Date : 20050128
Docket : IMM-735-04
Citation : 2005 FC 137
BETWEEN :
SUKHDEV SINGH
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERand ORDER
ROULEAU, J.
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act ("IRPA") S.C 2001, c. 27, of the decision ("Decision") made by an officer ("Officer") of the Immigration Appeal Division of the Immigration and Refugee Board ("Board"), dated December 18th, 2003. The Board found that the Notice of Cancellation of Stay and Termination of Appeal were valid, as the applicant was a person described by ss. 197 and 68(4) of the IRPA, and s. 320(5)(a) of the Immigration and Refugee Protection Regulations (IRPR).
Background
[2] The applicant, Sukhdev Singh, is a citizen of India. He became a permanent resident of Canada on March 18, 1986. He was convicted of Robbery contrary to s. 344 of the Canadian Criminal Code, on December 14th,1998. He was determined to be inadmissible to Canada on the grounds of serious criminality. The applicant appealed the deportation to the Immigration and Refugee Board Appeal Division. A stay of deportation with conditions was issued on June 28th, 2000.
[3] The applicant was convicted of assault with a weapon on August 26th, 2002. The incident for which he was charged occurred on January 20th, 2001. He pled guilty in August 2002, and was sentenced to time already served. The relevant sections of the IRPA and IRPR came into force on June 28th, 2002, approximately two months before the plea of guilty was entered.
[4] On February 14th, 2003, the respondent issued a Notice of Cancellation of Stay, and a Termination of Appeal. The Cancellation was based on a breach of a condition of the Stay: to keep the peace and to be of good behaviour. The Appeal division upheld the Cancellation and the Termination of Appeal on December 18th, 2003. The applicant was removed from Canada on February 16th, 2004.
Decision Under Review
[5] The Board found that ss. 197 and 68(4) of the IRPA, and s. 320(5)(a) of the IRPR, apply to the applicant, and he was, therefore, properly deported on February 16th, 2004.
[6] The sections in question mandate that any order granting a stay of deportation, with terms and conditions, and any appeals outstanding before the IAD on June 28th, 2002, be cancelled and/or terminated if an applicant who was granted a stay, and is in breach of the terms and conditions of the stay order, is convicted of another offence referred to in s. 36(1) of the IRPA.
[7] The applicant was subject to a deportation order, with terms and conditions which had been stayed in 2000. The applicant was convicted of an offence described in s. 36(1) of the IRPA on August 26th, 2002 for an offence committed in January 2001.
[8] The key finding of the Board is that a breach of terms and conditions is only a breach when it is found to be a breach, disagreeing with a prior finding of the IAD. In the prior IAD decision, Psyrris v. Canada (Minister of Citizenship and Immigration) the Board member found that s. 197 should not apply retrospectively, for breaches of terms and conditions which occur prior to the coming into force of the sections in question, on June 28th, 2002. In the Psyrris case, the applicant was convicted, on September 10th, 2002, of offences committed on July 8th, 2001. The member in that case found that, while the conviction took place after the coming into force of the IRPA, the breaches which are referred to in s. 197 of the IRPA took place prior to the coming into force, and, therefore, do not trigger the application of s. 197.
[9] In the current case, the Board respectfully disagreed with the Psyrris decision. The Board found that a breach is only a breach, for the purposes of s. 197 of the IRPA, when it is found to be a breach. In this case, the Board's interpretation means that the determinative date for s. 197 of the IRPA is the date of conviction, and not the date of the offence.
Issues
[10] The applicant raises the following two questions which are determinative of the issue:
(a) what is the appropriate interpretation of the time of breach, as regards s. 197 of the IRPA: the time of conviction, or the time of commission of the offence; and
(b) can s. 197 be applied retroactively/retrospectively for a situation where an offence occurred prior to June 28th 2002, but the conviction occurred after the coming into force of the IRPA.
