Cecilia v. Canada (Solicitor General), 2004 FC 1428

Date: 20041018

Docket: IMM-2909-03

Citation: 2004 FC 1428

BETWEEN:

                                                          CATHERINE CECILIA

                                                                                                                                          Applicant

                                                                        - and -

                                             SOLICITOR GENERAL OF CANADA

                                                                                                                                     Respondent

                                                        REASONS FOR ORDER

Lemieux J.

[1]         On April 11, 2003, André Graveline, Immigration Officer at the Investigation and Removals Division, advised Catherine Cecilia (the applicant), a citizen of Malaysia who had claimed refugee status when she arrived in Canada on May 30, 2001, that she had to report in person to Dorval International Airport, now Pierre Elliott Trudeau Airport, with her luggage and leave Canada on April 26, 2003, pursuant to a conditional removal order issued on June 26, 2001. The applicant did not report for her departure.[2] Instead of leaving, on April 22, 2003, she filed an application for leave and for judicial review seeking to quash the direction by André Graveline as well as a declaration that the removal order was unenforceable.

[3]                The issue raised by this application is identifying when the conditional departure order issued on June 26, 2001, pursuant to section 28 of the Immigration Act, 1978, as amended (the former Act) became an enforceable deportation order under the new Immigration and Refugee Protection Act (the IRPA), in effect since June 28, 2002.

[4]                The applicant argued that this date is April 10, 2003, 30 days after March 10, 2003, the date that the negative decision was made by a pre-removal risk assessment officer (PRRA). The applicant's submission is that because of the late disclosure of this negative PRRA decision, removal officer Graveline denied her the opportunity to leave Canada voluntarily and thereby avoid the sanction provided in section 52 of the IRPA. That section provides that the enforcement of the removal order prohibits a return to Canada unless authorized by an officer or in other prescribed circumstances.

[5]                In turn, the Solicitor General of Canada submitted that the conditional departure order became a removal order when the IRPA came into effect. Because Ms. Cecilia was already subject to a deportation order when she met Mr. Graveline in April 2003, he had therefore not deprived her of the opportunity to comply with the IRPA.

FACTS[6]        I summarize the salient facts which are not disputed.

[7]                Catherine Cecilia came to Canada on May 30, 2001, and claimed refugee status.

[8]                Subsection 28(1) of the former Immigration Act required that a conditional departure order be made instead of an exclusion order or a departure order if the refugee claim had been determined to be eligible.

[9]                On June 26, 2001, a conditional departure order ("Mesure d'interdiction de séjour conditionnelle") was issued against the applicant.

[10]            This order read in part as follows:

I hereby make a conditional departure order against you pursuant to subsection 28(1) of the Immigration Act because I am satisfied that you are a person described in:

Paragraph 19(2)(d) and 9(1)

Paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of subsection 9(1) of the Immigration Act as you have not applied for and obtained an immigrant visa before appearing at a port of entry.

                                                            IMPORTANT

This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable period specified in the Immigration Regulations.

Subject to section 56 of the Immigration Act, where a deportation order is made against a person, the person shall not, after the person is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.

[Emphasis added.]

[11]            On February 28, 2002, the Immigration and Refugee Board (IRB) decided that the applicant was not a Convention refugee. She filed an application for judicial review which was dismissed on June 14, 2002. In the interim, on May 8 she filed a PDRCC (Post determination refugee claimant in Canada)application pursuant to the former Immigration Regulations, 1978.

[12]            On June 28, 2002, the IRPA and the Immigration and Refugee Protection Regulations (the IRPR) came into effect. The application in the PDRCC class became a pre-removal risk assessment (PRRA).

[13]            The PRRA application was dismissed on March 10, 2003.

[14]            The notes by André Graveline in the certified tribunal record established that on April 8, 2003, at 11:00 a.m., he met Ms. Cecilia and that the negative PRRA decision was hand-delivered to her. The applicant was required to return to see him on April 11 for a follow-up on her file.

[15]            The applicant came as agreed. She was accompanied by a Tamil interpreter since Ms. Cecilia "[TRANSLATION] does not speak much English" Mr. Graveline noted. He continued "[TRANSLATION] I informed her of her departure and gave her a notice to appear at Dorval International Airport on April 26, 2003".

[16]            The PRRA decision dated March 10, 2003, which Mr. Graveline had only given to her on April 8, 2003, reads in part as follows:

The removal order made against you is now enforceable. You must leave Canada immediately. You must confirm your departure from Canada. In order to do so:

-                present this letter to an Immigration Officer at the port of entry when you leave Canada;

-                obtain a certificate of departure . . .

Please be advised that if your departure order has become a deportation order, you will not be allowed to return to Canada without the written authorization of an officer at any time in the future.

[Emphasis added.]

Issues[17]        The Solicitor General of Canada raised three issues:

(1)        At the time of the PRRA assessment, was there a deportation order or a departure order against the applicant?

(2)        Should the Court exercise its discretionary power to allow the application for judicial review considering the applicant's conduct? and

(3)        Does the Court have the power to declare that the removal order against the applicant is not enforceable notwithstanding the provisions of the law?

Legislative and regulatory framework[18]    Subsection 52(1) of the IRPA entitled "No return without prescribed authorization" reads:

[19]            Subsection 226(1) of the IRPR provides that for the purposes of subsection 52(1) of the Act, the deportation order ("mesure d'expulsion") obliges the foreign national to obtain a written authorization in order to return to Canada at any time after the order is enforced.

[20]            In contrast, subsection 224(1) of the IRPR provides that an enforced departure order ("mesure d'interdiction de séjour") is prescribed as a circumstance that relieves a foreign national from having to obtain authorization under subsection 52(1) of the Act in order to return to Canada providing that the requirements of paragraphs 240(1)(a) to (c) of the IRPR are met within 30 days after the order becomes enforceable, failing which the departure order becomes a deportation order ("mesure d'expulsion").

[21]            Section 240 of the IRPR requires that the foreign national appear before an officer to verify their departure from Canada and to obtain a certificate of departure from the Minister, all within the 30 days prescribed by subsection 224(2) of the IRPR.

[22]            Division 4 of the IRPR is entitled "Enforcement of Removal Orders". Section 237 of the IRPR provides that the removal order is enforced by voluntary compliance or by removal of the foreign national by the Minister and section 238 sets out the requirements for voluntary compliance. These two sections state the following:

[23]            Division 3 of the IRPA is entitled "Pre-removal Risk Assessments". Sections 112 and 113 of Division 3 provide that a person in Canada may in accordance with the regulations apply to the Minister for protection if they are subject to a removal order that is in force.

[24]            Section 160 of the IRPR provides that for the purposes of subsection 112(1) of the IRPA, a person may apply for protection after they are given notification to that effect by the Minister. It states:

[25]            Paragraph 232(c) of the IRPR creates a statutory stay during the PRRA. It states:

[26]            Sections 48 and 49 of the IRPA regarding the enforcement of removal orders state:

[27]            The respondent does not dispute that on May 8, 2002, the applicant filed an application for permanent residence in the PDRCC class and that that application had not been decided before the IRPA and the IRPR came into force on June 28, 2002.

[28]            The IRPA abolished the PDRCC regime but replaced it with the application for protection under sections 112 to 114.

[29]            Section 346 of the IRPR provides a transitional measure for PDRCCs existing when the IRPR came into force. Section 346 states:

Analysis[30]    According to the respondent, the applicant's contention is that by failing to notify her within an appropriate time that the PRRA application had been dismissed, the removal officer deprived her of the opportunity to leave the country voluntarily in order to avoid the sanction of section 52 of the IRPA. This contention necessarily depends on the existence of a stay after the IRPA and the IRPR came into force.

[31]            The respondent's counsel disputed this contention. He submitted that the departure order issued against the applicant was not stayed and became enforceable when the IRPA came into force on June 28, 2002, and that accordingly she should have left Canada no later than July 28, 2002, in order to ensure that her departure order did not become a deportation order.

