Date: 20061120
Docket: A-570-05
Citation: 2006 FCA 379
CORAM: LINDEN J.A.
NOËL
J.A.
EVANS
J.A.
BETWEEN:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
MARTIN R. HYDE
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This is an appeal by the Minister of Citizenship
and Immigration from a decision of a Judge of the Federal Court dismissing the
Minister’s application for judicial review. The Applications Judge upheld a
decision by the Immigration Appeal Division of the Immigration and Refugee
Board (“IAD”) dismissing an application by the Minister to dismiss the appeal
of Martin R. Hyde, the respondent in this appeal. The Minister alleged that Mr
Hyde’s appeal had been terminated by the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”), section 197. The decision under appeal is
reported as Canada
(Minister of Citizenship and Immigration) v. Hyde (2005),
276 F.T.R. 203, 2005 FC 950.
[2]
Section 197 is one of the transitional
provisions of IRPA and provides as follows:
|
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.
|
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.
|
[3]
The effect of this section is to terminate the
IAD’s jurisdiction with respect to a person who falls within the section’s
ambit. In particular, section 197 precludes the IAD from staying a removal
order in the exercise of its jurisdiction under section 68 of IRPA. It thereby
renders appellants within its scope liable to removal without an opportunity to
submit to the IAD that, on humanitarian and compassionate grounds and in light
of “all the circumstances of the case”, the IAD should stay their removal from Canada, despite their convictions for
serious crime.
[4]
This appeal concerns the interpretation of section
197. In particular, in order to fall within the scope of section 197, must an appellant
whose removal has been suspended by the IAD commit offences to which both
section 64 and subsection 68(4) apply? Or, is it sufficient that either one of
these provisions applies to the particular facts of an appellant’s case?
[5]
Section 64
and subsection 68(4) of IRPA provide as follows.
|
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.
(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.
…
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.
|
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.
(2)
L’interdiction de territoire pour grande criminalité vise l’infraction punie
au Canada par un emprisonnement d’au moins deux ans.
[…]
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.
|
[6]
In the present case, the Applications Judge held
that Mr Hyde did not fall within section 197. Mr Hyde was ordered deported on
the basis of a conviction in Canada of an offence for which he was sentenced to more than two years’
imprisonment, which thus satisfied section 64. However, subsection 68(4) did
not apply to him, because the offences which Mr Hyde committed in breach of the
conditions imposed on the stay of his removal were not punishable by more than
10 years’ imprisonment, and he did not receive a sentence of more than six
months for these offences.
[7]
In my respectful opinion, the Applications Judge
erred in his interpretation of section 197. In my view, 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.
[8]
Thus, since Mr Hyde had been ordered deported on
the basis of a section 64 offence (that is, one for which he received a
sentence of two years or more), his appeal was automatically terminated by IRPA
when he breached the conditions imposed on his stay. In these circumstances, it
is irrelevant that the breaches did not involve the commission of offences
referred to in subsection 68(4). Accordingly, I would allow the appeal.
[9]
After the Judge rendered his decision in the
present case, the same issue of the interpretation of section 197 arose in two
other cases decided by different Judges of the Federal Court: Bautista v. Canada
(Minister of Citizenship and Immigration), 2006 FC 30 (Justice Snider), and
Carbonaro v. Canada (Minister of Citizenship and Immigration), 2006 FC
102 (Justice Layden-Stevenson).
[10]
Unlike the Applications Judge in the present
case, the Judges in Bautista and Carbonaro had the benefit of the
Supreme Court of Canada’s opinion in Medovarski v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, which involved
the interpretation of a related transitional provision of IRPA, section
196.
[11]
The Judges in Bautista and Carbonaro
regarded as relevant to the interpretation of section 197 the Court’s comments in
Medovarski about the purposes of the sections of IRPA (including section
196) dealing with the removal of permanent residents who have committed
serious crimes in Canada. I
substantially agree with the reasoning in Bautista and Carbonaro.
B. THE FACTS
[12]
Mr Hyde, a British citizen, immigrated to Canada with his parents in 1957, when he
was one year old. From 1979 he acquired a substantial criminal record; his
offences appear to have been drug-related. Ultimately, in January 1999, he was
made the subject of a section 27 report as a person described in subparagraphs
27(1)(d)(i) and (ii) of the now repealed Immigration Act, R.S.C.
1985, c. I-7, and an inquiry was ordered and held. The inquiry was based on Mr
Hyde’s conviction in 1998 for possession of narcotics for the purpose of
trafficking, for which he was sentenced to four and a half years’ imprisonment.
In February 1999, an adjudicator of the Adjudication Division of the
Immigration and Refugee Board found Mr Hyde to be inadmissible and issued a
deportation order against him on the basis of the inquiry.
[13]
Following Mr Hyde’s appeal to the IAD, the IAD,
in July 1999, stayed his removal in the exercise of its discretion, “having
regard to all the circumstances of the case”: paragraph 70(1)(b) of the
former Immigration Act. The conditions imposed by the IAD on the stay of
Mr Hyde’s removal included that he abstain from the illegal use and sale of
drugs, and that he keep the peace and be of good behaviour. These conditions
were reviewed by the IAD in September 2000, and renewed.
[14]
However, Mr Hyde did not observe them. He
admitted to an immigration officer that he had used drugs in March 2002. In
August 2002, he pleaded guilty to charges of assault and criminal mischief. On
the first count, he was sentenced to eight days in prison and to twelve months’
probation, and, on the second, to eight days’ imprisonment to be served
concurrently.
[15]
IRPA came into
effect in June 2002. In April 2003, the Minister applied to dismiss Mr Hyde’s
appeal to the IAD, on the ground that IRPA had deprived it of
jurisdiction over the appeal. The Minister argued that section 190 provides
that IRPA applies to all proceedings pending when the Act came into
effect. Section 192 makes an exception to section 190 by providing that an
appeal to the IAD filed before the coming into effect of IRPA shall be
continued under the Immigration Act. However, this principle is itself
subject to exceptions, including section 197, the provision at issue in this
case.
[16]
In a decision dated August 6, 2003, the IAD
dismissed the Minister’s application. It reasoned that section 197 only applied
to an appellant who had both been ordered deported on the basis of a
conviction of a section 64 offence (that is, an offence for which he or she had
received a sentence of at least two years’ imprisonment), and breached
the conditions imposed on the stay of removal by committing a subsection 68(4) offence
(that is, an offence described in subsection 36(1) of IRPA, which
includes an offence punishable by a maximum of ten years’ imprisonment, or an
offence for which the person concerned had been sentenced to more than six
months’ imprisonment).
[17]
Mr Hyde’s deportation order was based on a
criminal conviction in Canada
for which he had been sentenced to more than two years’ imprisonment. Section
64 thus applied to him and, if his appeal had been filed after IRPA came
into effect, he would have had no right of appeal to the IAD. However, his subsequent convictions for assault and criminal
mischief did not also fall within subsection 68(4).These offences were not punishable
by a maximum of at least ten years’ imprisonment, nor was he sentenced to more
than six months. Accordingly, if Mr Hyde had not been ordered deported on the
basis of his conviction of a section 64 offence, his breach of the condition to
be of good behaviour by re-offending would not have terminated his appeal.
[18]
Because only section 64, and not also subsection
68(4), applied on the facts of Mr Hyde’s case, the IAD held that section 197
did not oust the principle in section 192 that proceedings commenced in the IAD
before the coming into force of IRPA shall be continued under the Immigration
Act. It thus remained open to the IAD to determine whether “in all the
circumstances of the case” (including Mr Hyde’s convictions and admitted drug
use), it should continue the stay of his removal and, if so, on what
conditions.
[19]
The Applications Judge essentially adopted, and
elaborated, the reasoning of the IAD and dismissed the Minister’s application
for judicial review to quash its decision. The question certified for appeal by
the Judge under paragraph 74(d) of IRPA is as follows:
Is the interpretation of section 197 of the IRPA in
these reasons on the facts of this case correct?
C. ANALYSIS
[20]
In
explaining why I agree with the interpretation of section 197 adopted in Bautista and Carbonaro, and not with that of the
Applications Judge in the present case, I can be relatively brief, emphasising
the following.
(i) text of
section 197
[21]
The
English text of section 197 does not compel the conclusion that it only applies
to facts which, in a post-IRPA case, would both preclude an
appeal to the IAD by virtue of section 64, and result in the
cancellation of a stay and the termination of an appeal to the IAD for breach
of a condition pursuant to subsection 68(4).
[22]
Section 197
merely says that, if an appellant has breached a condition imposed on the stay
of his removal, “the appellant shall be subject to the provisions of section 64
and subsection 68(4)” of IRPA. For an appellant to be subject to
both provisions does not necessarily mean that both must apply to the facts
of a given case before section 197 kicks in to terminate an appeal. “And” may,
after all, be conjunctive or disjunctive, according to context.
[23]
Nonetheless,
any ambiguity in the English version of section 197 is not present in the
French text, which contains no equivalent to the word “and” between the
provisions in question. Without referring to the French version, the Judge
attached great importance to the presence of “and”, which he regarded as
conjunctive. After stating that an appellant is subject to the restriction on
the right of appeal in section 64, the French version of section 197 concludes:
“le paragraphe 68(4) lui étant par ailleurs applicable”; that is,
“subsection 68(4) being otherwise applicable to him”. The sense of this is that,
if section 64 does not apply to a particular appellant, subsection 68(4) does.
(ii) statutory scheme
[24]
The
interpretation of section 197 adopted in Bautista and Carbonaro
is more coherent, or harmonious, with the design of the legislative scheme, in
that it mirrors the way in which section 64 and subsection 68(4) operate in
post-IRPA cases. That is, section 64 denies any right of appeal to the
IAD to a person who is ordered deported on the ground that he or she has been
convicted of an offence for which a sentence of imprisonment of two years or
more was imposed. However, such a person, like Mr Hyde, who appealed and was
granted a stay pre-IRPA, will not be removed, provided that they comply
with the conditions of the stay.
