Date: 20070125
Docket: IMM-2900-06
Citation: 2007 FC 82
Montréal, Quebec, January 25, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
BRIAN
PHILLIP KELLEY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for judicial review of a decision of the Immigration and
Refugee Board, Immigration Appeal Division (the IAD) denying an application
made by the Minister of Citizenship and Immigration (the Minister) to cancel a
stay of execution of a removal order signed on December 20, 1996 under the
now-repealed Immigration Act, R.S.C. 1985, c.
I-2 (the former Act).
[2]
Mr. Brian Kelley (the respondent) was born in Guyana in 1962 and became a landed
immigrant on March 15, 1990.
[3]
On August 23, 1996, a removal order was issued
against Mr. Kelley as he was found to be inadmissible under subparagraphs
27(1)(d)(i) and (ii) of the former Act, having been convicted of several
criminal charges with potential sentences of more than five years, and for
which he was sentenced to terms of imprisonment of nine and twelve months.
[4]
Subsequent to his appeal, on December 20, 1996 the
execution of this removal order was stayed for five years, dependent upon his
compliance with a number of conditions, which were issued on January 8, 1997.
This stay was officially extended for another five years on October 26, 2001,
but always subject to the respondent’s compliance with conditions.
[5]
Among the conditions of this continued stay of
execution of the removal order, the respondent was required to report any
criminal convictions, and to “keep the peace and be of good behaviour”.
[6]
On March 29, 2005, the respondent was convicted
of criminal harassment and mischief, for which he received a sentence of thirty
days incarceration and three years probation, to be served concurrently. Both
are hybrid offences, with criminal harassment carrying a potential term of
imprisonment “not exceeding ten years” where it is prosecuted by way of
indictment.
[7]
The Minister of Public Safety and Emergency
Preparedness consequently made an application to the IAD on August 2, 2005 to
cancel the stay of execution of the removal order pursuant to subsections
36(1), 68(4) and section 197 of the Act.
[8]
In its April 27, 2006 decision, the IAD found
that section 197 of the Act was not triggered as the respondent did not fall
under the purview of subsections 36(1) and 68(4) of the Act, as “the maximum
term of imprisonment is less than ten years”. Neither did the respondent come
under section 64 of the Act. Thus, the IAD rejected the application to cancel
the respondent’s stay of deportation, and the IAD decided that it continued to maintain
jurisdiction over the appeal, and sought to review the respondent’s stay in the
future. The Minister challenges this decision through the present judicial
review.
[9]
The relevant provisions of the Act are to be
found in Annex A to these reasons. I also note that this statutory scheme has
been recently addressed by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Hyde, 2006 FCA 379, [2006] F.C.J. No. 1747 (QL).
[10]
Dealing specifically with the statutory
provisions of the Act that form the basis of the present matter, the Federal
Court of Appeal has held that the correctness standard applied to the review of
the Board’s decisions (Singh v. Canada (Minister of Citizenship and
Immigration), [2006] 3 F.C.R. 70, 2005 FCA 417, at para. 25).
[11]
I must therefore decide whether the IAD was
correct in maintaining its jurisdiction over the respondent’s appeal.
[12]
Having breached a condition of the subsisting
stay of execution of removal order, the respondent triggered section 197 of the
Act.
[13]
Where either section 64 or subsection
68(4) of the Act applies to an individual, that person cannot continue an appeal
to the IAD. This has been recently confirmed by the Federal
Court of Appeal in Hyde, above, at paragraph 7:
(…) a
permanent resident whose removal the IAD had stayed before IRPA came
into effect, and who breaches a condition of the stay, cannot continue an
appeal to the IAD if either the basis of the deportation order was a
criminal conviction with a sentence of two years or more, or if the
offence committed after the IAD had stayed the removal was punishable by a
maximum of 10 years or a sentence of more than six months was imposed.
[14]
The
present matter only concerns subsection 68(4). This provision essentially has
two requirements to cancel the stay of execution of a removal order and
terminate the right of appeal by operation of the law:
a. the
individual, a permanent resident or foreign national found inadmissible on
grounds of serious criminality or criminality, benefited from a stay of a
removal order;
b. the
individual is found guilty of another offence referred to in subsection 36(1).
[15]
The respondent was convicted under section 264
of the Criminal Code, and therefore was liable to imprisonment for a
term not exceeding ten years.
[16]
The applicant submits that as he could
potentially be sentenced “up to and including ten years of imprisonment”, the
respondent meets the requirements of subsection 36(1) of the Act.
[17]
The respondent submits that having been convicted
of a summary offence he was only liable to a maximum term of imprisonment of
six months rather than ten years, and therefore the IAD was correct in holding
as it did.
[18]
I
disagree with the respondent. Subsection 36(3) of the Act is clear that
offences that may be prosecuted either summarily or by indictment are deemed to
be indictable offences, even where prosecuted summarily.
[19]
Thus, I find that the IAD committed a
reviewable error by incorrectly finding that the “maximum term of imprisonment
is less than 10 years” in relation to subsection 264(3) of the Criminal
Code. Clearly, this offence qualifies as “serious criminality” by virtue of
subsection 36(1) as it was punishable for a term “not exceeding ten years”,
which necessarily includes the possibility of a ten-year sentence.
[20]
In misinterpreting subsection 264(3) of the Criminal Code,
along with subsections 36(1) and 36(3) of the Act, the IAD erred in its
application of subsection 68(4) and section 197 of the Act. In the
circumstances of this matter, the correct interpretation was that the
respondent’s stay of execution of the removal order was cancelled by operation
of law and the appeal was terminated.
[21]
For these reasons, I allow the
Minister's application for judicial review, setting aside the decision of the
IAD dated April 27, 2006, and remitting the matter to the IAD to re-determine
the Minister's application to dismiss Mr. Kelley’s appeal on the basis that it had
no jurisdiction over it by virtue of section 197 of the Act, all without
costs.
JUDGMENT
The Minister’s application for
judicial review is allowed. The decision of the IAD dated April 27, 2006, is
set aside and the matter is remitted to the IAD to re-determine the Minister’s
application to dismiss Mr. Kelley’s appeal on the basis that it had no
jurisdiction over it by virtue of section 197 of the Act. All without costs.
“Danièle
Tremblay-Lamer”
Annex A
The
relevant provisions of the Act are:
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190. Every application, proceeding or matter under the former Act
that is pending or in progress immediately before the coming into force of
this section shall be governed by this Act on that coming into force.
192. 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.
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.
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.
36. (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;
[…]
(3)
The following provisions govern subsections (1) and (2):
(a) an offence that may be
prosecuted either summarily or by way of indictment is deemed to be an
indictable offence, even if it has been prosecuted summarily;
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190. La présente loi
s’applique, dès l’entrée en vigueur du présent article, aux demandes et
procédures présentées ou instruites, ainsi qu’aux autres questions soulevées,
dans le cadre de l’ancienne loi avant son entrée en vigueur et pour
lesquelles aucune décision n’a été prise.
192. 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.
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.
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.
36. (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;
[…]
(3)
Les dispositions suivantes régissent l’application des paragraphes (1) et (2)
:
a)
l’infraction punissable par mise en accusation ou par procédure sommaire est
assimilée à l’infraction punissable par mise en accusation, indépendamment du
mode de poursuite effectivement retenu;
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The relevant regulation from the Immigration
and Refugee Protection Regulations (IRPR) is:
|
320. (5) A person who on the
coming into force of this section had been determined to be inadmissible on
the basis of paragraph 27(1)(d) of the former Act is
(a) inadmissible under the Immigration and Refugee
Protection Act on grounds of serious criminality if the person was
convicted of an offence and a term of imprisonment of more than six months
has been imposed or a term of imprisonment of 10 years or more could have
been imposed; or
(b) inadmissible under the Immigration and Refugee
Protection Act on grounds of criminality if the offence was punishable by
a maximum term of imprisonment of five years or more but less than 10 years.
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320. (5) La personne qui, à l’entrée en vigueur du présent article,
avait été jugée être visée à l’alinéa 27(1)d) de l’ancienne loi :
a) est interdite de
territoire pour grande criminalité en vertu de la Loi sur l’immigration et
la protection des réfugiés si elle a été déclarée coupable d’une
infraction pour laquelle une peine d’emprisonnement de plus de six mois a été
infligée ou une peine d’emprisonnement de dix ans ou plus aurait pu être
infligée;
b) est interdite de
territoire pour criminalité en vertu de la Loi sur l’immigration et la
protection des réfugiés si elle a été déclarée coupable d’une infraction
punissable d’un emprisonnement maximal égal ou supérieur à cinq ans mais de
moins de dix ans.
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The relevant provisions of the Criminal
Code, R.S., 1985, c. C-46 ) are:
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264.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and
is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction.
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264.
(3) Quiconque commet une infraction au
présent article est coupable :
a)
soit d’un acte criminel passible d’un emprisonnement maximal de dix ans;
b) soit d’une infraction punissable
sur déclaration de culpabilité par procédure sommaire.
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