Date: 19991202
Docket: IMM-742-99
BETWEEN:
NICOLAS BARLETTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended (Act) for judicial review of a decision of Mr. Bernard Sivak, Tribunal Member of the Immigration Appeal Division (I.A.D.) of the Immigration and Refugee Board dated January 6, 1999. In that decision, the Board found that the filing of the Minister"s opinion pursuant to subsection 70(5) of the Act prevents the applicant from proceeding with an appeal before the Appeal Division and that the Appeal Division lacked the jurisdiction to consider the constitutional challenge to paragraph 70(5)(c ) of the Act.
FACTS
[2] The applicant, Mr. Barletta, an Italian citizen, was born in Liège, Belgium on March 14, 1957 and was admitted into Canada as a permanent resident on May 11, 1968 at the age of 11 years.
[3] Since 1985, Mr. Barletta has been living with Ms. Lynda Ducharme and they have one child, Catherine, born on March 20, 1994.
[4] On March 6, 1985, the applicant was found guilty of possession of an illegal weapon contrary to section 91 of the Criminal Code which carries a maximum sentence of five years of imprisonment.
[5] On September 23, 1991, the applicant was found guilty of assault pursuant to section 268 of the Criminal Code and was subject to a maximum sentence of fourteen years imprisonment. For this offence, the applicant was sentenced to one year in prison.
[6] On April 4, 1995, the applicant was convicted of possession of narcotics with the intention of trafficking and faced a maximum sentence of life imprisonment.
[7] On June 23, 1997, the applicant was informed by the Minister"s delegate, Director General, Case Management, pursuant to subsection 70(5) of the Act that due to his convictions for numerous offences, he constituted a danger to the public in Canada.
[8] On November 24, 1997, the applicant applied for leave and judicial review of the Minister"s decision which held that he constituted a danger to the public in Canada.
[9] On December 9, 1997, an adjudicator found that the applicant was a person described in subparagraphs 27(1)(d)(i) and (ii) of the Act thereby dismissing the application and issuing a deportation order against the applicant.
[10] On December 9, 1997, the applicant filed a notice of appeal to the Immigration Appeal Division of the Immigration and Refugee Board and gave notice that he intended to raise the unconstitutionality of subsection 70(5) of the Act before the Appeal Division on the basis that it is incompatible with subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I, Constitution Act, 1982, Schedule B (Charter).
[11] On May 4, 1998, the respondent moved by motion to have the Appeal Division rule that it lacked jurisdiction to consider whether subsection 70(5) is unconstitutional.
[12] On May 15, 1998, the Immigration Appeal Division dismissed the respondent"s motion and held that they were competent to hear the appeal on the constitutionality of subsection 70(5) of the Act.
[13] On June 18, 1998 on a motion before the Federal Court, Madame Justice Tremblay-Lamer granted the applicant leave to bring an application for judicial review of the decision of the Minister which deemed the applicant a danger to the public.
[14] On September 10, 1998, it was agreed by the parties that they would submit their arguments in writing to the Immigration Appeal Division on the question of the jurisdiction of the Immigration Appeal Division to consider the constitutionality of subsection 70(5) of the Act, and that this issue would be decided upon before hearing the merits of the appeal.
[15] It was agreed by the parties that the arguments on the matter were the same as those which were being submitted by the parties" counsel in an analogous appeal brought by Mr. Esteban Mateo who was represented by the same counsel, and therefore the written submissions in that case would be used in this appeal before the Immigration Appeal Division.
[16] On September 25, 1998, the application for judicial review before this Court was dismissed by Dubé J.
