Date: 20060131
Docket: IMM-3785-05
Citation: 2006 FC 104
Ottawa, Ontario, the 31st day of January 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
JUAN MIGUEL BENAVIDES LIVORA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
R. Néron, a member of the Immigration Appeal Division (IAD), dated June 7,
2005. By that decision, the IAD member dismissed the appeal by Juan Miguel
Benavides Livora (the applicant) from a decision by Rolland Ladouceur, a
member of the Immigration Division of the Immigration and Refugee
Board (IRB), dated January 14, 2005. The decision to dismiss the appeal
was based on the following two points:
-
under
subsections 64(1) and (2) IRPA, the right of appeal to the IAD does not exist
for permanent residents inadmissible for serious criminality;
-
there is
no basis for examining the constitutional validity of these subsections, as the
applicant failed to provide all Attorneys General with copies of the notice of
constitutional question required under section 52 of the Immigration
Division Appeal Rules.
ISSUE AND RELIEF SOUGHT
[2]
The only
issue is the following:
- did
the IAD member err in law when he ruled that he did not have jurisdiction to
rule on the constitutional validity of subsections 64(1) and (2) IRPA, as the
applicant had failed to send a notice of a constitutional question?
[3]
The
applicant is asking this Court to:
-
quash the
decision of June 7, 2005 dismissing the applicant’s appeal from the deportation
order made against him on January 14, 2005;
-
declare
that under various constitutional provisions and international law arguments
subsections 36(1) and 64(1) and (2) of the IRPA are of no force or effect and
inapplicable in the case at bar;
-
stay his
removal.
[4]
In the
alternative, the applicant asked the Court to order the IAD to hear the
applicant and to rule on the constitutional question.
BACKGROUND TO PROCEEDINGS
[5]
The
applicant is 50 years old and was born in Peru. He came to Canada in 1983 and became a
permanent resident on November 2, 1991. The background to the proceedings is as
follows:
-
on January
9, 2004 a term of three years’ imprisonment was imposed on the applicant when
he was convicted of various cocaine trafficking offences;
-
on January
14, 2005, following an inquiry to determine whether the applicant should be
deported from Canada, Rolland Ladouceur, a member of the IRB, made a
deportation order against him pursuant to subsections 36(1)(a) and 45(d)
of the IRPA (inadmissible for serious criminality);
-
on January
18, 2005, the applicant appealed from this decision to the IAD;
-
on June 7,
2005, IAD member R. Néron dismissed the appeal on the ground that, under
subsections 64(1) and (2) IRPA, such a right of appeal was not available for
permanent residents inadmissible for serious criminality. The member also
decided not to rule on the applicant’s constitutional arguments as the latter
had failed to forward copies of the notice of constitutional question required
under section 52 of the Immigration Appeal Division Rules (IAD Rules) to
the Attorneys General of all the provinces;
-
on June
21, 2005, the applicant filed this application for judicial review;
-
on
November 8, 2005, the applicant was granted leave to submit his application for
judicial review;
-
on
December 23, 2005, the applicant filed a pre-removal risk assessment
application (PRRA application);
-
on January
9, 2006, the applicant was released from jail;
-
on January
10, 2006, the PRRA application was dismissed;
-
on January
12, 2006, the undersigned made an order to stay the applicant’s removal,
scheduled for January 13, 2006, until the application for judicial review had
been decided;
-
the
hearing on this application for judicial review took place on January 26,
2006.
ANALYSIS
[6]
Subsections
64(1) and 64(2) IRPA read 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.
|
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)
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.
|
(2)
L’interdiction de territoire pour grande criminalité vise l’infraction punie
au Canada par un emprisonnement d’au moins deux ans.
|
[7]
It is not
disputed that the IAD did not have jurisdiction to hear the appeal. The
applicant alleged that the IAD should still have ruled on the constitutional
validity of these provisions, despite the applicant’s failure to send copies of
the notice of constitutional question to the Attorneys General of each of the
provinces, as required under section 52 of the IAD Rules. The relevant portions
of that section read as follows:
52. (1) A party who
wants to challenge the constitutional validity, applicability or operability
of a legislative provision must complete a notice of constitutional question.
|
52. (1) La partie
qui veut contester la validité, l’applicabilité ou l’effet, sur le plan
constitutionnel, d’une disposition législative établit un avis de question
constitutionnelle.
|
. . .
|
[…]
|
(3)
The party must provide
|
(3)
La partie transmet :
|
(a)
a copy of the notice of constitutional question to the Attorney General of
Canada and to the attorney general of every province and territory of Canada,
according to section 57 of the Federal Court Act;
|
a) au procureur général du Canada et au
procureur général de chaque province et territoire du Canada, en conformité
avec l’article 57 de la Loi sur la Cour fédérale, une copie de
l’avis;
|
(b)
a copy of the notice to the other party; and
|
b) à l’autre partie une copie de l’avis;
|
(c)
the original notice to the Division, together with a written statement of how
and when a copy of the notice was provided under paragraphs (a)
and (b).
