Ottawa, Ontario, the 9th day of March 2006
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
ROBERT SALGADO-ARIAS and
RODOLFO VALDES-ARIAS
(ALIAS RODOLFO ARIAS-GARCIA)
Applicants
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants challenged the decision of the removal officer of June 17, 2005 not to grant them the statutory stay provided for by paragraph 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[2] In July 1999, in Mexico, the applicant and her husband Mr. Valdes separated and initiated legal proceedings for the custody of their child Rodolfo.
[3] On December 6, 2001, a Mexican court awarded provisional custody of Rodolfo to the applicant and access rights to Mr. Valdes.
[4] The applicant had a birth certificate issued for Rodolfo in a name that was not his. A Mexican passport was issued for Rodolfo in that false name.
[5] On June 24, 2002, the applicants arrived in Quebec on a visitor’s visa.
[6] In February 2003, they returned to Mexico for interviews with the Quebec authorities about Quebec selection certificates.
[7] On April 28, 2003, Quebec selection certificates were issued in the names of the applicants, including the selection certificate for Rodolfo issued in his false name.
[8] On the same day, a Mexican court reversed the judgment of December 6, 2001 and awarded custody of Rodolfo to Mr. Valdes.
[9] On May 28, 2003, following a stay of over two months in Mexico, the applicants returned to Quebec.
[10] On October 22, 2003, custody of Rodolfo was again awarded to the applicant pursuant to another Mexican judgment.
[11] As their visitor’s visa was about to expire, the applicant and her two children went to the U.S. on November 9, 2003. They were stopped at the Lacolle border crossing on the ground of abduction contrary to a custody order and pursuant to two arrest warrants issued by Mexico on June 25 and September 25, 2002.
[12] A subsection 44(1) report was issued against the applicants and their case referred to the Immigration Division (ID) of the Immigration and Refugee Board.
[13] The female applicant then applied for refugee status for herself and her children.
[14] On November 17, 2003, the female applicant filed a motion to obtain custody of Rodolfo in the Quebec Superior Court. On the same day, Mr. Valdes filed a motion in the same court requiring that Rodolfo be immediately returned to Mexico pursuant to the Act respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q., c. A-23.01 (the ACAIICA).
[15] On January 7, 2004, the Quebec Superior Court granted Mr. Valdes’ motion and ordered that Rodolfo be returned to Mexico immediately.
[16] On June 8, 2004, the Quebec Court of Appeal allowed the appeal by the female applicant from the Superior Court judgment, quashed that judgment and dismissed Mr. Valdes’ motion.
[17] On October 6, 2004, a Mexican divorce decree relating to the parties awarded custody of Rodolfo to the female applicant and gave both parents parental authority.
[18] On January 19, 2005, the ID issued a deportation order against the applicants.
[19] On May 26, 2005, the PRRA officer rendered a negative decision on the PRRA application made by the female applicant; on the ground that there was no personal risk for herself and her children in Mexico and that government protection was available to them.
[20] On June 17, 2005, the removal officer refused to approve the applicants’ application that they be granted a stay under paragraph 50(a) of the IRPA.
ANALYSIS
[21] I consider that the standard of review regarding the statutory stay is correctness decision, since the issue turns exclusively on a question of interpretation of paragraph 50(a) of the IRPA: Alexander v. Canada (Solicitor General), 2005 FC 1147, [2005] F.C.J. No. 1416 (F.C.) (QL).
[22] Paragraph 50(a) of the IRPA reads as follows:
|
50. A removal order is stayed
|
50. Il y a sursis de la mesure de renvoi dans les cas suivants :
|
|
(a) if a decision that was made in a judicial proceeding – at which the Minister shall be given the opportunity to make submissions – would be directly contravened by the enforcement of the removal order
. . .
|
a) une décision judiciaire a pour effet direct d’en empêcher l’exécution, le ministre ayant toutefois le droit de présenter ses observations à l’instance
[. . .]
|
[23] Did the Quebec Court of Appeal’s judgment have the effect of imposing a statutory stay pursuant to paragraph 50(a) of the IRPA?
[24] That legislation has been interpreted in two recent decisions, which set out the criteria that should guide the Court’s analysis when applying paragraph 50(a) of the IRPA.
[25] In Alexander, supra, the issue was whether an order of the Ontario Court of Justice giving the female applicant custody of her two children (Canadian citizens) and providing that they could not be removed from Ontario triggered a statutory stay pursuant to paragraph 50(a) of the IRPA so as to bar a removal order against the applicant. Eleanor Dawson J. held that the implementation of the removal order against the applicant would not have the effect of directly contravening the order by the Ontario Court of Justice, since the removal order had no effect on the physical location of the children. She suggested the following criteria, which were summarized by Paul Rouleau J. in Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317, [2005] F.C.J. No. 1601 (F.C.) (QL) as follows, at paragraph 16:
(i) An analysis under s. 50(a) must be given a narrow scope, and therefore the words “directly contravened” must be narrowly interpreted in assessing the decision made in a judicial proceeding;
(ii) The case law surrounding s. 50(1)(a) of the former Immigration Act must be given due regard, as the current legislation is similar to the former legislation; and
(iii) Statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament, including the consideration that non-citizens do not have an unqualified right to enter or remain in Canada, and that a valid deportation order must be enforced as soon as is reasonably practicable.
[26] As to the application of those three criteria, Rouleau J. added that the list was not exhaustive, merely illustrative. Each case must be examined on its merits, the decision-maker determining the weight that should be given to each of the established criteria. At paragraph 17, Rouleau J. wrote the following:
These three factors, as set out by Dawson J., and summarized above, do not comprise an exhaustive list of factors to be considered in a s. 50(a) assessment, but rather serve as an illustrative list. Each case must be examined on the merits and facts of [sic], and the factors are an illustrative set of guidelines for such an analysis. In addition the factors are not necessarily cumulative. Each case should be examined on the merits, and the decision maker should determine the weight to be given to each factor in a particular set of circumstances. Given the three factors presented by Dawson J., the present matter can be examined.
[27] The first criterion requires that any analysis under paragraph 50(a) should be narrow in scope. The words “directly contravened” must be narrowly interpreted in assessing the implementation of the judicial decision.
[28] Thus, in the case at bar, since the judgment of the Quebec Court of Appeal is concerned only with the child Rodolfo, it can have no direct effect on the removal order against the other applicants.
[29] The second criterion re-emphasizes the importance to be given to decisions made pursuant to paragraph 50(1)(a) of the former Immigration Act, R.S.C. 1985, c. I-2 (the former Act), which is essentially similar to paragraph 50(a) of the IRPA. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.), the Federal Court of Appeal held that a probation order requiring the offender to report to a probation officer regularly was not a bar to a deportation order. In Mobtagha v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 108 (T.D.) (QL), Rouleau J. held that an order made by the Quebec Lieutenant-Governor was not a “judicial order”. Rouleau J. made an exhaustive review of the earlier case law and concluded that the IRPA stay was triggered only in cases where the judicial order contained specific provisions that would be infringed by the enforcement of the deportation order.
[30] Accordingly, this case law supports a narrow interpretation of paragraph 50(a): there must be a specific provision inconsistent with the removal of the individual in question for there to be a direct contravention of a judicial order.
[31] As to the third criterion, that the statutory provisions are to be construed harmoniously with the scheme and object of the IRPA and the intention of Parliament, Dawson J. followed the remarks of the Court of Appeal in Cuskic, supra, in which Gilles Létourneau J.A. held that paragraph 50(1)(a) of the former Act could not be given an interpretation conflicting with the purpose of the IRPA, which was to quickly remove inadmissible individuals from Canada. She made the following remarks:
[35] Third, statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal considered whether the execution of a removal order against a person subject to a probation order that contained a direction to report to a probation officer on a specific, periodic basis, would directly contravene the probation order so as to invoke the statutory stay available under paragraph 50(1)(a) of the former Act. The Court of Appeal acknowledged that the obligation of the person concerned to report regularly to his probation officer required that he be in Canada. Notwithstanding that, the Federal Court of Appeal found that paragraph 50(1)(a) could not be literally interpreted without giving appropriate consideration to the overall scheme of the former Act. At paragraphs 25 and 26, Mr. Justice Létourneau wrote for the Court:
25 In my view, the broad interpretation given to the specific exceptions found in section 50, particularly paragraph 50(1)(a), leads to unjust and unreasonable consequences that cannot have been intended by Parliament. I believe it is appropriate, in the circumstances of this case, “[w]here it appears that the consequences of adopting an interpretation would be absurd . . . to reject it in favour of a plausible alternative that avoids the absurdity”: see R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at page 79. the plausible alternative is, in my view, that probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister’s duty, pursuant to section 48 of the Act, to act diligently and expeditiously.
26 To accept the interpretation given to paragraph 50(1)(a) by the Reviewing Judge defeats the purpose of Part III of the Act, which, it bears repeating, is to remove quickly from Canada persons who are inadmissible, and compromise the efficacy of the Act as a whole.
[32] In the case at bar, therefore, the Court must choose an interpretation which is in harmony with the scheme of the IRPA.
[33] In my analysis, I have been guided by those factors. In the case at bar, the Quebec Court of Appeal held, I think quite unequivocally, that the return of the child Rodolfo to Mexico should not take place since he had settled into his new environment. I quote the finding of Louise Mailhot J.A. in full:
[translation]
[41] I find that the evidence shows that the child has settled into his new environment and, for these reasons, I would allow the appeal, quash the trial judgment and dismiss the motion for the immediate return of the child Rodolfo to Mexico, each party to pay its own costs.
[34] It is hard to imagine that, as the respondents have suggested, this judgment would not have a direct effect on the decision by the removal officer ordering the return of the child Rodolfo.
[35] On the one hand, the applicants argued that in such circumstances the removal officer had no choice but to observe the statutory stay mentioned in paragraph 50(a) of the IRPA.
[36] On the other hand, the respondents argued that such an interpretation was absurd since it made possible an evasion of the peremptory provisions of the IRPA regarding the obtaining of permanent residence and the right to remain in Canada.
[37] What then is the import of paragraph 50(a) of the IRPA in those circumstances?
[38] In my opinion, paragraph 50(a) recognizes that situations may exist that trigger a statutory stay solely destined to ensure compliance with the spirit of a judicial decision. Such circumstances are exceptional and cannot have the effect of encroaching on Parliament’s jurisdiction over immigration.
[39] First, I would note that it is for the removal officer to decide whether a statutory stay applies (Immigration Manual, Chapter ENF 10, “Removals”). It is worth noting that, in accordance with the purpose of the IRPA, and section 49 in particular, the discretion of the officer responsible for removal is clearly limited to when a removal order will be carried out (Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL), paragraph 12).
[40] As my brother Luc Martineau J. indicated in Adviento v. Canada (Minister of Citizenship and Immigration), 2003 FC 1430, [2003] F.C.J. No. 1837 (F.C.) (QL), it is not required to contact a “mini” review of humanitarian grounds before removal. The officer may properly take into account a range of factors, including, as in the case at bar, whether the applicant is the subject of a court order requiring his presence in Canada.
[41] In my opinion, in view of the limited discretion of the removal officer, which does not allow a review of humanitarian considerations to be made, the latter has no choice but to follow the statutory stay provided by paragraph 50(a) when he finds that an applicant is the subject of a court order. The stay will allow the proper authority to consider the case and determine whether the best interest of the child or other factors is a bar to final removal.
[42] However, that stay can only be temporary and cannot have the effect of indefinitely barring enforcement of the removal order. Paragraph 50(a) cannot be divorced from its context, paragraphs 50(b) to (e) of the IRPA, which grant the party concerned a temporary stay in certain circumstances, not a permanent stay.
[43] Accordingly, the Quebec Court of Appeal judgment is not inconsistent with a narrow reading of paragraph 50(a).
[44] A court judgment could not have the effect of triggering a permanent stay to the benefit of the applicant since, if the proper authority will not grant him permanent residence, he would be remaining in Canada without status for an indefinite period. Such a result would be absurd. Parliament could not have intended to apply such logic. Accordingly, that interpretation must be rejected in favour of a plausible alternative which avoids absurdity (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (London: Butterworths, 2002)).
[45] Further, it is well settled that in a conflict of laws situation, federal legislation prevails over any inconsistent provincial rule of law and the latter is of no force or effect. A permanent stay in the case at bar would create a conflict between the provincial ACAIICA and the federal IRPA in that “compliance with one is defiance of the other”: Dickson J. in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at page 191, relying on the conclusion of Martland J. in R. v. Smith, [1960] S.C.R. 776. On the other hand, interpreting the paragraph 50(a) stay as temporary avoids such a conflict. In these circumstances, such an interpretation is the most harmonious since it allows the ACAIICA and IRPA to co-exist.
