Montréal, Quebec, January 25, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Immigration and Refugee Board, Immigration Appeal Division (the IAD) denying an application made by the Minister of Citizenship and Immigration (the Minister) to cancel a stay of execution of a removal order signed on December 20, 1996 under the now-repealed Immigration Act, R.S.C. 1985, c. I-2 (the former Act).
[2] Mr. Brian Kelley (the respondent) was born in Guyana in 1962 and became a landed immigrant on March 15, 1990.
[3] On August 23, 1996, a removal order was issued against Mr. Kelley as he was found to be inadmissible under subparagraphs 27(1)(d)(i) and (ii) of the former Act, having been convicted of several criminal charges with potential sentences of more than five years, and for which he was sentenced to terms of imprisonment of nine and twelve months.
[4] Subsequent to his appeal, on December 20, 1996 the execution of this removal order was stayed for five years, dependent upon his compliance with a number of conditions, which were issued on January 8, 1997. This stay was officially extended for another five years on October 26, 2001, but always subject to the respondent’s compliance with conditions.
[5] Among the conditions of this continued stay of execution of the removal order, the respondent was required to report any criminal convictions, and to “keep the peace and be of good behaviour”.
[6] On March 29, 2005, the respondent was convicted of criminal harassment and mischief, for which he received a sentence of thirty days incarceration and three years probation, to be served concurrently. Both are hybrid offences, with criminal harassment carrying a potential term of imprisonment “not exceeding ten years” where it is prosecuted by way of indictment.
[7] The Minister of Public Safety and Emergency Preparedness consequently made an application to the IAD on August 2, 2005 to cancel the stay of execution of the removal order pursuant to subsections 36(1), 68(4) and section 197 of the Act.
[8] In its April 27, 2006 decision, the IAD found that section 197 of the Act was not triggered as the respondent did not fall under the purview of subsections 36(1) and 68(4) of the Act, as “the maximum term of imprisonment is less than ten years”. Neither did the respondent come under section 64 of the Act. Thus, the IAD rejected the application to cancel the respondent’s stay of deportation, and the IAD decided that it continued to maintain jurisdiction over the appeal, and sought to review the respondent’s stay in the future. The Minister challenges this decision through the present judicial review.
[9] The relevant provisions of the Act are to be found in Annex A to these reasons. I also note that this statutory scheme has been recently addressed by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Hyde, 2006 FCA 379, [2006] F.C.J. No. 1747 (QL).
[10] Dealing specifically with the statutory provisions of the Act that form the basis of the present matter, the Federal Court of Appeal has held that the correctness standard applied to the review of the Board’s decisions (Singh v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 70, 2005 FCA 417, at para. 25).
[11] I must therefore decide whether the IAD was correct in maintaining its jurisdiction over the respondent’s appeal.
[12] Having breached a condition of the subsisting stay of execution of removal order, the respondent triggered section 197 of the Act.
[13] Where either section 64 or subsection 68(4) of the Act applies to an individual, that person cannot continue an appeal to the IAD. This has been recently confirmed by the Federal Court of Appeal in Hyde, above, at paragraph 7:
(…) a permanent resident whose removal the IAD had stayed before IRPA came into effect, and who breaches a condition of the stay, cannot continue an appeal to the IAD if either the basis of the deportation order was a criminal conviction with a sentence of two years or more, or if the offence committed after the IAD had stayed the removal was punishable by a maximum of 10 years or a sentence of more than six months was imposed.
[14] The present matter only concerns subsection 68(4). This provision essentially has two requirements to cancel the stay of execution of a removal order and terminate the right of appeal by operation of the law:
a. the individual, a permanent resident or foreign national found inadmissible on grounds of serious criminality or criminality, benefited from a stay of a removal order;
b. the individual is found guilty of another offence referred to in subsection 36(1).
[15] The respondent was convicted under section 264 of the Criminal Code, and therefore was liable to imprisonment for a term not exceeding ten years.