Argument
[11] Section 197 of the IRPA reads:
197. Stays - Despite section 192, if an appellant who has been granted a stay under the former Act breached the terms and conditions of the stay, the appellant shall be subject to the provisions of section 64, and subsection 68(4) of this Act.
[12] The applicant submits that the member in Psyrris was correct, and the proper interpretation of s. 197 of the IRPA is based on the date on which the offence was committed. He argues that a proper interpretation of breach includes an action or omission on the part of the applicant, and cannot be interpreted to mean the conviction, or affirmation of the action or omission in question. In the case of a criminal conviction, the applicant argues that the breach takes place when the positive action or omission occurs, or when the crime is committed; that the only possible action at the time of conviction is the guilty plea, which is merely an acknowledgement of the prior action - the offence which was committed.
[13] The applicant is of the view that the issue has now been decided by this Court, in Psyrris v. Canada (Minister of Citizenship and Immigration) [2004 F.C.J. No. 1764 (FC). However, as I see it, Pinard J. did not deal with the issue when the Court found, at para 9:
The application of section 197 of the IRPA relies on the presence of two conditions: first, the applicant must have been granted a stay under the former Act and second, the applicant must have breached a condition of that stay. At first view, section 197 clearly applies to the applicant because he was initially granted a stay of his removal order under the former Act on December 22, 1994. In addition, the IAD found that the applicant had breached a condition of his stay and therefore, found that section 197 applied to his case.
(emphasis added)
[14] The applicant submits that, if the issue was not dealt with in Psyrris, then the issue must be considered given the context of the case. The applicant argues that the Board's finding, that a breach is only a breach when it is found to be a breach, is speculative as it is not based on any legal authority apart from another Board decision of the same member.
[15] The applicant also submits that the IAD has decided, in a number of cases, that the determinative date for a breach is the date on which the offence was committed.
[16] The respondent replies that the proper interpretation is that applied by the Board in the present case; that the determinative date is the date of conviction. He argues that, prior to the conviction date of August 16th 2002, the applicant's actions were merely unsubstantiated allegations of wrongdoing. As such, there was no breach of the terms and conditions prior to the conviction. He agrees with the Board that a breach is a breach when it is found to be a breach.
[17] The respondent submits that, in analysing s. 197, the Court must consider the words of Kelen J. in Dragan v. Canada (Minister of Citizenship and Immigration) 2003 F.C.T. 211:
It is trite law that Parliament can expressly enact retroactive or retrospective legislation, and this clear expression overrides the presumption against retroactivity or retrospectivity which is identified in section 43 of the Interpretation Act.
[18] The respondent states that the section must be read contextually, given the objectives of the IRPA. The objectives are a balance between, on one hand, the facilitation of immigration and family reunification, and on the other hand, to protect the health, safety and security of Canadian society. Parliament clearly intended, for the sake of the security of Canadian society, to deny access to persons inadmissible on grounds of criminality and to those engaged in violence, terrorism, or violations of international and human rights. Parliament's intervention materializes in various provisions, including s. 197 of the IRPA.
[19] He argues that s. 197 must be read conjunctively and in the context of the entire IRPA, which does not specify or require that the breach happen at a particular time and it therefore applies to the applicant. The respondent states that, if s. 197, the enabling section, applies, then s. 68(4) and s. 36(1) of the IRPA apply, as does s. 320(5)(a) of the IRPR. He goes on to note that s. 68(4) uses the word 'convicted' when referring to s. 36(1), and argues that s. 197 must be read together with s. 68(4).
Analysis
[20] To make a determinative finding on this issue, two key elements must be assessed:
(a) whether the word 'breach' refers to the date of conviction or the date of commission; and
(b) for the latter interpretation, whether the IRPA applies retroactively to include a 'breach' which happened prior to the coming into force, but where the conviction occurred after June 28th 2002.