[17] On February 5, 1999, the Immigration Appeal Division released its ruling in the matter, rejecting the applicant"s appeal on the basis that the applicant was bound by the terms of subparagraphs 27(1)(d )(i) and (ii) of the Act. Consequently, the I.A.D. refused to rule on the constitutionality of subsection 70(5) of the Act.
| THE DECISION OF THE IMMIGRATION APPEAL DIVISION |
| [18] The I.A.D. characterized the issue as follows: |
| The matter in issue is whether the Appeal Division has jurisdiction to rule on the constitutionality of section70(5). In Reynolds, the Trial Division categorically that the Appeal Division does not have such jurisdiction. The Trial Division concluded ... "that the Appeal Division"s general power to consider questions of law and jurisdiction does not empower it to treat subsection 70(5) as unconstitutional and thereby ignore an express limitation that Parliament has placed on its jurisdiction." [...] The Appeal Division is bound by the decisions of the Federal Court and the Supreme Court. Thus, as Reynolds is a ruling of the Federal Court, the Appeal Division is bound by that decision subject to its reversal by a higher tribunal or unless the Trial Division decision conflicts with decisions of the Court of Appeal or the Supreme Court on the same matter. The applicant points out correctly that the powers in the enabling statute of the deciding body in Cooper differ from the powers in the enabling statute of the Appeal Division. Yet the Trial Division in Reynolds cites Cooper in support of its decision . [...] |
| The perusal of the statutory and case law leads me to the conclusion that the filing of the Minister"s opinion pursuant to section 70(5) of the Act prevents the appellant from proceeding with an appeal before the Appeal Division and that the Appeal Division does not have jurisdiction to entertain a Charter challenge to section 70(5) of the Act. |
STATUTORY PROVISIONS
Immigration Act, R.S.C. 1985, c. I-2
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who (d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed; |
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_: d) a été déclaré coupable d'une infraction prévue par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions : (i) soit pour laquelle une peine d'emprisonnement de plus de six mois a été imposée, (ii) soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à cinq ans; |
| 70(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be |
| (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
| (b) a person described in paragraph 27(1)(a.1); or |
| (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
| 70(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_: |
| a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; |
| b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; |
| c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada. |
ISSUE
| [19] This application raises only one issue: |
| Does the Appeal Division have jurisdiction to consider the constitutionality of a provision in its enabling statute? |
POSITIONS OF THE PARTIES
Applicant"s position
[20] The applicant submits that the Appeal Division has the jurisdiction to consider the constitutionality of subsection 70(5) of the Act and erred by not exercising that jurisdiction. It is argued that the Appeal Division erred by adopting the interpretation of Jerome A.C. J. in Canada (Minister of Citizenship and Immigration) v. Reynolds [1997] F.C.J. No.1763 as it does not correctly apply to the approach taken by the Supreme Court in Cooper v. Canada, [1996] 3 R.C.S. 854.
[21] Secondly, the applicant contends that subsection 70(5) is unconstitutional as it violates section 15 of the Charter by denying those persons who are described thereunder the right to appeal. It is the applicant"s submission that this creates an inequality under the law.
| The respondent"s position |
[22] The respondent argues that the reasoning found in Reynolds, supra does not conflict with that taken by the Supreme Court of Canada as contended by the applicant, and further, that the Appeal Division was correct in relying on the decision in Reynolds to determine that they lacked jurisdiction to consider the constitutionality of subsection 70(5).
[23] With respect to the question of constitutional validity, the respondent argues that this subsection does not contravene section 15 of the Charter.
ANALYSIS
[24] At the outset, it is important to be clear that the applicant is challenging the decision of the I.A.D. that it lacked jurisdiction to consider the constitutionality of subsection 70(5), and its subsequent refusal to hear the merits of the appeal before it, not the deportation order itself. That decision cannot be challenged in this application for judicial review.
[25] Subsection 70(5) of the Act was proclaimed into force on July 10, 1995 and has the effect of denying the right of appeal to the I.A.D. to persons in the defined circumstances:
| (1) a deportation order has been made against the person; |
| (2) a "danger opinion" has been issued against the person; |
| (3) the person is a permanent resident as described in subsection 27(1)(d). |
[26] These three criteria are satisfied by the facts of the present case. This does not appear to be in dispute. The question raised before this Court is whether the I.A.D. had the jurisdiction to hear the applicant"s appeal regarding the constitutionality of subsection 70(5).
