Federal Court Decisions

     IMM-1458-96

Between:

     BALBINDER SINGH ATHWAL,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ, J.

     This application is for the judicial review of a decision made on March 26, 1996, by the Immigration and Refugee Board Appeal Division ("the Appeal Division") dismissing the applicant's appeal for lack of jurisdiction on the basis that the respondent ("the Minister") has issued an opinion finding him to be a danger to the public pursuant to subsection 70(5) of the Immigration Act ("the Act").

A.      Facts

     On October 5, 1994 Immigration Officer B. Duncan issued a report under section 27 of the Act alleging that the applicant was a permanent resident described under paragraph 27(1)(d)(i) being a person who has been convicted of an offence for which a term of imprisonment of more than six months has been imposed and also under paragraph 27(1)(d)(ii) being a person convicted of an offence for which a term of imprisonment of five years or more may be imposed.

     At the inquiry which followed on May 11, 1995, Case Presenting Officer R. McNeill proceeded with the allegations under subparagraph 27(1)(d)(i) (a conviction for which a term of more than six months has been imposed) and Adjudicator R. G. Smith determined that the applicant is a permanent resident of Canada who has been convicted of that offence and consequently made a deportation order.

     The applicant filed an appeal from the deportation order on May 11, 1995. On January 10, 1996 the Minister filed an Opinion pursuant to subsection 70(5) of the Act to the effect that the applicant constitutes a danger to the public in Canada. On April 12, 1996, the Appeal Division held that the Minister had filed such an opinion and that "the appellant has been determined by an adjudicator to be a person described in paragraph 27(1)(d) of the Immigration Act who has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed...". The Appeal Division dismissed the appeal for lack of jurisdiction in accordance with paragraph 70(5)(c) of the Act.

B.      Issue

     The key issue to be resolved in this judicial review is whether an adjudicator must have found that a person described in paragraph 27(1)(d) is also a person 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 before subsection 70(5) will be effective to remove the applicant's appeal from the Appeal Division. The relevant provisions of the Act are as follows:

27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of an y information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who

(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);

(a.1)out side of Canada,

(i) has been convicted of an offence that, if committed in Canada constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or

.....

(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(i) more than six months has been imposed, or

(ii) five years or more may be imposed,

.....

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.

(my emphasis)

C.      The applicant's argument

     The applicant argues that at the time of the inquiry on May 11, 1995, subsection 70(5) of the Act was not in force (it came into force only on July 10, 1996), but Bill c-44 had been drafted at the time and a working copy was available. The only allegation made by the Minster's representative was that the applicant was not a Canadian, was a permanent resident of Canada, was a person described in paragraph 27(1)(d)(i), presumably because this is all he needed to obtain the deportation order he sought. Consequently, that formed the basis for the adjudicators determination and that is exactly what he determined: a person under a term of imprisonment of more than six months and not of ten years or more.

    

     The applicant relies on a decision of this Court, Ahmed Zelzle v. Minister of Citizenship and Immigration, (IMM-1585-95) for the proposition that the Appeal Division may not substitute its own decision for that of an adjudicator which is valid on its face. Consequently, the Appeal Division had no authority to decide under paragraph 70(5)(c) and erred in refusing to exercise its jurisdiction.

D.      The respondent's argument

     On the other hand, the respondent alleges that the information set out in the section 27 Report indicated that the applicant was convicted on September 16, 1994 of aggravated assault contrary to subsection 268.2 of the Criminal Code of Canada and was sentenced to three years, the maximum sentence for which was 14 years; and on that same date the applicant was also convicted of forcible confinement contrary to subsection 279.2 of the Criminal Code and was sentenced to three years, the maximum for that offence not to exceed ten years.

     Paragraph 70(5)(c) of the Act does not require that the adjudicator, first, make a determination that the applicant is a person described in paragraph 27(1)(d) and then, secondly, make a specific ruling that the applicant has been convicted of an offence for which a term of ten years or more may be imposed. The only determination which the adjudicator had jurisdiction to make was that the applicant was a person described in paragraph 27(1)(d)(i) since that was the only allegation that was pursued by the case presenting officer at the inquiry, and the only one the latter needed at the time to obtain a deportation order, subsection 70(5) of the Act not being in force at the time.

     It was open to the Appeal Division to make that determination because that is the only interpretation which gives subsection 70(5) any meaning whatsoever. The adjudicator obtains his jurisdiction from the report issued by the immigration officer under section 27 and the direction to inquiry issued under that section. Subsection 27(1) sets out different categories that can be alleged against a permanent resident (27(1)(a) to 27(1)(h)). None of those categories stipulates that the person is a permanent resident that has been convicted of an offence were the maximum penalty is ten years or more. The only mention of the ten years or more is to be found under subsection 27(1)(a.1) which refers to offenses committed outside of Canada.

     Under no other subsection from 27(1)(a) through to subsection 27(1)(h) is it possible for an immigration officer to set out an allegation that a person is a permanent resident who has been convicted of an offence where the maximum potential punishment is ten years or more. The third requirement under subsection 70(5)(c) need not be made by an adjudicator and cannot be made by an adjudicator.

