Docket: IMM-6961-03
Citation: 2005 FC 950
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
APPLICANT
AND:
MARTIN RICHARD HYDE
RESPONDENT
INTRODUCTION
[1] On December 24, 2004, this Court referred back to the Immigration Appeal Division of the Immigration and Refugee Board ("IAD" or the "tribunal") its August 6, 2003 decision in order to enable the IAD to decide whether the respondent, Martin Richard Hyde, had breached the terms of a stay of the execution of a deportation order issued against him which stay had been granted under the Immigration Act, 1976 (the "former Act") prior to the coming into force on June 28, 2002, of the Immigration and Refugee Protection Act ("IRPA"). (See, Canada (Minister of Citizenship and Immigration) v. Hyde, 2004 FC 1780).
[2] In doing so, I specifically retained the power to decide the main issue which had been fully argued before me and which went to the jurisdiction of the IAD to review the stay, a question which depended on the interpretation of the transitional provision of section 197 of the IRPA and, in particular, what was meant by the words "shall be subject to the provisions of section 64 and subsection 68(4) of this Act" found in that section.
[3] On May 19, 2005, I was advised by the IAD that five days earlier, it had decided Mr. Hyde had indeed breached a condition of his stay. In the circumstances, I must now decide the main issue. As will be seen, both parties argued section 197 of the IRPA was triggered but differed on how section 64 and subsection 68(4) meshed together in the context of that transitional provision.
[4] The main issue in this judicial review application brought by the Minister of Citizenship and Immigration (the "Minister") is whether the IAD erred when it ruled on August 6, 2003, it had jurisdiction to review the stay of the execution of a removal order, which stay the IAD had issued on January 3, 1999, under section 70 of the former Act to the benefit of the respondent, a permanent resident of Canada. Specifically the IAD ruled that its jurisdiction to review the stay because the appeal was not abolished by section 64 and subsection 68(4) was not engaged on the facts of this case.
[5] The Minister's position is that the IAD, under the IRPA has no jurisdiction to review the stay because section 64 of the IRPA became applicable to Mr. Hyde through the transitional provision of section 197 of the IRPA since he breached the conditions of his 1999 stay when he plead guilty to a charge that on August 2, 2002, he committed an assault contrary to subsection 266(b) of the Criminal Code for which he was sentenced to eight days of imprisonment and placed on probation for another period of twelve months and also plead guilty to another charge that on August 2, 2002, he committed mischief contrary to paragraph 430(4)(b) of the Criminal Code for which he was sentenced to an additional eight days of imprisonment and placed on probation for another period of twelve months.
FACTS
[6] I summarize the material facts which are not in dispute.
[7] Richard Hyde was born in England in 1956 and was landed as a permanent resident in Canada the following year when his parents immigrated to Canada.
[8] On October 30, 1992, he was convicted of one count of possession of narcotics for the purpose of trafficking and was sentenced to four years of imprisonment for that offence. Because of that offence, on December 3, 1996, he was the subject of a report under section 27 of the former Act as a person described in subparagraph 27(1)(d)(i) of that Act. It is unknown whether a removal order was issued against him at that time.
[9] On January 4, 1999, a report under section 27 of the former Act was issued stating Mr. Hyde was a person described in subparagraph 27(1)(d)(ii) in that he had been convicted on September 21, 1998, of one count of possession of narcotics for the purpose of trafficking and one count of possession of an unregistered restricted weapon, contrary to subsection 91(1) of the Criminal Code for which he was sentenced to four years imprisonment and six months imprisonment respectively.
[10] On January 3, 1999, an adjudicator of the then Adjudication Division of the Immigration and Refugee Board found Mr. Hyde to be a person described under subparagraphs 27(1)(d)(i) and (ii) of the former Act and issued a deportation order against him. Mr. Hyde immediately filed with the IAD an appeal under section 70 of the former Act.
[11] Before the IAD, Mr. Hyde did not contest the validity of his deportation order. His appeal was founded on equitable considerations including the fact that he was married for little more than three years and had a daughter and step-daughter. Both Mr. Hyde's counsel and counsel for the Minister recommended the execution of his removal order be stayed. On June 8, 1999, the IAD granted Mr. Hyde a five-year stay subject to certain terms and conditions contained in its order including a condition Mr. Hyde refrain from the illegal use or sale of drugs, he keep the peace and be of good behaviour.
[12] On September 1, 2000, Mr. Hyde's stay was reviewed by the IAD and maintained essentially on the same terms and conditions as the 1999 stay.
[13] As noted, on August 15, 2002, after the coming into force of the IRPA, Mr. Hyde pleaded guilty to the two charges described in paragraph 5 of these reasons.
[14] It was also stated to the IAD by the Minister's counsel that at an interview conducted by an immigration officer on January 29, 2003, in Charlottetown, Mr. Hyde admitted he had used drugs in August 2002.
[15] A hearing was held by the IAD for April 23, 2003, to review the stay. It was then counsel for the Minister intervened to submit the IAD was without jurisdiction to review the stay because Mr. Hyde had breached the conditions of his stay and section 64 of the IRPA was a bar to the review.
[16] Counsel for the Minister, before the IAD, stated section 197 of the IRPA provides that section 64 of the IRPA applies and, in particular, since he was inadmissible on grounds of serious criminality and was punished in Canada for a term of imprisonment of four years, he does not have the right to appeal to the IAD and it followed as a matter of law, his appeal is dismissed due to lack of jurisdiction.
THE TRIBUNAL'S DECISION
[17] The tribunal, in rejecting the Minister's argument, stated as follows:
[14] In her further reasoning, the Minister's counsel only refers to section 64 of the IRPA and not to section 68(4). Section 64 states that:
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.
[15] The Minister's counsel then refers to section 320(5) of the Immigration and Refugee Protection Regulations (the IRPR) which provides:
320. (5) A person who on the coming into force of this section had been determined to be inadmissible on the basis of paragraph 27(1)(d) of the former Act is
(a) inadmissible under the Immigration and Refugee Protection Act on grounds of serious criminality if the person was convicted of an offence and a term of imprisonment of more than six months has been imposed or a term of imprisonment of 10 years or more could have been imposed; or [. . .]
[16] She concludes that since respondent-appellant was determined by an adjudicator to be inadmissible on the basis of sub paragraphs 27(1)(d)(i) and (ii) of the Act for offences for which he was sentenced to four years of imprisonment, he would be a person inadmissible on the basis of 27(1)(d) since he was also convicted of an offence and of a term of imprisonment of more than six months, he would be inadmissible on grounds of serious criminality under the IRPA. She concludes that the respondent-appellant cannot make an appeal according to section 64 of the IRPA because he was an inadmissible person on grounds of serious criminality, a person who was convicted of a crime that was punished in Canada by a term of imprisonment of at least two years.
[17] The panel cannot follow the reasoning of the Minister's counsel since she avoids a very important section of the IRPA to which section 197 refers explicitly. In fact, section 68(4) of the IRPA refers to section 64 for the appeal right but explicitly refers to subsection 68(4) which applies to the cases where a stay of a removal order was granted as it is the case in the present instance. Subsection 68(4) provides that:
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.
[18] According to subsection 68(4) of the IRPA, we should then refer to section 36(1) which was also omitted by the Minister's counsel, to know whether the stay shall be cancelled by operation of law. Section [subsection] 36(1) provides:
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;
[19] In order to know if the offences committed by the respondent-appellant correspond to subsection 36(1), we have to refer to the subsections 266(b) and 430(4)(b) of the Criminal Code of Canada for the offences committed by the appellant. Subsection 266(b) and 430(4)(b) of the Criminal Code state the following:
266. Every one who commits an assault is guilty of
[ . . . ]
(b) an offence punishable on summary conviction.
(4) Every one who commits mischief in relation to property, other than property described in subsection (3),
[ . . . ]
(b) is guilty of an offence punishable on summary conviction.
[20] As we can see from these sections, these offences are not punishable by a maximum term of imprisonment of at least ten years and as noted previously, the respondent-appellant was sentenced to eight days of imprisonment and placed on probation for a period of twelve months. Therefore, we cannot consider that the respondent-appellant would be inadmissible on grounds of serious criminality.
Conclusion
[21] The panel considers that it was not appropriate for the Minister's counsel to refer to section 320(5) of the IRPR, a general provision concerning the admissibility while subsections 68(4) and 36(1) expressly addressed the respondent-appellant's situation. The panel has jurisdiction to hear the present matter and the Registrar's Unit asked to set a date for a hearing in a near future. [emphasis mine]
THE RELEVANT LEGISLATIVE AND REGULATORY PROVISIONS
[18] The main statutory transitional provision of the IRPA applicable to this case is section 197 but, to understand its context, I reproduce sections 190, 192, 196 and 197 of the transitional scheme provided for under the new Act. Those sections read:
| *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. *[Note: Section 190 in force June 28, 2002, see SI/2002-97.]
192 Immigration Appeal Division *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. *[Note: Section 192 in force June 28, 2002, see SI/2002-97.]
196 Appeals *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. *[Note: Section 196 in force June 28, 2002, see SI/2002-97.]
197 Stays 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. [emphasis mine]
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*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. *[Note_: Article 190 en vigueur le 28 juin 2002, voir TR/2002-97.]
192 Anciennes règles, nouvelles sections *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. *[Note_: Article 192 en vigueur le 28 juin 2002, voir TR/2002-97.]
196 Appels 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.
197 Sursis 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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[19] Section 197 of the IRPA refers to both section 64 and subsection 68(4) of the IRPA. I reproduce below sections 64 and 68 in their entirety:
| 64(1) No appeal for inadmissibility 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. 64(2) Serious 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(3) Misrepresentation (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor's spouse, common-law partner or child.
Removal order stayed 68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. 68(2) Effect (2) Where the Immigration Appeal Division stays the removal order (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary; (b) all conditions imposed by the Immigration Division are cancelled; (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and (d) it may cancel the stay, on application or on its own initiative.68(3) Reconsideration (3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division. 68(4) Termination and cancellation (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.[emphasis mine]
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Restriction du droit d'appel 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. 64(2) Grande criminalité (2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans. 64(3) Fausses déclarations (3) N'est pas susceptible d'appel au titre du paragraphe 63(1) le refus fondé sur l'interdiction de territoire pour fausses déclarations, sauf si l'étranger en cause est l'époux ou le conjoint de fait du répondant ou son enfant.
Sursis 68. (1) Il est sursis à la mesure de renvoi sur preuve qu'il y a - compte tenu de l'intérêt supérieur de l'enfant directement touché - des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales. 68(2) Effet (2) La section impose les conditions prévues par règlement et celles qu'elle estime indiquées, celles imposées par la Section de l'immigration étant alors annulées; les conditions non réglementaires peuvent être modifiées ou levées; le sursis est révocable d'office ou sur demande.
(3) Par la suite, l'appel peut, sur demande ou d'office, être repris et il en est disposé au titre de la présente section. 68(4) Classement et annulation (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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[20] Because section 64 speaks of a permanent resident or a foreign national having been found inadmissible on grounds of serious criminality and subsection 68(4) speaks to a permanent resident or foreign national who was found inadmissible on grounds of serious criminality or criminality and was convicted of another offence referred to in subsection 36(1), I reproduce, as a matter of convenience, section 36(1) which deals with serious criminality and subsection 36(2) which deals with criminality as they relate to offences committed in Canada omitting those paragraphs dealing with offences committed outside of Canada.
| Serious criminality 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; . . . 36(2) Criminality (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; . . . [emphasis mine]
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Grande criminalité 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; . . .
36(2) Criminalité (2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants_: a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits;
. . .
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AGREEMENTS AND DIFFERENCES
[21] Counsel for the parties agree on the standard of review and on the principle of statutory interpretation governing the issue.
[22] The issue in this judicial review application (whether the IAD has the jurisdiction to review Mr. Hyde's 1999 stay) turns on the meaning to be given to section 197 of the IRPA (which both counsel agree is triggered) in the context and purpose of section 64 and subsection 68(4) of the IRPA whose purposes are either to block or to statutorily terminate appeals to the IAD if certain conditions are met. The standard of review is correctness.
[23] In terms of the proper approach to statutory interpretation, the Supreme Court of Canada's decision in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, governs.