[21] On the fist issue of how to determine what is the appropriate date for a breach of terms and conditions, in accordance with s. 197 of the IRPA . Black's Law Dictionary 7th ed. (West Group, 1999) defines 'breach' as, "a violation or infraction of a law or obligation." The definition uses the words 'violation' and 'infraction'. A plain and clear reading of the definition indicates that the appropriate date for the breach is the date of commission of the offence. To read 'breach' as the respondent suggests would require that the definition be restated as the affirmation of a violation or infraction of a law or obligation.
[22] I am convinced that the proper interpretation of the term 'breach' in s. 197 is the date of commission of the offence. However, since the IRPA is silent on the time that such a breach had to be committed, the second issue must still be considered before s. 197 can be said not to apply to the applicant.
[23] Both parties submit that the following is the governing principal for statutory interpretation (Sullivan, Sulllivan, & Drieger On the Construction of Statutes, Toronto, Butterworths 4th ed 2002):
Today, there is only one principal or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[24] In Dragan, supra, Kelen J. dealt with the retroactive application of the IRPA:
The statutory language of sections 190 and 201 of the IRPA conveys the legislative intent to apply the new Act retrospectively and to authorize regulations with retrospective effect. Parliament can expressly enact retroactive legislation, and this clear expression overrides the presumption against retroactivity or retrospectivity, identified in section 43 of the Interpretation Act.
[25] The relevant provision, in this case is s. 190 of the IPRA:
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.
[26] The applicant's matter was pending, or in progress, immediately before the coming into force of IRPA. He was under a stay of deportation which was governed by the IRPA. A criminal conviction that affects that stay is a matter pending, or in progress, which relates to the applicant's admissibility in Canada, in accordance with s. 68(4) and s. 36(1) of the IRPA.
[27] Since s. 197 is silent on the date necessary for the breach to have occurred, and the statute can be applied retrospectively/retoractively, in accordance with Dragan, supra, the relevant provision for the proper interpretation of the application of the act is s. 68(4), which reads:
68(4) Termination and cancellation - If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
(My underline)
[28] The termination and cancellation section expressly uses the word 'convicted', which makes the determinative date, for applicants who breached the terms and conditions of a stay, the date of conviction, and not the date of the offence. Section 197 can apply retroactively to an offence, or breach, which happened prior to June 28th, 2002, but s. 68(4), along with s. 190 of the IRPA, apply s. 197 so that the appropriate date for determining whether IRPA applies is the date of conviction.
[29] The appropriate date for the determination of the application of s. 197, and s. 68(4), in the case of the Applicant, is August 26th, 2002. I am satisfied that s. 197 should apply, and, for the reasons given by the IAD in rendering the decision below, I am also satisfied that the stay was appropriately cancelled and the appeal terminated.
[30] The guidelines for determining the appropriate date, where a breach of terms and conditions has occurred prior to June 28th, 2002, and a conviction occurs after the IRPA came into force, is the date of conviction.
ORDER
[31] The application for judicial review is dismissed.
[32] At the end of the hearing of this matter, and on consent of both counsel, it was suggested that following my decision I would allow both the applicant and the respondent to propose a question that should be submitted.
[33] I hereby allow the applicant to serve and file a proposed question on or before February 18, 2005 and then the respondent shall be allowed until March 11, 2005 to either respond or concur with the applicant's proposed question for submission.
[34] I nevertheless reserve the right to determine whether or not a question should be submitted.
JUDGE
OTTAWA, Ontario
January 28, 2005
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : IMM-735-04
STYLE OF CAUSE : Sukhdev Singh v. TheMinister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 11, 2005
REASONSFOR ORDER
AND REASONS: The Honourable Mr. Justice Rouleau
DATE OF REASONS: January 28, 2005
APPEARANCES:
Mr. Morris Ormston FOR THE APPLICANT
Ms. Marina Stefanovic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ormston, Bellissimo, Yunan
Barristers and Solicitors FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT