Chuquin Avalos v. Canada (Minister of Citizenship and Immigration), 2005 FC 830

                                                                                                                                  Date: 20050610

                                                                                                                      Docket: IMM-6655-04

Citation: 2005 FC 830

BETWEEN:

MANUEL CHUQUIN AVALOS

Applicant

- and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

BLANCHARD J.

INTRODUCTION

[1]         The applicant, Manuel Chuquin Avalos, is a Peruvian by origin and a permanent resident in Canada. Following a conviction for impaired driving causing the death of two persons and injuring two others, he was ordered to leave Canada. The Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division) granted the applicant a five-year stay of the removal order, enabling him to remain in Canada subject to compliance with certain conditions, inter alia to report in person every six months to the local office of the respondent.

[2]         The applicant failed to appear and, on a review of the case, the Appeal Division concluded, after noting the non-compliance with a condition, that it had no jurisdiction to hear the appeal. It ordered the revocation of the stay of execution of the removal order. The appeal was dismissed for lack of jurisdiction on July 5, 2004.

FACTUAL CONTEXT

[3]         The applicant arrived in Canada on November 8, 1986, was granted refugee status on March 15, 1988, and became a permanent resident on March 14, 1989.

[4]         On April 22, 1992, the applicant was convicted of impaired driving and sentenced to pay a fine of $400.00.

[5]         On April 4, 1999, the applicant was involved in a traffic accident while he was inebriated, resulting in the death of two persons and injuring two others.

[6]         Here is a summary of the charges to which the applicant pleaded guilty on May 1, 2000, and the sentences that were imposed:

[7]         The applicant served a sentence of one year and, on January 15, 2002, was granted day parole by the National Parole Board.

[8]         On March 20, 2001, a report prepared pursuant to subsection 27(1) of the Immigration Act, R.S.C. 1985, c. I-5, designated the applicant as a permanent resident who had been convicted of an offence under an Act of Parliament covered by subparagraphs 27(1)(d)(i) and 27(1)(d)(ii).

[9]         On June 15, 2001, the Immigration Division of the Board concluded that the applicant was inadmissible to Canada and ordered his deportation under subsection 32(1) of the Immigration Act.

[10]       The applicant appealed this decision. On June 27, 2002, the Appeal Division granted him a stay of execution of the removal order for a five-year period accompanied by conditions, the first of which provided that he report in person to the Canada Immigration Centre (CIC) once every six months and account for six factors, including his employment and his current housing conditions.

[11]       On February 2, 2004, the applicant failed to report to the CIC.

[12]       On April 26, 2004, the hearing was held by the Appeal Division on an initial oral review of the order of June 27, 2002. At this hearing, the respondent filed a motion to dismiss the appeal under sections 197 and 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). The appeal was dismissed on July 5, 2004.

[13]       Leave to file the present application for judicial review was granted on October 28, 2004.

IMPUGNED DECISION

[14]       The Appeal Division allowed the Minister's motion to dismiss the appeal. The applicant's appeal was therefore dismissed for lack of jurisdiction.

[15]       The Appeal Division noted, first, that it is bound by the provisions of sections 197 and 64 of the IRPA. The Appeal Division noted that, through the operation of these sections, Parliament intended to deprive permanent residents who are inadmissible on grounds of serious criminality, and permanent residents sentenced to prison terms of at least two years before the coming into force of the IRPA, of the right of appeal.

A person who, like [the applicant], is subject to a stay under the former Act further to a conviction for a criminal offence that led to a term of imprisonment of at least two years and who has failed to comply with a condition of the stay will have his right to appeal withdrawn by operation of sections 197 and 64 of the Act.

[16]       The Appeal Division did not accept the applicant's argument that the discrepancy between the English and French versions of section 197 should be construed in favour of the applicant. The applicant argued that the English version states that section 197 applies when the person breaches a condition of the stay, while the French version requires instead that more than one condition of the stay must have been breached for section 197 to apply. The Appeal Division concluded that the English and French versions of section 197 had the same effect: if the person breaches a single condition of the stay, he has not "respected the conditions of the stay". The applicant did not raise this argument on this application for judicial review.

