Date: 20040506
Docket: IMM-6292-02
Citation: 2004 FC 660
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MANJIT KAUR SOHAL
Respondent
[1] Manjit Kaur Sohal is a Canadian. She is seeking to sponsor her husband's admission to Canada. His application for permanent residence was denied for reasons of serious criminality. Mrs. Sohal filed a sponsor's appeal from this refusal. The appeal was pending before the Immigration Appeal Division when the Immigration and Refugee Protection Act ("IRPA"), S.C. 2001, c. 27, came into force on June 28, 2002. The issue in this proceeding is whether the transitional provisions in the IRPA have discontinued Mrs. Sohal's right of appeal. I have concluded that they have not.
Factual Background
[2] In 1992, the respondent Manjit Kaur Sohal, her spouse Parmjit Singh Kharud and their two young sons, then ten and three years of age, entered Canada from Great Britain.
[3] In 1993, the four family members were landed as permanent residents of Canada.
[4] In 1997, Mr. Kharud was convicted of sexual assault and sentenced to imprisonment for a term of thirty months.
[5] In March 1999, Mr. Kharud was deported to Great Britain, his country of citizenship.
[6] On September 7, 1999, Mrs. Sohal, by then a Canadian citizen, filed an application to sponsor her spouse's application for permanent residence.
[7] On November 14, 2000, Mr. Kharud's application for permanent residence was denied on two separate grounds: (a) as a result of his criminal conviction, he was found inadmissible pursuant to paragraph 19(1)(c) of the Immigration Act, R.S.C. 1985, c. I-2 ("the former Act"); and (b) he failed to obtain ministerial consent for his return to Canada, as required by section 55 of the former Act.
[8] On December 6, 2000, Mrs. Sohal filed an appeal with the Immigration Appeal Division from the refusal of her spouse's application for permanent residence.
[9] On November 1, 2001, the IRPA received Royal Assent. While the legislation had yet to come into force, its provisions were known as early as November 2001.
[10] On February 15, 2002, the hearing of Mrs. Sohal's appeal was scheduled by the Immigration Appeal Division for June 28, 2002, the date on which the IRPA came into force. During this short assignment hearing, no one referred to June 28, 2002 as the date for the coming into force of the new legislation.
[11] The order-in-council fixing the date of the coming into force of the IRPA was issued on June 11, 2002: SI/2002-97. However, the Court can take judicial notice that the government's intention to have the new legislation come into effect on June 28, 2002 was publicly known at least some weeks prior to June 11, 2002.
[12] On March 7, 2002, the applicant filed a motion before the Immigration Appeal Division seeking the dismissal of the applicant's appeal for lack of jurisdiction on the basis of paragraph 77(3.01)(b) of the former Act. According to this provision, there could be no appeal to the former Appeal Division in respect of Mr. Kharud because of the Minister's opinion that he constituted a danger to the public in Canada.
[13] On April 22, 2002, the applicant withdrew the motion for lack of jurisdiction, citing Wishart v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 495 (C.A.), 2001 FCA 235 and requested that the respondent's appeal proceed. By so doing, the applicant acknowledged the jurisdiction of the former Appeal Division to proceed with the respondent's appeal under the former Act. This acknowledgment was made some eighteen months after the IRPA received Royal Assent and some nine weeks before the new law was to come into force.
[14] The hearing of June 28, 2002 was adjourned to permit written submissions concerning section 196 of the IRPA, a transitional provision which purports to discontinue certain appeals to the Immigration Appeal Division that were made before the IRPA came into force.
[15] On November 29, 2002, the Immigration Appeal Division dismissed the application by the Minister of Citizenship and Immigration to discontinue the appeal pursuant to section 196. This proceeding is the Minister's application for judicial review of the IAD decision.
[16] The respondent suggested that this application for judicial review was premature: Canada (Minister of Citizenship and Immigration) v. Varela, 2003 FCA 42. However, the decision of the Immigration Appeal Division was not "a mere evidentiary ruling" as in Varela. Its decision was jurisdictional in nature. It may be that this application for judicial review would have been unnecessary if the Immigration Appeal Division had been given the opportunity to deal with the merits of the appeal. However, in the exercise of my discretion, I have determined that the jurisdictional issue raised by the applicant should be disposed of now: Zundel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (C.A.), at paragraphs 10 and 15.
Standard of Review
[17] The sole issue in this proceeding is one of statutory interpretation: does section 196 apply to sponsorship appeals? This is a question of law. Both counsel suggested that the applicable standard of review is correctness: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Merely characterizing an issue as legal or jurisdictional, however, does not necessarily mean that the standard of review is correctness: Dynamex Canada Inc. v. Mamona, 2003 FCA 248 at paragraph 26. However, it is not necessary in this proceeding to canvass further the appropriate standard of review as I have found the decision under review to be correct.
The Relevant Statutory Provisions
[18] The relevant transitional provisions of the IRPA state:
| 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
... 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board. ...
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act. |
|
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
...
192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission. ...
196. Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi.
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable. |
|
|
|
|
[19] Section 64 of the IRPA refers to serious criminality:
| 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 two years.
Misrepresentation
(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor's spouse, common-law partner or child.
|
|
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 l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
Fausses déclarations
(3) N'est pas susceptible d'appel au titre du paragraphe 63(1) le refus fondé sur l'interdiction de territoire pour fausses déclarations, sauf si l'étranger en cause est l'époux ou le conjoint de fait du répondant ou son enfant. |
|
|
|
|
[20] It is also useful to refer to certain provisions in the former Act to understand better the transitional provisions in the IRPA. Subsections 70(1) and 77(3) provided for removal order appeals and sponsorship appeals respectively. Subsections 73(1) and 77(4) set out the manner in which these different appeals could be disposed of by the Immigration Appeal Division.
| 70.(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
...
73.(1) The Appeal Division may dispose of an appeal made pursuant to section 70 (a) by allowing it; (b) by dismissing it; (c) in the case of an appeal pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal order, by directing that execution of the order be stayed; or (d) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a conditional removal order, by directing that execution of the order on its becoming effective be stayed.
... 77.(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
...
77.(4) The Appeal Division may dispose of an appeal made pursuant to subsection (3) by allowing it or by dismissing it, and shall notify the Minister and the person who made the appeal of its decision and the reasons therefor. |
|
70.(1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants: a) question de droit, de fait ou mixte; b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
...
73.(1) Ayant à statuer sur un appel interjeté dans le cadre de l'article 70, la section d'appel peut : a) soit y faire droit; b) soit le rejeter; c) soit, s'il s'agit d'un appel fondé sur les alinéas 70(1)b) ou 70(3)b) et relatif à une mesure de renvoi, ordonner de surseoir à l'exécution de celle-ci; d) soit, s'il s'agit d'un appel fondé sur les alinéas 70(1)b) ou 70(3)b) et relatif à une mesure de renvoi conditionnel, ordonner de surseoir à l'exécution de celle-ci au moment où elle deviendra exécutoire.
...
77.(3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants : a) question de droit, de fait ou mixte; b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale
... 77.(4) La section d'appel peut faire droit à l'appel visé au paragraphe (3) ou le rejeter. Elle fait part de sa décision et de ses motifs au ministre et à l'appelant. |
|
|
|
|
Analysis
[21] The decision of the Immigration Appeal Division was made by a single member who concluded that section 196 did not apply to sponsorship appeals. I agree with the member's conclusion but for somewhat different reasons. I have had the benefit of reviewing the recent decision of the Court of Appeal in Minister of Citizenship and Immigration v. Medovarski, 2004 FCA 85. The decision in Medovarski was rendered after the hearing in this case. Counsel filed further written submissions concerning the impact, if any, of Medovarski in this proceeding.
[22] The interpretation of the IRPA's transitional provisions should follow the analytical framework set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21 (per Iacobucci J.):
Although much has been written about the interpretation of legislation ... 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.
[23] The contextual approach to statutory interpretation should take into account the sometimes competing objectives of the new legislation. Moreover, these competing objectives may impact differently the substantive and the transitional provisions of the new law.
[24] The Minister wishes to give effect to the serious criminality provisions in section 64 of the IRPA by denying access to Canada to persons who are criminals, one of the objectives of the new legislation. For her part, Mrs. Sohal is seeking to sponsor her husband's return to Canada where she and her children are established. The reunification of this family would not be inconsistent with the objective set out in paragraph 3(1)(d) of the IRPA.
[25] Section 192 is the transitional rule governing all appeals pending before the Immigration Appeal Division on June 28, 2002, the date of the coming into force of the IRPA. It provides that these appeals shall be continued under the former Act by the Immigration Appeal Division of the Board. If this were the only transitional provision, it is common ground that Mrs. Sohal's appeal as a Canadian sponsor would continue.
[26] However, the Minister of Citizenship and Immigration relies on the exception in section 196 which provides that, despite section 192, an appeal pending before the Immigration Appeal Division shall be discontinued if: (a) the appellant has not been granted a stay under the former Act; and (b) the appeal could not have been made because of section 64 of the IRPA.
[27] Mrs. Sohal has a right of appeal to the Immigration Appeal Division under section 192. If it was Parliament's intention to remove her right of appeal under section 192, it was required to do so in clear and unambiguous language. Section 196 falls short of providing that clarity. For example, see Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ontario: Butterworths, 2002) at 156-57.
[28] As a Canadian, Mrs. Sohal cannot meet the first requirement in section 196. Quite simply, as a Canadian sponsor she could not have been "... granted a stay under the former Act ...". In my respectful view, the fact that a stay was never contemplated for an appellant such as Mrs. Sohal is indicative of Parliament's intent to remove the right of appeal only for removal order appellants under section 70 of the former Act. The reference in section 196 of the IRPA to "... an appellant who has not been granted a stay under the former Act..." can have no application to an appellant who is a Canadian citizen.
[29] If Parliament wanted to remove Mrs. Sohal's right of appeal under section 192 and to discontinue sponsorship appeals where the foreign national was involved in serious criminality, it could and should have so stated in "emphatic statutory language": Abbott Laboratories et al. v. Minister of Health et al., 2004 FCA 154, at paragraph 31. It did not do so. It is for this reason that I shall dismiss this application for judicial review.
[30] Moreover, according to the majority view in Medovarski, if sections 192, 196 and 197 are to be read together as part of a coherent transitional scheme, the phrase "... granted a stay under the former Act ..." should be given the same meaning in sections 196 and 197: per Evans J.A. at paragraphs 29-30. Under the former Act, it was only with respect to removal orders or conditional removal orders that the Immigration Appeal Division could direct a stay pursuant to subsection 73(1). Again, according to Medovarski (at paragraph 29), the reference to "... an appellant who has been granted a stay under the former Act ..." in section 197 could not mean an appellant who had obtained a statutory stay because such an appellant could not have breached a condition.
[31] Sponsorship appeals were either allowed or dismissed by the Immigration Appeal Division. Subsection 77(4), of course, contemplated no stays. A sponsorship appellant, therefore, could not have breached a condition of the stay within the meaning of section 197. Therefore, if Mrs. Sohal could not have been "... granted a stay under the former Act ..." within the meaning of section 197, she cannot come within the meaning of the same phrase in section 196.
[32] Put differently, section 196 can have no application to sponsorship appeals because subsection 77(4) of the former Act made no provision for the granting of stays. From this perspective, I do not see how Parliament can be said to have intended sponsorship appellants to come within the phrase "has not been granted a stay under the former Act" or "ne fait pas l'objet d'un sursis au titre de l'ancienne loi". As noted earlier, emphatic statutory language is required to displace the right of appeal in section 192.
[33] The position of the Minister of Citizenship and Immigration is that section 196 captures both removal order appeals and sponsorship appeals. If this was Parliament's intention, and I am not satisfied that it was, it failed to state it clearly. It would have been a straightforward matter to state simply, perhaps in a separate provision, that sponsorship appeals are discontinued where the foreign national is involved in serious criminality.
[34] The other view is that section 196 could encompass stays other than those to which conditions are attached as envisaged by section 197: Medovarski, per Pelletier J.A., in dissent, at paragraph 75. Justice Pelletier went on to conclude that the phrase "granted a stay under the former Act" in section 196 "... applies to all cases where a stay is in effect whether that stay is statutory or is a discretionary stay ordered by the IAD ..." (at paragraph 92). If this were the correct interpretation, however, virtually no removal order appeals involving serious criminality would be discontinued.