     Section 12 of the Interpretation Act, stipulates that "every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects". The only interpretation that best ensures the attainment of the objects of subsection 70(5) is the one proposed by the respondent.

     Driedger on The Construction of Statues, third edition, quotes Mr. Justice O'Halloran in Waugh v. Pedneault as follows:

The Legislature cannot be presumed to act unreasonably or unjustly, for that would be acting against the public interest. The members of the Legislature are elected by the people to protect the public interest, and that means acting fairly and justly in all circumstances. Words used in enactments of the Legislature must be construed upon that premise. That is the real "intent" of the Legislature. That is why words in an Act of the Legislature are not restricted to what are sometimes called their "ordinary" or "literal" meaning, but are extended flexibly to include the most reasonable meaning which can be extracted from the purpose and object of what is sought to be accomplished by the statute.1

(my emphasis)

     In the alternative, the respondent submits that even if the Appeal Division erred in substituting its own determination to that of the adjudicator, no purpose would be served by quashing the decision and sending it back for redetermination. It is clear that the applicant was in fact convicted of offences for which terms of imprisonment of ten years or more may be imposed.

     As a third alternative, submitted at the hearing of this judicial review, the respondent submits that it was open for the Appeal Division to find that the adjudicator must have found that the applicant was a person convicted of a crime for which the maximum punishment may be ten years or more because the only information before him about the applicant's criminal record was that he was in fact convicted under those two particular sections of the Criminal Code, both of which carry with them a maximum term of imprisonment of ten years or more. Under subsection 27(1), an immigration officer must forward a written report to the Deputy Minister, setting out the details of all the information in his possession to substantiate his allegation. The report issued dealt with two separate allegations under subsections 268.2 and 279.2 of the Criminal Code both carrying sentences of ten years or more.

E.      Analysis

     In my view, there is no ambiguity in subsection 70(5). No appeals are to be made to the Appeal Division under certain specific conditions, including a determination by an adjudicator to the effect that a person described in paragraph 27(1)(d) has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. The subsection stipulates very clearly that the determination must be made by an adjudicator. There are no provisions in the Act authorizing the Appeal Division to substitute its own decision for that of the arbitrator.

     Nothing in the Act prevents a case presenting officer to file evidence at the inquiry as to the nature of the offences, which evidence would form the basis for the adjudicator to determine that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. The mere fact that subsection 27(1) does not instruct immigration officers who make such reports does not bar an adjudicator from making a finding of fact based on such a report for the purposes of subsection 70(5).

     Thus, the golden rule of interpretation need not be invoked. There is no ambiguity and there is no absurdity. Subsection 70(5) speaks for itself. It is for the Minster, through his case presenting officer, to present at the inquiry evidence of conviction for the offences in question. Before subsection 70(5) came into force, the case presenting officer, so as to obtain the deportation order, needed only to proceed under paragraph 27(1)(d). Since the coming into force of subsection 70(5), he now has to produce evidence of a conviction for which a term of imprisonment of ten years or more has been imposed for the purpose of that subsection.

     In the instant case, of course, it is vital for the applicant that a strict interpretation of subsection 70(5) be adhered to. A finding by the Appeal Division that it has no jurisdiction to hear the applicant's appeal opens the way for immediate execution of the deportation order which has been issued against him. It removes an oral hearing where the Appeal Division would have considered a number of other factors, including the seriousness of the offence, the rehabilitation of the applicant, the hardship imposed upon him and his family. Therefore it cannot be said that no purpose would be served by quashing the decision in question and sending it back for redetermination.

     Although the facts in the instant case indicate that the applicant was convicted of two offences, each of which carry a potential term of imprisonment of ten years or more, this fact was not determined by the adjudicator at the applicant's inquiry. At that inquiry, the applicant's counsel did concede that the applicant was a person who has been convicted under paragraph 27(1)(d)(i) of an offence for which a term of imprisonment of more than six months has been imposed; he did not concede that he has been convicted of an offence for which ten or more years may be imposed. Thus, the Minister's representative would have been required to lead evidence of that offence, but did not do so.

     Consequently, the decision of the Appeal Division that the applicant's appeal be dismissed for lack of jurisdiction is quashed and the matter is referred back to the Appeal Division for determination of the appeal on its merits.

     Counsel for both parties and the Court have agreed that there's a serious question of general importance which warrants certification pursuant to section 83 of the Act and that the question ought to read as follows:

Under s. 70(5)(c) of the Immigration Act, must an adjudicator specifically find that a person described in paragraph 27(1)(d) is also a person 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, before s. 70(5) (c) will be effective to remove the Applicant's appeal to the Immigration Appeal Division, or can this finding be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with the appeal?

     The application for judicial review is granted.

                             (Sgd.) "J.E. Dubé"

                                 J.F.C.C.

Vancouver, British Columbia

January 23, 1997

__________________

     ¹      [1949] 1 W.W.R. 14, 15 (B.C.C.A.)