Koch v. Dunsby, docket T-1992-96

     IMM-1992-96

Between:

     GWENDOLYN BARBARA GONSALVES,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     This is an application for judicial review of the decision of the Immigration Appeal Division made May 10, 1996 which, by reason of paragraph 70(5)(c) of the Immigration Act, R.S.C. 1985, Chap. I-2, dismissed the applicant's appeal of a deportation order issued against her on October 19, 1994, by an Immigration adjudicator pursuant to subparagraph 27(1)(d)(i) of the Act, rendered May 29, 1996. Leave for judicial review was granted on February 10, 1997.

     Ms. Gonsalves was born in Georgetown, Guyana (then British Guiana) on September 4, 1950 and was landed as a permanent resident at Malton Airport in Toronto on June 20, 1958. To the applicant's knowledge all of her family, including her daughter (born on October 24, 1980), mother, father and step-siblings all reside in Canada (affidavit of Gwendolyn Barbara Gonsalves, application record (AR), p. 2). The applicant has a criminal record dating back to 1975. In that year she was convicted of theft under $200, keeping a common bawdy house, possession of a controlled drug for the purposes of trafficking and possession of stolen property over $200. Ten years later, in 1985, Ms. Gonsalves was again convicted of theft under $200. On December 3, 1993, the applicant was convicted of manslaughter and sentenced to a 52-month term of imprisonment (affidavit of Ingrid Stack, respondent's record (RR), tab B; AR, p. 43). She is currently serving her sentence in Isabel McNeil house, a minimum security satellite of the Kingston Prison for Women (AR, p. 4).

     On August 16, 1994, Ms. Gail Dunn, an Immigration officer, completed a report under section 27 of the Act which alleged that Ms. Gonsalves was a person described in subparagraph 27(1)(d)(i) of the Act (RR, tab C). That part (now amended) reads:

27.(1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who

* * *

(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(i) more than six months has been imposed, [or

(ii) five years or more may be imposed]

     On August 11, 1994, C.L. Fenner, a manager with the Canadian Immigration Centre completed a "Narrative Report pursuant to A27(1)" which summarized the applicant's background. The manager recommended a direction for inquiry be issued (RR, tab D; AR, p. 37; tribunal record (TR), p. 24). An inquiry was conducted by Ms. Anna-Maria Micillo, an immigration adjudicator, on October 19, 1994 (TR, pp. 9-22; AR, pp. 45-63), which resulted in a deportation order being issued against Ms. Gonsalves (TR, p. 23; AR, p. 44). The result of this inquiry was only to determine whether the applicant had been convicted of an offence for which a sentence in excess of six months has ben imposed.

     On October 27, 1994, the applicant appealed the deportation order of October 19, 1994 (AR, p. 64). She was advised by Mr. Herbert Smith, a case officer with the appeal division of the Immigration and Refugee Board, that her appeal would be heard by the appeal division within the following six months. A notice to appear, dated August 8, 1995, was served on the applicant's counsel. It advised that the appeal hearing was to take place on October 16, 1995 (AR, pp. 16 and 67).

     On July 10, 1995, Bill C-44, An Act to Amend the Immigration Act and the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, Chap. 15, which contained what is commonly known as "danger to the public" in subsection 70(5) of the Immigration Act, came into force. Subsection 70(5) reads:

(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be

(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);

     (b) a person described in paragraph 27(1)(a.1); or

(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

Ms. Gonsalves was informed, by letter of August 29, 1995 from Ms. Theresa Harvey, Chief of the Criminal Backlog Review Task Force, that the Department of Citizenship and Immigration was considering issuing a danger opinion pursuant to subsection 70(5) of the Act (RR, tab H). The letter states that attached was the evidence which would be before the Minister and advised the applicant she could make representations regarding both the "danger to the public" evidence and humanitarian and compassionate factors. According to an October 5, 1995 letter from Ms. Gonsalves' counsel, that documentation was not personally delivered to the applicant until September 25, 1995 (AR, p. 71). In a letter dated September 25, 1995, the applicant made representations (RR, tab I). Her counsel did the same by letter of October 10, 1995 (AR, p. 73; RR, tab J).

