Date: 20060315
Docket: IMM-2663-05
Citation: 2006 FC 338
Ottawa, Ontario, March 15, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
HARMINDER SINGH UPPAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Claiming to be a visitor, Mr. Uppal travelled from the United Kingdom (U.K.) to Canada. When he arrived at Pearson International Airport at Toronto (Pearson), he produced a British passport in the name of Gian Singh (the Singh passport). An immigration officer's examination under section 18 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) culminated in a report under subsection 44(1) of the IRPA alleging Mr. Uppal's inadmissibility under paragraph 36(1)(c) of the IRPA. After a hearing before the Immigration Division (ID) of the Immigration and Refugee Board, the ID concluded that Mr. Uppal is inadmissible. Mr. Uppal seeks judicial review of that decision.
I. The Facts
[2] In 1995, Mr. Uppal travelled to Spain using a valid Indian passport issued in his name. After spending approximately two weeks in Spain, he claims to have been smuggled to France and two weeks later, onto Britain. From 1995 until 2004, Mr. Uppal lived in the U.K. In the year 2000, he obtained a British passport in the name "Gian Singh". Later, he applied for a British driver's licence using the Singh passport as identification. He obtained his driver's licence after completing a driver-training program. Mr. Uppal also used the Singh passport to travel twice to India.
[3] Meanwhile, Canadian authorities had been notified that the Singh passport had been obtained fraudulently. When Mr. Uppal presented himself at Pearson, he was confronted with the notification from British authorities whereupon he identified himself as Harminder Singh Uppal and stated that his true purpose in coming to Canada was to make a refugee claim.
[4] The subsection 44(1) report recites the normal identifying information regarding file number, reporting officer's name, subject's name and date of birth. The body of the report is reproduced here verbatim. It states that Harminder Singh Uppal is a person who is:
A FOREIGN NATIONAL WHO HAS NOT BEEN AUTHORIZED TO ENTER CANADA
AND WHO, IN MY OPINION, IS INADMISSIBLE PURSUANT TO: PARAGRAPH 36(1)(C)
PARAGRAPH 36(1)(C) IN THAT THERE ARE REASONABLE GROUNDS TO BELIEVE [sic] IS A FOREIGN NATIONAL WHO IS INADMISSIBLE ON GROUNDS OF SERIOUS CRIMINALITY FOR COMMITTING AN ACT OUTSIDE CANADA THAT IS AN OFFENCE IN THE PLACE WHERE IT WAS COMMITTED AND THAT, IF COMMITTED IN CANADA, WOULD CONSTITUTE AN OFFENCE UNDER AN ACT OF PARLIAMENT PUNISHABLE BY A MAXIMUM TERM OF IMPRISONMENT OF AT LEAST 10 YEARS.
THIS REPORT IS BASED ON THE FOLLOWING INFORMATION:
THAT HARMINDER SINGH UPPAL
ALSO KNOWN AS GIAN SINGH;
IS NEITHER A CANADIAN CITIZEN NOR A PERMANENT RESIDENT OF CANADA;
THERE ARE REASONABLE GROUNDS TO BELIEVE THAT HARMINDER SINGH UPPAL HAS COMMITTED AN OFFENCE, NAMELY UTTERING A FORGED DOCUMENT, ON OR ABOUT THE YEAR 2000 IN THE UNITED KINGDOM, SPECIFICALLY SUBMITTING AN APPLICATION FOR A UNITED KINGDOM PASSPORT UNDER THE ALIAS STATED ABOVE; AND HAVING BEEN ISSUED THIS PASSPORT ON 04 APRIL 2000 HE SUBSEQUENTLY SUBMITTED AN APPLICATION FOR A UNITED KINGDOM DRIVER'S LICENCE (USING THE FRAUDULENT PASSPORT). THIS OFFENCE IS DESCRIBED IN SECTION 368 OF THE CRIMINAL CODE OF CANADA WHICH STATES:
368(1) EVERY ONE WHO, KNOWING THAT A DOCUMENT IS FORGED,
(A) USES, DEALS WITH OR ACTS ON IT, OR
(B) CAUSES OR ATTEMPTS TO CAUSES (sic) ANY PERSON TO USE, DEAL WITH OR ACT ON IT, AS IF THE DOCUMENT WERE GENUINE, IS GUILTY OF AN INDICTABLE OFFENCE AND LIABLE FOR A TERM OF IMPRISONMENT NOT EXCEEDING TEN YEARS.