|
c) à la Section l’original de l’avis, ainsi
qu’une déclaration écrite indiquant à quel moment et de quelle façon une
copie de l’avis a été transmise aux destinataires visés aux alinéas a)
et b).
|
[8]
Subsections
(1), (2) and (3) of section 57 of the Federal Courts Act, R.S.C. 1985,
c. F-7 (FCA), read as follows:
57. (1) If the constitutional validity,
applicability or operability of an Act of Parliament or of the legislature of
a province, or of regulations made under such an Act, is in question before
the Federal Court of Appeal or the Federal Court or a federal board,
commission or other tribunal, other than a service tribunal within the
meaning of the National Defence Act, the Act or regulation shall not
be judged to be invalid, inapplicable or inoperable unless notice has been
served on the Attorney General of Canada and the attorney general of each
province in accordance with subsection (2).
|
57.
(1) Les lois fédérales ou provinciales ou leurs textes d’application, dont la
validité, l’applicabilité ou l’effet, sur le plan constitutionnel, est en
cause devant la Cour d’appel fédérale ou la Cour fédérale ou un office
fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi sur la
défense nationale, ne peuvent être déclarés invalides, inapplicables ou
sans effet, à moins que le procureur général du Canada et ceux des provinces
n’aient été avisés conformément au paragraphe (2).
|
(2) The notice must be
served at least 10 days before the day on which the constitutional question
is to be argued, unless the Federal Court of Appeal or the Federal Court or the
federal board, commission or other tribunal, as the case may be, orders
otherwise.
|
(2) L’avis est, sauf
ordonnance contraire de la Cour d’appel fédérale ou de la Cour fédérale ou de
l’office fédéral en cause, signifié au moins dix jours avant la date à
laquelle la question constitutionnelle qui en fait l’objet doit être
débattue.
|
(3)
The Attorney General of Canada and the attorney general of each province are
entitled to notice of any appeal or application for judicial review made in
respect of the constitutional question.
|
(3)
Les avis d’appel et de demande de contrôle judiciaire portant sur une
question constitutionnelle sont à signifier au procureur général du Canada et
à ceux des provinces.
|
[9]
As the
point is one of law, the applicable standard of review is that of correctness.
The language of the sections quoted is clear and the notice of a constitutional
question is not usually regarded as a formality which can be lightly
disregarded (see e.g. Bekker v. Canada, 2004 FCA 186, [2004] F.C.J. No.
819, at paragraph 8).
[10]
In any
event, even if the notice of a constitutional question had been sent, the IAD
could not have ruled on the constitutional question since it lacks the
necessary jurisdiction in the case of permanent residents found inadmissible on
grounds of serious criminality (see Ferri v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1580, [2005] F.C.J. No. 1941, and Kroon v.
Canada (Department of Citizenship and Immigration), 2004 FC 697, [2004]
F.C.J. No. 857). In the latter case, Rouleau J. wrote at paragraph 33:
In the
present case, once the factual determination was made that the applicant was
inadmissible for serious criminality, a decision the applicant does not
dispute, the IAD lost any mandate to hear an appeal. Since the IAD does not
have the power to decide legal questions arising under section 64, it therefore
has no power to hear constitutional challenges to that provision.
[11]
I would
add that the applicant’s arguments seeking to invalidate subsections 64(1) and
(2) are without basis, as the point has essentially been decided by the Supreme
Court of Canada in Medovarski v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 51, [2005] S.C.J. No. 31.
[12]
The
parties were invited to submit questions for certification. The applicant asked
that the following question be certified:
-
did the
Immigration Appeal Division of the Immigration and Refugee Board have a duty to
hear the appellant in respect of his notice of appeal resulting from a removal
order made by the Immigration Division of the IRB, regarding supra-legislative
law containing principles of natural justice such as procedural fairness and
the duty to act fairly?
-
if so, do
the protection provisions contained in section 7 of the Canadian Charter of
Rights and Freedoms become applicable to protect the applicant’s personal
safety?
[13]
As the
respondents submitted, this question does not meet the criteria laid down by
the courts, in particular in Canada (Department of Citizenship and
Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The
question must transcend the interests of the parties to the litigation,
contemplate issues of broad significance and be determinative of the appeal. In
view of the foregoing, the applicant’s question has already been settled by the
courts and fails to mention that the applicant is inadmissible for serious
criminality. Accordingly, there is no basis for certifying the question.
[14]
For these
reasons, the application for judicial review is dismissed and no question will
be certified. The deportation order made by Mr. Ladouceur on January 14, 2005
is accordingly in effect. In view of the foregoing, the interim stay ordered by
the undersigned on January 12, 2006 is also terminated and the application
for a stay dismissed.
ORDER
THE COURT ORDERS THAT:
-
the
application for judicial review is dismissed;
-
no
question is certified;
-
the
interim removal stay granted to the applicant is cancelled and the deportation
order made is in effect.
“Simon
Noël”
Certified
true translation
François
Brunet, LLB, BCL