Date: 20040227
Docket: IMM-655-03
OTTAWA, Ontario, this 27th day of February, 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
ALWYN LLOYD TOWNSEND
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration Appeal Division ("IAD"), dated January 8, 2003, which dismissed the applicant's motion to reopen his appeal against deportation because subsection 64(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") bars the appeal.
FACTS
[2] The applicant is a 41 year old citizen of Jamaica and permanent resident of Canada. He was ordered deported on November 25, 1999, due to criminal convictions in Canada. On February 18, 2000, the Minister rendered the opinion that the applicant constitutes "a danger to the public" of Canada pursuant to subsection 70(5) of the former Immigration Act, R.S.C. 1985, c. I-2 ("former Act"), which 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.
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70(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre :
a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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[3] The applicant appealed the deportation to the IAD which, on March 14, 2000, dismissed his appeal because subsection 70(5) provides that no appeal may be made to the IAD by a person against whom a "danger opinion" has been issued.
[4] On March 27, 2003 this Court dismissed the applicant's application for judicial review and noted that the applicant's criminal record consisted of at least twenty-six convictions. After IRPA came into force on June 28, 2002, the applicant moved to reopen his appeal before the IAD because subsection 64(2) of IRPA allegedly changed the threshold for "serious criminality".
IAD DECISION
[5] The IAD decided that the applicant has no right of appeal due to the operation of subsection 64(1) of IRPA and subsection 326(2) of the Immigration and Refugee Protection Regulations, SOR/ 2002-227 ("Regulations"). The IAD decision held that subsection 326(2) of the Regulations provides that all "danger opinions" under the former Act constitute "serious criminality" for the purposes of subsection 64(1) of IRPA, so that the applicant has no right of appeal. Subsection 64(1) of IRPA reads:
| 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.
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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.
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[6] The relevant excerpts of the IAD decision are as follows:
[16] With respect, I disagree with both the respondent and the appellant in regards to section 326(2) of the IRP Regulations. My view is that all section 70(5) danger opinions under the Former Act are caught by section 326(2) of the IRP Regulations. This section does not distinguish or otherwise differentiate between possible terms of imprisonment imposed upon an appellant or any other factors for that matter. It simply captures, in my view, all cases in which an appellant received a Minister's danger opinion prior to June 28, 2002, that is, the date IRPA came into force. Therefore, the fact that the appellant received a sentence of less than two years is of no consequence when considering section 326(2) of the IRP Regulations.
[17] I find that the Minister's danger opinion under subsection 70(5) of the old Former Act [sic] has been entered on the appellant's file. Section 326(2) of the IRP Regulations reads:
326(2) A person in respect of whom subsection 70(5) or paragraph 77(3.01)(b) of the former Act applied on the coming into force of this section is a person in respect of whom subsection 64(1) of the Immigration and Refugee Protection Act applies.
Section 326(2) of the IRP provides that section 64(1) of the IRPA applies to the appellant's appeal. Unlike sections 196 and 197, which refer to section 64 of the IRPA, which includes both sections 69(1) and 64(2), the reference in section 326(2) of the IRP Regulations is to "subsection 64(1)." Accordingly, the two year qualification in section 64(2) is not applicable here.
[18] As the IAD's records show that a Minister's danger opinion was signed before June 28, 2002, and applied to the appellant on that date, I find that the appellant has no right of appeal to the IAD due to the application of subsection 326(2) of the IRP Regulations and section 64(1) of the IRPA. As the appellant has no right of appeal, the IAD cannot entertain an application to reopen that appeal.
[19] The appellant's application to reopen is dismissed and the file respecting this matter is therefore closed.
[7] I note that the IAD refers to subsections 69(1) and 64(2) as being included in section 64 of IRPA. The inclusion of subsection 69(1) is obviously an error, and should be subsection 64(1)
ISSUES
[8] The sole issue raised in this application is whether the "danger opinion" issued against the applicant under subsection 70(5) of the former Act precludes an appeal to the IAD, through the operation of subsection 64(1) of IRPA and subsection 326(2) of the Regulations. The applicant raises this issue because subsection 64(2) of IRPA defines "serious criminality" as a crime that was punished by a term of imprisonment of at least two years, and all of the applicant's terms of imprisonment were less than two years. Subsection 64(2) reads:
| (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
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(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
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Subsection 326(2) of the Regulations reads:
| 326 (2) A person in respect of whom subsection 70(5) or paragraph 77(3.01)(b) of the former Act applied on the coming into force of this section is a person in respect of whom subsection 64(1) of the Immigration and Refugee Protection Act applies.
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326 (2) La personne visée par le paragraphe 70(5) ou l'alinéa 77(3.01)b) de l'ancienne loi à l'entrée en vigueur du présent article est visée par le paragraphe 64(1) de la Loi sur l'immigration et la protection des réfugiés. |
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Since this is a pure question of law, the standard of review is correctness with respect to the IAD decision not to reopen the applicant's appeal.
Applicant's Submissions
[9] The applicant submits that IRPA has abolished "danger opinions" and replaced them with a "serious criminality" regime. The applicant submits that subsection 64(1) of IRPA does not bar the IAD from rehearing his appeal because he has never been sentenced to two years or more of imprisonment. He contends that subsection 64(1) must be read in conjunction with subsection 64(2) thereby providing an exemption for persons who have not been punished by a term or imprisonment of at least two years. For this reason the applicant submits that it is irrelevant that subsection 326(2) of the Regulations only refers to subsection 64(1) of IRPA, while sections 196 and 197, the relevant transitional provisions of IRPA, make reference to section 64 as a whole.
Respondent's Submissions
[10] The respondent submits that Parliament ensured that a "danger opinion" issued under subsection 70(5) of the former Act would continue to preclude deportation appeals to the IAD, through the enactment of subsection 64(1) of IRPA and subsection 326(2) of the Regulations. The respondent submits that this Court should interpret the specific reference to subsection 64(1) in subsection 326(2) of the Regulations, and the omission of subsection 64(2) to mean that Parliament intended for subsection 64(1) to bar appeals to the IAD, irrespective of the definition of "serious criminality" provided in subsection 64(2). The respondent submits that there is nothing ambiguous about subsection 326(2) and its purpose is to preserve the validity of "danger opinions" issued under the former Act. The respondent submits that the definition of serious criminality provided in subsection 64(2) only applies to new cases of criminality arising under IRPA.
Section 71 of IRPA
[11] At the hearing, neither party made any submissions regarding whether or not section 71 of IRPA now restricts the IAD's equitable jurisdiction to reopen an appeal, and the applicant did not allege that the IAD breached a principle of natural justice during his original deportation appeal. Section 71 of IRPA reads:
| 71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.
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71. L'étranger qui n'a pas quitté le Canada à la suite de la mesure de renvoi peut demander la réouverture de l'appel sur preuve de manquement à un principe de justice naturelle. |
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The IAD, in its decision, did not at all examine the effect of section 71, and only considered the effect of section 64 of IRPA and subsection 326(2) of the Regulations.
[12] Upon the Court's invitation the parties made post-hearing submissions with respect to the effect of section 71 on the IAD's jurisdiction to reopen appeals. The applicant concedes that he is a "foreign national" for the purposes of section 71 of IRPA, and the applicant concedes that the IAD has been consistently applying section 71 of IRPA to exclude all motions to reopen appeals, except on the grounds that natural justice has been violated. However, the applicant submits that the plain and ordinary meaning of subsection 326(2) of the Regulations does not indicate that persons who were subject to a "danger opinion" continue to be prevented from appealing to the IAD. The applicant further submits that subsection 326(2), being subordinate to IRPA, ought not to oust the operation of subsection 64(2) of IRPA.
[13] The respondent submits that subsection 326(2) of the Regulations is determinative of the issue of whether or not the applicant's appeal can be reopened. The respondent submits that the IAD should not, and need not reopen an appeal under section 71 of IRPA in order to hear and decide the preliminary jurisdictional question posed by subsection 326(2) of the Regulations.
ANALYSIS
[14] In Minister of Citizenship and Immigration v. Atwal, 2004 FC 7 (T.D.) Pinard J. at paragraph 15 stated:
With section 64 of IRPA, Parliament sought to set an objective standard of criminality beyond which a permanent resident loses his or her appeal right [...]
This objective standard under the former Immigration Act is a person found to be a "danger to the public" pursuant to subsection 70(5).
[15] Under subsection 326(2) of the Regulations, a person who is the subject of a "danger opinion" under the former Act:
[...] is a person in respect of whom subsection 64(1) of the Immigration and Refugee Protection Act applies.
And subsection 64(1) provides that no appeal may be made to the IAD. The subsection goes on to provide that this applies to a person who has been found to be inadmissible on the grounds of "serious criminality". The applicant submits that this is ambiguous because subsection 64(2) reads:
For the purpose of subsection 1, serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
Since the applicant was subject to imprisonment for terms of less than two years, the applicant argues that subsection 64(1) is not applicable to him.
[16] The Court does not agree. If for the purpose of the transition period, subsection 64(2) was to be applied, the Governor-in-Council would have referred to both subsections or at least referred to section 64 as a whole. This has been done in the other transitional provisions in IRPA, namely sections 196 and 197.
[17] I am of the view that subsection 326(2) of the Regulations is intended to mean that a "danger opinion" under the former Act still precludes appeals under IRPA. If subsection 326(2) had not been enacted for the transition, then "danger opinions" under the old Act would be rendered meaningless. Accordingly the Governor-in-Council intended that the objective standard of criminality under the old Act, which was a "danger to the public", would still have the effect of precluding an appeal to the IAD after the new Act came into force on June 28, 2002. Subsection 326(2) kept the "danger opinion" alive.
[18] My opinion is reinforced by Part 20, Division 3 in the Regulatory Impact Assessment Statement ("RIAS") pertaining to the transitional regulations as follows:
These enforcement transitional regulations:
[...]
- ensure the continuing effect of the Minister's opinions, issued under the current Act [the former Immigration Act], that a person constitutes a danger to the public of Canada in the context of eligibility decisions on refugee claims, limitation of rights to appeal, or removal of convention refugees;
[...]
Not continuing decisions taken under the current Act [the former Immigration Act] would have the effect of nullifying all of those decisions at the time of coming into force of the new Act. Thus, all decisions, including those respecting inadmissibility, as well as decisions of the Minister on danger to the public in the context of eligibility of refugee claims, limitations of rights to appeal and removal of Convention refugees, would have to be retaken at great expense and loss of integrity to Canada's immigration and refugee programs. In addition, the uncertainty created would expose the Government to litigation that will be avoided by creating transitional rules.
While the RIAS has no force of law, it can be considered as a relevant commentary.
[19] Since the applicant has a criminal record consisting of at least twenty-six convictions, the Court cannot presume that Parliament intended that a person who has been declared a "danger to the public" and barred from appealing his deportation order, was intended to be given a new right of appeal under IRPA if each individual term of imprisonment was less than two years.
Accordingly, I am not persuaded that there was any accident or oversight by the Governor-in-Council in referring only to subsection 64(1), and not to subsection 64(2). If it were otherwise, a "danger opinion" would be moot in that it could be reexamined to determine if a person who was in the opinion of the Minister a "danger to the public", was still a serious criminal under the provisions of the new Act. The transitional provisions provide that the IAD is not to look behind a "danger opinion" by applying subsection 64(2) to the circumstances. For this reason, this application must be dismissed.
ADDITIONAL ISSUES
[20] The issue of whether section 71 of IRPA has restricted the IAD's equitable jurisdiction to reopen a hearing is not relevant. Under the former Immigration Act, the IAD had no equitable jurisdiction to reopen an appeal when a person was the subject of a "danger opinion". That situation has not changed under IRPA.
[21] The issue which I raised at the hearing is whether the IAD had the jurisdiction to consider this motion to reopen the appeal since it did not involve an allegation that there was a failure to observe a principle of natural justice, as required in section 71 of IRPA. Both parties have satisfied the Court that, in this case, the IAD does not need to consider this issue before deciding the preliminary jurisdictional question posed by subsection 326(2) of the Regulations.
CERTIFIED QUESTIONS
[22] The parties propose the following three questions for certification on appeal:
1. If a person has been convicted of a crime that was punished in Canada by a term of imprisonment of less than two years, and found to be a "danger to the public" under subsection 70(5) of the former Immigration Act so that person had no right of an appeal to the IAD under the former Immigration Act, does subsection 326(2) of the Immigration and Refugee Protection Regulations, which refers to subsection 64(1) of IRPA but not subsection 64(2) of IRPA, bar an appeal to the IAD?
2. Does the IAD have the jurisdiction to reopen an appeal on "equitable" grounds or does section 71 of the Immigration and Refugee Protection Act codify and cover the field with respect to motions to reopen?
3. Must the IAD first reopen an appeal pursuant to section 71 of the Immigration and Refugee Protection Act before it considers, pursuant to subsection 326(2) of the Immigration and Refugee Protection Regulations, whether an applicant is barred from appealing a removal order?
[23] The Court does not agree that the second and third question should be certified. The second question would not be dispositive of this appeal because the applicant was the subject of a "danger opinion", and the IAD never had an equitable jurisdiction to reopen an appeal in such a situation.
[24] The third question is a procedural question. It is not a question of serious general importance which warrants certification. Whether the IAD must first reopen an appeal to decide a jurisdictional issue, is a procedural matter within the discretion of the IAD.
[25] Accordingly, the Court will certify the first question notwithstanding the Court's opinion that the intention of the legislation is clear, namely that "danger opinions" under the former Immigration Act are to be given the same force and effect under IRPA.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed, and
2. The following question is certified:
If a person has been convicted of a crime that was punished in Canada by a term of imprisonment of less than two years, and found to be a "danger to the public" under subsection 70(5) of the former Immigration Act so that person had no right of an appeal to the IAD under the former Immigration Act, does subsection 326(2) of the Immigration and Refugee Protection Regulations, which refers to subsection 64(1) of IRPA but not subsection 64(2) of IRPA, bar an appeal to the IAD?
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-655-03
STYLE OF CAUSE: ALWYN LLOYD TOWNSEND v. MCI
DATE OF HEARING: January 21, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: February 27, 2004
APPEARANCES BY: Mr. Michael Crane
For the Applicant
Ms. Ann- Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: Michael Crane
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040227
Docket: IMM-655-03
BETWEEN:
ALWYN LLOYD TOWNSEND
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER