[2]
After a hearing before the Immigration and
Refugee Board, Immigration Division (Immigration Division), on November 21,
2006, Ms. Nabiloo was declared to be inadmissible to Canada on grounds of
serious criminality pursuant to s. 36(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) and ordered deported. Not to be
deterred, on December 21, 2006, she commenced an appeal of her deportation
order to the Immigration and Refugee Board, Immigration Appeal Division (IAD). A
response to her appeal arrived in a letter from the IAD dated March 29, 2007. In that letter, the
IAD requested submissions as to why s. 64 of IRPA did not apply to bar the IAD
from considering her appeal. In her written submissions in response to this
preliminary question, Ms. Nabiloo requested that the IAD postpone its decision
until a final determination has been made on her appeal of her conviction and
sentence. In a decision dated June 28, 2007, the IAD dismissed the application
for an adjournment and dismissed the appeal "for lack of
jurisdiction". Ms. Nabiloo now asks this Court to overturn the decision of
the IAD.
II. Issues
[3]
The determinative issue in this judicial review
application is the following:
Does the phrase “a
crime that was punished in Canada by a term of imprisonment of at least two years” used in subsection
64(2) of IRPA apply where the underlying conviction and sentence are the
subject of an outstanding criminal appeal?
[4]
Ms. Nabiloo, in her written submissions, also
raised the issue of whether the IAD erred by refusing the request for an
adjournment. However, as acknowledged by the parties, a tribunal that does not
have jurisdiction to decide a matter does not have jurisdiction to consider
preliminary or interlocutory issues pertaining to that matter (Kang
v. Canada (Minister of Citizenship and Immigration), 2005 FC 297 at para. 41). As I have determined, for the reasons that follow, that the IAD had
no jurisdiction to hear the appeal, it follows that the IAD could not have considered
the request for an adjournment.
III. Statutory
Scheme
[5]
The statutory scheme in this case begins with
the inadmissibility provisions of IRPA. Under s. 36(1)(a), a permanent
resident or foreign national is inadmissible on grounds of serious criminality:
|
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
|
[6]
In Ms. Nabiloo’s case, the next steps culminated
in the issuance of a removal order by the Immigration Division pursuant to s.
45(d) of IRPA, which provides that:
|
Decision
45. The
Immigration Division, at the conclusion of an admissibility hearing, shall
make one of the following decisions:
…
(d)
make the applicable removal order against a foreign national who has not been
authorized to enter Canada, if it is not satisfied that the foreign national
is not inadmissible, or against a foreign national who has been authorized to
enter Canada or a permanent resident, if it is satisfied that the foreign
national or the permanent resident is inadmissible
|
Décision
45. Après avoir procédé à une enquête,
la Section de l’immigration rend telle des décisions suivantes :
…
d) prendre la mesure de renvoi
applicable contre l’étranger non autorisé à entrer au Canada et dont il n’est
pas prouvé qu’il n’est pas interdit de territoire, ou contre l’étranger
autorisé à y entrer ou le résident permanent sur preuve qu’il est interdit de
territoire.
|
[7]
Section 63(3) of IRPA provides a right of appeal to the IAD “against a
decision at an … admissibility hearing to make a removal order against them”.
[8]
This statutory right of appeal to the IAD
against removal orders is, however, subject to a restriction in certain cases.
Specifically relevant to this application, s. 64(1) and (2) provide that:
|
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
|
IV. Analysis
[9]
A question of the IAD's jurisdiction is a
question of law. As such, the issue will be reviewed on the standard of
correctness (Atwal v. Canada (Minister
of Citizenship and Immigration), 2004
FC 7 at para. 10; Cheddesingh
v. Canada (Minister of Citizenship and Immigration), 2006 FC 124 at para. 15).
[10]
Ms. Nabiloo submits that s. 64(2) of IRPA is
concerned with the “punishment” and “term of imprisonment” the Applicant has
received. She looks to s. 719(4) of the Criminal Code for the proper
interpretation of these terms and notes that the Criminal Code
stipulates that a sentence begins to run once an individual is taken into
custody. As Ms. Nabiloo has not been taken into custody in the case at bar, she
submits she has not been punished by a term of imprisonment as defined by s.
64(2) of IRPA, and accordingly the section does not apply. Further, she contrasts
s. 36(1)(a) to s. 64(2) of IRPA and notes that while the former is based
on the sentence that has been imposed, the latter requires the IAD to determine
whether an individual has been incarcerated. Finally, Ms. Nabiloo submits that
s. 64(2) can only be applied after there is no doubt that she has been punished
by a term of imprisonment. For the IAD to be certain of this, it is required to
wait until Ms. Nabiloo’s criminal appeal is finally disposed of.
[11]
I do not find merit in these arguments.
[12]
The proper interpretation of the word “punished”
in s. 64(2) of IRPA has been considered numerous times by this Court. Most
similar to the case at bar is the
case of Psyrris v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1443, where the Court considered the
proper interpretation of s. 64(2) of IRPA in respect of an applicant who had
been sentenced to two years plus a day of imprisonment (see, also, Cartwright
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 792 at para.
71; Sherzad v. Canada (Minister of Citizenship and Immigration), 2005 FC
757 at paras. 66-70; Cheddesingh, above at paras. 25-30; Martin v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 347 at para. 5).
The case law to-date is unanimous that the word “punished” in
section 64(2) of IRPA refers to the sentence imposed, not the actual
duration of incarceration. Indeed, replacing the word “Applicant” with “Ms.
Nabiloo” and “Supreme Court of Nova Scotia” with “SCBC”, I refer to and adopt
Justice Heneghan’s analysis in Cartwright, above at paras. 59-67 on this
point:
The wording of
subsection 64(2) is not immediately clear. It states that a person will fall
within the definition of "serious criminality" and have his or her
appeal rights curtailed before the IAD, with respect to "a crime"
that "was punished" in Canada "by a term of imprisonment" of at least two years. The
words "was punished" are very different from the wording of the
inadmissibility provisions of the former Act, where the maximum term of
imprisonment that may be imposed for a particular crime was often the governing
consideration (sections 19(1) and (2) of the former Act).
...
The
interpretation of the words of section 64(2) in their "grammatical and
ordinary sense" means that it is the actual punishment which an individual
received in Canada which is
determinative. The introductory wording of subsection 64(2), "For the
purpose of subsection 1 ...", suggests, in my view, that this provision is
to be read separately from subsection 36(1)(a) of IRPA, which defines serious
criminality for the purpose of inadmissibility and speaks in terms of possible
sentences which may be imposed for an offence.
...
Despite the fact
that subsection 64(2) cannot be interpreted along the same lines as section
36(1)(a) of IRPA and the fact that the definition differs from the former Act's
definition of criminality, in my view, the interpretation urged by the
Applicant cannot be accepted. It is the term of imprisonment imposed which
subsection 64(2) describes, rather than the actual length of time served in
prison prior to being granted parole.
...
To
"punish" a person for a crime is to impose judicial sanction; it is
to pronounce a sentence relative to the crime for which a conviction has been
entered. In my opinion, this definition of "punish" supports the
interpretation that the Applicant was "punished" at the time of his sentencing, when the Supreme Court of Nova Scotia convicted and sentenced him to four years
imprisonment in a federal penitentiary. [Emphasis
added.]
[13]
In sum, the jurisprudence is clear: a person is punished
according to s. 64(2) if they have received a sentence of two or more years of
imprisonment. Applying this principle to the case at bar, it is evident that,
at the moment the IAD considered whether it had jurisdiction to hear Ms. Nabiloo’s
appeal, she had been sentenced to such a term. By concluding that s.
64(2) of IRPA barred Ms. Nabiloo’s appeal, the IAD was merely following the
case law.
[14]
In rejecting Ms. Nabiloo’s interpretation of s.
64(2) of IRPA, I also note the Supreme Court of Canada’s decision in Medovarski
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R.
539 at paras. 10-11:
The objectives
as expressed in the IRPA indicate an intent to prioritize security. This
objective is given effect by preventing the entry of applicants with criminal
records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave
lawfully while in Canada…
In keeping with
these objectives, the IRPA creates a new scheme whereby persons sentenced to
more than six months in prison or inadmissible: IRPA, s. 36(1)(a). If they
have been sentenced to a prison term of more than two years then they are
denied a right to appeal their removal order: an IRPA, s. 64. . . . [T]he
act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years
bans an appeal. [Emphasis added.]
[15]
An interpretation of s. 64(2) which allows a
convicted person to be treated as a serious criminal as soon as the conditions
identified in s. 64(2) exist – regardless of the possibility of changed
circumstances in the future – is more consistent with the emphasis on security
identified in Medovarski, above, than one which would allow a convicted
person to circumvent the normal procedures in IRPA by the mere filing of an
appeal.
[16]
I also find additional support for my analysis
from criminal law principles. In the criminal sphere the status of a convicted
person remains the same until his or her conviction is overturned by a higher
court. The mere filing of an appeal does not change that status (Hewson v.
The Queen, [1979] 2 S.C.R. 82 at 102 quoting from Suggs v. State of
Maryland (1969), 250 A. 2d 670 at 672). Similarly, I find that the status
of Ms. Nabiloo does not change even though she has filed a criminal appeal. The
fact remains that, until her conviction or sentence is changed, Ms. Nabiloo
remains an individual who has been sentenced to two or more years of
imprisonment and hence is criminally inadmissible and barred from bringing an appeal
to the IAD pursuant to s. 64(2) of IRPA.
[17]
Ms. Nabiloo has raised the possibility that,
should her appeal be successful, she would in the untenable position of being
the subject of an unappealable removal order without being a serious criminal.
This, she submits, is because the reopening of an IAD decision may only occur
where the IAD is satisfied that there has been a failure to observe a principle
of natural justice (IRPA, s. 71). In support of this position, Ms. Nabiloo
relies on the Federal Court of Appeal’s decision in the case of Nazifpour v.
Canada (Minister of Citizenship and Immigration), 2007 FCA 35, leave to
appeal to S.C.C. refused, [2007] S.C.C.A. No. 196.
[18]
My first observation is that the existence of
such an eventuality does not preclude an interpretation of s. 64(2) which is
consistent with criminal law principles, consistent with the case law to-date
on s. 64(2), and consistent with the intent of s. 64(2) as described in Medovarski,
above.
[19]
However, I also do not believe that Ms. Nabiloo
would be without recourse to the IAD. The decision in Nazifpour is not
directly applicable to the circumstances faced by Ms. Nabiloo. In Nazifpour,
the Court of Appeal was considering whether s. 71 of IRPA extinguished the
jurisdiction of the IAD to reopen an appeal against a deportation order. The
Court of Appeal found that it did, except where the IAD had failed to observe a
principle of natural justice. In contrast, in the case before me, the
question is not whether the IAD has jurisdiction to reopen an appeal from the IAD
but whether the IAD has jurisdiction to hear the appeal of a deportation order
made by the Immigration Division. But for s. 64(2) of IRPA, the IAD
would have jurisdiction to consider all of the circumstances surrounding the
conviction of Ms. Nabiloo, including humanitarian and compassionate
considerations. The IAD would not be limited to considering whether the Immigration
Division had breached its duty of fairness - as was the situation in Nazifpour.
[20]
What avenues are open to Ms. Nabiloo if she is
successful on her criminal appeal? Let me assume that Ms. Nabiloo's sentence is
reduced such that she is no longer inadmissible to Canada due to serious criminality as defined in IRPA. In such an event she
would no longer be barred by s. 64 of IRPA from bringing an appeal to the IAD
of the deportation order. Her application to the IAD could be brought under s.
63(3) of IRPA and not as an appeal of the earlier IAD decision under
s. 71. Should these events come to pass, I acknowledge that Ms. Nabiloo
would be out of time for bringing an appeal to the IAD (Immigration Appeal
Division Rules, S.O.R./2002-230, r. 7(2)). However, Ms. Nabiloo would still
be able to apply for an extension of time to bring her appeal (Immigration
Appeal Division Rules, S.O.R./2002-230, r. 58(d)). Since s. 64(2) would no
longer apply to bar the hearing of her appeal, the IAD would have jurisdiction
to consider the request for an extension of time and the appeal of the removal
order (see Rumpler v. Canada (Minister of Citizenship and Immigration), 2006
FC 1485 at paras. 34‑36).
V. Conclusion
[21]
For these reasons, I will dismiss the
application for judicial review.
[22]
On the issue of whether a question should be
certified in this case, the Respondent submits that the law is settled.
However, the parties agree that, if the Court chooses to certify a question,
such question should be as follows:
Does the phrase
“a crime that was punished in Canada by a term of imprisonment of at least two years" used in
subsection 64 (2) of the IRPA apply where the underlying conviction(s) and/or
sentence is/are the subject of an outstanding criminal appeal(s)?
[23]
To be certified, a question of general
importance must transcend the interests of the parties to the litigation,
contemplate issues of broad importance and be determinative of the appeal (Canada
(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J.
No. 1637 at para. 4 (C.A.) (QL)). In my view the proposed question satisfies
these criteria. Accordingly, I will certify this question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
the application for judicial review is
dismissed; and
2.
the following question is certified:
Does the phrase
“a crime that was punished in Canada by a term of imprisonment of at least two years" used in
subsection 64 (2) of IRPA apply where the underlying conviction(s) and/or
sentence is/are the subject of an outstanding criminal appeal(s)?
“Judith
A. Snider”
Email this Content