BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR JUDGMENT
SIMPSON J.
[1] The Minister of Citizenship and Immigration (the Minister) has applied for judicial review of a decision of the Immigration Appeal Division (the IAD) dated June 13, 2005 in which the IAD dismissed the Minister’s notice advising of the cancellation of a stay of the Respondent’s deportation (the Decision). This application in essence involves a dispute between the Minister and the IAD about the IAD’s jurisdiction to make the Decision.
THE BACKGROUND
[2] The Respondent is a 32 year old citizen of Poland. On March 26, 1990, he came to Canada with his father and became a permanent resident. Once in Canada, the Respondent attended school and completed grades 9 through 12. Then, in 1996, he began to work in construction.
[3] On November 22, 2000, the Respondent was ordered deported by an Immigration Adjudicator as a result of a series of convictions (the Deportation Order). The Respondent appealed the deportation order to the IAD (the Appeal) and on March 12, 2003, the IAD granted the Respondent a stay for a term of 3 years (the Stay). The Stay, which was issued with the Minister’s consent, included the following conditions:
· the Respondent was required to inform the Department of Citizenship and Immigration (the Department) of any change of address (the First Condition);
· the Respondent was not to commit any criminal offences (the Second Condition). “This condition does not apply to outstanding charges with respect to prison breach or attempted escape contrary to s. 144 of the Criminal Code.” (the Exception) [emphasis in the original]
[4] The outstanding charges referred to in the Exception related to an incident which had occurred in 2001. The Exception was included in the Second Condition to ensure that a conviction on those charges would not result in a breach of the Stay.
[5] On August 11, 2004, the Respondent was convicted of two offences. One was attempted escape under section 144 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Conviction).
[6] On March 29, 2005, the Minister wrote a letter to the Respondent at his last reported address advising him that the Stay had been cancelled by operation of law due to the Conviction (the Cancellation). The Respondent was also told that the Deportation Order was again in force.
[7] In a letter from the Minister dated March 29, 2005, the IAD was notified of the Cancellation.
THE IAD’S DECISION
[8] The IAD treated the Cancellation as an application by the Minister to terminate the appeal and cancel the Stay. The IAD considered the matter and denied the Minister’s application. In its Decision, the IAD rejected the Cancellation and noted that the Conviction had been excluded by the Exception as a reason for invalidating the Stay. The IAD commented that the Minister’s attempt to cancel the Stay in these circumstances was an abuse of process.
ISSUES
[9] The following are the issues:
1. Did the IAD have jurisdiction to reject the Minister’s application or, put another way, did the IAD have jurisdiction to consider the merits or bona fides of the Cancellation?
2. Did the IAD err in concluding that the Second Condition had not been breached because the Exception applied?
DISCUSSION
Issue 1
[10] The Stay was granted under the former Immigration Act, R.S.C. 1985, c. I-2. Under section 197 of the IRPA, an appellant who breaches a stay granted under the former Immigration Act is subject to subsection 68(4) of the IRPA. Section 197 reads as follows:
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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.
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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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[11] There is no issue that, but for the Exception, the Conviction would have breached the Stay.
[12] The Cancellation says that the Respondent breached his Stay when he was convicted of attempted escape under section 144 of the Criminal Code and that this breach brought section 197 of the IRPA into effect. It, in turn, made the Respondent subject to the provisions of subsection 68(4).
[13] Under subsection 68(4) of the IRPA, a stay of a removal order against a permanent resident who is found inadmissible on grounds of serious criminality or criminality is cancelled by operation of law in certain circumstances. The section says:
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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. |
[14] A conviction under section 144 of the Criminal Code is a conviction that constitutes serious criminality under subsection 36(1) and therefore the Stay is cancelled by operation of law and the appeal is terminated. Once this happens, the Minister argues that the IAD loses jurisdiction over the matter.
[15] Under Rule 27 of the Immigration Appeal Division Rules, SOR/2002-230, as am. S.C. 2002, c. 8, s. 182(3)(a) the Minister is to provide the IAD with notice of the cancellation of a stay of removal under subsection 68(4) of the IRPA:
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27. (1) If a stay of removal is cancelled under subsection 68(4) of the Act, the Minister must provide the Division and the subject of the appeal with written notice of the cancellation. |
27. (1) Dans le cas où le sursis d'une mesure de renvoi est révoqué par application du paragraphe 68(4) de la Loi, le ministre transmet un avis écrit à la personne en cause et à la Section. |
[16] The Minister says that written notice of the cancellation provided by the Minister to the IAD and the Respondent reflects the fact that the stay has already been cancelled by operation of law pursuant to section 68(4). The Minister argues that the IAD no longer has the jurisdiction to consider the Respondent’s appeal or a related stay once such notice is given.
CONCLUSIONS
[17] With regard to the first issue, I have accepted the Minister’s submissions and have concluded that the IAD had no jurisdiction to treat the Cancellation as a motion for a reconsideration and issue the Decision rejecting the Cancellation. Accordingly, the application will be allowed and the IAD’s Decision will be set aside.
[18] Regarding the second issue, although the IAD had no jurisdiction to consider the question, it appears to have reached the correct conclusion. The Cancellation refers only to the Conviction and, in view of the Exception, the Conviction did not breach the Second Condition of the Stay. Accordingly, subsection 68(4) of the IRPA did not, in fact, cancel the Stay by operation of law based on a breach of the Stay. For this reason, the Cancellation is of no force and effect.
[19] I express no view, however, about whether the First Condition was breached and whether another cancellation could be justified on the basis that the Respondent failed to inform the Department of his change of address.
Ottawa, Ontario
August 21, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4012-05
STYLE OF CAUSE: MCI v. PIOTR MALARSKI
DATE OF HEARING: April 4, 2006
REASONS FOR JUDGMENT: SIMPSON J. / LE JUGE SIMPSON
APPEARANCES:
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Bridget O’Leary Toronto, Ontario |
SOLICITORS OF RECORD:
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John H. Sims Attorney General of Canada |