Docket: IMM-1329-16
Citation:
2016 FC 1098
Ottawa, Ontario, October 3, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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VASILE FLORIN
FLORE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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REASONS AND JUDGMENT
I.
Overview
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board [IAD].
[2]
Finding that a Conditional Sentence Order [CSO]
was a “term of imprisonment” for the purposes of
section 64 of the Act, the IAD determined that the applicant had no right to
appeal his removal order before the IAD.
II.
Facts
[3]
The applicant – a citizen of Romania – became a
permanent resident of Canada in February 2011. He was arrested during the
execution of a search warrant of a marijuana grow operation in Hixon, British
Columbia, in June 2011 and was convicted of possession of a controlled substance
for the purpose of trafficking as well as of production of a controlled
substance contrary to subsections 5(2) and 7(1) of the Controlled Drugs and
Substances Act, SC 1996, c 19, in November 2013.
[4]
The applicant was sentenced in May 2014, to a
CSO of 18 months.
[5]
Following a section 44 report, the applicant was
issued a removal order by the Immigration Division, in February 2015. The
report stated – and the Immigration Division agreed – that the applicant was
inadmissible to Canada for reason of serious criminality under paragraph 36(1)(a)
of the Act.
[6]
The applicant then filed a notice of appeal of
the Immigration Division’s removal order with the IAD, in February 2015.
[7]
The IAD rejected the applicant’s appeal on March
7, 2016. It determined that the appellant had no right of appeal to the IAD,
pursuant to section 64 of the Act.
III.
Decision under Review
[8]
The IAD set out the issue in the context of Canada
(Public Safety and Emergency Preparedness) v Tran, 2015 FCA 237 [Tran]
which was under appeal before the Federal Court of Appeal, during the
applicant’s appeal to the IAD.
[9]
Considering the result in Tran, the IAD
gave the parties the opportunity to make fresh submissions regarding the IAD’s
jurisdiction, which the applicant did, in December of 2015.
[10]
Given the Federal Court of Appeal decision in Tran,
the IAD ultimately concluded that the applicant’s 18 month CSO constituted a “term of imprisonment of at least six months” for the
purposes of subsection 64(2) of the IRPA. Therefore, the applicant had no right
of appeal of his removal order to the IAD, pursuant to subsection 64(2) of the
Act, because he was inadmissible from Canada for reasons of serious
criminality.
IV.
Issues
[11]
This application for judicial review raises the
following issues:
i.
What is the applicable standard of review?;
ii.
Was the IAD conclusion that a CSO constitutes a
term of imprisonment for the purpose of subsection 64(2) of the Act
unreasonable?
V.
Relevant Statutory Provisions
[12]
The provisions relevant to this matter are subsections
64(1) and (2) of the Act:
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No appeal for
inadmissibility
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.
Serious
criminality
(2) For the
purpose of subsection (1), serious criminality must be with respect to a
crime that was punished in Canada by a term of imprisonment of at least six
months or that is described in paragraph 36(1)(b) or (c).
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Restriction du
droit d’appel
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.
Grande
criminalité
(2)
L’interdiction de territoire pour grande criminalité vise, d’une part,
l’infraction punie au Canada par un emprisonnement d’au moins six mois et,
d’autre part, les faits visés aux alinéas 36(1)b) etc).
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VI.
Analysis
A.
Standard of review
[13]
The applicant submits that the issue in the case
at bar is a pure question of jurisdiction. Thus the IAD’s decision should be
reviewed on a standard of correctness. I disagree.
[14]
As explained by the Supreme Court of Canada in Wilson
v Atomic Energy of Canada Ltd, 2016 SCC 29 at para 23 [Wilson], the
correctness standard is applied when only a single defensible answer is available:
The other approach, called correctness, was
applied when only a single defensible answer is available. As set out in Dunsmuir, this applied to constitutional
questions regarding the division of powers (para. 58), “true questions of
jurisdiction or vires”
(para. 59), questions of general law that are “both of central importance to
the legal system as a whole and outside the adjudicator’s specialized area of
expertise” (para. 60), and “questions regarding the jurisdictional lines
between two or more competing specialized tribunals” (para. 61).
[15]
In my opinion, the question before the Court is
not a pure question of jurisdiction or vires. In Dunsmuir v New
Brunswick, 2008 SCC 9 at para 59 [Dunsmuir], the Supreme Court
defined jurisdiction as such:
“Jurisdiction” is intended in the narrow
sense of whether or not the tribunal had the authority to make the inquiry. In
other words, true jurisdiction questions arise where the tribunal must
explicitly determine whether its statutory grant of power gives it the authority
to decide a particular matter. The tribunal must interpret the grant of
authority correctly or its action will be found to be ultra vires or to
constitute a wrongful decline of jurisdiction. [emphasis added]
[16]
A true question of jurisdiction or vires,
as understood in Dunsmuir, is whether or not the tribunal could even
hear the issue. A question of jurisdiction would arise if, for example, a
Federal labour arbitrator had decided, in place of the IAD, that the Applicant
had no right of appeal.
