Date: 20081120
Docket: IMM-981-08
Citation: 2008 FC 1265
Ottawa, Ontario, November 20, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
COURTNEY
MILLER (aka Glen Miller)
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Immigration Division
(ID) of the Immigration and Refugee Board on February 14, 2008, that the
applicant is inadmissible on grounds of serious criminality pursuant to section
36(1)(a) of the Immigration and Refugee Protection Act (IRPA). The ID issued a
deportation order against the applicant.
FACTS
[2]
The
applicant, a citizen of Trinidad and Tobago, became a permanent
resident of Canada in 1976 at
the age of 18 years old. Since then the applicant has been convicted of
approximately 68 criminal offences including trafficking in narcotics,
violence, failure to comply with court orders and interference with the proper
administration of justice. The applicant was ordered deported on December 4,
1998, for trafficking cocaine. The applicant appealed this 1998 deportation
order to the Immigration Appeal Division (IAD) of the Immigration and Refugee
Board on humanitarian and compassionate grounds under the former Immigration
Act.
[3]
Pending
the appeal, on November 7, 2000, the applicant was convicted of 4 assault
charges and sentenced to 42 months. An inadmissibility report based on these
convictions was filed on September 19, 2002 and referred to the ID for an
admissibility hearing.
[4]
The
record shows that the respondent referred the applicant for an admissibility
hearing in 2003 notwithstanding the 1998 deportation order under appeal to the
IAD because after the new IRPA came into force in 2002, a ruling that the
applicant was inadmissible for serious criminality pursuant to subsection
36(1)(a) of IRPA could not be appealed to the IAD. The record shows that the
applicant and the respondent agreed (at a detention hearing before the
Immigration Division on June 23, 2003) that the 2002 admissibility hearing
under IRPA would not be initiated until the appeal of the 1998 deportation
order was heard by the IAD. The respondent thought that no further admissibility
hearing would be necessary if the applicant’s appeal to the IAD from the 1998
deportation order was dismissed. At the same time, the respondent made clear to
the applicant that the 2002 admissibility hearing would proceed if the IAD appeal
was allowed.
[5]
The
IAD heard the appeal on March 2005 and found that the applicant had established
that the circumstances of his case warranted special relief and granted him a
four-year stay on May 9, 2005. The applicant’s November 2000 assault convictions
were considered in the IAD decision.
[6]
The
Minister filed an application in the Federal Court for leave challenging this IAD
decision. Leave was granted and the application was scheduled to be heard on
April 11, 2006. However, the respondent brought a motion to adjourn the
hearing, on the basis that the application may have become moot as the Minister
was referring the applicant for an admissibility hearing under IRPA, and a
finding that the applicant was inadmissible for serious criminality could not
be appealed to the IAD. The adjournment was granted on April 12, 2006 with the consent
of the applicant.
[7]
The
applicant was finally referred for an inadmissibility hearing which took place
on June 19, 2007 and on February 14, 2008. The ID found that the applicant was
inadmissible pursuant to section 36(1)(a) of IRPA and issued a deportation
order. This decision is the subject of this judicial review.
ISSUE
[8]
The
issue is whether it was an abuse of process to refer the applicant for an admissibility
hearing based on convictions known to the IAD at the time that it granted the
applicant a four-year stay.
RELEVANT LEGISLATION
[9]
Section
36(1)(a) of IRPA provides:
|
Serious criminality
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;
|
Grande criminalité
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;
|
[10]
The
report based on the applicant’s November 2000 conviction was filed pursuant to
Section 44(1) of IRPA on September 19, 2002 and re-filed on July 26, 2006. The
provision states:
|
Preparation of report
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.
|
Rapport d’interdiction de territoire
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.
|
[11]
Section
64 of IRPA provides:
|
No appeal for inadmissibility
64. (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.
|
Restriction du droit d’appel
64. (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.
|
STANDARD OF REVIEW
[12]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, the
Supreme Court stated:
¶60 …courts
must also continue to substitute their own view of the correct answer where the
question at issue is one of general law "that is both of central
importance to the legal system as a whole and outside the adjudicator's
specialized area of expertise" (Toronto (City)
v. C.U.P.E.,
at para. 62, per LeBel J.). Because of their impact
on the administration of justice as a whole, such questions require uniform and
consistent answers. Such was the case in Toronto (City)
v. C.U.P.E.,
which dealt with complex common law rules and conflicting jurisprudence on the
doctrines of res judicata and abuse of process
issues that are at the heart of the administration of justice (see para. 15, per Arbour J.).
[13]
Accordingly,
since the issue is a question of law the appropriate standard of review is one
of correctness.
ANALYSIS
Applicant’s Position
[14]
The
applicant argues that referring him to a second admissibility hearing during
the stay period, on the basis of convictions and a sentence received before the
stay was granted, was an abuse of process.
[15]
The
applicant submits that the IAD decision granting the applicant a four-year stay
in March 2005 considered all the circumstances of the case, including the
applicant’s November 2000 convictions. The applicant states that the
admissibility hearing was an abuse of process for the following reasons:
a. The Minister
was aware of the November 2000 convictions prior to the commencement of the IAD
appeal on March 1, 2005;
b. The Minister
elected not to pursue the September 19, 2002 admissibility report, and instead
waited until 2006, after the applicant won his IAD appeal, to pursue a new
admissibility hearing based on the November 2000 convictions; and
c. The IAD
decision in the applicant’s favour granting the stay explicitly considered the
November 2000 conviction.
[16]
The
applicant argues that the respondent could have commenced new admissibility
proceedings in 2002 or could have pursued their challenge of the IAD decision.
Three years passed between September 2002, when the section 44(1) report was
written in light of section 64 of the new IRPA, and May 2005, when the IAD
decision was rendered. The applicant argues that the respondent instead stood
by and let the IAD appeal continue with the intention of preparing a new
admissibility report if the applicant was successful at the IAD. The applicant
argues that the respondent “made a litigation choice” not to proceed with new
admissibility proceedings and cannot do so now.
Respondent’s Position
[17]
The
respondent argues that the applicant waived his right to raise these issues and
object when he consented to delay the second admissibility hearing pending the
outcome of the IAD appeal. This consent is on the record of the June 23, 2003 ID
detention review. The respondent submits that the applicant, while represented
by counsel, waived any right to complain about the initiation and delay of a
second admissibility hearing. According to the respondent, the applicant was
required to raise any arguments relating to abuse of process and breach of
natural justice at the earliest possible opportunity, which was immediately
after the September 19, 2002 report or the June 23, 2003 detention review. Instead,
the applicant consented to delay the second inadmissibility hearing pending the
IAD appeal, and then, on April 12, 2006, consented to adjourn the appeal of the
IAD decision pending the second admissibility hearing.
[18]
Additionally,
the respondent argues that the new admissibility hearing was not an abuse of
process. In support, the respondent cites Al Yamani v. MCI, 2003 FCA
482. In that case, after a Federal Court decision quashed a Security Intelligence
Review Committee (SIRC) report on the basis that the relevant provision of the
Immigration Act violated the Charter, the appellant was found inadmissible
under another provision of the Act. Justice Rothstein (as he then was) stated
in Al Yamani at paragraphs 29 and 31:
29 Second, the appellant says that the
Minister made a litigation choice not to proceed under clause 19(1)(f)(iii)(B)
which has been in force since February 1, 1993. The appellant says the Minister
could have abandoned the proceedings he had already taken under paragraphs
19(1)(e) and (g) or consolidated the proceedings he now brings with those prior
proceedings. In deciding not to do so, the appellant says the Minister made a
"clear and deliberate 'litigation choice.'" The implication appears
to be that, having elected to proceed under paragraphs 19(1)(e) and (g), the
Minister is precluded from now proceeding under clause 19(1)(f)(iii)(B) as
enacted on February 1, 1993.
31 …recognizing that proceeding under the
new legislation would have led to further delays, I cannot fault the Minister
for attempting to first succeed under the other provisions. When he did not,
section 34 allowed him to start again under clause 19(1)(f)(iii)(B).
[19]
In this case,
the issues and cause of action before the ID on the admissibility hearing were
different than the issues and cause of action before the IAD. The second
admissibility hearing was a result of the coming into force of section 64 of
IRPA. As discussed below, the transitional provisions of the Act provide that
section 64 must be applied in this case. The applicant agrees that the issues
before the IAD were different, and that res judicata does not apply.
The 2005 IAD Decision
[20]
When the IRPA provisions came into force, on June 28, 2002, the applicant's
case was pending in the IAD. The general rule, set out in section 192 of the
IRPA, provides that cases pending in the IAD when the IRPA came into force were
continued under the Immigration Act.
|
Immigration Appeal Division
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.
|
Anciennes règles, novelles sections
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.
|
[21]
However,
section 196 provides an important and relevant exception to this general rule:
|
Appeals
196. 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.
|
Appels
196. 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]
The applicant’s appeal to the IAD
from his 1998 deportation order proceeded on March 1 and 2, 2005. Under section
196 of IRPA, this appeal should not have proceeded and the IAD had no
jurisdiction to hear the appeal or grant the stay on May 9, 2005. This jurisdictional
issue was not raised before the IAD and the Court will not take it into
consideration in deciding the applicant’s appeal from the deportation order
from the ID arising from his convictions in 2000. However, it is relevant to
understand the complexity of this case.
[23]
After June 28, 2002 the applicant
had no legal right to bring an appeal for a stay based on humanitarian and
compassionate grounds before the IAD. Nevertheless, the parties agreed that
that appeal could proceed. At the same time, the parties agreed that following
that appeal, the respondent will proceed with an admissibility hearing with
respect to his assault convictions in 2000 if the appeal was successful. If not
successful, then the applicant would be deported without any further legal
proceeding. I am satisfied that the evidence showed that the applicant and the
applicant’s counsel understood and agreed to this course of action.
[24]
Moreover, after the IAD issued its
decision on May 9, 2005, the respondent sought and obtained leave for judicial
review from the Federal Court. However, the respondent decided not to proceed
with that appeal and instead proceed with an admissibility hearing with respect
to the convictions in 2000. The reason for this adjournment was because the
application for judicial review to the Federal Court would become moot since
the applicant would be subject to deportation under IRPA, and would have no
right to apply to the IAD for a stay based on humanitarian and compassionate
considerations. The applicant and his counsel agreed to this adjournment with
this understanding.
[25]
Now the applicant argues that the
respondent has abused the process by proceeding with the second admissibility
hearing. The applicant argues that it was an abuse of process and unfair for
the respondent to allow the appeal to the IAD to proceed and then after the
respondent loses, bring a new action under sections 44 and 64 of IRPA for the
deportation of the applicant.
[26]
The Court finds that:
1.
the applicant and the applicant’s
counsel knew and accepted that the respondent would proceed with the second
inadmissibility hearing after the IAD appeal and the applicant did not object.
In this respect, the applicant waived his rights. The applicant has a duty to
object at the earliest practical opportunity for breach of natural justice or
fairness. Instead, the applicant and the applicant’s counsel consented to the
approach which the respondent followed;
2.
the Federal Court of Appeal has
recognized that the public interest in the government retaining a continuing
ability to take action against inadmissible persons outweighs the public
interest in having some finality to litigation. See Al Yamani per
Rothstein J.A. (as he then was) at paragraph 20; and
3.
the Court cannot find that there has
been an abuse of process. The respondent explained to the applicant its
proposed matter of proceeding and the applicant agreed. This was a fair
approach to the applicant and the applicant cannot now claim that it is an
abuse of process.
[27]
For these reasons, the application for judicial review is dismissed.
[28]
Neither party
considered that this case raised any serious question of general importance
that ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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