[32]            The respondent's counsel supported his submission by relying on the following facts:

(1)        The IRB dismissed the applicant's refugee claim on February 19, 2002, when the former Act was in force;

(2)        According to subsection 28(2) of the former Act, the unconditional departure order was enforceable as of that date, but since she had filed an application for leave and judicial review, the enforcement of that departure order was stayed under section 49 of the former Act, a stay which ended on June 14, 2002, when a judge of this Court dismissed her application for leave (see paragraph 49(1)(c) of the former Act).

(3)        Despite that, given that the applicant had filed a PDRCC application, the 30-day time limit to leave Canada voluntarily and to obtain a certificate of departure was suspended until the date that the person was advised of the negative PDRCC decision (see paragraph 27(2)(b) of the former Immigration Regulations, 1978).

(4)        When the IRPA came into force, her application for permanent residence in the PDRCC class became a PRRA application pursuant to section 346 of the IRPR.

(5)        At the same time, the departure order issued against the applicant was subject the provisions of the IRPA pursuant to subsection 319(1) of the IRPR:

(6)         Given that the departure order issued against the applicant had taken effect and that it had not been stayed, the removal order was then enforceable under sections 48 and 49 of the IRPA.

[33]            The respondent's counsel explained why in his opinion the applicant did not benefit from any stay when the IRPA and the IRPR came into force. This is what he wrote at paragraphs 50 and 51 of his supplemental memorandum:

[TRANSLATION]

50.           Contrary to what is alleged by the applicant in her memorandum, there was no stay of her removal order pursuant to section 232 of the IRPR since that section only provides that there is a stay from the moment when the applicant has been notified under section 160 of the IRPR that she can make an application under subsection 112(1) of the IRPA. The applicant never received that notice since her PDRCC class application was deemed to be a PRRA by the operation of the transitional provisions.

51.           The applicant, whose PRRA application was deemed to have already been filed could not be notified under section 160 of the IRPR that she could apply for a PRRA. The applicant could only be notified pursuant to subsection 346(2) of the IRPR, namely that she could make additional submissions.

[Emphasis added.]

[34]            In another part of his supplemental memorandum, the respondent's counsel discussed the new provisions of the PRRA under the IRPA as follows:

[TRANSLATION]

27.           The IRPA created a new protection mechanism. Before the execution of a removal order in force can be carried out, the person contemplated by the order has the right to request a PRRA.

28.           The PRRA begins when an immigration officer sends a notice pursuant to section 160 of the IRPR. Subsection 160(4) describes how the notice is given. . . .

29.           The purpose of the PRRA is very clear. It is meant to prevent the removal of individuals who would be at risk if they were removed from Canada.

30.           The circumstances in a given country can change with time. The timing of the assessment of the risks is therefore of crucial importance. In order for the PRRA to be truly effective, it is essential that it may be made immediately before the removal. Accordingly, the PRRA is made when the Minister is in the position to proceed with the removal of the person in question. A PRRA made before the Minister can proceed with the removal, i.e. when the person in question can leave Canada voluntarily, would be useless since a person who is ready to leave Canada voluntarily is not fearful of any risk in so doing and therefore does not require Canada's protection.

31.            Pursuant to section 232 of the IRPR, after being notified under section 160 of the IRPR, there is a stay of the execution of the removal order. This statutory stay prevents the removal of the person in question until there has been a negative decision regarding the PRRA application.

                                                                      . . .

32.           It is important to note that the stay does not contemplate all persons who have filed PRRA applications, but only those who have received a notice pursuant to subsection 160(3) of the IRPR. Further, the stay does not apply until the time that the notice has been given.

33.           The immigration officer determines when the notice has been given. In practice, the PRRA does not begin until the person in question is subject to removal from Canada, i.e. after the 30-day period during which the person in question may leave Canada voluntarily. This is consistent with the purpose of the PRRA described earlier, i.e. protecting persons whose removal puts their lives at risk, which is not the case for persons who are willing to leave Canada voluntarily.

[Emphasis added.]

[35]            The respondent's counsel concludes at paragraph 53 of his supplemental memorandum:

[TRANSLATION]

53.           The applicant therefore found herself in a position similar to that of other persons who filed PRRA applications after the IRPA came into effect, i.e. she was subject to a deportation order and not a departure order at the time of the PRRA.

[36]            The central issue in this case raises a question of statutory and regulatory interpretation. The Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 26, sets out the applicable principles.

[37]            I refer to the following paragraphs of the reasons for judgment given by Iacobucci J.:

20.            At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.

21.         Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 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.

Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 41; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.

22.         I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".

[Emphasis added.]

[38]            Recently, this principle of interpretation was reiterated by Deschamps J. of the Supreme Court of Canada, in Glykis v. Hydro Québec, [2004] S.C.C. 60:

The approach to statutory interpretation is well-known (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42">2002 SCC 42). A statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute, and the intention of the legislature. This approach to statutory interpretation must also be followed, with necessary adaptations, in interpreting regulations.

[39]       In my opinion, it is essential when applying this principle of interpretation to interpret the statutory text (the IRPA) and regulatory text (the IRPR) harmoniously to ensure that all their provisions are compatible in order to promote their purpose and effectiveness and to reflect the intention of Parliament.

[40]            In my opinion, this case is a matter of harmoniously interpreting the former legislative and regulatory provisions surrounding PDRCC applications with the new PRRA regime created by section 112 of the IRPA, considering the transitional provisions regarding the former PDRCC regime and the consequences of that new PRRA regime on the enforcement of a departure order and its transformation to a deportation order in the context of section 52 of the IRPA, prohibiting a return to Canada unless authorized by an immigration officer.

[41]            According to section 112 of the Act establishing the PRRA regime, a person in Canada on June 28, 2002, the date that the IRPA and the IRPR came into force may, in accordance with the IRPR, apply to the Minister for protection if they are subject to a removal order in force.

[42]            I agree with the following submissions by the Minister on the legal situation of the applicant in Canada on the date that the new PRRA regime came into force:

(1)        The conditional departure order made against her went into effect immediately after the date of the IRB's decision dated February 19, 2002, refusing the refugee claim. As of that date, that order was no longer conditional.

(2)        However, that departure order could not be enforced because it was stayed pursuant to section 49 of the former Act, a stay which ceased to have effect on June 14, 2002, when this Court dismissed her application for leave to challenge the IRB's decision.

(3)        Before the IRPA and the IRPR came into force, the departure order against the applicant had not been transformed to a deportation order because on May 8, 2001, she had filed a PDRCC application which had not been decided before June 28, 2002.

[43]            It is also true that when the new PRRA regime came into force, the departure order made against the applicant which had not yet been executed continued to be in force and was subject to the provisions of the IRPA pursuant to the provisions of section 319 of the IRPR.

[44]            The argument by the Minister which I cannot accept is his counsel's statement that when the PRRA regime came into force, the departure order against the applicant did not benefit from any statutory stay under the IRPA and the IRPR and that on June 28, 2002, that order had became enforceable, obliging the applicant to leave Canada before July 28, 2002, in order to prevent her departure order from becoming a deportation order and thus the consequences of section 52 of the IRPA.

[45]            The Minister's counsel submits that to benefit from a stay under the new PRRA regime, every person, including a person who has filed a PDRCC application under the former regime, must be notified by the Minister under section 160 of the IRPR that he or she may apply for protection under section 112 of the IRPA, notification that the applicant did not receive since her PRRA application was deemed to have already been filed.

[46]            In my opinion, to deny the existence of a stay under the new PRRA regime on the basis of such an interpretation is in direct conflict with the intention of Parliament and the rationale of the transitional provision for PDRCC applications existing at the date the new regime came into force.

[47]            The new PRRA regime created a new class of persons deserving of protection in Canada, beyond the protection provided by the Convention. According to section 97 of the IRPA, a person in need of protection is a person who is subjected to a danger of torture within the meaning of Article 1 of the Convention Against Torture or to a risk to their life or to a risk of cruel and unusual treatment or punishment in certain cases.

[48]            The logic of the statutory stay provided under section 232 of the IRPR is obvious. Canada does not want to return a person subject to such risks before the PRRA application for protection has been studied.