[16] The applicant submits that as he could potentially be sentenced “up to and including ten years of imprisonment”, the respondent meets the requirements of subsection 36(1) of the Act.
[17] The respondent submits that having been convicted of a summary offence he was only liable to a maximum term of imprisonment of six months rather than ten years, and therefore the IAD was correct in holding as it did.
[18] I disagree with the respondent. Subsection 36(3) of the Act is clear that offences that may be prosecuted either summarily or by indictment are deemed to be indictable offences, even where prosecuted summarily.
[19] Thus, I find that the IAD committed a reviewable error by incorrectly finding that the “maximum term of imprisonment is less than 10 years” in relation to subsection 264(3) of the Criminal Code. Clearly, this offence qualifies as “serious criminality” by virtue of subsection 36(1) as it was punishable for a term “not exceeding ten years”, which necessarily includes the possibility of a ten-year sentence.
[20] In misinterpreting subsection 264(3) of the Criminal Code, along with subsections 36(1) and 36(3) of the Act, the IAD erred in its application of subsection 68(4) and section 197 of the Act. In the circumstances of this matter, the correct interpretation was that the respondent’s stay of execution of the removal order was cancelled by operation of law and the appeal was terminated.
[21] For these reasons, I allow the Minister's application for judicial review, setting aside the decision of the IAD dated April 27, 2006, and remitting the matter to the IAD to re-determine the Minister's application to dismiss Mr. Kelley’s appeal on the basis that it had no jurisdiction over it by virtue of section 197 of the Act, all without costs.
JUDGMENT
The Minister’s application for judicial review is allowed. The decision of the IAD dated April 27, 2006, is set aside and the matter is remitted to the IAD to re-determine the Minister’s application to dismiss Mr. Kelley’s appeal on the basis that it had no jurisdiction over it by virtue of section 197 of the Act. All without costs.
Annex A
The relevant provisions of the Act are:
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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.
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.
68(4) 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.
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;
[…]
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
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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.
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.
68(4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l’étranger est reconnu coupable d’une autre infraction mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
[…]
(3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) :
a) l’infraction punissable par mise en accusation ou par procédure sommaire est assimilée à l’infraction punissable par mise en accusation, indépendamment du mode de poursuite effectivement retenu; |
The relevant regulation from the Immigration and Refugee Protection Regulations (IRPR) is:
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320. (5) A person who on the coming into force of this section had been determined to be inadmissible on the basis of paragraph 27(1)(d) of the former Act is
(a) inadmissible under the Immigration and Refugee Protection Act on grounds of serious criminality if the person was convicted of an offence and a term of imprisonment of more than six months has been imposed or a term of imprisonment of 10 years or more could have been imposed; or
(b) inadmissible under the Immigration and Refugee Protection Act on grounds of criminality if the offence was punishable by a maximum term of imprisonment of five years or more but less than 10 years.
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320. (5) La personne qui, à l’entrée en vigueur du présent article, avait été jugée être visée à l’alinéa 27(1)d) de l’ancienne loi :
a) est interdite de territoire pour grande criminalité en vertu de la Loi sur l’immigration et la protection des réfugiés si elle a été déclarée coupable d’une infraction pour laquelle une peine d’emprisonnement de plus de six mois a été infligée ou une peine d’emprisonnement de dix ans ou plus aurait pu être infligée;
b) est interdite de territoire pour criminalité en vertu de la Loi sur l’immigration et la protection des réfugiés si elle a été déclarée coupable d’une infraction punissable d’un emprisonnement maximal égal ou supérieur à cinq ans mais de moins de dix ans. |
The relevant provisions of the Criminal Code, R.S., 1985, c. C-46 ) are:
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264. (3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
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264. (3) Quiconque commet une infraction au présent article est coupable :
a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans; b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2900-06
STYLE OF CAUSE: The Minister of Citizenship and Immigration
and
Brian Phillip Kelley
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 23, 2007
REASONS FOR JUDGMENT AND JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
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Daniel Latulippe
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Jacques Del Vecchio
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
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Jacques Del Vecchio Montréal, Quebec |