Date: 20040303
Docket: A-249-03
Citation: 2004 FCA 85
CORAM: ROTHSTEIN J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
OLGA MEDOVARSKI
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] Olga Medovarski is a citizen of the former Republic of Yugoslavia and has been a permanent resident of Canada since 1997. In November 1999, while driving a motor vehicle when intoxicated, she was involved in an accident in which a person died. On April 2, 2001, she was convicted of criminal negligence causing death, and was sentenced to prison for two years.
[2] As a result of this conviction, a removal order was issued against Ms. Medovarski on November 21, 2001, following a hearing by the Adjudication Division of the Immigration and Refugee Board. On the same day, she filed an appeal to the Immigration Appeal Division of the Board ("IAD") against the order, pursuant to paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 ("IA"), alleging that, in all the circumstances, she should not be removed from Canada. A notice from the IAD, dated April 24, 2002, informed her that her appeal would be heard on September 26, 2002.
[3] However, before Ms. Medovarski's appeal was heard, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") came into effect on June 28, 2002. Subsections 64(1) and (2) abolish the right of appeal by permanent residents against removal orders on the basis of, among other things, a conviction of a criminal offence for which they were sentenced in Canada to imprisonment for at least two years. In a letter dated August 12, 2002, the Registrar of the IAD advised Ms. Medovarski that her appeal had been discontinued as a result of the new legislation.
[4] The question in this appeal is whether subsection 64(1) applies to Ms. Medovarski's appeal to the IAD. If it does, her appeal is discontinued. Whether subsection 64(1) applies depends on the interpretation of the transitional provisions governing appeals to the IAD filed before June 28, 2002. IRPA, section 192 provides that such appeals are continued under the former Act, that is, the Immigration Act. However, section 196 states that, despite section 192, an appeal is discontinued if "the appellant has not been granted a stay under the former Act".
[5] The Minister says that Ms. Medovarski has not been "granted a stay" for the purpose of section 196 because the stay referred to is the stay on the execution of a removal order granted by the IAD when it concludes pursuant to IA, paragraph 73(1)(c) that, "in all the circumstances of the case" a person should not be removed from Canada. Since the hearing of Ms. Medovarski's appeal had not started on June 28, 2002, the IAD had not granted a stay in her favour for the purpose of section 196 when IRPA came into effect. Hence, her appeal was properly discontinued.
[6] Counsel for Ms. Medovarski, however, argues that the stay referred to in section 196 includes the stay on the execution of a removal order that came into effect on the filing of a notice of appeal by virtue of IA, paragraph 49(1)(b). Since Ms. Medovarski had filed her appeal prior to June 28, 2002, she had been "granted a stay" within the meaning of section 196 when IRPA came into effect. Hence, her appeal should not have been discontinued.
[7] Ms. Medovarski made an application for judicial review to the Federal Court requesting that the IAD's discontinuance of her appeal be set aside as wrong in law because it was based on a misinterpretation of section 196. The Applications Judge agreed with the applicant's interpretation of section 196, granted the application for judicial review, and certified the following question for appeal:
Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C., 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?
[8] The Minister of Citizenship and Immigration has appealed the decision of the Applications Judge, which is now reported as Medovarski v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 227, 2003 FCT 634.
[9] We heard this appeal together with appeals by the Minister in Court files A-267-03 and A-374-03 from the decisions of Jones v. Minister of Citizenship and Immigration, 2003 FCT 661 and Estaban v. Minister of Citizenship and Immigration, 2003 FC 930. All three appeals raise the same interpretive issue concerning section 196. Counsel informed us that another dozen or so cases raising the same issue have either been decided by or are still before the Federal Court.
[10] Despite some differences in the facts of each case, the decision and reasons in the Medovarski appeal are applicable to, and dispositive of, the appeals in Jones and Estaban. A copy of the reasons in Medovarski will be placed in the files of the other two appeals. In deciding Ms. Medovarski's appeal, I have had regard to the arguments made by counsel representing the respondents in all three appeals.
B. DECISION OF THE APPLICATIONS JUDGE
[11] The Applications Judge approached the interpretation of the relevant statutory provisions within the analytical framework prescribed by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27. She concluded that the ordinary meaning of the words in section 196 includes the stay imposed by paragraph 49(1)(b) of the IA on the filing of a notice of appeal.
[12] She then considered section 196 in its statutory context. She acknowledged that, in enacting section 64 of IRPA, Parliament intended to protect public safety by precluding permanent residents from appealing to the IAD against removal orders issued on the grounds of serious criminality, association with organized crime, human or international rights violations, or risk to security. However, she also held that the general purposes underlying IRPA's restrictions on the right of appeal were not conclusive of the meaning of the transitional provisions. Instead, she focussed on the following three factors.