IF THIS ACT WERE COMMITTED IN CANADA, IT WOULD CONSTITUTE AN OFFENCE UNDER THE CRIMINAL CODE OF A MAXIMUM TERM OF IMPRISONMENT OF AT LEAST TEN YEARS.
[5] Pursuant to subsection 44(2), an admissibility hearing was requested. Prior to the hearing before the ID, the subsection 44(1) report was amended to substitute paragraph 403(a) of the Criminal Code, R.S.C. c. C-34 (the Code) as the Canadian equivalent offence.
[6] At the hearing before the ID, there were two primary issues. The first was whether the equivalency between the British and Canadian offences was satisfied and the second was whether it was open to the Minister to rely on section 403 of the Code in the face of section 133 of the IRPA. In written submissions, filed after the completion of the hearing, Mr. Uppal's counsel raised an additional question: whether the amendment of the subsection 44(1) report constituted a breach of procedural fairness.
[7] At the hearing of the judicial review application, Mr. Uppal's counsel withdrew his arguments relating to the equivalency of the offences thereby leaving two issues for determination: the effect of section 133 of the IRPA and the amendment of the subsection 44(1) report.
II. Section 133 of the IRPA
[8] This section provides:
| Immigration and Refugee Protection Act,
S.C. 2001, c. 27
133. A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.
|
Loi sur l'immigration et la protection des réfugiés, L.C., 2001, ch. 27
133. L'auteur d'une demande d'asile ne peut, tant qu'il n'est statué sur sa demande, ni une fois que l'asile lui est conféré, être accusé d'une infraction visée à l'article 122, à l'alinéa 124(1)a) ou à l'article 127 de la présente loi et à l'article 57, à l'alinéa 340c) ou aux articles 354, 366, 368, 374 ou 403 du Code criminel, dès lors qu'il est arrivé directement ou indirectement au Canada du pays duquel il cherche à être protégé et à la condition que l'infraction ait été commise à l'égard de son arrivée au Canada.
|
A. Background
[9] At the ID hearing, the Minister argued that while a claimant is entitled to protection from prosecution under section 403 of the Code by virtue of section 133 of the IRPA, the protection is contingent upon whether there has been delay in making the refugee claim. Mr. Uppal, having remained in the U.K. for nine years before coming to Canada, would not be entitled to the protection of section 133.
[10] Referring to R. v. Marzouk (1994), 19 Imm. LR. (3d) 63 (B.C.S.C.), the Minister contended that because of Mr. Uppal's nine years in the U.K., he could not be said to have travelled to Canada directly. The term "directly" in Marzouk was found to exclude those who spend sufficient time in another country, after fleeing their own, such that they acquire de facto protection. According to the argument, Mr. Uppal obtained de facto protection in Britain and therefore could not claim the protection of section 133 of the IRPA.
[11] The ID determined that Marzouk had been decided under subsection 95.1(1) of the former Immigration Act, R.S.C. 1985, c. I-2 (the former Act), which differs from section 133 of the IRPA. The present provision specifically provides protection for those who travel indirectly from the country from which they seek protection. Further, it cannot be said that Mr. Uppal enjoyed de facto protection in the U.K. when he was there illegally and under an assumed name.