[17]       The Appeal Division also rejected the applicant's argument that he had presented a reasonable excuse for failing to report to the CIC on February 2, 2004, and that consequently there was an absence of mens rea as a basis for finding a breach of condition. The record clearly demonstrated, the Appeal Division held, that the applicant had displayed negligence in this case, which was sufficient for it to conclude that the applicant had breached a condition of the stay order.

[18]       The applicant's argument that the Appeal Division may exercise its discretion in applying section 197 was likewise rejected. The Appeal Division concluded that after finding non-compliance with a condition, it lacked jurisdiction to hear the appeal. The Appeal Division determined, therefore, that it had no alternative but to find that the stay of execution of the removal order should justifiably be revoked. The appeal was accordingly dismissed.

ISSUES

[19]       In my opinion, the following are the issues raised in this case:

(1)         Did the Appeal Division err in finding that it lacked jurisdiction to relieve the applicant of his failure to comply with the conditions of his stay?

(2)         Is section 197 of the IRPA unconstitutional for incompatibility with section 7 of the Canadian Charter of Rights and Freedoms?

ANALYSIS

Statutory provisions

[20]       When the IRPA provisions came into force, on June 28, 2002, the applicant's case was pending in the Appeal Division. His treatment comes under the transitional provisions, therefore. The general rule, set out in section 192 of the IRPA, provides that cases pending in the Appeal Division when the IRPA came into force were continued under the Immigration Act. Some exceptions to this rule of general application are provided in sections 196 and 197 of the IRPA.

192. Immigration Appeal Division If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.		192. Anciennes règles, nouvelles sections S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.

[21]       Section 196 provides that unless an appellant has been granted a stay under the Immigration Act, the appeal made to the Appeal Division shall be discontinued if the person is covered by the limitation on the right of appeal under section 64 of the IRPA.

196. Appeals Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.		196. Appels Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi.

[22]       Section 197 provides that if the appellant has been granted a stay, the case continues unless the appellant has breached a condition of the stay. If a breach of condition occurs, the case then becomes subject to section 64 of the IRPA.

197. Stays 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. Sursis 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.

[23]       Section 64 of the IRPA provides that no appeal may be made by an inadmissible permanent resident sentenced to more than two years of imprisonment.

64. No appeal for inadmissibility (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. Serious criminality (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.		64. Restriction du droit d'appel (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant. Grande criminalité (2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.

[24]       Subsection 36(1) of the IRPA defines persons who are inadmissible to Canada on grounds of serious criminality. In this case, the applicant falls within this provision.

36. Serious criminality (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada 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; or (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.		36. Grande criminalité (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans; 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.

[25]       The applicant contends that the Appeal Division erred in applying these provisions, and in particular in finding that it lacked jurisdiction to relieve him of his failure to comply with the conditions of his stay. The applicant further contends that section 197 is unconstitutional in that it contravenes the fundamental rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the Charter).

(1)         Did the Appeal Division err in finding that it lacked jurisdiction to relieve the applicant of his failure to comply with the conditions of his stay?

[26]       This issue raises some questions as to the jurisdiction of the Appeal Division and the interpretation of the provisions spelling out that jurisdiction, essentially a question of law. The Appeal Division had to determine whether it had the power to decide the applicant's appeal. Consequently, the standard of review applicable to this determination is that of correctness: Pushpanathan v. Canada, [1998] 1 S.C.R. 982.

[27]       On some questions of a factual nature, it is trite law that this Court accords great deference to the Appeal Division. Paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides that such determinations will be overturned only if they involve an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before the tribunal.

18.1 Grounds of review (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;		18.1 Motifs (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

[28]       The applicant argues that section 197 does not allow any analysis of the circumstances surrounding the breach of condition. An individual failing to comply with a condition is automatically liable and has no opportunity to present an explanation. He is unable to demonstrate lack of mens rea: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In this case, the applicant says, the Appeal Division did not conduct an analysis of the circumstances surrounding the breach. There is no indication whatsoever in the impugned reasons for decision that the applicant's explanations were considered.

[29]       The applicant suggests that the Appeal Division erred in refusing to exercise its discretion under section 174 of the IRPA. He argues that the Appeal Division's role is not limited to registering the breach and abandoning the case. Rather, the Appeal Division must proceed to an analysis of the circumstances peculiar to each case and use its discretionary authority: Romans v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 1524. And it is required to exercise this discretion in a way that is consistent with the objectives of the IRPA.

[30]       The applicant notes, finally, that he was granted a stay for humanitarian reasons. The Minister did not even consider it appropriate to submit the applicant's record for a danger opinion. The situation has not changed.

[31]       The respondent argues that there is no provision in the IRPA that would allow the Appeal Division, once it has registered a breach of condition, to relieve an appellant of his default. The Appeal Division was therefore right, he argues, to consider itself bound by the mandatory provisions that confer no discretion on it.

[32]       Because the applicant's appeal was filed before the coming into force of the IRPA, the legal proceedings had to be conducted under the Immigration Act, pursuant to section 192. However, the applicant obtained a stay of the removal order and breached a condition of that stay. These circumstances bring section 197 of the IRPA into play. That section provides that the applicant is subject to the limitation of the right of appeal set out in section 64.

[33]       In the case at bar, the applicant is in fact subject to the application of section 64, and cannot appeal the deportation order. Since he was sentenced to prison terms of more than six months, the applicant was considered inadmissible under paragraph 27(1)(d) of the Immigration Act and, through the operation of paragraph 320(5)(a) of the Immigration and Refugee Protection Rules, SOR/202-227, he is now considered inadmissible on grounds of serious criminality under subsection 36(1) of the IRPA.

[34]       I am unable to accept the applicant's argument that section 197 allows no analysis of the circumstances surrounding the breach of condition and that in this case the applicant was unable to proffer an explanation. Section 197 does not prevent the Appeal Division from considering any reasonable explanation relating to the breach of condition. In my opinion, the Appeal Division has an obligation to consider the excuses provided by the applicant as an explanation of his failure, and it did so in this instance. The Appeal Division expressly considered the applicant's explanation for his failure and considered it insufficient. Accordingly, it is my opinion that the principles of natural justice were complied with in this case.

[35]       The Appeal Division found that the facts indicated some negligence on the part of the applicant and that he had not demonstrated that his failure to comply with a condition of his stay was due to circumstances beyond his control.

The panel will now address the argument set out in paragraph 16 of the [applicant's] counsel's response. The panel is of the opinion that this argument also has no basis in law. The evidence clearly shows that [the applicant] displayed negligence in failing to report to the CIC as he was supposed to do. Such negligence is sufficient in the panel's eyes to conclude that [the applicant] has breached condition number 1 of the stay order.

Exhibit R-2, to which the panel has previously referred, as well as [the applicant's] testimony, confirms that this condition was breached. The panel also notes that two months after the date on which he was supposed to report, [the applicant] still has not reported to the CIC. The panel also noted [the applicant's] admission at the hearing as to his failure to comply with this condition. His explanations fail to justify the breach of this condition.

Furthermore, the record demonstrates that the applicant was aware that any failure by him to comply with the conditions of stay would result in the stay of the deportation order being lifted. In light of the evidence as a whole, I am unable to conclude that the rejection of the applicant's explanation by the Appeal Division is an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before the tribunal.

[36]       The Board ruled that the failure was not adequately explained by the applicant, registered the failure and concluded that section 64 of the IRPA applied, depriving it of jurisdiction to hear and determine the appeal. The Appeal Division, in my opinion, properly directed itself as to the law. Accordingly, there is no need to intervene.

