Date: 20060821
Docket: IMM-4012-05
Citation: 2006 FC 1007
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
PIOTR
MALARSKI
Respondent
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:
|
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.
|
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.
|
[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:
|
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:
|
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.
Sandra J.
Simpson
Ottawa, Ontario
August 21, 2006
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