[12] Referring to the decision of this court in Vijayakumar v. Canada(Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 176 (F.C.T.D.), the ID noted that a refugee claimant, by virtue of being protected from criminal charges for having used a false passport to come to Canada, cannot be said to have committed an offence in that respect and therefore "cannot be determined to be criminally inadmissible to Canada on that account". Accordingly, the ID found that section 403 of the Code is not applicable to Mr. Uppal, as a refugee claimant, with respect to obtaining the fraudulent British passport. Thus, he is not inadmissible under paragraph 36(1)(c) of the IRPA on that basis.
[13] Nonetheless, the ID determined - in relation to the driver's licence - that Mr. Uppal applied for it using the name Gian Singh with a birth date matching that on the fraudulent passport. He signed his application as "Gian Singh" and he used the Singh passport as identification. He obtained the driver's licence using fraudulent means. Vijayakumar applies to the acquisition of the passport but has no application to the driver's licence. Since section 133 of the IRPA applies only with respect to conduct in relation to coming into Canada and since there was no evidence that Mr. Uppal's acquisition of the driver's licence had anything to do with his journey to Canada, he cannot benefit from the protection of section 133 of the IRPA.
[14] Mr. Uppal asserts that the ID was wrong in its interpretation of section 133. He contends that to confine the application of section 133 to the use, by refugee claimants, of false passports is too restrictive and frustrates the intent of the section. The proper interpretation, according to Mr. Uppal is to conclude that a refugee claimant "may not be charged with any offence under section 403 of the Code, if such a charge will impact on the admissibility of the person to Canada". He claims that section 133 mandates the deferral of proceedings relative to section 403 of the Code, pending disposition of any claim for refugee protection, or the conferral of refugee protection. The immunity granted by section 133 properly refers to any and all offences which fall within the ambit of section 403 of the Code.
[15] While there are a number of questions embodied in the respective arguments of the parties, it is not necessary to decide them here. In my view, the matter can be resolved by determining whether the ID correctly interpreted section 133 in the context of inadmissibility and whether the conclusion that it reached in relation to Mr. Uppal's driver's licence was reasonably open to it.
[16] Section 133 provides protection from prosecution for individuals who have claimed refugee protection. There is no suggestion that Mr. Uppal is to be charged with an offence. It was the Minister's counsel who, at the ID hearing, pointed to section 133 and maintained that it did not apply because of Mr. Uppal's nine-year sojourn in the U.K.
[17] As noted earlier the ID applied this court's reasoning in Vijayakumar to the obtention of the Singh passport and concluded that Mr. Uppal was not inadmissible on that basis. It then examined the circumstances surrounding the acquisition of the driver's licence in relation to section 133 and concluded that Mr. Uppal is inadmissible. It is the interpretation that the ID accorded to section 133 that is crucial.
B. The Standard of Review
[18] There is no privative clause in relation to the ID's decision. However, sections 72 through 75 of the IRPA provide for judicial review where leave has been granted by the court. The ID has significant expertise, among other things, in making inadmissibility decisions. In interpreting the meaning of the legislation, the ID is no better positioned than the court. The purpose of the IRPA, in the context of Division 4 (Inadmissibility) is articulated in paragraphs 3(1)(h) and 3(1)(i) of the statute. Those paragraphs evince an intent to prioritize security and to deny access to Canadian territory to persons who are considered criminals or security risks. The nature of the question involves, in one respect, the interpretation of a provision of the statute, a question of law. In another respect, the question involves the application of the facts to the law.
[19] The pragmatic and functional analysis of these factors leads me to a standard of review of correctness in relation to the interpretation of section 133. Regarding the question of whether the facts, as found, fall within the meaning of the provision, the applicable standard of review is that of reasonableness.
C. Analysis
[20] The Supreme Court of Canada has consistently reaffirmed the principle that the words of a statute must be interpreted having regard to the object, text and context of the provision, considered together: Medovarski v. Canada(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 at paragraph 8. As noted above, the objectives of the IRPA, in the context of immigration, are found in subsection 3(1) of the Act. Medovarski teaches that the objectives indicate an intent to prioritize security. Paragraphs 3(1)(h) and 3(1)(i) are particularly relevant to Division 4 (Inadmissibility) because they refer to maintaining the security of Canadian society and denying access to Canadian territory to persons who are considered criminals or security risks. The same objectives are reiterated in paragraphs 3(2)(g) and 3(2)(h) of the IRPA, in the context of refugees.