[37]       Notwithstanding the conclusion I have reached on the first issue, it remains that the applicant argues that section 197 contravenes the fundamental rights protected by section 7 of the Charter. I shall therefore consider this second issue.

(2)         Is section 197 of the IRPA unconstitutional for incompatibility with section 7 of the Canadian Charter of Rights and Freedoms?

Statutory provisions

[38]       Section 7 of the Charter provides:

7. Life, liberty and security of person Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.		7. Vie, liberté et sécurité Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

[39]       It is settled law that the legal onus of establishing a Charter breach falls on the party invoking it, in this case the applicant: R. v. Morin, [1992] 1 S.C.R. 771.

[40]       The applicant argues in this case that section 7 is violated by the provisions of section 197 of the IRPA. The Supreme Court of Canada has set out the appropriate analysis for determining whether there has been a violation of section 7, in R. v. Beare, [1988] 2 S.C.R. 387, an analysis that it refined in R. v. White, [1999] 2 S.C.R. 417:

(1)         determine whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests;

(2)         identify and define the relevant principle or principles of fundamental justice;

(3)         determine whether the deprivation has occurred in accordance with the relevant principles.

[41]       The Court also says, in White, supra, that an infringement of section 7 of the Charter will be made out where a deprivation of life, liberty, or security of the person "has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice".

[42]       In the event that a violation of section 7 is established, it may nonetheless be justified under section 1 of the Charter. That provision reads as follows:

1. Rights and freedoms in Canada The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.		1. Droits et libertés au Canada La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.

[43]       The applicable test for determining whether a breach of a Charter right is justified is laid down in R. v. Oakes, [1986] 1 S.C.R. 103. To meet the fundamental criteria of section 1, it is necessary:

(1)         to demonstrate the existence of an objective of sufficient importance to justify the suppression of a right expressing pressing and substantial concerns of the legislator;

(2)         that the means used to achieve this objective are reasonable

(a)         the measures used must not be arbitrary, unfair or based on irrational considerations;

(b)         the means employed must impair as little as possible the rights and freedoms; and

(c)         there must be a proportionality between the effects of the measures used and the objective which has been identified as of sufficient importance.

[44]       The applicant makes the following arguments:

-            section 197 of the IRPA contravenes the principles of fundamental justice by conferring excessive scope on the IRPA, since the legislative means are not necessary in order to accomplish the goal: R. v. Heywood, [1994] 3 S.C.R. 761;

-            the limitation created by section 197 is unreasonable and unjustifiable in a free and democratic society: Oakes, supra;

-            there is no urgency in removing individuals who have been given a stay of execution of a removal order [translation] "by giving precedence to facts of a humanitarian nature justifying their continued presence in Canada";

-            section 197 of the IRPA is arbitrary in that it does not allow any verification of the context of the breach and it is impossible to present a defence since it applies automatically;

-            section 197's harmful effect on the applicant is too great to justify the removal order in terms of the objectives it is supposed to serve.

[45]       Having considered the record as a whole in this case, I am of the opinion that the issue in dispute in the case involves the constitutional validity of a statutory provision concerning appeals to the Appeal Division. This issue is distinguishable from the issue of the validity of the removal order made in regard to the applicant. And in fact he conceded, at the hearing before the Appeal Division, that this order is legally valid.

[46]       The major weakness in the applicant's argument is the fact that he is attacking the question of fundamental justice without first demonstrating how one or more of the rights guaranteed by section 7 are involved in this case. Regarding the applicant's argument that section 7 is overly broad, I note the remarks of the Supreme Court in Heywood, supra, at page 764, which indicate that the notion of overbreadth is related to the principle of fundamental justice:

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[47]       In this connection, I feel I am bound by the decision of the Federal Court of Appeal in Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48. That case dealt with the application of sections 196 and 64 of the IRPA. Section 196, as explained previously, provides that an appeal made to the Appeal Division shall be discontinued if the appeal could not have been made because of section 64 unless the appellant has been granted a stay under the Immigration Act.

[48]       The majority of the Court of Appeal, in that case, held that section 196 of the IRPA does not compromise the section 7 Charter rights. It ruled that subjecting a person whose appeal is pending before the Appeal Division to the same restrictions as those appealed after the coming into force of the IRPA, under sections 196 and 64 of the IRPA, does not conflict with the principles of fundamental justice. The majority of the Court noted, moreover, that its interpretation of section 196 was reinforced by section 197.

[49]       Even on the assumption that the section 197 IRPA rights are involved in this case, this statutory provision does not violate the principles of fundamental justice. As the respondent notes, there is no reason to prevent the application of the reasoning developed in Medovarski, supra, to this case. Not only were the principles of natural justice complied with here, as I have already concluded, the principles of fundamental justice are not compromised in this case by section 197 of the IRPA.

[50]       I agree with the respondent's argument that if it is not contrary to the principles of fundamental justice to discontinue the appeal of someone subject to a removal order because he or she has committed a serious crime and was not the object of a stay at the time the IRPA came into force (section 196), a fortiori it is not contrary to the principles of fundamental justice to discontinue the appeal of that person insofar as he or she, as the object of a stay, has been given an exemption from the rule but has failed to comply with the conditions thereof (section 197).

[51]       I accept the respondent's argument that even in a free and democratic society a right of appeal is not available in all cases: Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Mills v. The Queen, [1986] 1 S.C.R. 863. This right is created by Parliament, which can just as well abolish it. The Court of Appeal has in fact ruled on this question in Medovarski, supra, basing its decision on the decision of the Supreme Court of Canada in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711:

In the absence of a constitutional right of appeal against a removal order, I am not persuaded that it would be a breach of section 7 to apply section 196 to Ms. Medovarski. ... Again, as I have said, a person cannot have a legitimate expectation that procedural rights granted by Parliament may not be removed.

[52]       Furthermore, notwithstanding the application of sections 197 and 64 of the IRPA, the applicant is not deprived of all recourse. He can file an application for exemption based on humanitarian and compassionate considerations under section 25. He is also subject to the principle of non-refoulement under subsection 115(1) of the IRPA, i.e., he will not be returned to his country of origin if he would be at risk of persecution, torture, or cruel and unusual treatment or punishment.

[53]       Concerning the applicant's argument that section 197 prevents him from demonstrating lack of mens rea, or a guilty intention to breach one of the conditions of stay, I must point out that we are in this case conducting a judicial review of an immigration matter and not a criminal law matter. The standard of proof is the balance of probabilities and the onus is on the applicant to establish that the facts at issue do not constitute a breach of condition, failing which section 197 and consequently section 64 will apply.

[54]       In short, I find that the applicant has not discharged his onus of establishing a violation of section 7 of the Charter. Although I recognize the seriousness of the issue raised in this case, I am of the opinion that no violation of section 7 of the Charter has been proved. It is therefore unnecessary to proceed to a determination under section 1 of the Charter.

CONCLUSION

[55]       In light of the reasons set out earlier, and my negative conclusion on the issues raised in this case, this application for judicial review will be dismissed.

[56]       The parties will have 14 days from the receipt of these reasons in which to serve and file a question for certification. The parties will then have 5 days in which to serve and file their reply.

[57]       After consideration of the submissions, an order will issue dismissing the application for judicial review and disposing of the question for certification.

                  "Edmond P. Blanchard"

                                Judge

Ottawa, Ontario

June 10, 2005

Certified true translation

Peter Douglas

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            IMM-6655-04

STYLE OF CAUSE:                Manuel Chuquin Avalos v. MCI

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        May 24, 2005

REASONS FOR ORDER:                The Honourable Mr. Justice Edmond P. Blanchard

DATE OF REASONS:                       June 10, 2005

APPEARANCES:

Pierre Tabah                                          FOR THE APPLICANT

Montréal, Quebec

François Joyal                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Pierre Tabah                                          FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C.                               FOR THE RESPONDENT

Deputy Attorney General

of Canada