Federal Court of Appeal Decisions

     A-179-96

     (IMM-2585-95)

CORAM:      MARCEAU J.A.

     DESJARDINS J.A.

     McDONALD J.A.

BETWEEN:

     LANNIE WAI HAR TSANG &

     PETER TO KAN TSANG (TO KAN PETER TSANG),

     Appellants

     (Applicants in the Trial Division)

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

     REASONS FOR JUDGMENT

MARCEAU J.A.

     This appeal, under section 83 of the Immigration Act¹ (the "Act"), is from a decision of the Trial Division that dismissed an application for judicial review of a decision of the Minister of Citizenship and Immigration (the "Minister"). It raises once again the recurring problem of application of a new provision of law to existing situations. Here is, in a nutshell, what it is about. Section 77 of the Act gives a Canadian citizen who has sponsored the application for landing of a would-be immigrant the right to appeal to the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") the refusal by an Immigration officer of the sponsored application. On July 10, 1995, section 77 of the Act became less absolute following the coming into force of Bill C-44, An Act to Amend the Immigration Act and the Citizenship Act and the Consequential Amendments to the Customs Act, S.C. 1995, c. 15. One of the provisions of Bill C-44 was indeed to the effect that this right of appeal of the sponsor would not exist in the case of an applicant member of a particular inadmissible class "where the Minister is of the opinion that the person constitutes a danger to the public in Canada." The problem here is whether it is open to the Minister to issue a "public danger opinion" and extinguish the right of the sponsor in the case of an appeal launched before 1995, which has already been heard but not yet disposed of. A brief review of the facts will put the issue in actual perspective.

     Peter To Kan Tsang was born in Hong Kong in 1957. He entered Canada on August 24, 1977. He married Lannie Tsang, a Canadian citizen, on February 16, 1978. He was in Canada initially on visitor status and then, for a few years, on Minister's permits, but after December 1985, he had no status.

     Between 1978 and 1986, Peter Tsang was convicted of 10 criminal offences including theft, mischief, possession of a weapon for purposes dangerous to the public peace (twice), assault, assault causing bodily harm, robbery (twice) and sexual assault with a weapon (twice). As a result, he was reported under section 27 of the Act on the ground of criminal inadmissibility (par. 19(1)(c)), was made subject of a deportation order, and on being released from detention was removed to Hong Kong on November 6, 1991.

     On November 12, 1991, Lannie Tsang submitted an undertaking to sponsor her husband for permanent residence in Canada and, on January 25, 1993, Peter Tsang filed an application based on his wife's sponsorship. The application was refused because the applicant was a member of the inadmissible class described in paragraph 19(1)(c) of the Act, a refusal from which Lannie Tsang appealed before the Appeal Division as she was entitled to pursuant to subsection 77(3) of the Act.

     When Bill C-44, referred to above, came into force on July 10, 1995, Lannie Tsang's appeal had not yet been heard, so a request was immediately made by the Appeals Officer for a postponement of the hearing to allow the Minister to consider whether to issue the ministerial public danger opinion referred to in the new legislation. The request was, however, denied and the hearing on the application was commenced on July 25, 1995 and continued on August 10, 1995. At the end of that day, the decision was reserved.

     On September 8, 1995, the Minister, by his delegate, issued his written opinion that Peter Tsang "constitutes a danger to the public in Canada," caused a copy thereof to be served on the Appeal Division and advised Lannie Tsang that, as a result of the issuance of the opinion, she had no right of appeal from the refusal of her husband's sponsored application for landing.

     On September 22, 1995, the appellants filed an application in the Federal Court Trial Division for judicial review of the decision of the Minister to do as he had done. Some of the grounds they initially raised in support of their application, namely that there were breaches of procedural fairness and natural justice, were not pursued. Their essential contention was that the Minister had erred in law in issuing his opinion "at the time and in the circumstances of the appeal," in view of the fact that one of the conditions of application of the new provision in respect of pending appeals, as enacted by a transitional provision in Bill C-44, namely that the opinion be issued prior to the commencement of the hearing, was not present. The motions judge rejected the argument and dismissed the application for judicial review. He agreed, however, that a serious question was involved which could be the subject of an appeal under section 83 of the Act. The question he certified is the following:

When an appeal is made by a sponsor to the Immigration Appeal Division ("IAD") prior to July 10, 1995, with respect to a sponsoree who is inadmissible pursuant to s. 19(1)(c), (c.1), (c.2) or (d) of the Immigration Act, and the hearing before the IAD has commenced after July 10, 1995, does the effect of the Minister issuing a "danger to the public" opinion extinguish the sponsor's right of appeal pursuant to s. 77(3.01) of the Act and s. 15(3) of Bill C-44 and thereby terminate the jurisdiction of the IAD with respect to the appeal?

     * * *     

     In a recent decision of the Appeal Division, Watson v. Canada (Minister of Citizenship and Immigration), May 21, 1996, T94-07075 " on which counsel were invited to comment as a preliminary issue " a doubt was raised as to the validity of the question here certified by the motions judge. The author of the decision suggested that the application in the Trial Division was concerned with the validity of the Minister's opinion in the circumstances of the case, not with the consequence of its issuance on the sponsorship proceedings. The question as formulated was not before the motions judge, as required by section 83 of the Act, and in fact could not be, since subsection 69.4(2) of the Act reserves to the Appeal Division "exclusive jurisdiction" to determine questions relating to its jurisdiction:

69.4      (2)      The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class.