     On October 5, 1995, Ms. Gonsalves' counsel wrote to Ms. Harvey and indicated that it was "inappropriate to proceed with a Section 70(5) Application" (AR, p. 71) because the applicant's appeal hearing was already scheduled and preparation had commenced. He requested that the issuance of the opinion be stayed. The registrar of the Immigration and Refugee Board postponed the hearing until October 23, 1995 (AR, p. 69) On October 17, 1995, the applicant's counsel received a facsimile copy of the Minister's application for postponement of the applicant's immigration appeal until the Minister determined whether Ms. Gonsalves was a danger to the public. (AR, p. 77). On the same day, Ms. Gonsalves' counsel responded with an objection to the adjournment (AR, p. 78). The request was denied and the appeal hearing commenced as scheduled on October 23. At the beginning of the hearing, the Minister's counsel again unsuccessfully attempted to get an adjournment so that the Minister could determine whether a danger opinion should be issued (AR, p. 18).

     The Minister communicated his decision, without reasons, that Ms. Gonsalves was a "danger to the public" by letter of October 31, 1995 to Ms. Gonsalves' counsel. It was received on November 6, 1995 (AR, pp. 121 and 123). The same was served on the registrar of the Immigration and Refugee Board (AR, p. 2). On November 20, 1995, the registrar faxed the applicant a letter which stated that the Minister's continued efforts to abort the applicant's appeal would be treated as a motion to dismiss. The registrar gave Ms. Gonsalves until November 28, 1995 to make submissions regarding this, which her counsel made (AR, pp. 124-125). The events following this are of little importance and deal with the submissions made by the applicant and the Minister regarding the appeal division's jurisdiction to determine Ms. Gonsalves' appeal, and can be found in the applicant's record at pp. 23-24.

     The next significant event was a phone call on February 2, 1996, from Mr. Herbert Smith on behalf of the registrar, to Ms. Gonsalves' counsel's office. Mr. Smith stated that a decision would be rendered in this matter (AR, p. 24). On February 23, 1996, the applicant's counsel received a communication from Mr. Smith that the Chairperson of the appeal panel wanted submissions regarding the application of Tsang v. Canada (M.C.I) (1996), 107 F.T.R. 214. On May 29, 1996, the applicant's appeal was dismissed for want of jurisdiction. The order of the appeal division reads (AR, p. 153):

In accordance with Rule 39 of the Immigration Appeal Division rules, the Appeal Division considered the opinion filed by the Minister of Citizenship and Immigration, pursuant to subsection 70(5) of the Immigration Act, as a motion to dismiss the appeal for lack of jurisdiction. The Appeal Division considered this motion on the 10th day of May, 1996.

The Minister of Citizenship and Immigration is of the opinion that the appellant constitutes a danger to the public in Canada and the appellant has been determined by an adjudicator to be a person described in paragraph 27(1)(d) of the Immigration Act *** Therefore, the motion by the Minister of Citizenship and Immigration that the appeal be dismissed for lack of jurisdiction is granted.

The reasons, dated May 10, 1996, are found at pp. 154-158 of the applicant's record. Leave for judicial review was filed on June 14, 1996 and granted February 10, 1997.

     In this case, there are two preliminary matters. The first is that the applicant appears to be challenging two decisions, the appeal division's decision declining jurisdiction to hear the applicant's appeal and the issuance of the "danger opinion" itself. Under Section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7, only one decision may be reviewed on any one application for judicial review. According to the application for leave and for judicial review, the impugned decision was that of the appeal division declining jurisdiction. As a result, the challenge to the danger opinion is not properly before the Court. In any event, the applicant's submissions in this regard, that the provision was invalid because it did not require reasons, were dealt with by the Federal Court of Appeal in Canada (M.C.I.) v. Williams (A-855-96) (April 11, 1997), which stated that section 7 of the Charter was not engaged and that in any event neither the common law nor section 7 of the Charter required the Minister to give reasons regarding her subsection 70(5) decisions. Further, the Court of Appeal also found that subsection 70(5) is not inconsistent with the Canadian Bill of Rights, R.S.C. 1985, Chap. c-44, for the same reason that the Charter did not apply and because paragraph 2(e) of the Bill of Rights requires only a fair hearing. According to Mr. Justice Marceau, reasons are not necessarily part of fair hearing. The only decision before the Court for review is the May 29, 1996 decision, in which the appeal division decided it did not have jurisdiction to adjudicate the applicant's appeal, and therefore dismissed it.

     The second preliminary matter concerns the lack notice of a constitutional question as required by section 57 of the Federal Court Act. As a result, the applicant's constitutional arguments for any of their submissions cannot be entertained. This leaves two issues before the Court.

1. Did the appeal division err in determining that it had no jurisdiction to entertain the applicant's appeal?

2. Did the applicant have a legitimate expectation that a disposition of the applicant's appeal would be rendered by the appeal board?

     The Chairperson, Ms. Bartley, after hearing submissions on the applicability of the decision of Mr. Justice Dubé in Tsang, cited above, concluded that the appeal division did not have jurisdiction to entertain Ms. Gonsalves' appeal after a subsection 70(5) opinion was issued. The Chairperson's reasons read, thus (AR, p. 157):

I was poised to dispose of the appeal by issuing an order and supporting reasons when the Federal Court of Canada decided Tsang, Lannie Wai Har v. M.C.I. [footnote omitted]. That case, which involved an appeal brought pursuant to section 77 of the Act, suggests that once an opinion is issued by the Minister, I no longer have jurisdiction to dispose of an appeal. I asked for further submissions, in light of Tsang.

Although I prefer the reasoning adopted in earlier decisions of the Appeal Division, I conclude that I am bound by the decision of the Federal Court of Canada in Tsang [footnote omitted]. I must, therefore, also conclude that I have no jurisdiction to dispose of this appeal. Accordingly, the appeal of GWENDOLYN BARBARA GONSALVES must be dismissed for lack of jurisdiction.

     The Chairperson did not err. The Federal Court of Appeal, A-179-96 (February 11, 1997) upheld Mr. Justice Dubé's decision in Tsang. The facts of the case at bar evince some elements quite similar to those in Tsang. In Tsang the applicant launched an appeal under section 77 of the Immigration Act. That section gives a Canadian citizen who sponsors a would-be applicant for landing the right of appeal to the appeal division of the Immigration and Refugee Board. The applicant in that case, Ms. Lannie Tsang was a Canadian citizen married to a Hong Kong citizen, Mr. Peter Tsang. He resided in Canada on Minister's permits until 1985. After December of that year, he had no status. Between 1978 and 1986, Mr. Tsang committed numerous criminal offences, and after a section 27 report was conducted he was ordered deported. On January 23, 1993, Mr. Tsang filed an application for permanent residence based on his wife's sponsorship. The application was refused and Ms. Tsang filed an appeal.

     The next series of events almost exactly mirror those in the case at bar. Bill C-44 was proclaimed on July 10, 1995, before the hearing date of Ms. Tsang's appeal. The appeal officer requested that the hearing be postponed so that the Minister could determine whether Mr. Tsang was a danger to the public. The request was denied and the appeal was heard on July 25 and August 10, 1995. The decision was reserved. On September 8, 1995, the Minister issued his opinion that Mr. Tsang was a danger to public. Mr. and Ms. Tsang filed an application for judicial review of the Minister's decision to issue the opinion which was dismissed. The motions judge, Dubé J., certified the following question:

When an appeal is made by a sponsor to the Immigration Appeal Division (IAD) prior to July 10, 1995, with respect to a sponsoree who is inadmissable pursuant to s. 19(1)(c), (c.1), (c.2) or (d) of the Immigration Act, and the hearing before the IAD had commenced after July 10, 1995, does the effect of the Minister issuing a "danger to the public" opinion extinguish the sponsor's right of appeal pursuant to s. 77(3.01) of the Act and s. 15(3) of the Bill C-44 and thereby terminate the jurisdiction of the IAD with respect to the appeal?

Mr. Justice Marceau, for the Court of Appeal, found that "I have no difficulty in answering it in the affirmative as did, at least incidentally, the motions judge himself. In my opinion, the transitional provision in Bill C-44 does not allow any other answer". Marceau, J.A., rejected the notion that there was any ambiguity in the English version of the transitional provision, subsection 15(3), at issue which could be construed as preserving the right of appeal if the hearing is commenced prior to the issuance of a danger opinion.

     The transitional provision of Bill C-44 which applies to subsection 70(5), subsection 13(4) is virtually identical to subsection 15(3). Subsection 13(4) reads:

Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced ***

Mr. Justice Dubé, in Casiano v. Canada (M.C.I), IMM-746-96 (September 20, 1996) interpreted subsection 13(4) in the same manner as the transitional provision at issue in Tsang.

     The effect of Tsang is this: even if the hearing is commenced prior to the issuance of danger opinion the issuance of the danger opinion pursuant to subsection 70(5) of the Act strips the appeal division of the jurisdiction to hear the appeal.

     With respect to the second issue before the Court, whether the applicant has a legitimate expectation that a disposition of the applicant's appeal would be rendered by the appeal board, it too fails. The applicant relies on the fact that in her reasons the presiding member stated that she had initially concluded that the appeal division did have jurisdiction to dispose of the appeal. As noted above, however, the Federal Court, Trial Division decision in Tsang was rendered and Ms. Bartley asked for submissions. The decision of the Federal Court, Trial Division is binding on the appeal division of the Immigration and Refugee Board unless or until the Federal Court of Appeal disturbs that decision. Ms. Bartley could not, and did not, ignore the law. And there was no final decision made earlier than the decision declining jurisdiction pronounced on May 29, after receiving submissions.

     The Supreme Court of Canada, in Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at p. 1204, stated that the doctrine of legitimate expectation created only procedural, not substantive rights. This was affirmed by the Supreme Court in Ref. Re Canada Assistance Plan [1991] 2 S.C.R. 252 and was applied by the Federal Court of Appeal in Lidder v. Canada (M.E.I), [1992] 2 F.C. 621 (F.C/A). This usually creates a right to make representations or be consulted. It does not give a substantive right which would in effect compel the appeal division to take jurisdiction.

     Here, the right to a determination is substantive. The facts here also show that if there were any procedural rights to be had, they would have been in the nature of providing the opportunity for a hearing or to make submissions. The applicant was asked by the Minister to make submissions and did so; therefore, any procedural requirements were satisfied. The determination was a finding that Parliament, by enacting subsection 70(5), had terminated the IAD's jurisdiction to deal with Ms. Gonsalves' appeal.

     Estoppel, while not raised by the applicant, usually mirrors legitimate expectation and is also not available to Ms. Gonsalves in this case. According to the Federal Court of Appeal in Lidder, supra, there must be a representation of fact made which a reasonable person would assume was intended to be acted upon; that person must have acted on it and, as a consequence of such reliance, the person must have suffered a detriment. In this case, the February 2, 1996 telephone call on behalf of the registrar to the applicant's counsel which stated that the a determination would be made in the matter is not enough to create an estoppel. First, the applicant placed no reliance on this telephone call. (Getting one's hopes up is not reliance). Equally, there was no act taken, to the applicant's detriment, on the non-existent reliance. Second, the Federal Court of Appeal held in the Lidder case that estoppel cannot be invoked to preclude the exercise of a statutory duty, and that the Minister cannot be deemed to act in contravention of statutory duty. Nor can the Minister be compelled so to act.

     It was not raised in argument, but the recent decision of Mr. Justice Dubé in Athwal v. Canada (M.C.I.) IMM-1458-96 (January 8, 1997) shows that there may be gap between paragraph 70(5)(c) and paragraph 27(1)(d). There are three ways to look at this problem. The first is whether the adjudicator has jurisdiction to determine whether the offence could result in a prison term over ten years in length. Pursuant to paragraph 70(5)(c) a person loses the right of appeal to the appeal division when the Minister forms the opinion that he or she is a danger to the public in Canada and an adjudicator has determined that person to be a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. So runs this interpretation.

Paragraph 70(5)(c) again warrants reproduction at this juncture:

(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be

(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);

(b) a person described in paragraph 27(1)(a.1); or

(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

Arguably, paragraph 70(5)(c), when broken down, reads thus:

1. An adjudicator must determine two things:

     (a) that the person is described in paragraph 27(1)(d)

(b) and that offence which is the reason why that person fits the paragraph 27(1)(d) description is one for which a prison term in excess of ten years may be imposed.

Paragraph 27(1)(d) describes only persons who have been convicted of an offence for which a term of imprisonment of more than six months has been imposed or five years or more may be imposed. The adjudicator obtains his jurisdiction from subsection 27(3), which happens after the report by the immigration officer under section 27 recommends a direction to inquiry issued under that section. Where an inquiry is held before an adjudicator, the question before the adjudicator is whether that person is described in any of the enumerated paragraphs including paragraph 27(1)(d). As this was before the danger opinion was contemplated and made pursuant to section 27 of the Act, the adjudicator would have had no jurisdiction under paragraph 70(5)(c). Thus the gap. This is the strictest view of the two sections.

     The second way of looking at the problem, if such it be, was that of Mr. Justice Dubé who took a less strict approach in Athwal. He found at pp. 7-8 that

In my view, there is no ambiguity in subsection 70(5). No appeals are to be made to the Appeal Division under certain specific conditions, including a determination by an adjudicator to the effect that a person described in paragraph 27(1)(d) has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. The subsection stipulates very clearly that the determination must be made by an adjudicator. There are no provisions in the Act authorizing the Appeal Division to substitute its own decision for that of the arbitrator.

Nothing in the Act prevents a case presenting officer to file evidence at the inquiry as to the nature of the offenses, which evidence would form the basis for the adjudicator to determine that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. The mere fact that subsection 27(1) does not instruct immigration officers who make such reports does not bar an adjudicator from making a finding of fact based on such a report for the purposes of subsection 70(5).

Thus, the golden rule of interpretation need [sic] not be invoked. There is no ambiguity and there is no absurdity. Subsection 70(5) speaks for itself. It is for the Minster [sic], through his case presenting officer, to present at the inquiry evidence of conviction for the offenses in question. Before subsection 70(5) came in to force, the case presenting officer, so as to obtain the deportation order, needed only to proceed under paragraph 27(1)(d). Since the coming into force of subsection 70(5), he now has to produce evidence of a conviction for which a term of imprisonment of ten years or more has been imposed for the purpose of that subsection.

In essence, the adjudicator had the jurisdiction to make the determination of the purposes of paragraph 70(5)(c) because there is no provision which prohibits the adjudicator from doing so and it is open to the adjudicator to make such findings of fact during the inquiry. In that case, and in the one at bar, the adjudicator made no such determination.

Dubé, J. certified this question:

Under s. 70(5)(c) of the Immigration Act, must an adjudicator specifically find that a person described in paragraph 27(1)(d) is also a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed, before s. 70(5)(c) will be effective to remove the Applicant's appeal to the Immigration Appeal Division, or can this finding be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with the appeal?

     The first approach renders paragraph 70(5)(c) nugatory. The provision may as well have been written in invisible ink. For the provision to operate under the approach of Mr. Justice Dubé, serendipity is the reliant factor. The adjudications are made by adjudicators who, being human, are not clairvoyant. This happens before any appeal to the appeal division is filed and before the issuance of a danger opinion. Even if it is the case that adjudicators should make the paragraph 27(1)(d) determination, with the possible issuance of a danger opinion in mind, in the Athwal case and in this case there would have been no reason why the adjudicator would have made such a determination as there was no statutory requirement for somebody to show evidence that the offence could result in a prison term in excess of ten years because paragraph 70(5)(c) did not exist when the inquiry was held! The result creates an absurdity. Further, in practical terms this would throw the system as it presently stands into chaos. Any danger opinion which proceeded on the basis of a paragraph 27(1)(d) opinion which did not determine if the term of imprisonment exceeded ten years would be invalid. This, too, is absurd. Parliament could not have conceived that the operation of this provision would rely purely on chance.

     The meaning of paragraph 70(5)(c) may or may not be ambiguous. Mr. Justice Dubé found it was clear. But there is no question that its effect as viewed above is absurd. The third way contemplates statutory construction principles which may be invoked to cure such legislative shortcomings. One such construction is reading words into the statute. Courts are rightly reticent to add or delete words in a statute. Courts are not legislatures. The exception is when the result is otherwise absurd. The classic case is Grand Trunk Pacific Railway Co. v. Dearborn, [1919] 58 S.C.R. 315. Mr. Justice Davies is reported as having written at pp. 320-21 of the judgment:

I cannot admit the right of the courts where the language of a statute is plain and unambiguous to practically amend such statute either by eliminating words or inserting limiting words unless the grammatical and ordinary sense of the words as enacted leads to some absurdity or some repugnance or inconsistency with the rest of the enactment, and in those cases only to the extent of avoiding that absurdity, repugnance and inconsistency.

Reading words into a statute is an endeavour which ought not to be embarked upon lightly. Before a court should even consider this, it should try to give meaning to the words through established canons of interpretation. Professor Coté, in The Interpretation of Legislation in Canada, 2d ed., Cowansville, Les Éditions Yvon Blais, 1991, states that Mr. Justice Davies' statement paraphrases the "Golden Rule" (at p. 377). Professor Coté wrote this regarding the literal meaning of the text:

The courts assume that Parliament did not intend mandatory compliance with an enactment where, for all practical purposes, this is impossible:lex non cogit ad impossibila is a principle of simple common sense and equity [footnote:Anchor Enterprises Ltd. v. Ville de Beaconsfield, [1959] Que. Q.B. 365; Boisclair v. Denis, [1966] Que. Q.B. 33; R. ex. rel. Davis v. James, (1957) 7 D.L.R. (2d) 75 (Ont. C/A.)]