[27] The jurisdiction of the I.A.D. is conferred through the Immigration Act, and pursuant to the terms of subsection 70(5) the Board does not have jurisdiction to hear an appeal once an opinion has been issued by the Minister. Once a danger opinion has been issued, the appeal division is stripped of its jurisdiction to dispose of an appeal.
[28] In Chiarelli v. M.E.I. [1992], 1 S.C.R. 711, the Supreme Court of Canada discussed this issue at page 734:
| However, there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inferently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances. |
| [29] The Court then stated at page 741: |
| It can thus be seen that there has never been a universally available right of appeal from a deportation order "on all the circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests. |
| If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a "true" appeal which enables the decision of the first instance be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. |
[30] In Tsang v. Canada (Minister of Citizenship and Immigration) (1996) 107 F.T.R. 214, Dubé J. considered an application for judicial review of a danger opinion issued by the Minister, he states at paragraph 20:
| In my view, the Minister did not err in law in issuing his opinion at the time he did and, moreover, it cannot be said that the applicant was denied a right of appeal because there has never been a universally available right of appeal from a deportation order. |
[31] This interpretation of subsection 70(5) was thoroughly considered and upheld by the Federal Court of Appeal in Williams v. Canada (Minister of Citizenship and Immigration) [1997] 2 F.C. 646 where Strayer J.A. stated at paragraph 10 of his reasons:
| As was said in Chiarelli, there was no constitutional obligation on Parliament to provide any kind of an appeal or discretionary relief. It follows that any right of appeal conferred by Parliament can be qualified or abolished. |
[32] Applying the reasoning articulated in the above cases to the facts of the case at bar, the applicant is faced with a deportation order due to the fact that he has committed serious crimes as a non-citizen in Canada. This is undisputed by the parties.
[33] The consequence of these crimes is that the Minister issued an opinion pursuant to subsection 70(5) of the Act which causes the applicant"s right of appeal under paragraph 70(1)(b ), which considers whether "under all the circumstances of the case" the applicant should not be removed from Canada, to be replaced by a right to judicial review.
[34] In my view, this provision is soundly rooted in public policy reasons, specifically the need to protect Canadians from persons who have a record of dangerous criminal acts. The wording of subsection 70(5) is unambiguous - if the Minister is of the opinion that the person is a danger to the public then the right to appeal found in paragraph 70(1)(b) is lost.
[35] Both counsel agreed that the case of Canada v. Reynolds, 42 IMM L.R. 175 is on all fours with the facts that are before me in the case at bar.
[36] I agree with the analysis and conclusions of the Associate Chief Justice in the Reynolds case. I see no need to repeat what the Associate Chief Justice states in this case.
[37] The jurisprudence of this Court has consistently upheld the decision of the I.A.D. to decline to entertain appeals following the issuance of a danger opinion by the Minister.
[38] For the above-stated reasons, I find that the I.A.D. did not err in declining to hear the applicant"s appeal on the basis of lack of jurisdiction. The application is dismissed.
QUESTION TO BE CERTIFIED:
[39] The parties have submitted the following question to be certified:
| Est-ce que la Section d"appel de l"Immigration de la Commission de l"immigration et du statut de réfugié peut, à la demande d"un résident permanent faisant l"objet d"un avis du ministre comme quoi il constitue un danger pour le public au Canada, déclarer inopérant à son endroit le paragraphe 70(5) de la Loi sur l"immigration à la lumière de l"article 15 de la Charte canadienne des droits et libertés. |
[40] This issue, I am told, has never been decided by the Court of Appeal. I believe it of sufficient importance that the question be decided by the Court of Appeal and I hereby certify the above question.
"Max M. Teitelbaum"
J.F.C.C.
Montreal, Quebec
December 2, 1999