[13] First, Parliament should be taken to have intended to include transitional provisions that treat fairly individuals whose appeals are caught up in the statutory changes. Consequently, the removal of a right of appeal should be interpreted narrowly so as to minimize the adverse impact on those who had already filed a notice of appeal when IRPA came into force. The Minister's interpretation of section 196 did not achieve this objective, she reasoned, because it removed a right of appeal from more individuals than the statute unequivocally required.
[14] Thus, while the filing of a notice of appeal before June 28, 2002, may not have conferred on Ms. Medovarski a vested right to continue her appeal under IA, the Applications Judge nonetheless said (at para. 38):
I certainly would opine that, having exercised her right under the former Act and having been led to believe by the actions of the Respondent that she would have her "day in Court", fairness would require that the process continue, unless taken away by clear and unmistakable terms.
[15] Second, the parties' conduct had been inconsistent with the Minister's interpretation of section 196. For example, when Ms. Medovarski received a notice to appear in April 2002, setting down her IAD appeal for September 2002, the notice did not indicate that her right of appeal would be affected by IRPA, presumably because (at para. 36) the Minister "was interpreting section 196 of IRPA as not applicable to the Applicant."
[16] Third, in response to the Minister's argument that Parliament is presumed to have intended that every provision in a statute has some effect, the Applications Judge tested Ms. Medovarski's interpretation of section 196 by considering its consequences. The Judge concluded that, while very few appeals commenced prior to June 28, 2002, would be discontinued if section 196 includes the stay imposed by the former Act on the filing of a notice of appeal, the section would still apply to some appellants, although not many.
[17] Having found that, when properly interpreted, IRPA did not remove Ms. Medovarski's right of appeal, the Applications Judge had no need to consider the argument that the removal of the right of appeal breached Ms. Medovarski's rights under section 7 of the Canadian Charter of Rights and Freedoms.
C. LEGISLATIVE FRAMEWORK
Immigration Act [repealed]
| 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed
...
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| (b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned;
...
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
...
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
73. (1) The Appeal Division may dispose of an appeal made pursuant to section 70
(a) by allowing it;
(b) by dismissing it;
(c) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal order, by directing that execution of the order be stayed;
74. (2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.
(3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or
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| conditional removal order be stayed, the Appeal Division may, at any time,
(a) amend any terms and conditions imposed under subsection (2) or
impose new terms and conditions; or
(b) cancel its direction staying the execution of the order and
(i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or
(ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1).
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49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à l'exécution d'une mesure de renvoi:
...
b) en cas d'appel, jusqu'à ce que la section d'appel ait rendu sa décision ou déclaré qu'il y a eu désistement d'appel;
...
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
...
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
73. (1) Ayant à statuer sur un appel interjeté dans le cadre de l'article 70, la section d'appel peut:
a) soit y faire droit;
b) soit le rejeter;
c) soit, s'il s'agit d'un appel fondé sur les alinéas 70(1)b) ou 70(3)b) et relatif à une mesure de renvoi, ordonner de surseoir à l'exécution de celle-ci;
74. (2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas en tant que de besoin.
(3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment:
a) modifier les conditions imposées ou en imposer de nouvelles;
b) annuler son ordre de surseoir à l'exécution de la mesure, et parallèlement:
(i) soit rejeter l'appel et ordonner l'exécution dès que les circonstances le permettent,
(ii) soit procéder conformément au paragraphe (1).
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Immigration and Refugee Protection Act
| 48. (1) A removal order is enforceable if it has come into force and is not stayed.
...
49. (1) A removal order comes into force on the latest of the following dates:
...
(b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and
...
50. A removal order is stayed
...
(c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;
...
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.
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| (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.
...
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.
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.
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.
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48. (1) La mesure de renvoi est exécutoire depuis sa prise d'effet dès lors qu'elle ne fait pas l'objet d'un sursis.
...
49. (1) La mesure de renvoi non susceptible d'appel prend effet immédiatement; celle susceptible d'appel prend effet à l'expiration du délai d'appel, s'il n'est pas formé, ou quand est rendue la décision qui a pour résultat le maintien définitif de la mesure.
50. Il y a sursis de la mesure de renvoi dans les cas suivants :
...
c) pour la durée prévue par la Section d'appel de l'immigration ou toute autre juridiction compétente;
...
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.
...
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.
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.
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.
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D. ISSUES AND ANALYSIS
Issue 1: Did the Applications Judge err in law when she interpreted the words, "granted a stay under the former Act", in section 196 of IRPA to include the stay of the execution of a removal order imposed by IA, paragraph 49(1)(b) on the filing of a notice of appeal against the order?