In order to avoid absurd consequences, it is even permissible to depart from plain words: this is the only case where the classic canon of literal interpretation permits avoidance of a provision whose meaning seems obvious:

... the literal meaning should not be departed from except in the case of ambiguity or absurdity. [footnote: Per Pigeon J., Wellesly Hospital v. Lawson, [1978] 1 S.C.R. 893">[1978] 1 S.C.R. 893, 902]

     Section 12 of the Interpretation Act, R.S.C. 1985, Chap. I-21, states that "every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensure the attainment of its objects." With this and the words of the Supreme Court regarding absurdity in mind, the object of the provision is clear. Parliament wanted to take away a convicted person's appeal to the appeal division if that person committed an offence which resulted in a sentence in excess of six months and if the crime was of the type that the sentence could be more than ten years and the Minister determined that the person was a danger to the public. To do this, Parliament relied on the inquiry provisions in section 27. At the inquiry the adjudicator asks the person who is subject to the inquiry whether the person is (or was) serving a sentence in excess of six months. The next step is to determine if the crime was of the nature which could attract a sentence in excess of ten years. This is as easy as opening any garden variety Criminal Code. Simply put, whether the offence could have resulted in a ten-year plus sentence is simple matter of clear statutory law.

     The first two approaches noted previously are premised on the idea that the adjudicator is responsible for determining that the potential sentence could be in excess of ten years.

     The third approach, which really results in no ambiguity and requires no reading in at all, is this: the adjudicator does his or her job under paragraph 27(1)(d) and then paragraph 70(5)(c) speaks for itself. While a simple comma immediately in front of "who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed" would be preferable, it is a clear and reasonable interpretation to say that it is the Act, not the adjudicator, which states that an opinion will issue after the adjudicator makes the section 27 determination. The Minister can issue an opinion only if the person meets the statutory requirements.

     This accords perfectly with paragraphs 70(5)(a) and (b), which allow the section to strip away an applicant's appeal right if an adjudicator finds the person to be described in paragraphs 19(1)(c), (c.1) or (d) and 27(1)(a.1). These paragraphs all have a "ten year or more" requirement in them. It is obvious that Parliament intended subsection 70(5) to apply only to offences which were so serious as to merit a maximum prison term of more than ten years. While paragraph (c) is study in sloppy punctuation, it must be given meaning. Parliament obviously intended paragraph 70(5)(c) to do something.

     The "something" does not require the participation of the adjudicator through to the end of paragraph 70(5)(c). Such adjudicator's participation is the same as is clearly set out in paragraph 70(5)(b), which ends with appropriate punctuation. Together in their natural sequence (b) and (c) operate in this manner:

70.(5) * * *

(b) a person described in paragraph 27(1)(a.1); or

(c) a person described in paragraph 27(1)(d) [,].

The balance of (c) * * * who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed, is objectively determined as a fact of law from a plain reading of the Criminal Code or the other pertinent Act of Parliament. The adjudicator of course needed to have identified the crime by its correct designation in order to determine that it carries a term in excess of five years pursuant to subparagraph 27(1)(d)(ii). If that crime is one which in fact carries a term of imprisonment in excess of ten years, then the Minister is empowered to issue the "danger opinion" under paragraph 70(5)(c). The Minister needs no ipse dixit of an adjudicator to say whether the offence does or does not carry a term in excess of 10 years.

     The interpretation which this Court confers on the section does not conflict with paragraphs 70(5)(a) and (b) or with Parliament's intention and gives meaning to the words in paragraph 70(5)(c). It is for this reason that the applicant does not "slip through the gap" and that the appeal division properly refused jurisdiction on the basis of the Tsang case.

     Finally, with respect to Mr. Justice Dubé's concern that a strict interpretation of subsection 70(5) should be adhered to because it removes the right to an oral hearing where the appeal division would consider all factors, this may be said. Paragraphs 70(5)(a) and (b) remove the right to the oral hearing to people described in paragraphs 19(1)(c), (c.1), (d) and 27(1)(a.1) for the same reason that paragraph 70(5)(c) removes the right of appeal for people described in paragraph 27(1)(d). There is no logical reason why those subject to a paragraph 70(5)(c) opinion have a right to an appeal while those in the immediately preceding paragraphs do not. This is especially so when it was clearly Parliament's intent to remove the right of appeal to the IRB's appeal division for all three classes of people.

     Considering the foregoing, this application for judicial review is dismissed.

    

Judge

Ottawa, Ontario

May 9, 1997