[49]            The interpretation advocated by the respondent is inconsistent with the purpose of section 346 of the IRPR regarding post-determination refugee claimants in Canada. In my view, the intention of this transitional provision is very clear. An existing PDRCC application is considered or is dealt with as if it were an application for protection and as a result the requirement provided under section 160 of the IRPR - that the Minister give notification to the person that he can file an application for protection pursuant to subsection 112(1) of the IRPA before there is a statutory stay pursuant to the provisions of section 232 - does not apply. Section 346 of the IRPR provides that in the case of an existing PDRCC application, that that application for protection has already been filed.

[50]            I remark in passing that Mr. Le Brun based his pleadings before me on the premise that the stay which he claimed existed ended on March 10, 2003, the date that the immigration officer dismissed Ms. Cecilia's PRRA application despite the fact that this decision had not been communicated to her by Mr. Graveline until April 8, 2003. I accept this premise for the purposes of the application for judicial review before me.

[51]            I find that at the date that the new PRRA regime came into effect, the execution of the applicant's departure order was stayed.

[52]            In my view, such an interpretation is in harmony with the goal of the new PRRA regime, consistent with the purpose of the transitional provision on existing PDRCC applications; it avoids the harmful consequences of the absence of a stay during the review of an application for protection, including the potential transformation of a departure order into a deportation order without the applicant being able to avoid the consequences of section 52 of the IRPA.

[53]            My interpretation of the legislative and regulatory texts preserves the choice of PDRCC applicants to comply voluntarily with a removal order pursuant to sections 237 and 238 of the IRPR.

[54]            In my opinion, the finding on my part is the one intended by the Department when it gave the negative PRRA decision to the applicant. The PRRA officer's letter dated March 10, 2003, notified the applicant that "[T]he removal order made against you is now enforceable" which presupposes the existence of a stay and, further, advised her that "if your departure order has become a deportation order, you will not be allowed to return to Canada without the written authorization of an officer at any time in the future", which presupposes that the applicant had the opportunity to leave Canada voluntarily.

[55]            In my view, these two factors created a legitimate expectation in the mind of the applicant (see, Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 526).

[56]            I find that by the late disclosure of the dismissal of the PRRA application, the respondent removed the choice extended to Ms. Cecilia by law to execute her departure order voluntarily by leaving the country voluntarily. The respondent thereby erred in law by improperly exercising the latitude that he had with regard to communicating the PRRA decision.

[57]            The remedy sought by the applicant is problematic. I believe that the respondent is correct in contending that this Court would only have the power to declare that the removal is unenforceable if the applicant had claimed that certain sections of the IRPA and the IRPR were invalid, which is not the case. Unfortunately for the applicant she is now burdened with a deportation order.

[58]            Under the circumstances, I must order a remedy maintaining the removal order in force but granting an appropriate remedy to Ms. Cecilia. This balance is struck by setting aside Mr. Graveline's decision ordering the applicant to leave Canada on April 26, 2003, by referring the matter before another removal officer who shall issue a new direction establishing the applicant's departure from Canada on a date after February 1, 2005. Before the applicant's departure, I order the respondent to authorize Ms. Cecilia to return to Canada if her entry is otherwise in accordance with applicable legislative or regulatory provisions, pursuant to section 52 of the IRPA.

[59]            On or before November 1, 2004, either party may propose one or more questions for certification and, in that case, the other party may file their comments at the Registry on or before November 8, 2004.

                  "François Lemieux"              

                                                                                                 Judge                       

Ottawa, Ontario

October 18, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  IMM-2909-03

STYLE OF CAUSE: CATHERINE CECILIA

v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                 MONTRÉAL

DATE OF HEARING:                                   JUNE 29, 2004

REASONS FOR ORDER:                           THE HONOURABLE MR. JUSTICE LEMIEUX

DATE OF REASONS:                                   October 18, 2004

APPEARANCES:     

MICHEL LE BRUN    FOR THE APPLICANT

SÉBASTIEN DASYLVA                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

MICHEL LE BRUN    FOR THE APPLICANT

MORRIS ROSENBERG                                  FOR THE RESPONDENT