[46] In my view, the intent of Parliament is clear. Court decisions triggering a stay of a removal order do not allow the applicants to avoid the other obligations imposed by the same legislation: Louis v. Canada (Minister of Citizenship and Immigration), 2001 FCTD 1344, [2001] F.C.J. No. 1831 (T.D.) (QL), at paragraph 14. The statutory stay provided for by paragraph 50(a) is thus a temporary measure suspending the removal proceeding pending a final decision in the matter.[1]
[47] As to the question of the child’s best interest, the decision-maker must be “alert, alive and sensitive to them” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75) and give them the weight they deserve in the circumstances of the case (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358). I consider that in cases where the court must consider the impact of a court decision interpreting section 20 of the ACAIICA and concluding that the child has settled into its environment, it is apparent that the child’s interests will be a factor to which significant weight must be attached.
[48] In short, the removal officer was bound to abide by the temporary stay provided for by paragraph 50(a), since the court judgment had a direct effect on the removal order. However, the Court of Appeal’s judgment has to be narrowly read. It cannot be interpreted as having the effect of giving Rodolfo permanent resident status, status which would have to be given or withheld by the proper authority.
[49] The fact that the child Rodolfo may be the subject of a statutory stay is not a bar to removal of the mother, since the child’s best interests cannot in any way be a bar to the removal of a parent who is illegally in Canada (Legault, supra). As Dawson J. suggested in Alexander, supra, parental custody does not imply physical custody of the child at all times, but the right to control its place of residence. When faced with removal, the mother may apply to the Court of Appeal for a variance of its order to allow the return of Rodolfo to Mexico or make provision for leaving him in Canada.
[50] Accordingly, the application for judicial review at bar will be allowed. The decision by the removal officer denying the application for a statutory stay for the child Rodolfo pursuant to paragraph 50(a) of the IRPA is set aside. The matter is referred back for reconsideration by another removal officer in accordance with these reasons.
[51] Counsel for the applicant asked that the following questions be certified:
[translation]
1. Should a pre-removal risk assessment (PRRA) officer give reasons for his decision not to follow a decision contrary to his own – also in a PRRA matter – the facts of which are similar in all relevant respects?
2. Does the dismissal by a court of a motion for the immediate return of a child pursuant to the Act respecting the Civil Aspects of International and Interprovincial Child Abduction (or any other similar provincial legislation), on the ground that the child has settled in, trigger the statutory stay provided for by paragraph 50(a) of the Immigration and Refugee Protection Act?
[52] In my view, only the second question meets the requirements for certification of a question (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL)). Although the circumstances of the case at bar are exceptional, the scope of section 50(a) of the Act is a question of general importance. However, the question as worded by the respondents better expresses the issue. I accordingly certify the following question:
[translation]
Can the judgment of a provincial court refusing to order the return of a child pursuant to the Convention on the Civil Aspects of International Child Abduction, [1989] Can. T.S. No. 35, and s. 20 of the Act respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q., c. A-23.01, “the ACAIICA”, have the effect of directly and indefinitely preventing the enforcement of a removal order which has taken effect pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (“the IRPA”)?
JUDGMENT
THE COURT ORDERS THAT:
[1] This application for judicial review is allowed;
[2] The decision of the removal officer denying the application for a statutory stay for the child Rodolfo pursuant to paragraph 50(a) of the IRPA is set aside;
[3] The matter is referred back for reconsideration by another removal officer in accordance with these reasons.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3836-05
STYLE OF CAUSE: MARIA BONNIE ARIAS GARCIA,
ROBERTO SALGADO-ARIAS,
RODOLFO VALDES-ARIAS (ALIAS RODOLFO ARIAS-GARCIA) v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 1, 2006
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
APPEARANCES:
|
Jean El Masri
|
FOR THE APPLICANTS |
|
Ian Demers
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
El Masri, Dugal Montréal, Quebec
|
FOR THE APPLICANTS |
|
John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Montréal, Quebec
|
FOR THE RESPONDENTS |
[1] There is currently no directive expressly indicating which Immigration officer would be responsible for such a review.