[21] Applying the reasoning in Vijayakumar in relation to inadmissibility, section 133 provides shelter, to refugees and refugee claimants, for possessing and using false documents. However, it does not provide carte blanche immunization. On a plain reading of the provision, the protection extends to documents "in relation to the coming into Canada of the person". The intent is to allow bona fide refugees and refugee claimants to use false passports and supporting documents obtained by them for the purpose of making their way into Canada and to shelter them from a finding of inadmissibility for holding and using those documents. The English version of the pertinent portion of the provision is in harmony with the French version: "à la condition que l'infraction ait été commise à l'égard de son arrivée au Canada" (subject to the condition that the infraction was committed with reference to his or her arrival in Canada).
[22] In examining the question of inadmissibility, the ID determined that an individual could be sheltered from a finding of inadmissibility only in relation to a fraudulent document that was obtained for the purpose of entering Canada. In my view, that interpretation is correct. To hold otherwise would be to ignore the plain meaning of the text and would not accord with the previously noted general objectives of the IRPA in the context of immigration, and more specifically, inadmissibility.
[23] Interpreting section 133 in the manner suggested by Mr. Uppal (it should exempt any and all offences which fall within the ambit of section 403 of the Code) would completely distort the intent of the provision when read in its ordinary sense and in conjunction with the scheme and object of the IRPA. Mr. Uppal's proposed interpretation yields the potential (and undesirable) result of permitting individuals, who have committed the offences enumerated in the section, for purposes wholly unrelated to fleeing persecution, to enter Canada.
[24] Mr. Uppal argues that the ID wrongly considered section 133 as being inapplicable to all documents other than passports. I disagree. The ID did not conclude that section 133 was inapplicable to the driver's licence because the licence was not a passport. Rather, it concluded that section 133 was inapplicable because he had not obtained the driver's licence in relation to "his coming into Canada".
[25] There was nothing in the evidence to indicate that Mr. Uppal obtained the fraudulent driver's licence in order to gain entry to Canada to make a refugee claim. There was no evidence to even suggest that he acquired the licence to bolster his identity. He took driving lessons and passed the driver's test to get the licence. The ID thoroughly analysed the evidence and the conclusion it reached was reasonably open to it on that evidence. Mr. Uppal's argument in relation to section 133 must fail.
III. The Amendment to the subsection 44(1) Report
A. Background
[26] Mr. Uppal's written submissions state that he became aware of the amendment to the subsection 44(1) report during the ID hearing. At the hearing of the application for judicial review, his counsel confirmed that Mr. Uppal received formal notice of the substitution of paragraph 403(a) for subsection 368(1) of the Code, as the equivalent Canadian offence, seven days before the ID hearing. The certified tribunal record confirms service of the notice of the amendment 7 days before the hearing.
[27] Mr. Uppal's counsel also conceded, appropriately, that no objection to the amendment was taken at any time before or during the ID hearing. Additionally, his counsel acknowledged that the officer who substituted paragraph 403(a) for subsection 368(1) in the subsection 44(1) report under the IRPA had the requisite designation to prepare subsection 44(1) reports. Mr. Uppal's counsel stated "there is no dispute that the officer who made the change had the authority to do so".
[28] Following the ID hearing, in written submissions, Mr. Uppal raised the argument that once the subsection 44(1) report was forwarded to the ID, the report constituted "notice to the subject as to the case to be met at the ID hearing". If changes were to be made to the report, after the referral, the report must go back to the Minister to allow him to form the opinion, mandated by subsection 44(2) of the IRPA, that the amended report is well founded.