[17]
Rather, the question before the Court is one of
the interpretation and application of the IAD’s home statute which
presumptively attracts reasonableness (Alberta (Information and Privacy
Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 34, 39; see
also Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at
para 32, 33).
[18]
In the event the application of this presumption
was contested, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 57, the Supreme Court held that the IAD’s interpretation of the
scope of an IRPA provision within its jurisdiction, and its application,
considering the four factors set out in Dunsmuir, attracts
reasonableness.
[19]
Permanent residents subject to a removal order
generally have a right of appeal to IAD per section 63 of IRPA. However,
Parliament has eliminated access to IAD where a permanent resident is found
inadmissible for “serious criminality” pursuant
to paragraph 36(1)(a) of the IRPA and punished by a “term
of imprisonment” of a least 6 months. The person is then barred by
subsection 64(2) of the IRPA from an appeal to the IAD.
[20]
On the facts of this case, the IAD determined
that the applicant had no right of appeal before it pursuant to subsection
64(2) of the Act. Thus, the IAD had already established jurisdiction and then
made a determination within that jurisdiction that the applicant had no
right of appeal, based on its interpretation of subsection 64(2) of the Act.
This is a question of the interpretation of the IAD’s home statute which is
reviewed on reasonableness (Tran at para 22, 30, 31, 86, and 87; Shehzad
v Canada (Citizenship and Immigration), 2016 FC 80 at para 11).
[21]
On this standard, the Court will only intervene
if the IAD’s interpretation of subsection 64(2) of the Act was not within the
range of reasonable interpretations open to it (Dunsmuir at para 47; Wilson
at para 21).
B.
Was the IAD’s conclusion that a CSO constitutes
a term of imprisonment for the purposes of subsection 64(2) of the Act
unreasonable?
[22]
In my opinion, the IAD’s conclusion that the
applicant’s 18 month CSO was indeed a term of imprisonment of more than six
months for the purposes of subsection 64(2) of the Act was reasonable for the
following reasons.
[23]
In Tran at para 87, the Federal Court of
Appeal [FCA] expressly held that a “term of
imprisonment” pursuant to paragraph 36(1)(a) of the IRPA “may reasonably” be construed to include a CSO. The
same was found for subsection 64(2) of the Act. The Court was of the view that
the three provisions in the IRPA that use the language “term
of imprisonment” – sections 36, 50 and 64 – should be interpreted
consistently. For the FCA, the legislative history of subsection 64(2) “certainly” supported the conclusion that Parliament
views conditional sentences of at least six months as serious enough to warrant
losing one’s right of appeal to the IAD:
[86] The opinion that Parliament still views
terms of imprisonment of more than six months served in the community as
serious enough to warrant losing one’s right of appeal of a finding of
inadmissibility is certainly supported by the legislative history when
subsection 64(2) was amended in 2013 allegedly to put it in line with paragraph
36(1)(a).
[24]
The applicant submits that the FCA recognized
that an interpretation of “term of imprisonment”
that excludes a CSO sentence could lead to inconsistent consequences and even
absurdity as some CSO’s may be considered more serious than some jail terms.
[25]
The FCA was well aware of the political debate
over whether the subsection 64(2) appeal bar should or should not exclude a CSO
and should be found unreasonable on the basis that it produces inconsistent
consequences. Nevertheless it concluded at para 86:
Although such interpretative tools are
typically given less weight than others, I simply cannot conclude that the
interpretation of the Minister’s delegate, which the legislative history
appears to support, should be found unreasonable on the basis that it produces
inconsistent consequences which might be regarded as absurd. These
inconsistencies were clearly spelled out and considered before the adoption of
subsection 64(2) and no change was made to exclude those inconsistent
consequences. [Emphasis added]
[26]
This point was clearly addressed by the IAD in
the present case, but it found that the FCA dealt extensively with the issue
and that there was no reason to depart from its interpretation. The
inconsistencies advanced by the applicant had been foreseen and deemed
acceptable by the legislature at the time of drafting.
[27]
Ultimately, the IAD relied on Tran and
the following passage from the Supreme Court’s decision in R v Proulx,
2000 SCC 5 at para 29:
The conditional sentence is defined in the
Code as a sentence of imprisonment. The heading of s. 742 reads “Conditional
Sentence of Imprisonment”. Furthermore, s. 742.1(a) requires the court to
impose a sentence of imprisonment of less than two years before considering
whether the sentence can be served in the community subject to the appropriate
conditions. Parliament intended imprisonment, in the form of incarceration, to
be more punitive than probation, as it is far more restrictive of the
offender’s liberty. Since a conditional sentence is, at least notionally, a
sentence of imprisonment, it follows that it too should be interpreted as more
punitive than probation.
[28]
It was open to the IAD, in the interpretation of
its home statute and applying the principles developed in the jurisprudence, to
come to the reasonable conclusion that a CSO was a term of imprisonment for the
purposes of subsection 64(2) of the Act.
[29]
In sum, Tran affirms the reasonableness
of the conclusion that a “term of imprisonment” under
subsection 64(2) of the Act includes all forms of imprisonment whether served
in a community or a carceral setting.
[30]
The applicant further submits that the IAD failed
to consider H&C factors and failed to provide the applicant an opportunity
to make his case as to the serious nature of the applicant’s crime. I disagree.
[31]
The seriousness of the crimes was not relevant
to the IAD’s conclusion that the applicant was not entitled to a right of
appeal because subsection 64(2) of the Act expressly states that serious
criminality – which is the trigger for inadmissibility of appeal pursuant to subsection
64(1) of the Act – is expressly defined as a crime having warranted a term of
imprisonment of at least six months. The crucial determination was that a CSO
was a term of imprisonment. I agree with the respondent that loss of an appeal
to the IAD means the loss of an opportunity to have that tribunal take into
account H&C factors. It is based on objective statutory criteria that does
not include considering personal circumstances.
[32]
For these reasons, the application for judicial
review is dismissed.
[33]
The applicant has proposed the following
questions to be certified:
A.
Where the Immigration Appeal Division has
determined that it does not have jurisdiction over an appeal based on its
interpretation of section 64 of IRPA (here, “term of
imprisonment”), is this a true question of jurisdiction that should be
decided on a standard of correctness?
B.
Is a conditional sentence order imposed under
the Criminal Code, RSC 1985, c C-46 “a term of
imprisonment” under subsection 64(2) of the IRPA when interpreted on a
correctness standard of review?
C.
Is it reasonable for the IAD to choose different
interpretations of “term of imprisonment” in
subsection 64(2) depending on the perceived characteristics of the individual
case before it?
[34]
The respondent opposes certification of all the
questions because they are not dispositive of the application.
[35]
The tripartite test for certification was set
out by the Federal Court of Appeal in Liyanagamage v Canada (Minister of
Citizenship and Immigration), [1994] FCJ No 1637 (FCA):
“a question must be one which … transcends
the interests of the immediate parties to the litigation and contemplates
issues of broad significance or general application ... but it must also be one
that is determinative of the appeal ...”
[36]
The first proposed certified question regarding
the choice of standard of review is not dispositive. The question whether “term of imprisonment” pursuant to subsection 64(2)
includes a CSO permits only two interpretations: either it does or it does not,
regardless of the choice of standard.
[37]
The second proposed certified question does not
transcend the interest of the immediate parties nor is it any longer of broad
significance. The Federal Court of Appeal, in Tran, held upon analysis
of both paragraph 36(1)(a) and subsection 64(2) of the Act and the interplay
between the two that the decision to find a CSO constitutes a “term of imprisonment” was a reasonable interpretation
of those provisions of the Act. This is the state of the law as it stands today
which may or may not change in the future depending on the Supreme Court of
Canada’s ruling in Tran. There is no reason to certify this question
again as it was already answered by the FCA.
[38]
Lastly, the third proposed certified question is
not dispositive of the issue.
[39]
In Canada (Minister of Citizenship and
Immigration) v Zazai, 2004 FCA 89 at 12, the Federal Court of Appeal held
that not only must a certified question be dispositive of the appeal, but it
must also have been dealt with by the decision marker:
The corollary of the fact that a question
must be dispositive of the appeal is that it must be a question which has been
raised and dealt with in the decision below. Otherwise, the certified question
is nothing more than a reference of a question to the Court of Appeal. If a
question arises on the facts of a case before an applications judge, it is the
judge's duty to deal with it. If it does not arise, or if the judge decides
that it need not be dealt with, it is not an appropriate question for
certification.
[40]
The applicant submits that the IAD found that
the applicant had no right to appeal based on “perceived
characteristics of the individual case before it”. This Court does not
agree.
[41]
Rather, the IAD found that the applicant had no
right to appeal because of the interpretation of subsection 64(2) of the Act
that the Federal Court of Appeal held to be reasonable in Tran. What the
IAD may or may not have concluded regarding the applicant’s “characteristics” is not relevant.
[42]
Accordingly, this Court orders that no questions
be certified.
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