[24] As authority for both agreed to propositions, I cite the Federal Court of Appeal's decision in Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85, where Justice Evans stated the following at paragraph 18:
¶ 18 Since the interpretation of a statute is a question of law, it is agreed that correctness is the standard of review applicable in this case. It is also agreed that the interpretation of section 196 should be approached within the following analytical framework set out in Rizzo & Rizzo Shoes [at paragraph 21] and adopted by the Applications Judge (at paragraph 22):
Although much has been written about the interpretation of legislation ... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach on which I prefer to rely. He recognizes that statutory interpretation cannot be [page61] founded on the wording of the legislation alone. At p. 78 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.
[25] As a matter of convenience, I reproduce, once again, the transitional provision of section 197 of the Act:
| 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.
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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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(a) Counsel for the Minister's approach
[26] Counsel for the Minister frames the issue as one of the application of either section 64 or subsection 68(4) of the Act. The issue, he says, is which provision, as between 64 or subsection 68(4) of the IRPA applied to the situation of Mr. Hyde and more generally that the matter at hand raises the issue of what are the relevant criteria which should be used to determine which of these two provisions apply in the context of any given case.
[27] He contends that section 64 applied to the situation of Mr. Hyde and that, therefore, the appeal could no longer continue as a matter of jurisdiction.
[28] He submits the tribunal erred in concluding that subsection 68(4) of the IRPA was the only provision applicable to Mr. Hyde and that, on the facts, it had jurisdiction over Mr. Hyde's appeal.
[29] In short, he submits that the tribunal failed to apply a provision which was applicable (section 64 of the IRPA) and applied a provision which was not applicable (subsection 68(4) of the IRPA).
[30] According to the Minister's counsel, section 64 of the IRPA is applicable to a person found inadmissible on grounds of serious criminality if that person was punished by a term of imprisonment of at least two years. Such person could never obtain a stay from the IAD because an appeal to that body is barred by section 64 and, as a result, that person could never obtain a stay and be subject to subsection 68(4) of the IRPA.
[31] On the other hand, a stay would be available to a person (either a permanent resident or a foreign national) found inadmissible on grounds of serious criminality if that person was not convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of more than ten (10) years but was convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months but less than two years was imposed. In such circumstances, section 64 of the IRPA would not bar an appeal to the IAD. If such a person obtained a stay and subsequently breached the stay, such person, under section 68(4) of the IRPA would be subject to have his stay cancelled by the operation of law and his/her appeal terminated if that person committed another offence referred to in subsection 36(1) of the IRPA, i.e., a serious crime as defined therein.
[32] In Mr. Hyde's case, he is a permanent resident. I need not discuss inadmissibility on grounds of "simple" criminality as "simple" criminality is not a bar to an appeal to the IAD under section 64 and, in terms of subsection 68(4), Mr. Hyde's case would not arise because simple criminality in terms of subsection 36(2) of the IRPA is only applicable to foreign nationals.
(b) Counsel for Mr. Hyde's view
[33] Counsel for Mr. Hyde argues the tribunal's decision is correct for a number of reasons:
(a) to accept the Minister's argument would make subsection 68(4) redundant;
(b) reference to section 64 in section 197 is a reference to the general whereas its reference to subsection 68(4) is to the specific; and
(c) subsection 68(4) plainly means what it says providing for what happens when a breach of stay has occurred.
[34] Mr. Hyde's counsel submits the references in section 197 to section 64 and subsection 68(4) of the IRPA were meant to provide for the continuance of an IAD appeal filed before the IRPA came into force even when there has been a breach of the conditions of a stay so long as that breach did not involve serious criminality as defined in subsection 36(1). According to counsel, to interpret it differently would deny that subsection 68(4) existed in section 197 or meant anything at all in that context. He submits such an interpretation is consistent looking at section 196 of the IRPA where only section 64 is mentioned which is logical because that section is posited on no stay having been granted.
[35] Mr. Hyde's counsel concludes by arguing that section 197 dealt with a different circumstance than section 196. Section 197 operates where a stay is in place under the former Act and a breach of that stay has occurred.
[36] Finally, he argues Medovarski, supra, has no relevance because it dealt with section 196 and not section 197 of the IRPA. He specifically referred to the following paragraphs in Medovarski, supra:
¶ 41 Nonetheless, even though the presumption against redundancy does not apply to either side's interpretation, a consideration of the appeals that survive section 196 is very instructive. On the Minister's interpretation, the rationale for section 196 is to make an exception to the general rule to discontinue appeals that were still ongoing on June 28, 2002. However, if the IAD found sufficient merit in all the circumstances of an appellant's case to warrant staying the execution of a removal order, section 196 permits the appellant to retain the benefit of the IAD's decision to put the appellant on "probation", and the IAD's ongoing jurisdiction over the case should be preserved.
¶ 42 This view of Parliament's intention is supported by section 197. This provision discontinues the appeal of a permanent resident to whom a stay was granted under IA, paragraph 73(1)(c), prior to June 28, 2002, and who [page67] breaches a condition imposed on the stay. In this event, section 197 applies and the appeal is discontinued if the person was convicted and sentenced to two years' imprisonment, either before or after the grant of the stay. In these circumstances, the general policy of IRPA, section 64 applies: persons who have committed a serious offence should not have a right of appeal to the IAD. Without section 197, the appeal would have been continued under the former Act because the IAD had granted a stay under IA, paragraph 73(1)(c).
ANALYSIS
[37] I first make a number of contextual observations.
[38] First, I stress the special nature of section 197 of the IRPA which is central to the resolution of this case. This section is a statutory transitional rule found in Part V of the IRPA entitled "Transitional Provisions, Consequential and Related Amendments, Coordinating Amendments, Repeals and Coming into Force". The purpose of such transitional provisions is a legislative response to the problems of continuity of decision-making, retroactivity, retrospectivity, vested rights and the application of new rules which often arise when a statute is repealed and a new statute enacted covering the same subject matters. Specific statutory transitional rules tend to eliminate recourse to general statutory provisions such as those found in the Interpretation Act or developed through the common law.
[39] Second, section 197 must be examined in the context of sections 190, 192, and 196 of the IRPA. Indeed, Justice Evans in Medovarski, supra, stressed that in the case before him, it had been agreed that sections 192, 196 and 197 of the IRPA "comprise part of the package of transitional provisions in Part 5 of the Act and should be considered together". Reading those provisions together, the following scheme appears:
(i) section 192 is specific to the IAD as is section 191 specific to the Convention Refugee Determination Division and section 193 only concerns the Immigration Division;
(ii) section 192 provides an exception to the immediate operation of the IRPA commanded by section 190 to every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of the IRPA. In this context, section 192 provides that if a notice of appeal had been filed with the IAD before June 28, 2002, the appeal is to be continued under the former Act;
(iii) section 196 is an exception to section 192 of the IRPA in that it discontinues an appeal to the IAD made under the former Act "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;
(iv) section 197 with which we are concerned with is a further exception to section 192 and operates only when a stay has been granted under the former Act and the appellant breaches a condition of that stay. In those circumstances, section 197 simply provides "the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act" which is different language than in section 196 where an appeal is discontinued if that appeal could not have been made because of section 64. Section 64 provides that no appeal may be made to the IAD if a foreign national or permanent resident has been found inadmissible on grounds, inter alia, of serious criminality which is specifically defined to be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years, a much higher trigger than found in subsection 36(1) of the IRPA.
[40] Third, the sections discussed above deal with one subject matter, that is, appeals to the IAD made under the former Act. Generally, appellants under the former Act and now under the IRPA could challenge the validity of a deportation order but often would limit themselves to invoking the equitable jurisdiction of the IAD that "having regard to all of the circumstances of the case, the appellant should not be removed from Canada". Under section 73 of the former Act, the IAD "may dispose of an appeal made pursuant to section 70 by allowing it; by dismissing it; or by directing that the execution of the order be stayed".
[41] Fourth, the Supreme Court of Canada's decision in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, is instructive in terms of the procedural requirements leading to a decision whether to stay the execution of a removal order or not and as to the nature of the IAD's jurisdiction. At paragraph 69, of Chieu, supra, Justice Iacobucci commented Parliament had equipped the IAD with all of the tools necessary to ensure that the requirements of natural justice were met when removing individuals from Canada including providing for an oral hearing, the calling and cross-examination of witnesses, the tendering of evidence, the giving of reasons (when requested) and the right to seek judicial review of the IAD's decision. In terms of the nature of the IAD's equitable jurisdiction.