[35] Justice Pelletier immediately acknowledged that his interpretation of the relevant transitional provisions could only avoid rendering section 196 redundant if sponsorship appeals involving serious criminality were the proper subject matter of that provision. According to the majority opinion in Medovarski, of course, there is no such redundancy because section 196 could still discontinue removal order appeals subject to a statutory stay.
[36] In Medovarski, the principal issue before the Court of Appeal was the meaning of the words "... granted a stay under the former Act ..." in section 196 in the context of a removal order appeal under section 70 of the former Act. The majority did not decide whether section 196 operated to discontinue sponsorship appeals. Rather, in the words of Justice Evans (at paragraph 43), he was "... not satisfied that there was any cogent policy rationale to explain why Parliament would have exempted these instances from what counsel for Ms. Medovarski says is the general rule, namely, an appeal against a removal order filed with the IAD before June 28, 2002, is continued under the former Act ...". In this proceeding, unlike Medovarski, the principal issue is whether section 196 applies to sponsorship appeals. In my respectful view, it does not.
[37] The transitional provisions of the IRPA have not been clearly drafted. The analysis in Medovarski highlights some of the differences in the French and English versions of sections 196 and 197 (at paragraphs 19-21 and 67-81). Also, why was the word "immediately" included in sections 190 through 193? (See Medovarski per Pelletier J.A. at paragraphs 93 and 94.) Is there a French equivalent of "immediately" in the same sections? Why do the words "the appellant" in sections 196 and 197 have as their French equivalent the more general "l'intéressé", which could refer to the sponsor appellant or the applicant for permanent residence? Does section 197 trigger section 64 where the appellant breaches a condition of the stay even when the crime underlying the removal order was punished by a term of less than two years? There may be other anomalies.
[38] Finally, my interpretation of section 196 as not applying to sponsorship appeals is consistent with the parties' conduct.
[39] As noted earlier, supra paragraph 13, the applicant acknowledged the jurisdiction of the former Immigration Appeal Division in late April 2002, when both parties knew the date of hearing was scheduled for June 28, 2002.
[40] Even on June 28, 2002, the day of the scheduled hearing, the government's representative assumed that the former Act governed the respondent's appeal, in accordance with section 192 of the IRPA. He was of the view that section 196 applied to removal order appeals under section 70 of the former Act but did not govern sponsorship appeals: "I think 196 is specifically dealing with people not in section 77 appeal but a section 70 appeal." In response to the presiding member's reference to section 196, counsel for the Minister noted: "So I am not sure if 196 which takes away jurisdiction has application to this particular case ...". Counsel for Mrs. Sohal was also of the view that section 196 did not apply.
[41] In this proceeding, the Minister of Citizenship and Immigration argues that Mrs. Sohal's right of appeal under section 192 is discontinued by section 196, another transitional provision. I have concluded that the government's view is incorrect. While it is for the courts to interpret statutes, I take some comfort that my interpretation is consistent with the expectation both parties had on June 28, 2002, the day of the hearing before the Immigration Appeal Division.
[42] For these reasons, this application for judicial review will be dismissed. According to counsel for the applicant, there are few cases in the Federal Court concerning the interpretation of section 196 in the context of sponsorship appeals. In my view, the issue of statutory interpretation in this proceeding is not one which "... transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application ...": Liyanagamage v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1637 (QL) (C.A.). Section 196 is a transitional provision with limited application. I choose not to certify a serious question in this proceeding.
"Allan Lutfy"
C.J.
Ottawa, Ontario
May 6, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6292-02
STYLE OF CAUSE: The Minister of Citizenship & Immigration
Applicant
and
Manjit Kaur Sohal
Respondent
PLACE OF HEARING: Toronto
DATE OF HEARING: November 25, 2003
Supplementary submissions: March 15, 2004
REASONS FOR Order : Lutfy C.J.
DATED: May 6, 2004
APPEARANCES:
Ian Hicks FOR PLAINTIFF / APPLICANT
Lorne Waldman FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR PLAINTIFF/APPLICANT
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, ON M5X 1K6
Lorne Waldman FOR DEFENDANT/
Waldman & Associates RESPONDENT
281 Eglinton Avenue East
Toronto, ON M4P 1L3