(i) common ground
[18] Since the interpretation of a statute is a question of law, it is agreed that correctness is the standard of review applicable in this case. It is also agreed that the interpretation of section 196 should be approached within the following analytical framework set out in Rizzo & Rizzo Shoes and adopted by the Applications Judge (at para. 22):
Although much has been written about the interpretation of legislation ... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach on which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 78 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
(ii) Driedger's principle applied
(a) the "ordinary" meaning of "granted a stay under the former Act"
[19] I would make three points about the interpretation of section 196 based on the language used by Parliament. First, the English text of section 196 speaks of a stay granted under the former Act. To my mind, this suggests a stay granted by a decision made in the exercise of decision-making power delegated by the Act, such as the stay granted by the IAD under the authority of IA, paragraph 73(1)(c). In contrast, the automatic statutory stay referred to in IA, paragraph 49(1)(b) is imposed by the Act itself. Compare Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) (2003), 1 Admin. L. R. (4th) 103, 2003 FCA 197 at paras. 55 and 56.
[20] The French version, "au titre de l'ancienne loi", is more generic and is capable of meaning either by or under the former Act, or both. However, to the extent that the English version is open to only one interpretation and the French to more than one, the English version should be preferred under the shared meaning rule: Sullivan and Driedger on the Construction of Statutes, 4th ed. by Ruth Sullivan (Markham Ont.: Butterworths, 2002) at 82-5; Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Toronto: Carswell, 2000) at 326-28.
[21] Second, the word "grant" suggests a stay that comes into effect as a result of a positive act by a person, rather than by operation of law. On the other hand, the French text of section 196 is less precise than the English version, "il ne fait pas l'objet d'un sursis au titre de la loi". However, this phrase was not used in IA, paragraph 49(1) in connection with statutory stays alone. Rather, it said: "il est sursis à l'exécution d'une mesure de renvoi".
[22] I note that IRPA does not provide for an automatic stay on the filing of a notice of appeal against a removal order. The execution of a removal order is only stayed pending the disposition of an appeal if the IAD, or a court of competent jurisdiction, so orders: IRPA, paragraph 50(c). However, while IRPA itself does not appear to create any automatic statutory stays, subsection 231(1) and section 232 of the Immigration and Refugee Protection Regulations, SOR/2002-227, do. Therefore, the reference to stays in IRPA, subsection 48(1) ("qu'elle ne fait pas l'objet d'un sursis"), should be understood to include both the granted and the statutory varieties of stay.
[23] Consequently, while I accept that the French version of section 196 is capable of referring to "granted stays" and "automatic statutory stays", it is also capable of referring to granted stays alone. Therefore, it cannot be said that "faire l'objet d'un sursis" always has a broader meaning than "granted a stay". So, to the extent that the English text of section 196, when considered without the statutory context, clearly does not include stays imposed automatically by operation of law, the French text should be taken to have the same meaning.
[24] Third, counsel for Ms. Medovarski points out that the word "grant" is not used in IA, paragraph 73(1)(c), to which the Minister argues IRPA, section 196 refers. Rather, paragraph 73(1)(c), provided that, when an appeal was made on the ground that the appellant should not be removed, "having regard to all the circumstances of the case", the IAD might dispose of the appeal "by directing that execution of the [removal] order ... be stayed". In contrast, counsel argued, the French version of IRPA, section 196 tracks the language of IA, subsection 49(1): "il ne fait pas l'objet d'un sursis" in section 196, and "il est sursis" in subsection 49(1).
[25] I do not regard either of these points as persuasive. While IA, sections 73 and 74 did not specifically refer to stays being granted, the word "granted" seems commonly to have been used by the IAD and the Federal Court in connection with stays ordered under IA, paragraph 73(1)(c). And, as I have already noted, the relevant words in the French text of IA, subsection 49(1) and of IRPA, section 196 are not identical.
[26] On balance, the "ordinary" meaning of the words, "granted under the former Act", suggests that they are better understood as referring to decisions made by the IAD pursuant to paragraph 73(1)(c), rather than to the automatic stay that comes into effect by operation of law by virtue of paragraph 49(1)(b). However, the interpretation of words in a statute cannot be undertaken without a contextual analysis, which may confirm or displace the ordinary meaning of the words, "granted a stay under the former Act" and "il ne fait pas l'objet d'un sursis" in section 196.
(b) "granted a stay under the former Act" and statutory harmony
Presumption of consistency
[27] When Parliament uses the same word or phrase in the same Act, the word or phrase is presumed to have the same meaning in the various places in the statute in which it appears: Sullivan and Driedger at 162-67. The strength of this presumption varies. But, in my opinion, it is relatively strong here since the disputed phrase is found in adjacent sections of the same statute: IRPA, sections 196 and 197.
[28] It is agreed that sections 192, 196, and 197 of IRPA comprise part of the package of transitional provisions in Part 5 of the Act and should be considered together. Section197 states:
| 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.
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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.