[42] Justice Iacobucci at paragraph 38 quoted from the Minister of Manpower and Immigration's statement in the House of Commons when the legislation was passed that the former Act "permits removal of permanent residents only for very serious reasons and leaves ameliorating or compassionate factors such as length of residence in Canada to the discretion of the Immigration Appeal Division to which permanent residents have a right to appeal", and from the Supreme Court of Canada's decision in Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577 at 590 that "the intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made" (per Martland J.) and from Abbott J. that the discretion conferred upon the IAD "should be exercised essentially upon humanitarian grounds". He also referred to Justice Sopinka's decision in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, that the statutory equitable jurisdiction "allows for clemency from deportation on compassionate grounds". Finally, Justice Iacobucci pointed out at paragraph 48 that the IAD could reopen an appeal prior to the execution of a removal order and, if appropriate, exercise its jurisdiction in another way. In other words, the IAD's jurisdiction is continuing and ongoing.
[43] Taking into account these introductory contextual factors discussed above and approaching the matter as required by the Supreme Court of Canada in Rizzo & Rizzo Shoes, supra, I have come to the conclusion that the Minister's argument to the effect that, in the context of section 197 of the IRPA, its sections 64 and subsection 68(4) are mutually exclusive and cannot operate together, must be rejected. As a result, I would dismiss this judicial review application with costs. I have reached this conclusion for a number of reasons.
[44] First, I believe the foundation of the Minister's argument, with respect, is flawed because it is built on a foundation as if section 64 and subsection 68(4) of the IRPA were in operation at the time Mr. Hyde made his appeal in 1999 and obtained his stay. I agree with the Minister's submission that under the IRPA, today, sections 64 and subsection 68(4) are mutually exclusive because a permanent resident or a foreign national who was imposed a sentence of at least two years is barred from making an appeal to the IAD and therefore barred from obtaining a stay of the execution of a removal order with the effect that subsection 68(4) could never apply to that person because there would be no stay to breach. The Minister's argument takes little account of the fact that section 197 is a transitional provision and that, in this case, a hearing was held, a decision was made in that a stay was issued, reviewed once and now found to have been breached.
[45] Second, as mandated by Medovarski, supra, sections 196 and 197 are a package and must be examined together. As noted, both are transitional provisions. Section 196 specifically deals with the situation where an appeal has been filed but no stay has been granted under the former Act, i.e., the appeal has not gone to hearing and disposition. In such a case, section 196 specifically provides that the appeal is discontinued if no appeal could have been made under section 64 of the Act, i.e., the threshold of a sentence of at least two years has been met.
[46] Section 197 deals with different circumstances where the appeal has gone to hearing and there has been a disposition under the former Act, i.e., a stay has been granted. If that stay is breached, the section provides that the appellant is subject to the provisions of section 64 and subsection 68(4). I observe that unlike section 196, section 197 does not provide that if an appeal could not have been made because of section 64, the appeal launched under the former Act is discontinued. Presumably, the reason for this is because the appeal has been disposed of by the grant of the stay by the IAD which retains continuing jurisdiction to review adherence to the conditions of the stay and, in appropriate circumstances, the ability to cancel such a stay and direct the execution of the removal order. In contrast, subsection 68(4) provides that where a stay has been granted, and has been breached, the permanent resident or foreign national who was found inadmissible on grounds of serious criminality or criminality and if convicted of another offence, referred to in subsection 36(1), the stay is cancelled by the operation of law and the appeal is terminated removing any discretion in the IAD on this account.
[47] Third, section 196 operating only when a stay has not been granted only refers to section 64 and discontinues an appeal launched under the former Act if that section would have barred an appeal. In other words, it incorporates statutory retroactivity in that case. However, where a stay has been granted, Parliament through section 197 made an appellant subject to an additional provision, that of subsection 68(4) which has the effect of removing the IAD's flexible discretion in the exercise of its continuing equitable jurisdiction by providing that if another offence in the nature of subsection 36(1) has been committed, the stay is cancelled by the force of law and the appeal terminated.
[48] In my view, the Minister's argument would, in effect, abolish and make redundant the distinction which Parliament drew between section 196 and section 197 of the IRPA which focusses solely on the issue of whether a stay had been or not been granted under the former Act.