[29] The ID concluded that Mr. Uppal's complaint with respect to inadequate notice was raised so late in the proceedings as to render it ineffective. Although the subsection 44(2) notice was issued, indicating reliance on subsection 368(1) of the Code, the Minister's counsel "served notice of reliance on section 403 on February 3, 2005 and filed the same as an exhibit at the hearing on February 10, 2005". The applicant therefore had notice of the Minister's intention. No request was made for a delay to allow time for preparation to respond to the section 403 issue. Had there been any indication that counsel for the applicant was unprepared, the ID would have considered an adjournment.
[30] Mr. Uppal, on this application, maintains his contention that subsection 44(2) of the IRPA permits the Minister to refer the report to the ID for an admissibility hearing if the Minister is of the opinion that the report is well-founded. The jurisdiction of the ID is therefore restricted to considering the allegations in the report referred to it by the Minister. Changes, if any, must go back to the Minister to allow him to form the opinion mandated by subsection 44(2). In accordance with the procedure outlined in the IRPA, the first subsection 44(2) report ought to have been withdrawn and a new report prepared. Mr. Uppal suggests that the protection of the IRPA disappears if the proper procedure, as he outlines it, is not followed.
[31] In Mr. Uppal's view, the ID exceeded its jurisdiction in considering the report that was amended by the Minister's counsel to substitute section 403 for section 368 of the Code after the report had been referred by the Minister to the ID. This, it is said, constitutes a breach of procedural fairness.
B. Pertinent Statutory Provisions
| Criminal Code, R.S., c. C-34
403. Every one who fraudulently personates any person, living or dead,
(a) with intent to gain advantage for himself or another person,
...
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.
Immigration and Refugee Protection Act,
S.C. 2001, c. 27
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
...
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
...
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
|
Code criminel, S.R., ch. C-34
403. Est coupable soit d'un acte criminel et passible d'un emprisonnement maximal de dix ans, soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire quiconque, frauduleusement, se fait passer pour une personne, vivante ou morte :
a) soit avec l'intention d'obtenir un avantage pour lui-même ou pour une autre personne;
[...]
Loi sur l'immigration et la protection des réfugiés, L.C., 2001, ch. 27
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
[...]
c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
[...]
44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
|
C. The Standard of Review
[32] A question of procedural fairness is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached the duty: Sketchley v. Canada(Attorney General) 2005 FCA 404; 144 A.C.W.S. (3d) 509.
D. Analysis
[33] The obligations imposed by the duty of procedural fairness vary with the circumstances: Knight v. Indian HeadSchool Division No. 19, [1990] 1 S.C.R. 653; Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[34] Administrative decisions must be made "using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context": Baker, paragraph 22. Factors relevant to determining the content of procedural fairness include: the nature of the decision being made and the process followed; the role of the particular decision within the statutory scheme; the importance of the decision to the individual affected; the legitimate expectation of the person challenging the decision and the choice of procedure made by the agency itself: as above, paragraphs 21-28.
[35] The ID is obliged to scrupulously observe fairness in making a decision on the facts: Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.).
[36] With these principles in mind, I turn to Mr. Uppal's contention that amendments to a subsection 44(1) report must be returned to the Minister (presumably this includes a ministerial delegate), for a fresh decision under subsection 44(2).
[37] I do not intend to hypothesize or attempt to envision the various circumstances that could give rise to a subsection 44(1) report amendment after the report has been referred to the ID. Nor do I believe that it is prudent to set out a general proposition for universal application regarding amendments. Rather, regard must be had to the circumstances of the case. Each case will turn on its unique facts.
[38] The objectives of the IRPA, in relation to inadmissibility, have been discussed earlier in these reasons. The purpose of paragraph 36(1)(c) of the IRPA is to deny entry into Canada to those who fall within its parameters. The fundamental principle of immigration law, articulated in Chiarelli v. Canada(Minister of Employment and Immigration) [1992] 1 S.C.R. 711, that non-citizens do not have an unqualified right to enter or remain in the country, was recently reaffirmed in Medovarski.