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[29] The reference in section 197 to an appellant "who has been granted a stay under the former Act" cannot refer to a person who obtained an automatic stay on filing a notice of appeal. Because IA, paragraph 49(1)(b) did not provide for the imposition of conditions, none could be breached. In contrast, IA, subsection 74(2) stated that, when the IAD disposed of an appeal "by directing that execution of a removal order ... be stayed", the person concerned was entitled to remain in Canada "under such terms and conditions as the [IAD] may determine".
[30] Hence, since the words in IRPA, section 197, "granted a stay under the former Act", apply to decisions taken under paragraph 73(1)(c), but not to stays imposed by IA, paragraph 49(1)(b), it is presumed that the same phrase has the same meaning in section 196, and does not include the automatic statutory stay.
Presumption against redundancy
[31] Counsel for both parties invoked the presumption that Parliament does not intend words used in legislation to be redundant. Consequently, a statutory provision should not normally be construed as creating a category of persons that can have no members.
[32] The Minister argues that, on Ms. Medovarski's interpretation of section 196, no appeal filed before June 28, 2002, would be discontinued because all appellants would have had their removal orders stayed when their appeal was filed. Hence, the exception to section 192 created by section 196 would have no content and all appeals to the IAD filed prior to June 28, 2002, would be continued under the former Act.
[33] On the other hand, Ms. Medovarski submits that, on the Minister's interpretation of section 196, section 192 would have no effect. This is because, if section 196 only applies to stays granted on the disposition of an appeal under IA, paragraph 73(1)(c), there could have been no appeals pending on June 28, 2002, in which a stay of the execution of a removal order was in effect when IRPA came into force. Hence, if section 196 does not apply to the statutory stay that came into effect by virtue of IA, paragraph 49(1)(b), there will be no appeals to be continued under the former Act and section 192 will be surplusage.
[34] In my view, neither side has established that the other's interpretation of section 196 renders either section 192 or section 196 redundant.
[35] The Minister's interpretation of section 196 does not have the consequences that Ms. Medovarski claims because of the peculiar nature of the stay directed by the IAD under IA, paragraph 73(1)(c). Although the IAD "disposed" of an appeal under the former Act when it directed a stay of the execution of a removal order, its decision was not final: [1972] 2 S.C.R. 577">Grillas v. Canada (Minister of Manpower and Immigration), [1972] 2 S.C.R. 577.
[36] Thus, when the IAD imposed terms on a stay it had to review the case from time to time as it thought necessary or advisable (subsection 74(2)), and could amend the terms or cancel the stay, and dismiss or allow the appeal. Consequently, even if the IAD found that, "having regard to all the circumstances", the appellant should not be removed and granted a stay prior to June 28, 2002, there would still be an appeal that could be continued under the former Act when IRPA came into effect.
[37] For his part, counsel for Ms. Medovarski argues that, even if section 196 includes the statutory stay imposed by IA, paragraph 49(1)(b), some appeals filed before June 28, 2002, can still be discontinued under IRPA, section 196. For example, counsel submitted, section 196 would discontinue an appeal by a sponsor who, before June 28, 2002, had filed an appeal under IA, subsection 77(3) against a refusal to admit a sponsored relative to Canada rendered inadmissible by IRPA, subsection 64(1). Since sponsored relatives are not present in Canada, stays are inapplicable to sponsorship appeals.
[38] Another suggested example was that of the permanent resident whose appeal to the IAD against a removal order had been dismissed prior to June 28, 2002, but was reinstated after that date as a result of a successful application for judicial review or of a decision by the IAD to reopen the matter. Since the stay imposed by operation of law on the filing of a notice of appeal lapsed when the IAD dismissed the appeal, section 196 would be applicable and the appeal would be discontinued.
[39] For the purpose of this appeal, but without deciding the question, I am willing to assume that section 196 would apply in the various situations conjured up by the ingenuity of counsel. On this basis, the interpretation of section 196 advanced on behalf of Ms. Medovarski does not make it redundant.
[40] I note that subsection 350(5) of the Regulations provides that a decision made by the IAD before June 28, 2002, which is set aside by the Federal Court or the Supreme Court of Canada and remitted to the IAD, will be redetermined under the former Act, even if the matter had not been redetermined when IRPA came into effect. This provision is of no particular significance to the issues in this case, although it does reduce the numbers of those who may be caught by section 196 on Ms. Medovarski's interpretation of it.
(c) statutory purpose
[41] Nonetheless, even though the presumption against redundancy does not apply to either side's interpretation, a consideration of the appeals that survive section 196 is very instructive. On the Minister's interpretation, the rationale for section 196 is to make an exception to the general rule to discontinue appeals that were still ongoing on June 28, 2002. However, if the IAD found sufficient merit in all the circumstances of an appellant's case to warrant staying the execution of a removal order, section 196 permits the appellant to retain the benefit of the IAD's decision to put the appellant on "probation", and the IAD's ongoing jurisdiction over the case should be preserved.
[42] This view of Parliament's intention is supported by section 197. This provision discontinues the appeal of a permanent resident to whom a stay was granted under IA, paragraph 73(1)(c), prior to June 28, 2002, and who breaches a condition imposed on the stay. In this event, section 197 applies and the appeal is discontinued if the person was convicted and sentenced to two years imprisonment, either before or after the grant of the stay. In these circumstances, the general policy of IRPA, section 64 applies: persons who have committed a serious offence should not have a right of appeal to the IAD. Without section 197, the appeal would have been continued under the former Act because the IAD had granted a stay under IA, paragraph 73(1)(c).
[43] In contrast, it is implausible to attribute to Parliament an intention to enact section 196 in order to discontinue appeals in the assorted situations suggested by counsel for Ms. Medovarski. I am not satisfied that there is any cogent policy rationale to explain why Parliament would have exempted these instances from what counsel for Ms. Medovarski says is the general rule, namely, an appeal against a removal order filed with the IAD before June 28, 2002, is continued under the former Act.
(d) removing existing rights
[44] The central argument advanced on behalf of Ms. Medovarski is that transitional provisions in a statute should be interpreted in a way that does least violence to existing rights. In this case, the existing right is the right to appeal to the IAD and, in particular, to invoke its "equitable" jurisdiction.
[45] However, the common law rule against retroactivity does not apply to rights created by statutes which are subsequently repealed: Sullivan and Driedger at 565-568. Consequently, any general presumption in favour of preserving the right of appeal of those who filed an appeal under the Immigration Act prior to June 28, 2002, must be found in the Interpretation Act, R.S.C. 1985, c. I-21, sections 43 and 44. I assume for present purposes that the only provision applicable to this appeal is paragraph 43(c) and that on June 28, 2002, Ms. Medovarski had an accrued or acquired right to an appeal to the IAD against the removal order to which she was subject.
[46] Paragraph 43(c) of the Interpretation Act provides as follows:
| 43. Where an enactment is repealed in whole or in part, the repeal does not
...
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
...
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43. L'abrogation, en tout ou en partie, n'a pas pour conséquence :
...
c) de porter atteinte aux droits ou avantages acquis, aux obligations contractées ou aux responsabilités encourues sous le régime du texte abrogé;
...
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[47] In my view, this presumption is of little assistance to Ms. Medovarski. First, IRPA deals expressly and in detail with the transition between it and the former Act, including the continuation and discontinuance of appeals to the IAD. The meaning of those provisions is more likely to be found in the statutory scheme - IRPA, Part 5, sections 187-201 - which was specifically designed to provide for the transition between two complex statutes, than in a general presumption of statutory interpretation: see Sullivan and Driedger at 566.
[48] Second, on a close examination of the provisions of the scheme relevant to this case, I am satisfied that there is no room for the application of the presumption in favour of preserving existing rights of appeal to the IAD. It is sufficiently clear that Parliament did not intend to preserve the right of appeal of permanent residents against their removal from Canada who had simply filed their appeal prior to the coming into effect of IRPA, but whose cases had not been disposed of by the IAD.
[49] It will be helpful at this point to review briefly the statutory transitional scheme, particularly the provisions applying to appeals to the IAD. First, the general rule is that IRPA applies to "every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section": IRPA, section 190.
[50] Second, section 192 creates an exception to section 190 by enacting the opposite general rule for appeals to the IAD. Thus, section 190 provides that, "if a notice of appeal has been filed ... immediately before the coming into force of this section, the appeal shall be continued under the former Act".
[51] Third, section 196 carves a specific exception out of section 192 by providing that appeals to the IAD filed before the coming into force of the section shall be discontinued if "the appellant had not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act." I have already considered the very particular provision in section 197.
[52] In my opinion, counsel for the Minister has provided a very cogent explanation of these provisions, based on their language, purpose and interrelation, to support the view that section 196 discontinues appeals only when a stay has been granted on the disposition of an appeal under IA, paragraph 73(1)(c). As I have indicated above, the Act permits appeals to the IAD to continue under the former Act only if the Board has made a decision in favour of the appellant. This explanation fits with IRPA's objective of protecting the public interest by providing the legal means for securing the expeditious removal from Canada of those who, among other things, have committed serious criminal offences.
[53] Counsel for Ms. Medovarski suggested that the Court should not give great weight to this latter consideration because the Immigration Act also enabled the Minister to curtail or remove rights of appeal against removal orders made against permanent residents on public safety grounds. Thus, the offence committed by Ms. Medovarski was sufficiently serious to potentially warrant the issue of a "danger to the public" opinion under IA, subsection 70(5), which would have prevented her from appealing to the IAD. However, since the Minister did not issue a danger opinion against Ms. Medovarski, it would be unreasonable to conclude that section 196 discontinues her appeal.
[54] I cannot give much weight to this argument. We do not know why the Minister did not issue a danger opinion under the former Act: it may have been because it was about to be replaced by IRPA. Indeed, it may be said that the existence of the power under the IA to remove right of appeal from a person convicted of a serious criminal offence by issuing a danger opinion suggests that the right of appeal removed by IRPA was highly contingent.
[55] In any event, in enacting IRPA Parliament re-balanced the interests of public safety and individual rights by broadening the categories of persons who may be removed without an appeal to the IAD. Nor is the preservation of existing rights the only interpretive presumption relevant here. As I noted earlier, the presumption that Parliament intends a phrase to have the same meaning when used in related and adjacent provisions in the same Act indicates that "granted a stay under the former Act" presumptively has the same meaning in section 196 as it clearly has in section 197.
[56] Finally, persons in the position of Ms. Medovarski have some opportunities to bring to the attention of immigration officials reasons why they should not be removed, despite their criminal conviction. In particular, Ms. Medovarski will not be removed without an assessment of the risks to life, limb or liberty to which she may be exposed if returned to her country of citizenship: IRPA, subsection 112(1). In addition, she may make an application to remain in Canada on humanitarian or compassionate grounds under IRPA, subsection 25(1), although I recognize that she may be removed before this process is complete. The duty of fairness does not require that considerations of this kind be the subject of an appeal to an independent tribunal.
(iii) Conclusion
[57] Having concluded for the above reasons that section 196 has the effect of denying Ms. Medovarski a right to appeal to the IAD, I must now consider whether the law as I have interpreted it passes constitutional muster.
Issue 2: By discontinuing appeals against removal orders when notices of appeal were filed immediately prior to June 28, 2002, by persons falling within IRPA, section 64, does section 196 deprive a person of the right to life, liberty and security of the person other than in accordance with the principles of fundamental justice contrary to section 7 of the Charter?
[58] Since, I am of the opinion that section 196 is not contrary to the principles of fundamental justice, I need not decide if Ms. Medovarski's removal from Canada would engage section 7 of the Charter by depriving her of the right to liberty or security of the person. I shall assume for present purposes that it does.
[59] In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at 739, the Supreme Court of Canada rejected the argument that the principles of fundamental justice require Parliament to provide a right of appeal on humanitarian and compassionate grounds before a permanent resident may be deported for serious criminality.
[60] I see nothing in the facts of this case to distinguish Chiarelli. I do not accept that Ms. Medovarski was misled by the Minister into thinking that she had a right of appeal. No one has a legitimate expectation that the law will not be changed from time to time. There is no evidence that Ms. Medovarski would have conducted her defence in the criminal proceeding on a different basis (or that, if she had, it would have made a difference to the outcome), had she realized that a sentence of two years would deprive her of the right to appeal to the IAD.
[61] Counsel for Ms. Medovarski also argued that, on the basis of the above considerations, the principles of fundamental justice require Parliament to provide some other effective opportunity for Ms. Medovarski to make representations against her removal. He says that the right to make an application to remain in Canada on humanitarian and compassionate grounds under IRPA, subsection 25(1) is inadequate because the Minister is likely to seek to remove her before her application is determined, and the Federal Court typically does not stay the execution of a removal order pending the outcome of a H & C application.
[62] In the absence of a constitutional right of appeal against a removal order, I am not persuaded that it would be a breach of section 7 to apply section 196 to Ms. Medovarski. As I have already said, there is no evidence that the Minister or immigration officers misled her into thinking that her right of appeal would survive, despite a change in the law. Nor can she claim a breach of section 7 on the ground that the change in the law prejudiced the conduct of her defence in the criminal proceedings, a point on which there was no evidence. Again, as I have said, a person cannot have a legitimate expectation that procedural rights granted by Parliament may not be removed. The pre-removal risk assessment and the right to make a H & C application provide some opportunity for Ms. Medovarski to make representations as to why she should not be removed.
E. CONCLUSIONS
[63] For these reasons, I would allow the appeal, reverse the decision of the Federal Court, and dismiss the application for judicial review of the decision of the IAD that Ms. Medovarski's appeal is discontinued.
"John M. Evans"
J.A.
"I agree
Marshall Rothstein J.A."
PELLETIER J.A. (Dissenting)
[64] I have had the privilege of reading the lucid reasons of my colleague Evans J.A. with whom I must respectfully disagree.
[65] It is important to put the appeals to the IAD which are the subject of this appeal in context. Under IA, permanent residents were subject to removal on the grounds set out in subsection (1) of section 27. A review of the specific grounds of removal shows that, for the most part, they deal with criminality, domestic or international, and threats to Canada's security. However, there are grounds which do not involve criminality or threats to Canada's security, namely:
- failure to comply with the conditions imposed at the time of landing (paragraph 27(1)(b));
- conviction under the Contraventions Act, S.C. 1992, c. 47, which deals with what are essentially summary conviction offences under federal legislation other than the Criminal Code. This could be considered a minor criminality, as opposed to the major criminality dealt with in other parts of section 27;
- obtaining landing by means of fraud or misrepresentation, or by use of false or improperly obtained documents; and
- willful failure to support oneself or members of one's family.
[66] None of these grounds are caught by section 64 of IRPA so that whatever scope one gives to "granted a stay under the former Act", appeals from deportation orders made on these grounds are continued by section 192. Consequently, the narrow issue in this appeal is not the preservation of rights of appeal to the IAD but the preservation of rights of appeal to the IAD from deportation orders made on grounds of security or serious criminality.
[67] The effect of the difference between the English and French versions of sections 196 and 197 is not the major issue in this appeal, but it does raise an issue of some importance. I propose to set out very briefly the approach taken by my colleague on this issue, and to explain why I disagree. I will then set out my view of the proper construction of these sections.
[68] My colleague begins by noting that a stay granted under the former Act is not the same as a statutory stay granted by the former Act. This leads to the conclusion that statutory stays are not likely to be included within the class of stays "granted under the former Act". Secondly, the word grant suggests a positive act by a person rather than an impersonal operation of law. This too leads to the conclusion that the stays to which reference is made are discretionary stays granted by the IAD pursuant to paragraph 73(1)(c) of the former Act.
[69] By way of rebutting the argument made by counsel for the respondent to the effect that paragraph 73(1)(c) does not use the word grant but rather the word direct, it is observed that the words "grant" or "granted" are commonly used by the courts in reference to discretionary stays.
[70] At a later point, the argument is made that the presumption of consistency leads to the conclusion that because the stays referred to in section 197 can only be the stays granted by the IAD under paragraph 73(1)(c), then the expression stays granted under the former Act must be given the same meaning in section 196 as it has in section 197.
[71] As he proceeds in his analysis, Evans J.A. tests the conclusion reached on the meaning of the English version of the statute against the French version. So, in relation to the argument with respect to by or under the former Act, the question is whether the French expression au titre de l'ancienne loi refers to one or the other of by or under. The conclusion he reaches is that the French expression is broad enough to include both but, on the theory that the shared meaning of the two versions refers to the narrow meaning common to both versions, au titre de l'ancienne loi should be construed as a reference to under the former Act.
[72] On the issue of the meaning of "granted a stay", he notes that the expression ne fait pas l'objet d'un sursis is less precise than the English version. However, an examination of the text of IRPA and the Regulations shows that while stays are generally discretionary, some provision is made for statutory stays in the Regulations. Consequently, ne fait pas l'objet d'un sursis could be taken to refer to both statutory and discretionary stays. Since the French expression is capable of meaning only discretionary stays, and since the English expression (granted a stay) clearly refers only to the latter, the French version should be read in the same limited sense as the English version.
[73] On the other hand, a reader who chose to read the French version of the sections in question without reference to the English version would find no ambiguity in them at all. The reader would note that section 192 continues all appeals in which a notice of appeal had been filed at the time of the coming into force of section 196. The confusion sown by the use of the phrase "immediately before the coming into force of this section" in the English version is absent in the French version.
[74] The same reader would then note that if an appellant was not the object of a stay and fell within the terms of section 64 or IRPA, his or her appeal would be discontinued. The expression ne fait pas l'objet d'un sursis is unambiguous. It does not, either explicitly or implicitly, raise any question as to the mechanics by which a person became the object of a stay. Nor is any ambiguity raised by the use of the expression il est sursis à l'exécution d'une mesure de renvoi . . . where it appears in subsection 49(1) of IA. The word "sursis" in that context is the past participle of the verb surseoir, to stay. The structure of the French version is the same as that of the English version where the past participle is also used.
[75] Finally, the Francophone reader of section 197 would see no need to narrow the scope of section 196 as a result of the content of section 197. The category "persons who are object of a stay" includes "persons who are the object of a stay upon conditions". The fact that section 197 refers to some but not all of those who are the object of a stay is no reason to presume that section 196 refers only to those who are the object of a stay to which conditions are attached. The use of an expression to refer to both a class and a subset of that class is not an unusual construction in either English or French.
[76] But since both versions of the legislation are equally authoritative, we are faced with two versions of the same law, one of which poses problems of construction and one of which, on its face, does not. Since there can only be one law, the difference in the versions must be resolved. The equal authenticity rule stipulates that neither version of the law may be preferred to the other:
The requirement that legislation be enacted or made, and not merely published, in both English and French has important implications. It means that both language versions of a bilingual statute or regulation are official, original, and authoritative expressions of the law. Neither version has the status of a copy or translation; neither enjoys priority or paramountcy over the other. This corollary of bilingual enactment is known as the equal authenticity rule.
R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th Ed) (Butterworths, Markham 2002) at 74-75.
[77] The basic approach to the interpretation of bilingual statutes was described in Sullivan and Driedger on the Construction of Statutes, ibid, at 80:
The basic rule governing the interpretation of bilingual legislation is known as the shared or common meaning rule. Where the two versions of bilingual legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless that meaning is for some reason unacceptable.
[. . .]
The attempt to discover or construct a shared meaning is the first step in the interpretation of bilingual legislation. However, the shared meaning is not always decisive. Other indicators of meaning must be taken into account and if these suggest that the shared meaning is inappropriate, the court is entitled to reject it in favour of a more appropriate alternative. When the shared meaning is rejected, the court in effect adopts a meaning that is plausible in the context of one language version, but not in the context of the other.
[78] Professor Pierre-André Côté expresses the same conclusion at page 328 of his work "The Interpretation of Legislation in Canada" (3rd Ed.) (Carswell, Toronto, 2000):
But the task of interpretation is not completed by deciding upon the meaning shared by the two versions. This interpretive hypothesis must be verified with reference to the statute's context as a whole. The shared meaning must be compatible with the intention of the legislature, as determined by the ordinary rules of interpretation.
[79] Finally, there does not appear to be any rule which determines shared meaning on the basis of the breadth of the chosen construction:
In R. v. Hinchey, the effect of adopting the shared meaning was to narrow the scope of the provision. It is important to notice, however, that the shared meaning is just as likely to be the broader of the competing interpretations. As Isaacs C.J. explained in Beothuk Data Systems Ltd v. Dean, a distinction must be drawn between (1) circumstances in which one language version is considered ambiguous while the other is judged to be clear and (2) circumstances in which one language version is broader in scope than the other. The shared meaning rule invites the court to rely on the version whose meaning is clear, not the version whose meaning is narrower. In practice, the shared meaning rule often favours the broader rather than the narrower version.
Sullivan and Driedger on the Construction of Statutes, supra, at 82-83.
[80] I pause to note that the expression "shared meaning" appears to be used equivocally in these passages. In some cases, it appears to refer to a literal shared meaning in the sense of a construction which is common to both versions of the law. But, in other cases, it clearly refers to a notional shared meaning, that is the meaning imposed on both versions by the court whether it can be discerned in the text of both or not. For example, where the shared meaning is the broader of two interpretations, one cannot be a literal shared meaning since the broader version by definition includes elements lacking in the narrower version.
[81] On the facts of this case, I do not believe that it matters whether the English text is characterized as ambiguous or not. Let us assume that it is not ambiguous and that it means what the appellant says it means. That does not change the meaning of the French version, which I find equally unambiguous. We do not derive the shared meaning of section 196 by interpreting one version in terms of the other. It is just as logical to argue that "stay granted under the former Act" must be read to accord with the wider sense conveyed by the expression "objet d'un sursis aux termes de l'ancienne loi", as it is to argue that "objet d'un sursis au titre de l'ancienne loi" must be read narrowly to conform to the narrower meaning found in "stay granted under the former Act". Such an approach is entirely dependent upon one's starting point.
[82] Given this state of affairs, one is left to attempt to make sense of the statutory scheme. I do not dispute that the scheme of the Act advanced by the appellant is coherent, but it is not necessarily the only coherent scheme which can be advanced. My starting point is the preservation of the right of appeal to the IAD found at section 192 ofIRPA. I agree with my colleague that it is not necessary to resort to the Interpretation Act, R.S.C. 1985, c. I-22. The transitional provisions of IRPA occupy the field which would otherwise be occupied by sections 43 and 44 of the Interpretation Act. As a result, there is no need to rely upon a presumption of non-disturbance of existing rights.
[83] The question arises whether the preservation of rights of appeal in section 192 is the general rule or whether it is simply an exception to the general rule found at section 190:
| 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.
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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.
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[84] In my view, it is the general applicability of IRPA as set out in section 190 which gives the preservation of rights of appeal in section 192 its force. Since those rights would have been extinguished by section 190, I attach some significance to the sweep of the language of section 192 by which they are preserved. All that is required is that a Notice of Appeal has been filed prior to the coming into force of the Act. Consequently, I am not sure that the question is which is the general rule but rather, which rule was intended to apply to appeals from the IAD? It is clear that the rule applicable to appeals from the IAD is section 192, as modified by section 196. Section 190 has no application to matters falling within the scope of section 192.
[85] The appellant's position that all appeals from deportation orders based on serious criminality are discontinued by section 196 does not account for subsection 350(5) of the Regulations made under IRPA:
| 350. (5) If a decision of the Immigration Appeal Division made under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the Immigration Appeal Division shall dispose of the matter in accordance with the former Act
[. . .]
365. (1) These Regulations, except paragraph 117(1)(e), subsection 117(5) and paragraphs 259(a) and (f) come into force on June 28, 2002.
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