[49] Fourth, in its ordinary meaning, making an appellant "subject to the provisions of section 64 and subsection 68(4) of the Act", is to make such appellant bound by (assujetti à meaning soumis à) the operation of both sections, the ordinary usage of the word "and" being conjunctive.
[50] I conclude by saying that, in my view, Parliament had a purpose in referring to both section 64 and subsection 68(4) in the transitional provision of section 197 where a stay had been granted under the former Act and had been breached.
[51] The reference to section 64 is to ensure that the higher threshold for serious criminality of punishment by sentence of at least two years is met. The application of section 320 of the Immigration and Refugee Protection Regulations ("IRPR") would not necessarily achieve the higher standard because paragraph 320(5)(a) simply provides that it is inadmissible under the IRPA on grounds of serious criminality if a person was convicted under the former Act of an offence and a term of imprisonment of more than six months has been imposed or a term of imprisonment of ten years or more could have been imposed. That reflects the criteria of subsection 36(1) of the IRPA but not the higher standard required by section 64.
[52] The purpose in section 197 of referencing subsection 68(4) of the IRPA is to give recognition that under the former Act, the IAD had decided that a stay was warranted in the case of a person found inadmissible on grounds of serious criminality, or criminality, but that equity and compassion, taking into account all relevant circumstances, required that person not be removed from Canada. In these circumstances, Parliament, through the transitional provision of section 197 of the Act, contemplated it was not any breach of condition that would warrant that person's automatic removal from Canada by eliminating all IAD discretion. In order that the stay be automatically cancelled by the operation of law and the appeal terminated, the person affected must be convicted of another offence referred to in subsection 36(1) which will be met if that person is punished for an offence provided for in an Act of Parliament where the punishment meted out is a sentence of six months or more.
[53] The two offences which constituted Mr. Hyde's breach of condition did not meet the threshold of punishment by a sentence of six months or more. As noted, he was sentenced to an eight day punishment for each offence.
[54] I agree with counsel for Mr. Hyde that Medovarski, supra, is not on point because it dealt with section 196 and did not consider in any length the issues which were before me. I also considered the Court's decision in Psyrris v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 1443; Avalos v. Canada (Minister of Citizenship and Immigration), [2005] F.C. 830, and Humphrey v. Canada (Minister of Citizenship and Immigration), 2005 FC 165, where the points at issue in this case were not discussed.
[55] In sum, I believe that the interpretation reached balances appropriately the maintenance of the IAD equitable jurisdiction to assert its continuing jurisdiction where stays are warranted, although breached, and the discontinuance or termination of those stays when breached for serious reasons.
[56] I observe that Mr. Hyde will continue to be under the supervision of the IAD who, in this case, will examine all of the circumstances surrounding his case and in the exercise of its jurisdiction decide whether the stay should be cancelled or not.
[57] For all of these reasons, this judicial review application is dismissed with costs. Both parties requested that I certify a question of general importance. Accordingly, I certify the following question:
Is the interpretation of section 197 of the IRPA contained
in these reasons on the facts of this case correct ?
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 7, 2007
Date: 20050707
Docket: IMM-6961-03
OTTAWA, ONTARIO, THE 7TH DAY OF JULY 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
APPLICANT
AND:
MARTIN RICHARD HYDE
RESPONDENT
ORDER
For the reasons filed this day, this judicial review application is dismissed with costs.
Both parties requested that I certify a question of general importance. Accordingly, I certify the following question:
Is the interpretation of section 197 of the IRPA contained
in these reasons on the facts of this case correct ?
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6961-03
STYLE OF CAUSE: THEMINISTER OF CITIZENSHIP AND
IMMIGRATION
and
MARTIN R. HYDE
PLACE OF HEARING: On the record, in Ottawa
DATE OF HEARING: On the record
REASONS FOR ORDER: The Honourable Mr. Justice Lemieux
APPEARANCES: Me François Joyal
FOR APPLICANT
Me Ian W.H. Bailey
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal (Québec)
FOR APPLICANT
Me Ian W.H. Bailey
P.O. Box 1850
141 Grafton Street
Charlottetown,PE
C1A 7K9
RESPONDENT
IMIGRATION & REFUGEE BOARD
102-200, René-Lévesque West
East Towert
Montréal (Québec)H2Z 1X4 TRIBUNAL