts, that section will be determinative and remove the Applicant's right of appeal. As discussed above, the effect, in this case, is a termination or final disposition of the appeal to the IAD that was commenced in the year 2000.
The French and English Texts
[34] Even if I am wrong and there is any ambiguity in the English version of s. 197, that ambiguity is clarified by the French version. For ease of reference, I will set out the provision once more, in both languages, with the relevant portion of each underlined:
| 197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act. |
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable. |
[35] The French text shows that, when s. 197 refers to s. 64, it is because s. 64 bars an appeal. Roughly translated, the French version of the text makes the appellant subject to the restriction of his right of appeal set out in s. 64. In the French version, there is no use of the word "and". Rather the text uses a different expression, "lui étant par ailleurs applicable" when it speaks of s. 68(4). The phrase translates roughly to "moreover, section 68(4) is otherwise applicable to the appellant". In the French version, ss. 64 and 68(4) may operate separately and the operation of s. 64 is not contingent on the applicability of s. 68(4).
[36] Applying the principles of French and English statutory interpretation, as described by the Supreme Court of Canada in Medovarski (S.C.C.), above at paras. 25-26, the clearer, less ambiguous and more restrictive version is the French. Further, in my view, this interpretation also is consistent with the intent of the transitional provisions (discussed above and further below). Thus, the common meaning that should be ascribed to s. 197 does not require that both ss. 64 and 68(4) be applicable; the word "and" in the English version should not be read in the manner suggested by the Applicant.
Other considerations
[37] There are two more compelling reasons that support the above interpretation. First, the Applicant's interpretation of s. 197 would result in s. 64 having no applicable purpose in the s. 197 scheme. As explained by the Supreme Court in Medovarski (S.C.C.) in the context of s. 196, above at para. 31, the s. 197 scheme should be interpreted to avoid redundant, absurd, or meaningless provisions. If it always had to be the case that an appellant had to meet the criteria of ss. 64 and 68(4) in order for s. 197 to apply, then in every situation s. 68(4) would be sufficient to remove the appellant's right of appeal and terminate his stay. The inclusion of s. 64 in the s. 197 scheme would be redundant.
[38] Second, the Applicant's interpretation of s. 197 would result in benefits to him that have been removed from others in similar situations. If we read s. 197 as urged by the Applicant, in spite of his pre-stay conviction for which he received a two-year sentence, he would have a continued right to an appeal to the IAD whereas permanent resident C (referred to above) would not. His situation would be markedly different from that of a foreign national with an identical criminal record whose removal order was issued after June 28, 2002.
[39] Individuals subject to stays granted under the former Act whose criminal offences would, today, meet the criteria of s. 64 of the IRPA are in a special and favourable position compared to foreign nationals whose situations are considered under the IRPA. In drafting the transitional provisions, it seems to me that Parliament was extending a privilege to the foreign nationals subject to a stay granted under the former Act. The transitional provision of s. 197, however, also makes it clear that, should the terms of the stay be breached, the foreign national would be treated like any other foreign national. Specifically, the right to appeal to the IAD would be removed where a sentence of at least two years had been imposed.
[40] Viewed in this light, the logical meaning of s. 197 is that Parliament has removed the right to an IAD appeal for the Applicant. Whether or not an IAD appeal was in process, the right has been extinguished, thereby placing the Applicant in exactly the same position as all other foreign nationals in the situation of permanent resident C. The transitional provisions provide a favoured position only for those convicted foreign nationals who continue to abide by the terms and conditions of their stays; a breach of the stay removes the privilege of special treatment afforded by the transitional provisions.
Relevant Jurisprudence
[41] The question of the meaning of s. 197 and its interaction with s. 64 have been considered on at least three occasions by this Court. In Psyrris v. Canada (Minister of Citizenship and Immigration), 2004 FC 1443 and Avalos v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] A.C.F. no. 1035, this Court considered very similar factual situations. Specifically, the IAD decision in each was based on the applicability of s. 64 and not of s. 68(4). In each case, the Court concluded that the IAD had not erred in refusing to exercise its discretion. However, it does not appear that the arguments made to me in this application were before the application judges. Accordingly, while I agree with the result in both cases, they are not directly on point.
[42] The final and most relevant decision is that of Canada(Minister of Citizenship and Immigration)v. Hyde [2005] F.C.J. No. 1178; 2005 FC 950. The facts of that case are very similar to those before me; Mr. Hyde had breached the conditions of his stay but s. 68(4) was not engaged on the facts of the case. The IAD determined that, because s. 68(4) did not apply to Mr. Hyde, the stay was not cancelled by operation of law. The Court upheld the decision of the IAD. Having reviewed the decision in Hyde, I find that I am unable to agree with the analysis and conclusion of my colleague, for two main reasons:
- Since this decision, the Supreme Court of Canada has enunciated principles that have direct applicability to the interpretation of s. 197 and which could change the analysis in Hyde (Medovarski (S.C.C.), above); and
- The Court in Hyde did not consider the French version of s. 197 in light of the comments made by the Supreme Court in Medovarski (S.C.C.), above, on the interpretation of bilingual statutes.
Conclusion
[43] In summary, I conclude that the IAD was correct in its interpretation of s. 197. Given that:
(a) the Applicant breached the conditions of his stay; and
(b) he is inadmissible to Canada on grounds of serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least two years;
the IAD is without jurisdiction to consider the appeal of the Applicant. The fact that the Applicant's convictions after the grant of the stay would not meet the threshold of s. 68(4) of the IRPA is irrelevant. It is sufficient that he meets the threshold of s. 64.
[44] I believe that this is an appropriate case in which to certify a question, as was done in Hyde, above. Accordingly, I am prepared to certify the following question of general importance:
If a permanent resident:
(a) has committed an offence with a maximum sentence of at least 10 years for which a sentence of at least two years was imposed;
(b) has been found inadmissible and made the subject of a removal order under the former Act;
(c) was granted a stay by the IAD under the former Act; and
(d) has breached the conditions of his stay but has not been convicted of any offence that would meet the threshold of s. 68(4) of the IRPA;
does s. 197 operate to discontinue his appeal to the IAD?
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- The following question is certified:
If a permanent resident:
(a) has committed an offence with a maximum sentence of at least 10 years for which a sentence of at least two years was imposed;
(b) has been found inadmissible and made the subject of a removal order under the former Act;
(c) was granted a stay by the IAD under the former Act; and
(d) has breached the conditions of his stay but has not been convicted of any offence that would meet the threshold of s. 68(4) of the IRPA;
does s. 197 operate to discontinue his appeal to the IAD?
Judith A. Snider
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2866-05
STYLE OF CAUSE: ARMAN BAUTISTA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 6, 2005
APPEARANCES:
| Ms. Shirish Chotalia
|
|
| Mr. Brad Hardstaff
|
SOLICITORS OF RECORD:
| Pundit & Chotalia Edmonton, Alberta
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |