Date : 20040514
Docket : IMM-4119-93
Citation : 2004 FC 697
BETWEEN :
ANDRIES KROON
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board's Immigration Appeal Division ("IAD"), dated May 27, 2303, wherein it refused to entertain the applicant's appeal on the basis that it lacked jurisdiction to rule on the constitutionality of sections 64 and 190 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). In addition, the applicant challenges the constitutional validity, applicability or operability of the impugned sections.
[2] The facts leading up to this application may be summarized as follows. Mr. Kroon arrived in Canada in 1968 at the age of 15 years, accompanied by his adoptive family. He stayed only a few months and then returned to the Netherlands where he, at times, resided with his aunt and enlisted with the Royal Dutch Marines in 1971. He returned to Canada after completing his term of service as an infantryman in Cyprus. The applicant has been a permanent resident of Canada since approximately 1972 but has never applied for or been granted Canadian citizenship.
[3] During the period from 1982 to 2001, the applicant was convicted of a number of minor offences under the Criminal Code. However, in 2001, the applicant was convicted of a far more serious offence, sexual assault on a child, for which a period of incarceration of 3 years and 10 months was imposed. This sentence was ultimately reduced to 2 years and 10 months on appeal.
[4] On June 5, 2002, an immigration officer prepared a report to the Deputy Minister of Citizenship and Immigration pursuant to paragraph 27(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2, indicating that the applicant was a member of an inadmissible class of persons.
[5] On June 28, 2002, the Immigration Act was repealed and replaced by the Immigration and Refugee Protection Act. Paragraph 36(1)(a) of the IRPA provides as follows:
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
[6] On October 1, 2002, an admissibility hearing was held in which the applicant was ruled to be inadmissible to Canada on grounds of serious criminality by virtue of being a person described in paragraph 36(1)(a) of the IRPA, and accordingly, he was ordered removed from Canada.
[7] Immediately thereafter counsel for the applicant filed a notice of appeal of the removal order with the IAD as well as an application challenging the constitutional validity of the impugned sections.
[8] In a decision dated May 27, 2003 the IAD held that it lacked the power to consider a constitutional challenge to section 64 or other provisions of IRPA. It noted that the applicant's appeal is governed by IRPA, not the Immigration Act, and emphasized that section 64 of IRPA expressly denies a right of appeal to someone in the applicant's circumstances.
[9] Relying on abundant case law, the IAD held that although subsection 162(1) of IRPA expressly grants it the power to determine questions of law, as a statutory tribunal, it cannot assume authority over a matter where Parliament had expressly withheld jurisdiction.
[10] In the IAD's view, Parliament's express intent in drafting subsections 64(1) and 64(2) of IRPA was to withhold from the IAD the jurisdiction to hear and decide appeals from deportation orders issued against persons such as the applicant. The IAD wrote at pages 9-10 of its decision:
"While I agree with counsel for the appellant that the Supreme Court of Canada in Ontario enunciates a broad and expansive test to determine whether a court of tribunal has the power to consider and grant a Charter remedy, and while I agree that IRPA grants to the IAD broad powers to hear and consider questions of law, which would by definition include constitutional issues and challenges in proceedings brought before it under IRPA (though it remains to be seen whether these powers are indeed broader under IRPA than the broad powers conferred under the former Act), all of the authorities by which I am bound confirm that the powers of the IAD as a tribunal are only those conferred on it expressly or impliedly by its enabling legislation.
The Federal Court Trial Division decisions in Reynolds and Barletta, which follows Reynolds, are decisions by which I am bound. Inasmuch as they stand for the proposition that where the express intent of Parliament to withhold jurisdiction from the IAD is contained in its enabling legislation, the withholding of such jurisdiction extends to jurisdiction to consider constitutional challenges to that express intent, I find they are consistent with the decisions of the Supreme Court of Canada dealing with the issue of the power of tribunals to grant Charter remedies, including the latest decision on this issue in Ontario."
[11] On this basis, the applicant's appeal was dismissed for lack of jurisdiction.
[12] On May 30, 2003, the applicant was granted statutory release from incarceration and passed into the respondent's custody. The respondent notified him that his removal from Canada to the Netherlands would be effected on June 4, 2003.
[13] On June 3, 2003, Simpson J. dismissed a motion for a stay of execution of the applicant's deportation order and, as a result, the respondent removed the applicant from Canada to the Netherlands on June 4, 2003.
[14] In this judicial review application now before the Court, the applicant seeks to have the IAD's decision of May 27, 2003, set aside on the grounds that it committed an error in law when it held that it did not have jurisdiction to hear and decide constitutional challenges to the impugned sections of the IRPA. It is also argued that, in any event, the rights of the applicant pursuant to the Canadian Charter of Rights and Freedoms were violated by executing his removal.
[15] The main argument put forward by the applicant is that the IAD erred by interpreting subsections 64(1) and (2) of the Act as expressly limiting its jurisdiction to hear the applicant's appeal and that the Board erred by relying on the decision in Canada (Minister of Citizenship and Immigration) v. Reynolds (1997), 42 Imm. L.R. (2d) 175 (F.C.T.D.).
[16] First, it is submitted that such a limitation on jurisdiction is not properly inferred or implied from the wording of the section and that Parliament would have used clearer language if such an effect was intended. Taking the overall context of the new legislative scheme into account, the applicant submits that IRPA grants the IAD power to hear and determine his constitutional challenge. The applicant contends that Parliament intended to grant the IAD the broadest possible authority to determine legal and factual issues that arise in its hearings. The IAD is central to the entire immigration determination system and it would be consistent with and enhance that role, in the applicant's view, to acknowledge its jurisdiction to determine the constitutional issues raised on these facts. Thus, the applicant submits that accepting the IAD's view of its jurisdiction would frustrate its role in the legislative scheme.
[17] When interpreting subsections 64(1) and (2) of the IRPA, the applicant argues, the terms of paragraph 3(3)(d) must be taken into account requiring that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms and to read in a limitation of jurisdiction from the IAD of its power to determine Charter issues is not consistent; and that if Parliament intended to remove the jurisdiction of the IAD in order that it not consider constitutional arguments, Parliament ought to have expressly indicated its intention by using clear language.
[18] Moreover, the applicant submits that the IAD erred in viewing the decision Reynolds, supra as binding in this case. The applicant points out that Reynolds was decided under the now repealed Immigration Act and argues that IRPA has significantly changed to the powers of the IAD. It is argued that the recent decision of the Supreme Court of Canada in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] S.C.J. No. 54 (QL), 2003 SCC 54 is the leading authority to be applied in this case and that its effect has been to overrule Reynolds.
[19] Finally, the applicant has made a number of other consitutional arguments. First, it is alleged that applying section 64 and 190 of IRPA so as to deport the applicant without an appeal hearing is a contravention of his rights under sections 7, 11(I) and 12 of the Charter. Second, the applicant argues that his section 7 Charter rights were also violated by undue or unreasonable delay by immigration authorities and relies upon jursiprudence of this Court which has recognized that delay in the immigration context can, in the appropriate circumstances, constitute a violation of section 7 rights.
[20] Indeed, it is the applicant's position that the respondent failed, without valid reason, to convene an inquiry into the applicant's status in Canada under the former Immigration Act prior to June 28, 2002 when IRPA came into effect. Had the respondent ruled on the applicant's inadmissibility prior to the coming into force of IRPA, the applicant argues, he would have been able to file an appeal of any deportation order immediately and would thus not have lost a right of appeal by virtue of section 64 and 190 of IRPA. Although immigration authorities were aware of the applicant's circumstances before the end of 2001, he was not dealt with until after IRPA came into effect.
[21] The respondent, charges the applicant, breached its legal duty under subsection 27(6) of the Immigration Act to proceed with reasonable dispatch to determine his inadmissibility. In this case, the section 27 report to the Deputy Minister regarding the applicant was signed on June 5, 2002 and the Direction for Inquiry on June 24, 2002. However, no inquiry into the applicant's status was held until October 2002. This delay, maintains the applicant, prejudiced him as he lost his right to a hearing of any sort before being removed on the strength of the deportation order.
[22] The respondent, on the other hand, submits that the IAD made no reviewable error in deciding that it lacked jurisdiction to hear the applicant's constitutional challenge to sections 64 and 190 of IRPA and therefore requests that this application for judicial review be dismissed. It too relies on the Supreme Court's decision in Martin, as support for the proposition that the authority of a tribunal to entertain a Charter challenge to its enabling statute arises out of the tribunal's ability to address a question of law under that provision.
[23] According to the respondent, applying the reasoning in Martin, leads to the conclusion that the IAD lacks jurisdiction in this case because the decision-making power under section 64 is limited to determining factual, not legal, issues. Once it is determined that section 64 applies to an individual so as to deprive them of an appeal by operation of law, the respondent states that there is no further jurisdiction in the IAD. Since the IAD cannot address questions of law under section 64, neither can it determine its constitutionality.
[24] The respondent submits that, contrary to the applicant's contention,Martin does not overrule the main finding in Reynolds that an explicit withdrawal of jurisdiction carries with it a withdrawal of the ability to consider the constitutionality of that provision. Accordingly, the respondent argues that Reynolds is binding on the IAD and the panel did not err in law by relying on it.
[25] Finally, the respondent denies that any breach of section 7, 11(I) or 12 of the Charter has been made out on the facts of this case. The respondent submits that the applicant has not even established that section 7 rights to life, liberty and security of the person are engaged on the facts of this case, and even if they were, that denying the applicant an appeal to the IAD would violate the principles of fundamental justice enshrined in section 7.
[26] Furthermore, the respondent maintains that the legislative context of IRPA confirms that removing a statutory appeal does not violate the liberty interests of inadmissible persons. Even assuming that liberty interests are engaged at the time of removal in certain circumstances, the respondent argues that pre-removal risk assessments and exemptions based on humanitarian and compassionate grounds provided for in the legislation adequately address the liberty interest of a serious criminal who has been ordered deported.
[27] With respect to the issue of delay, the respondent states that there was no obligation on immigration officials to process the applicant's case within the time hoped for by the applicant, that is, before IRPA came into effect on June 28, 2002. The respondent disputes the applicant's suggestion that the introduction of section 64 of IRPA after he was sentenced violates the Charter because it is an additional punishment for his offence. A plain reading of section 11(i) of the Charter, it is argued, indicates it only applied to criminal punishments that vary between the time of the commission of the offence and the time of sentencing.
[28] Lastly, the respondent submits that the Supreme Court of Canada in Chiarelli concluded that deportation does not violate section 12 of the Charter when a permanent resident violates an essential condition of being permitted to remain in Canada by committing a criminal offence.
[29] I am dismissing the judicial review application for the following reasons.
[30] The leading case on the jurisdiction of administrative tribunals to apply the Charter is Martin where the Supreme Court of Canada reviewed the jurisprudence in this area and restated the law at paragraph 48:
The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2) (a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations.
(emphasis added)
[31] In the present case, the relevant sections of the legislation, sections 64 and 190 of the IRPA, read as follows:
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.
64.(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.
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.
[32] Applying the reasoning of Martin to the present case, I am satisfied that the IAD lacks the power to determine the constitutionality of section 64 of IRPA. There is simply nothing in the legislation which either expressly or implicitly grants this jurisdiction. On the contrary, the challenged provisions expressly limit the jurisdiction of the IAD insofar as they remove any right of appeal to the tribunal by a permanent resident who has been found to be inadmissible on grounds of serious criminality. In my view, Parliament could not have been more clear in its intention to limit the IAD's jurisdiction with respect to individuals who fall within paragraph 36(1)(a) of the Act. I do not read Martin as overruling this Court's decision in Reynolds wherein it was held that although the IAD had exclusive jurisdiction to consider questions of law and determine its own jurisdiction, its general powers did not extend to finding that a statutory section which contained an express limitation on its jurisdiction was unconstitutional..
[33] In the present case, once the factual determination was made that the applicant was inadmissible for serious criminality, a decision the applicant does not dispute, the IAD lost any mandate to hear an appeal. Since the IAD does not have the power to decide legal questions arising under section 64, it therefore has no power to hear constitutional challenges to that provision.
[34] Nor am I persuaded by the applicant's constitutional arguments. First of all, it is trite law that the that deportation of serious criminals does not engage section 7 rights (See Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 and Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), leave to appeal to the S.C.C. dismissed (1993), 148 N.R. 238 (S.C.C.)) :
[35] In any event, I agree with the respondent that the applicant's removal is not the issue in this case and that this Court should not equate removal of an appeal with the act of deportation. The applicant has conceded that the removal order dated October 1, 2002 issued against him is valid. The legislation provides for other legal avenues to prevent or delay removal, which were neither exhausted nor pursued by the applicant. The issue in this case is not whether deportation engages section 7 of the Charter, but whether the statutory removal of an appeal to the IAD engages section 7 rights. As the Federal Court of Appeal held inWilliams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), leave to appeal to S.C.C. dismissed (1997), 224 N.R. 320, eliminating a right of appeal against a deportation order does not involve a deprivation of liberty.
[36] Even if section 7 rights are engaged, section 64 does not violate the principles of fundamental justice. In Chiarelli, supra, the Supreme Court of Canada ruled that the principles of fundamental justice do not require that a permanent resident subject to a deportation order be afforded an appeal based on "all circumstances of the case". Since there is no constitutionally guaranteed right of appeal, the applicant's attempt to ground a violation of section 7 on the deprivation of an appeal cannot succeed.
[37] In addition, in Nokhodchari v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1075, 2003 FCT 803 a recent decision of this Court, Blais J. decided that section 64 of IRPA does not violate section 7 nor section 12 of the Charter. In it, Blais J. refers to the decision Casiano v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1199 (T.D.) where Dubé J. held:
... the Minister's decision of removing retroactively the applicant's appeal rights to the Immigration Appeal Division does not violate the applicant's rights under the Charter. It has been held on several occasions that there is no constitutionally guaranteed right of appeal. The matter was properly crystallized by La Forest, J. of the Supreme Court of Canada in Kourtessis v. M.N.R. [1993] 2 S.C.R., 53 at page 70 when he concluded as follows:
But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.
[38] Furthermore, the Federal Court of Appeal in Rudolph v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 653 (C.A.) held that section 11 of the Charter does not apply to the immigration and deportation context at all. In this decision, the Court of Appeal held that it was not impermissible for legislation to enact a rule which excludes persons from Canada on the basis of their conduct in the past. Therefore, section 64 does not violate section 11(I) of the Charter.
[39] With respect to the issue of delay, it is true that delay in the immigration context can, in the appropriate circumstances, constitute a violation of section 7 Charter rights. However, the facts of this case do not give rise to such a violation. Rather, the applicant's position is that immigration authorities should have acted against him sooner, and if they had, he would have had a right of appeal under the old Immigration Act. This is not a tenable argument. There is no obligation on immigration officials to act within the time periods hoped for by an applicant, absent any legislative direction. I agree with the respondent that the applicant's arguments with respect to delay on the part of immigration officials is analogous to suggesting that he himself should have admitted his guilt for the sexual assault conviction years earlier, in which case the immigration process would have run its course sooner, or that the applicant could have notified immigration officials as soon as he was convicted and requested an earlier hearing.
[40] In interpreting the provisions of the IRPA, including the rights of appeal under the Act, it is important to keep in mind the stated objectives of the legislation to "protect the health and safety of Canadian and to maintain the security of Canadian society" and to "promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks" (paragraphs 3(1)(h) and (i). Section 64 of IRPA, which clearly eliminates any appeal to the IAD by individuals excluded on the grounds of serious criminality, attempts to further these security objectives.
[41] In my view, the following comments of the Federal Court of Appeal in its recent decision of Medovarski v. Canada (Minister of Citizenship & Immigration), [2004] F.C.J. No. 366 are illuminating in this regard:
In any event, in enacting IRPA Parliament re-balanced the interests of public safety and individual rights by broadening the categories of persons who may be removed without an appeal to the IAD. . .
In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at 739, the Supreme Court of Canada rejected the argument that the principles of fundamental justice require Parliament to provide a right of appeal on humanitarian and compassionate grounds before a permanent resident may be deported for serious criminality.
I see nothing in the facts of this case to distinguish Chiarelli. I do not accept that Ms. Medovarski was misled by the Minister into thinking that she had right of appeal. No one has a legitimate expectation that the law will not be changed from time to time. There is no evidence that Ms. Medovarski would have conducted her defence in the criminal proceeding on a different basis (or that, if she had, it would have made a difference to the outcome), had she realized that a sentence of two years would deprive her of the right to appeal to the IAD.
. . .
In the absence of a constitutional right of appeal against a removal order, I am not persuaded that it would be a breach of section 7 to apply section 196 to Ms. Medovarski. . . Again, as I have said, a person cannot have a legitimate expectation that procedural rights granted by Parliament may not be removed. The pre-removal risk assessment and the right to make a H & C application provide some opportunity for Ms. Medovarski to make representations as to why she should not be removed.
(emphasis added)
[42] For all of these reasons, the Immigration Appeal Division did not err in law in making its decision. Accordingly, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
May 14, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4119-03
STYLE OF CAUSE: Andries Kroon v. The Minister of Citizenship and
Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 3, 2004
REASONS FOR: Rouleau, J.
APPEARANCES:
Mr. Charles Davison For Applicant
Mr. Rick Garvin For Respondent
SOLICITORS OF RECORD:
Abbey Hunter Davison Spencer For Applicant
Edmonton, Alberta
Morris Rosenberg For Respondent
Deputy Attorney General of Canada