[39] It is noteworthy that a subsection 44(1) report is not contemplated unless the officer has reasonable grounds to believe that the individual in question is inadmissible. The facts contained in the report must also satisfy the Minister (in practice the ministerial delegate) that the report is well-founded before any request for an admissibility hearing can be made. If the matter is referred for an admissibility hearing, the ID must determine whether there are reasonable grounds to believe that the individual is inadmissible because of paragraph 36(1)(c).
[40] The subsection 44(1) report in this matter stated, in the opinion of the officer, that Mr. Uppal was inadmissible pursuant to paragraph 36(1)(c) of the IRPA. The basis for the opinion was stated to be the existence of reasonable grounds to believe that Mr. Uppal, a foreign national, was inadmissible on grounds of serious criminality because of his commission of an act, outside of Canada, that is an offence in the place where it was committed and, if committed in Canada, would be an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
[41] The report then set out the factual information upon which the report was based. It stated that Mr. Uppal had committed an offence in the year 2000, in the U.K., by applying for a U.K. passport under an alias and, having been issued the passport, by applying for a U.K. driver's licence, using the fraudulent passport. It referred to the Canadian equivalent offence as being subsection 368(1) of the Code and it recited the wording of that provision.
[42] The substance of the offence in question was delineated in the officer's description of Mr. Uppal's act. An equivalent Canadian offence, punishable by a maximum term of imprisonment of 10 years, was essential to satisfy the requirements of paragraph 36(1)(c).
[43] There is nothing in the IRPA, the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), or the Immigration Division Rules, SOR/2002-229 (the Rules) to suggest that a subsection 44(1) report cannot be amended. Paragraph 26(b) in Part 3 of the Rules provides that copies of documents to be used at a hearing must be provided and received at least 5 days before the hearing. Rule 5 specifically addresses "withdrawing a request by the Minister for an admissibility hearing". It does not contemplate withdrawal for amendments to a subsection 44(1) report.
[44] The respondent argues that Mr. Uppal is attempting to "import the strictures applicable to criminal procedure into the context of an admissibility hearing" and that they are simply not applicable. In fact, the amending provisions of the Code (see section 601) are far broader than the procedure Mr. Uppal urges me to apply here.
[45] An amendment to the subsection 44(1) report, for the purpose of substituting a different Canadian equivalent offence, does not require that the report be returned to the Minister for a fresh determination where the substituted offence conforms to the description of the act in question and constitutes an offence that is punishable by a maximum term of imprisonment of 10 years (subject always to concerns of procedural fairness other than the substitution itself). The substance of the report is comprised of the facts that are alleged to exist to constitute the offence that is alleged to have been committed by the individual. There must be an equivalent offence, but the Canadian equivalent can be any federal offence that corresponds to the act in question and is punishable by a maximum term of imprisonment of 10 years.
[46] The substitution of an equivalent Canadian offence, that better conforms to the offence alleged to have been committed, does not affect the substance of the subsection 44(1) report. It follows that the substitution of one particular provision of the Code, that better depicts or corresponds to the impugned act than another, does not necessitate a withdrawal of the report such that the subsection 44(2) decision is returned to its preliminary stage. It is arguably inappropriate for the Minister (in practice the ministerial delegate) not to choose the provision best-suited to describe the impugned act. It bears repeating that Mr. Uppal does not dispute that the Minister's counsel in this case was authorized to make the change.
[47] Regarding the importance of the decision to Mr. Uppal, beyond the obvious consequence flowing from the result of the inadmissibility hearing - that he will not be permitted to remain in Canada - there is no evidence in this respect. Moreover, Mr. Uppal does not claim to have been prejudiced in any way by the amendment. While his counsel speaks of the right to know the case to be met, he does so in the abstract.
[48] As to the process that was followed, the transcript of the hearing of February 10, 2005, reveals that an earlier discussion, regarding a proposed amendment to the equivalent offence, took place at an earlier hearing on December 2, 2004. On February 3, 2005, one week before the hearing, Mr. Uppal received formal notice of the substitution of paragraph 403(a) as the equivalent offence, along with a supplemental disclosure package. The first disclosure material had been provided on December 2nd. The disclosure, received by Mr. Uppal, included the Minister's documents as well as the caselaw upon which the Minister intended to rely.
[49] Mr. Uppal testified and was represented by counsel at the hearing on February 10th. The ID received post-hearing written submissions from counsel. The April 10, 2005 decision of the ID is some 18-typed pages and is both cogent and comprehensive. The ID thoroughly reviewed the evidence and the arguments. There is a detailed analysis of both. Much of the decision is devoted to the issue of "equivalency". Mr. Uppal was successful in relation to one of his two equivalency arguments. He conceded the other at the hearing of this application.
[50] In these circumstances, I have no hesitation in concluding that Mr. Uppal was fully aware of the case he had to meet and he was provided a full opportunity to participate in a meaningful manner in the process. There was no breach of procedural fairness.
[51] Nonetheless, in the event that I am mistaken, I find that any breach of procedural fairness was waived. No objection was taken, to the amendment of the subsection 44(1) report, prior to or during the hearing. The reasons of the ID explicitly state that had there been "any indication that Mr. Uppal or his counsel was unprepared or taken by surprise", a further adjournment would have been considered.
[52] In my view, the failure to make a timely objection constitutes, if not an unequivocal waiver, an implied waiver. This concept was explained, in relation to a reasonable apprehension of bias, by Mr. Justice McGuigan in In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.), [Atomic Energy], leave to appeal refused, [1986] 2 S.C.R. v. In addressing implied waiver, Justice McGuigan stressed the duty to raise a claim of reasonable apprehension of bias (to allege a violation of natural justice) at the earliest practicable opportunity.
His reasoning was accepted by both the majority and the minority in Canada (Human Rights
class=Section2 >
Commission) v. Taylor, [1990] 3 S.C.R. 892.
[53] This court addressed the requirements of a valid implied waiver in the context of interpretation rights under section 14 of the Charter. Relying on Atomic Energy, the court held that a complaint about the quality of interpretation must be made at the first opportunity, where it is reasonable to expect a complaint to be made: Mohammadian v. Canada(Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.) aff'd., [2001] 4 F.C. 85 (C.A.).
[54] However, in relation to the right to reasonable disclosure of documents, in Chalal v. Canada(Minister of Citizenship and Immigration) (2003), 232 F.T.R. 36; 30 Imm. L.R. (3d) 17 (F.C.T.D.), the court determined that the question of whether it is reasonable to expect that an objection be made at the first opportunity is a question of fact. The key issues are the timing of the disclosure and the importance of the information with respect to a determination.
[55] The ID found that Mr. Uppal's complaint, raised at such a late stage in the proceeding, was ineffective. I agree. Moreover, even if I did not, it would not be open to me to take issue with a finding of fact unless it was made in a perverse or capricious manner or without regard to the material before the ID. That is not the case. Consequently, Mr. Uppal's argument in relation to the amendment of the subsection 44(1) report fails.
[56] For the foregoing reasons, this application for judicial review will be dismissed. Mr. Uppal suggested the following question for certification:
Does the Immigration Division's consideration of a report under subsection 44(1) of the IRPA, which has been altered or amended by an Immigration Officer, after its referral by the Minister to the Immigration Division under subsection 44(2) of the IRPA, constitute a breach of procedural fairness?
[57] The Minister opposed certification on the basis that the question did not arise on the facts of this case. I am inclined to agree with the Minister. Given that each case must, of necessity, be determined on its own facts, the question does not transcend the interest of Mr. Uppal as a party to the litigation. Consequently, it is not appropriate for certification: Canada(Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.). The proposed question is also misleading in that the amendment was made by a ministerial delegate so authorized.
JUDGMENT
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
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