     In my respectful opinion, the point raised by the Appeal Division member is ill-taken. There is simply no distinction between the so-called "validity" of the Minister's opinion as "to the time and the circumstances in which it was issued" " the issue as presented in the review application " and its effect on the jurisdiction of the Appeal Division " which is obviously how the judge saw the application and disposed of it. The "validity" of the Minister's opinion is necessarily dependant on its consequence; it will be said to be "valid" if it produces the only thing it is meant to produce, i.e. if it extinguishes the appeal, the sole purpose of the ministerial power.² On the other hand, the use by Parliament of the phrase "exclusive jurisdiction" in subsection 69.4(2) of the Act certainly has significance and mandates deference to the view of the Appeal Division when what is involved is a question of interpretation of the general scheme of the Act, as in the case of Canada (Solicitor General) v. Kainth (F.C.A.), (1994) 170 N.R. 367. However, it cannot be understood as restraining the constitutional power and duty of the Court to dispose of a question of construction of a specific legislative provision establishing the jurisdiction of a tribunal by requiring that the views of the tribunal be sought first.

     Coming now to the question posed, I have no difficulty in answering it in the affirmative as did, at least incidentally, the motions judge himself. In my opinion, the transitional provision in Bill C-44 does not allow any other answer. I reproduce the provision in both of its versions, underlining the words we are concerned with:

15.      (3)      Subsection 77(3.01) of the Act, as enacted by subsection (2), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the matter that was the subject of the decision made under subsection 77(1).

15.      (3)      Le paragraphe 77(3.01) de la même loi, édicté par le paragraphe (2), s'applique aux appels interjetés dans le cadre de l'article 77 dont l'audition n'est pas commencée à la date de son entrée en vigueur; cependant, toute personne visée peut, dans les quinze jours suivant la date à laquelle elle est avisée que, selon le ministre, elle constitue un danger pour le public au Canada, présenter une demande de contrôle judiciaire, dans le cadre de l'article 82.1, à l'égard de la décision de l'agent d'immigration ou de l'agent des visas prise au titre du paragraphe 77(1).

     The basic proposition in the appellants' argument is that the English version is ambiguous as it could be interpreted in two ways: it could mean that for the right of appeal to be preserved the hearing must be commenced before the coming into force of the provision, or that the right is preserved if the hearing is commenced before the Minister makes his or her decision. They then contend that the second option is favoured by principles of statutory construction, namely those aimed at avoiding a retroactive removal of vested rights and arbitrariness.

     With respect, I do not accept that there is ambiguity in the English version of the provision. I know that the motions judge and some members of the Appeal Division in recent decisions have agreed with the contention that the text could give rise to two possible interpretations, but I do not see it this way. It seems to me that the second interpretation suggested gives no effect to the fact that the subject of the sentence is "subsection 77(3.01) of the Act," not "the appeal," and particularly presupposes the insertion of the words "before the filing of the Minister's opinion" after the phrase "the hearing has not been commenced." Such a reading, to me, is not open to the interpreter.

     In any event, even if there were an ambiguity in the English version, the French version of the provision is not at all ambiguous and indicates beyond question that the first interpretation of the English version corresponds with the intent of Parliament. As the motions judge said, the principles of statutory construction would then require the ambiguity in the English text to be resolved so as to conform with the non-ambiguous French text. No secondary principle of statutory construction would come into play.

     I will add, finally, that there is nothing in the Act which restricts the time-frame within which the Minister may exercise his or her power to reach an opinion that an individual is a danger to the public. There are obvious policy grounds for maintaining as much latitude in that process as possible in order to provide the maximum protection to the Canadian public. The intent of Parliament in that respect is to me perfectly clear.

     Accordingly, the certified question should be answered in the affirmative and the appeal dismissed.

     "Louis Marceau"

     J.A.

"I concur.

Alice Desjardins, J.A."

"I agree.

F.J. McDonald, J.A."

     A-179-96

     (IMM-2585-95)

OTTAWA, Ontario, Tuesday, February 11, 1997.

CORAM:      MARCEAU J.A.

     DESJARDINS J.A.

     McDONALD J.A.

BETWEEN:

     LANNIE WAI HAR TSANG &

     PETER TO KAN TSANG (TO KAN PETER TSANG),

     Appellants

     (Applicants in the Trial Division)

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

     J U D G M E N T

     The appeal is dismissed.

     "Louis Marceau"

     J.A.

     A-179-96

     (IMM-2585-95)

CORAM:      MARCEAU J.A.

     DESJARDINS J.A.

     McDONALD J.A.

BETWEEN:

     LANNIE WAI HAR TSANG &

     PETER TO KAN TSANG (TO KAN PETER TSANG),

     Appellants

     (Applicants in the Trial Division)

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

Heard at Vancouver, British Columbia, on Thursday, January 16, 1997.

Judgment rendered at Ottawa, Ontario, on Tuesday, February 11, 1997.

REASONS FOR JUDGMENT BY:      MARCEAU J.A.

CONCURRED IN BY:      DESJARDINS J.A.

     McDONALD J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-179-96

     (IMM-2585-95)

BETWEEN:

     LANNIE WAI HAR TSANG &

     PETER TO KAN TSANG

     (TO KAN PETER TSANG),

     Appellants

     (Applicants in the Trial Division)

     - and -

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent

     REASONS FOR JUDGMENT

__________________

¹      R.S.C. 1985, c. I-2, as amended.

²      The word "valid" is, in fact, used in the sense of "operative," capable of producing the effect for which it is issued. It seems to me, incidentally, that according to that analysis, there may have been a possibility for the appellants to launch their attack against the Minister's opinion directly before the Appeal Division by way, for example, of a special "motion for decision," however unusual such a motion could be.