Date: 20000526
Docket: IMM-6345-98
Between :
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of P. A. Fitzgerald, a visa officer at the Canadian Consulate General in Buffalo, New York, dated November 6, 1998, refusing her application for permanent residence in Canada.
[2] The applicant is a citizen of the United States. She has a Bachelor of Arts degree from Harvard University and a Masters of Fine Arts degree from the Rhode Island School of Design. The applicant attended the Vancouver Film School in 1993, graduating with a Certificate of Completion. Between 1994 and 1996, she worked as a camera assistant in Vancouver.
[3] The applicant was convicted of criminal contempt of court by the Supreme Court of British Columbia on November 12, 1993 for the violation of court orders prohibiting the blockading of certain logging roads in the area of Clayoquot Sound. She was sentenced to serve twenty-one days in prison and pay a five hundred dollar fine.
[4] The applicant applied for permanent residence in February 1997. She indicated on her application that she had been convicted of a crime or offence. By letter dated March 14, 1997, the applicant sent the Canadian Consulate General in Buffalo a certificate from the Vancouver Police Department, dated September 27, 1996, indicating that she has no criminal record.
[5] By letter dated September 2, 1998, the visa officer rejected the applicant's application on the grounds that:
| . . . You come within the inadmissible class of persons described in Paragraph 19(2)(a) of the Immigration Act, because you have been convicted of an offence in Canada, to wit: |
| Criminal Contempt of Court |
| Pursuant to section 730 of the Canadian Criminal Code, the punishment for this offence is a maximum term of imprisonment not exceeding five years. |
On September 30, 1998, the respondent wrote to the visa officer requesting a review of this decision.
[6] The relevant paragraphs of the visa officer's second decision read as follows:
| In the matter of your application for permanent residence in Canada, this is to confirm that I have reviewed my decision to refuse your application for permanent residence made on September 1, 1998. However, I have once again determined that you do not meet with the requirements for immigration to Canada. |
| You have been convicted of an offence in Canada - Criminal Contempt of Court - and were sentenced to a term of imprisonment of less than ten years. You therefore come within the inadmissible class of persons described in Paragraph 19(2)(a) of the Immigration Act. |
| Because you have been convicted in Canada, you must seek a pardon from the National Parole Board of Canada before you apply for immigration to Canada. . . . |
[7] For the purposes of this application, the following provisions are particularly relevant:
(a) paragraph 19(2)(a) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"):
| 19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
| (a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act; |
|
19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
| a) ont été déclarés coupables au Canada d'un acte criminel ou d'une infraction dont l'auteur peut être poursuivi par mise en accusation ou par procédure sommaire et qui peut être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, à l'exception d'une infraction désignée à titre de contravention sous le régime de la Loi sur les contraventions; |
|
(b) section 9 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"):
| 9. Notwithstanding anything in this Act or any other Act, no person shall be convicted
| (a) of an offence at common law, |
| (b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or |
| (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada, |
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before April 1, 1955, to impose punishment for contempt of court.
|
9. Nonobstant toute autre disposition de la présente loi ou toute autre loi, nul ne peut être déclaré coupable des infractions suivantes :
| a) une infraction en common law; |
| b) une infraction tombant sous le coup d'une loi du Parlement d'Angleterre ou de Grande-Bretagne, ou du Royaume-Uni de Grande-Bretagne et d'Irlande; |
| c) une infraction visée par une loi ou ordonnance en vigueur dans une province, un territoire ou un endroit, avant que cette province, territoire ou cet endroit devînt une province du Canada. |
Toutefois, le présent article n'a pas pour effet d'atteindre le pouvoir, la juridiction ou l'autorité qu'un tribunal, juge, juge de paix ou magistrat possédait, immédiatement avant le 1er avril 1955, d'imposer une peine pour outrage au tribunal.
|
[8] At issue in this application is whether criminal contempt is an offence described in paragraph 19(2)(a) of the Act. This provision requires:
| - the applicant to have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, and |
| - that the offence may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, and |
| - that the offence not be an offence designated as a contravention under the Contraventions Act. |
[9] In R. v. Vermette, [1987] 1 S.C.R. 5771, the Supreme Court of Canada held that criminal contempt, while triable by indictment, is not triable in Canada as an indictable offence. Mr. Justice McIntyre stated, at pages 585 to 586:
| The Crown submits that, under s. 8 of the Code, contempt is an indictable offence within the meaning of s. 484(1) and, accordingly, an accused is entitled to elect trial by magistrate, as set out in the section. In my view, however, this argument rests on an erroneous characterization of the contempt power, as preserved by s. 8. That section does not create an indictable offence for the purposes of the Code, but rather preserves the courts' inherent jurisdiction or power to punish for contempt. This distinction is illustrated in the decision of this Court in [1981] 1 S.C.R. 69">Vaillancourt v. The Queen, [1981] 1 S.C.R. 69, where a fifteen-year old youth was convicted of contempt in the face of the court by a superior court judge for refusing to testify at a trial. On appeal, it was argued that the judge lacked jurisdiction to deal with the matter because of the exclusive jurisdiction of the youth court. Chouinard J., speaking for the Court, held that, had the appellant been charged under s. 116(1) of s. 127(2) of the Code, the youth court would have had exclusive jurisdiction. However, he referred to the difference between the laying of criminal charges under the Code and the exercise by the Court of its inherent jurisdiction to protect its processes through contempt proceedings, pursuant to s. 8 of the Code. To this effect, he quoted with approval the words of the trial judge, at p. 72: |
| [TRANSLATION] The first point to be noted from reading this section is that the legislator makes a very clear distinction between an offence contained in the Criminal Code or in an Act or ordinance in force, and the power, jurisdiction or authority of a court to impose a penalty for contempt of court. He has accordingly created a very clear distinction between offences and crimes on the one hand, and the power to impose a penalty for contempt of court on the other. |
| While [1981] 1 S.C.R. 69">Vaillancourt involved contempt in the face of the court, and is thus different from the case at bar, it nonetheless provides an accurate statement as to the true nature of the contempt power preserved under s. 8 of the Code. It illustrates the source of the problem which arose in the case at bar. The Crown, in proceeding as it did, was treating criminal contempt as an indictable offence under the Code. The procedure in respect of indictable offences enables an election for trial before the provincial court. Criminal contempt, however, as preserved by s. 8 of the Code, is an offence derived from the law of England and one which, according to the law of England which must be applied here, has always been triable only in the superior courts. While it is triable by indictment, it is not triable in Canada as an indictable offence under Part XVI of the Code and the accused therefore has no right to an election. It may be tried only in the superior court and, when an indictment for criminal contempt is employed in Canada, it would seem that it would have to be by direct indictment to the superior court. |
[10] According to The Law of Contempt in Canada2, at pages 60 and 61:
| The Criminal Code supplements the court's inherent power to punish criminal contempts summarily by providing the Attorney General an alternative procedure by way of indictment. The Crown proceeds by direct indictment to the court of superior jurisdiction. Note that this does not make contempt an "indictable offence" under Part XVI of the Code. An important consequence of this is that the accused cannot elect mode of trial. |
| Where what begins as a civil contempt becomes criminal (or, presumably, comes to be understood as criminal), the court may request that the Attorney General intervene and conduct the proceedings. [Footnotes omitted.] |
[11] Here, after numerous breaches of orders made by the Supreme Court of British Columbia in relation to logging operations in Clayoquot Sound, the Court requested that the Attorney General of British Columbia intervene and continue the proceedings as prosecutions for criminal contempt. Therefore, the applicant was convicted of "an offence for which the offender may be prosecuted by indictment". As a result, the first requirement in paragraph 19(2)(a) of the Act was met in this case.
[12] With respect to the second requirement, I am of the opinion that the visa officer committed an error of law. Specifically, I think that the computer notes dated November 6, 1998 indicate that she misinterpreted the words "an offence . . . that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years". The computer notes read in part:
| . . . As she was convicted of an offence punishable on summary or by way of indictment, and was sentenced to a term of imprisonment of less than 10 years, I am satisfied that she is inadmissible per 19(2)(a) of the Immigration Act. This application is therefore refused. . . . |
[13] It appears that the visa officer reasoned that the second requirement in paragraph 19(2)(a) was satisfied because the applicant was sentenced to less than ten years in prison. In my opinion, however, the issue is whether criminal contempt is an offence "that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years".
[14] In Regina v. Bridges et al. (No. 2) (1989), 61 D.L.R. (4th) 154 (B.C.S.C.), aff'd (1990) 78 D.L.R. (4th) 529 (B.C.C.A.), the accused were convicted of criminal contempt as a result of their defiance of an injunction restraining them from interfering with the operation of a pregnancy counselling and abortion services clinic. Justice Wood explained, at page 159, that the Court's power to punish for contempt exists independent of statutory sentencing provisions:
| The jurisdiction which I exercise is inherent. It stems from the common law. I am not bound by the sentencing provisions of the Criminal Code, nor indeed am I entitled to impose any statutory form of punishment which is unknown to the common law. The distinction between my sentencing jurisdiction under the common law and that under the Criminal Code is important. . . . |
[15] The British Columbia Court of Appeal reached a similar conclusion in MacMillan Bloedel Ltd. v. Brown et al. (1994), 88 C.C.C. (3d) 148, where it dealt with six appeals brought against sentences imposed by Justice Bouck of the Supreme Court of British Columbia for criminal contempt in relation to logging in Clayoquot Sound. In his dissenting opinion, Justice Lambert described the power to punish for contempt as follows, at page 172:
| The power to punish for contempt of court is expressly preserved by s. 9 of the Criminal Code. A right of appeal from such a punishment is conferred by s. 10 of the Code, and the appeal provisions of the Code are made to apply to such an appeal. But nowhere are the punishment provisions of the Code made to apply to the imposition of punishment for contempt. So the powers available to a judge in imposing punishment for contempt of court remain the powers that were and are available at common law. |
| There can be no doubt about the existence at common law of the power to imprison for contempt of court. The same is true about the imposition of a fine for contempt of court. |
For the majority, Chief Justice McEachern observed that although punishment for contempt is not codified, it may be determined using the sentencing provisions in the Code as a guide. He stated, at pages 167 to 168:
| The Code does not contemplate fines without fixing a time for payment or the use of civil process to enforce the payment of fines but a judge sentencing for criminal contempt is not confined strictly to the provisions of the Code. Naturally, however, judges will often follow the guidance of the Code in these matters even though the absence of codification permits judges to fashion remedies different from what the Code provides. |
[16] In Regina v. Cohn (1984), 13 D.L.R. (4th) 680, Justice Goodman of the Ontario Court of Appeal noted that sentences of five years' or more imprisonment for criminal contempt are unacceptable in Canada. His analysis, however, reinforces the distinction between the non-statutory nature of sentencing for contempt and the maximum penalties for similar offences set out in the Code.
[17] In my opinion, although custom dictates that persons convicted of criminal contempt be sentenced to terms of imprisonment of less than five years, and although the sentencing provisions in the Code may guide judges in determining the punishment for criminal contempt, criminal contempt cannot be described as an offence "that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years".
[18] For all the above reasons, I find that criminal contempt is not an offence described in paragraph 19(2)(a) of the Act. Consequently, this application for judicial review is granted and the matter is remitted for reconsideration by a different visa officer.
JUDGE
OTTAWA, ONTARIO
May 26, 2000
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1 The Court in Vermette was considering R.S.C. 1970, c. C-34, section 8.
2 Jeffrey Miller, The Law of Contempt in Canada (Scarborough, Ontario: Carswell, 1997).
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