[25]
The
seriousness of the crime committed, as evidenced by the length of the term of
imprisonment imposed, which forms the basis of a deportation order, warrants
the termination of the appeal for the breach of any condition to which
the stay is subject.
[26]
In
contrast, a person who is ordered deported on the basis of a conviction for an
offence for which a sentence of less than two years was imposed may still
appeal to the IAD post-IRPA. If the IAD stays the removal, the appeal is
only terminated automatically if the appellant is subsequently convicted of an
offence punishable by up to ten years’ imprisonment, or the appellant is sentenced
to more than six months’ imprisonment. Thus, when a deportation order is based
on a sentence of less than two years, and the appellant satisfies the IAD that,
“in all the circumstances”, removal should be stayed, the appeal is only terminated,
as subsection 68(4) directs, for a subsequent conviction of one or more of the serious
offences described in subsection 36(1).
[27]
To
interpret section 197 as permitting Mr Hyde’s appeal to proceed because the
offences of which he was convicted, after being granted a stay, were not so
serious as to come within subsection 36(1) in effect ignores the fact that he
was ordered deported on the basis of a sentence which was so serious that he would
have been precluded from appealing to the IAD at all, if he had filed his
appeal after IRPA came into effect.
[28]
Section 64
deals with those ordered deported on the basis of a sentence of more than two
years, who consequently have no right of appeal. Subsection 68(4) necessarily
deals with those ordered deported on the basis of a lesser sentence, who hence have
a right of appeal, which they may lose if they commit a subsection 36(1)
offence after the grant of a stay.
[29]
By
definition, these are different groups of persons, since a person who has
committed a section 64 offence, and files an appeal to the IAD post-IRPA,
has no right of appeal and can thus never have his removal stayed subject to
conditions. In a post-IRPA appeal, subsection 68(4) can thus only apply
to persons who have not committed a section 64 offence. In view of this, it would
be anomalous if section 197 were to treat alike those who, after IRPA
came into effect, had no right of appeal at all by virtue of section 64, and
those who had a right of appeal.
[30]
Counsel
for Mr Hyde submitted that the inclusion in section 197 of the reference to
section 64 was to set a threshold on the application of section 197. Thus,
section 197 would never apply to an appellant who had been ordered deported on
the basis of an offence for which he had been sentenced to less than two years’
imprisonment. There are, however, at least three difficulties with this
argument.
[31]
First, the
French version of section 197 indicates that the reference to section 64 is to restrict
the right to appeal: “l’interéssé … est assujetti à la restriction du
droit d’appel prévue par l’article 64 de la présente loi”.
[32]
Second,
the argument involves saying that Singh v. Canada (Minister of Citizenship and
Immigration),
[2006] 3 F.C.R. 70, 2005 FCA 417, was wrongly decided. Mr Singh had been
ordered deported on the basis of an offence for which he had been sentenced to
20 months (para. 6) (that is, a sentence to which section 64 did not
apply). Nonetheless, the Court held that his appeal to the IAD was terminated by
section 197 because, while the execution of his removal order was stayed, he
committed an offence to which subsection 68(4) applied. On Mr Hyde’s theory,
section 197 should have been found not to apply to Mr Singh because he did not
fall within both section 64 and subsection 68(4).
[33]
Third, it
is difficult to find a rationale for concluding that Parliament intended that a
person ordered deported on the basis of a sentence of eighteen months’
imprisonment should have his stay cancelled and his appeal terminated as a
result of subsequently committing an offence to which subsection 68(4) applies,
if he filed his appeal post-IRPA, but not if he filed it pre-IRPA.
Indeed, such a result would be inconsistent with the statutory purpose of these
sections discussed below.
(iii) statutory purpose
[34]
The
legislative purpose animating provisions of a statute may shed important light
on the meaning of particular sections. In the context of this case, I can do no
better than to echo the following incisively pithy statement by Justice
Layden-Stevenson in Carbonaro (at para. 29):
It seems to me that
section 197 cannot yield a purpose different from that found by the Supreme
Court to exist for section 196, that is, to facilitate the removal of permanent
residents who have engaged in serious criminality: Medovarski (para. 9).
For further support, I would also refer to para. 10 of the
reasons in Medovarski and to paras. 43-45 of Singh.
[35]
A
consideration of legislative purpose thus also bolsters the interpretation of
section 197 adopted in Bautista and Carbonara.
D. CONCLUSIONS
[36]
For these
reasons, I would allow the appeal, set aside the judgment of the Federal Court,
grant the Minister’s application for judicial review to quash the decision of
the IAD dated August, 6, 2003, set aside the decision of the IAD and remit the
matter to the IAD to re-determine the Minister’s application to dismiss Mr Hyde’s
appeal on the basis that it had no jurisdiction over it by virtue of section
197 of IRPA, all without costs.
[37]
The answer
to the certified question, “Is
the interpretation of section 197 of the IRPA in these reasons on the facts of
this case correct?” is “No”.
“John M. Evans”
“I
agree
A.M.
Linden J.A.”
“I
agree
Marc
Noël J.A.”
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