Federal Court Decisions

Date: 19971215

Docket: IMM-1339-97

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     LLOYD BALDWIN REYNOLDS

     Respondent

     REASONS FOR ORDER

JEROME A.C.J.

[1]      This judicial review of a decision of the Immigration and Refugee Board (Appeal Division) ("Appeal Division"), dated 18 March, 1997, came on for hearing before me at Toronto, Ontario, on July 29, 1997. At the close of oral argument I took the matter under reserve and indicated that written reasons would follow.

[2]      The applicant is a permanent resident of Canada. On June 27, 1994 an immigration officer issued a report under subsection 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("the Act") based upon information that the applicant had been convicted of two offences under the Narcotics Control Act and had been sentenced to a term of imprisonment of nine months for each offence. On September 20, 1994 an Adjudicator issued the applicant a deportation order pursuant to subsection 32(2) of the Act after finding him to be a person described in subsection 27(1)(d). On October 26 the applicant filed a Notice of Appeal with the Appeal Division from the Adjudicator's decision to issue him a deportation order.

[3]      On July 10, 1995, section 70 of the Act was amended by An Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, S.C. 1995, c. 15 ("the amending statute") to deny an appeal to the Appeal Division to persons found by the Minister of Citizenship and Immigration ("Minister") to be a "danger to the public". Subsection 70(5) now reads:

70. (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.

[4]      The amending statute addresses the situation of persons such as the applicant, who fell within subsection 70(5) but had already filed appeals to the Appeal Division. Subsection 13(4) of the amending statute provides:

13. (4) 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, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5).

[5]      On February 14, 1996, the Minister issued, pursuant to subsection 70(5) of the Immigration Act, an opinion that the respondent is a "danger to the public". The Minister wrote to the respondent to inform him of the "danger" opinion and that he no longer had a right of appeal to the Appeal Division. A copy of this correspondence was sent to the Appeal Division by fax. On March 8, 1996, the respondent commenced an application in the Federal Court (Trial Division) for judicial review of the "danger" opinion and seeking a declaration that 70(5) is contrary to sections 7 and/or 15 of the Canadian Charter of Rights and Freedoms ("Charter").

[6]      The Appeal Division then wrote to the respondent stating that it would treat the Minister's "danger" opinion and related correspondence as a motion to dismiss the appeal for lack of jurisdiction, and told the respondent that he could file evidence and written arguments in response. The respondent did not deny that any element of subsection 70(5) had been made out. Instead, he submitted to the Appeal Division that subsection 70(5) was contrary to sections 7 and 15 of the Charter.

[7]      On April 2, 1996 the respondent brought a motion to the Appeal Division requesting that the Appeal Division postpone the determination of its jurisdiction pending the determination of the respondent's judicial review application. On May 8, 1996 the respondent also brought a motion to this Court seeking an extension of time to file an application record until ten days after the respondent would be deemed to have received notice of the order of the Appeal Division deciding whether it has jurisdiction to hear the respondent's appeal.

[8]      The Appeal Division granted the respondent's motion for postponement on May 14, 1997. Then, on June 14, 1997 Giles A.S.P. granted the respondent's request for an extension of time to file an application record until the earlier of ten days after the respondent was deemed to receive the Appeal Division's order respecting its jurisdiction, or the third of February, 1997 (Unreported (June 14, 1996), File No. IMM-859-96). It appears that neither party made Giles A.S.P. aware of the fact that the Appeal Division had already issued an order postponing the determination of its jurisdiction pending the outcome of the judicial review process.

[9]      On January 27, 1997 the respondent again requested an extension of time to file his application record until ten days after he was deemed to have received notice of the Order of the Appeal Division. Instead, the Court (per Tremblay-Lamer J.) granted the respondent 10 days to file his application record (Unreported, (March 10, 1997) File No. IMM-859-96). The Appeal Division was notified of this Order on March 11, 1997.

[10]      Then, on March 18, 1997 the Appeal Division released its decision on the jurisdictional issue. The Appeal Division concluded, without reference to the Order of Tremblay-Lamer J., that the Order of Giles A.S.P. was a direction to the Appeal Division to determine the jurisdictional question. The Appeal Division then decided that it had a duty to determine whether it retained jurisdiction over an appellant who received a "danger" opinion pursuant to subsection 70(5). It further concluded that its jurisdiction to determine its own jurisdiction under subsection 70(5) authorizes it to conduct a limited inquiry into the constitutional validity of subsection 70(5). Specifically, the Tribunal concluded that it had no jurisdiction to inquire into the procedural aspects of subsection 70(5), but that it could consider its substantive validity.

[11]      Subsection 69.4(2) of the Act gives the Appeal Division jurisdiction to consider questions of law and to determine its own jurisdiction in respect of appeals brought under section 70. Subsection 69.4(2) provides:

(2) The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class.

[12]      Subsection 70(5)(c) provides that a right of appeal is lost where: (1) a deportation order has been made; (2) the Minister has issued an opinion that the person constitutes a danger to the public in Canada; and (3) the person has been determined by an adjudicator to be a permanent resident 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. In Athwal v. Canada (Minister of Employment and Immigration), Unreported, (March 22, 1996), File no. A-67-97, the Federal Court of Appeal concluded that because subsection 69.4(2) gives the Appeal Division sole jurisdiction to hear and determine all questions of law, including questions of jurisdiction,with respect to appeals made under section 70, the Appeal Division has jurisdiction to determine whether a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. It is therefore apparent that the Appeal Division has jurisdiction to determine whether an appeal is lost under subsection 70(5)(c), and in doing so to determine whether the requirements of this subsection have been met.

[13]      Respondent's counsel relies on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at 960, to support the argument that the Appeal Division may also inquire into the constitutionality of subsection 70(5). In this case McLachlin J. speaks of the various advantages of a tribunal considering Charter questions, and concludes that a labour arbitrator is a "court of competent jurisdiction" able to grant a remedy under subsection 24(1) of the Charter.

However, this case does not concern whether the Appeal Division is a "court of competent jurisdiction" for the purpose of granting a remedy under Charter subsection 24(1). Rather, the issue here is whether the Appeal Division may consider the constitutional validity of a limiting provision of its enabling legislation. This question is therefore identical to the issue considered in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854. In that case the Court was asked whether the Canadian Human Rights Commission or a tribunal appointed by the Commission had the power to determine that subsection 15(c) of the Canadian Human Rights Act, providing that no discrimination would occur if persons were retired at a normative industrially determined age, is "of no force or effect" pursuant to subsection 51(1) of the Charter. Writing for the majority, La Forest J. states, at 892:

When deciding whether a complaint falls within its jurisdiction the Commission is bound to look to its enabling statute for the limits of that jurisdiction. . . In determining what is a discriminatory practice the Commission is bound by s. 15(c) which states that job termination at the normal age of retirement is not a discriminatory practice. The process of the Commission in determining its jurisdiction over a given complaint through reference to the provisions of the Act is conceptually different from subjecting the same provisions to Charter scrutiny. The former represents an application of Parliament's intent as reflected in the Act while the latter involves ignoring that

                                 [emphasis added]

[14]      La Forest J. goes on to conclude that a tribunal appointed under the Act also lacks the jurisdiction to declare unconstitutional a provision limiting its jurisdiction under the Act. The Court observes that unlike the Commission, the tribunal has an implied power to consider questions of law. This, the Court reasons, enables the tribunal to consider constitutional issues in certain circumstances, including questions relating to the division of powers, the validity of a ground of discrimination under the Act, and possibly the validity of available remedies in a particular case. His Lordship also takes into account a number of practical considerations relating to the difficulties raised when a tribunal considers Charter challenges to legislative provisions: that the tribunal's expertise is limited to factual determinations in the human rights context; that any efficiencies gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought; that the less formal rules of evidence in tribunal proceedings are poorly suited to determining the constitutionality of a legislative provision, and that the added complexity, cost and time involved when a tribunal hears a constitutional question erodes the overall efficiency of tribunals. Taking all of these factors into consideration, La Forest J. concludes that while a tribunal may have jurisdiction to consider general legal questions, and the Court's analysis shows that this will include certain types of constitutional questions, "logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act".

[15]      The same reasoning applies here. Subsection 69.4(2) empowers the tribunal to consider questions of law, and to determine its own jurisdiction. This power undoubtedly includes the power to address constitutional questions in certain situations (see Cooper, at 887 and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board, [1991] 2 S.C.R. 5, at 13-14). Nevertheless, logic demands in this case as well that the Appeal Division's general power to consider questions of law and jurisdiction does not empower it to treat subsection 70(5) as unconstitutional and thereby ignore an express limitation that Parliament has placed on its jurisdiction.

[16]      Finally, I note that the distinction drawn by the Appeal Division between the "procedural" and "substantive" aspects of subsection 70(5) does not affect this conclusion. While Marceau J.A. observes in Nguyen v. Canada (Minister of Citizenship and Immigration) (1993), 18 Imm. L.R. (2d) 165 (F.C.A.), at 175, that an administrative tribunal is entitled to examine the constitutional validity of the statutory provision upon which it is acting, this obviously depends on such jurisdiction being conferred upon the tribunal in the first place. There simply is no principle of law that a tribunal is bound by Parliament's intent with respect to "procedural" aspects of legislation but may disregard that intent with respect to the "substantive" aspects of that legislation.

[17]      The application for judicial review is granted for the reasons outlined above.

[18]      Counsel may make written submissions respecting the certification of a question for appeal within 10 days of the date of this Order.

OTTAWA, ONTARIO

December 15, 1997                  "James A. Jerome"                              A.C.J.