IMM-4060-02
2003 FCT 634
Olga Medovarski (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Medovarski v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Snider J.--Toronto, April 29; Ottawa, May 20, 2003.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Judicial review of IAD decision discontinuing deportation appeal for want of jurisdiction -- Citizen of Yugoslavia, permanent resident of Canada -- Sentenced to two years upon conviction of causing death by criminal negligence in operation of motor vehicle -- Deportation ordered -- Appealed to IAD -- MCI sending IAD notice of discontinuance under Immigration and Refugee Protection Act (IRPA), s. 196 -- IAD discontinuing applicant's appeal -- Issue one of statutory interpretation -- Relevant statutory provisions set forth, explained -- IRPA came into force June 28, 2002, containing transitional provisions -- S. 192 provides for continuation of appeals -- S. 196 providing exception where stay not granted under former Act, appeal impossible due to IRPA, s. 64 -- Under s. 64, no appeal to IAD if inadmissible for serious criminality -- Whether "stay" in s. 196 including stay arising automatically under s. 49(1)(b) of former Act -- Ordinary meaning of s. 196 favouring applicant's position -- MCI arguing means only stay conferred under s. 73 of former Act -- Former Act inconsistent as to how stays arose -- French version of s. 196 considered -- Works by Sullivan and Driedger, Côté considered -- General context of legislation -- Purposive approach to statutory interpretation -- Every enactment deemed remedial -- Objective of IRPA: protect Canadians' safety by denying criminals access to Canadian territory -- "Serious criminality" defined in IRPA, s. 36(1) -- Three factors requiring consideration: (1) provision is transitional; (2) parties' behaviour before IRPA in force; (3) applicant having "vested" rights -- Those caught in legislative change should be treated fairly -- Where appeal right abrogated, interpretation should minimize negative impact -- Minister's position herein inconsistent with behaviour before IRPA in force, lack of concern on part of immigration bar to have appeals set down -- Even if applicant not having "vested" right, fairness requiring she have "day in Court" -- Though interpretation in applicant's favour meaning s. 196 will apply only in few cases, provision not entirely devoid of meaning -- All elements of statutory construction must be balanced -- Unnecessary to consider whether Charter s. 7 engaged -- IAD erred, application allowed, question certified.
Construction of Statutes -- Immigration Law -- Immigration Act replaced by Immigration and Refugee Protection Act (IRPA) -- Whether right to appeal deportation order extinguished in case of permanent resident convicted of serious criminal offence -- Judicial review application turning on statutory construction question -- Whether "stay" in IRPA, s. 196 including automatic stay under old Act -- Transitional provisions -- Plain, ordinary meaning of s. 196 -- Minister arguing "grant" meaning only stays conferred, not including automatic stays -- French version of s. 196 considered -- Works by Sullivan and Driedger, Côté considered -- General context of legislation, Interpretation Act provision that every enactment deemed remedial, referred to -- Purpose of s. 196 to prevent criminals from appealing deportation -- Other considerations: provision is transitional; parties' conduct; applicant's "vested" rights -- Those caught in legislative transition to be treated fairly -- Where appeal right abrogated, transitional provisions interpreted to minimize negative impact -- If Parliament intending to remove right of appeal, had to use clearest of terms -- Even if applicant's rights not "vested", fairness requiring she have "day in Court" -- If statute capable of two readings, one according with natural justice to be chosen -- Even though interpretation of s.196 in applicant's favour meaning section applicable in few cases, other statutory construction principles to be balanced.
This was an application for the judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board discontinuing applicant's appeal against a deportation order for want of jurisdiction.
The applicant, a citizen of Yugoslavia, had been granted permanent residence upon coming to Canada in 1997. But, in 2001, she was sentenced to two years' imprisonment for causing death by criminal negligence. She had been operating a motor vehicle when intoxicated and was involved in a fatal car crash. Her deportation was ordered but applicant appealed to the IAD. When the Immigration and Refugee Protection Act (IRPA) came into force, counsel for the Minister sent the IAD Registrar a notice requesting that her appeal be discontinued under IRPA, section 196. Section 196 provides that an appeal made to the IAD before the coming into force of section 196 shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64. The IAD in turn notified applicant that her appeal would be discontinued.
Two issues were identified: (1) whether section 196 of the IRPA extinguished applicant's appeal rights under section 192; and (2) whether the facts of this case engaged Charter, section 7 and, if they did, whether fundamental justice principles had been breached?
The first issue presented a problem of statutory interpretation: did the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act due to the operation of paragraph 49(1)(b)? Applicant's deportation was ordered under subsection 32(2) of the former Act but, under section 70 of that statute, she was entitled to appeal the removal order. When she commenced her appeal, execution of the removal order was stayed under paragraph 49(1)(b). The IRPA, which came into force on June 28, 2002, contained transitional provisions which included section 192. It made provision for the continuance of appeals filed before the new legislation came into force. But, an exception to that was provided by section 196 in the case of those who, due to a criminal conviction, are disentitled to appeal by IRPA, section 64. The applicant conceded that she fell within section 64.
Held, the application should be allowed.
The plain and ordinary meaning of section 196 accords with the interpretation urged by applicant: that the automatic stay of removal pending appeal under paragraph 49(1)(b) of the former Act renders IRPA, section 196 inapplicable. The Minister's argument was that "grant" in section 196 should be read as applying only to stays in some way conferred on the recipient, in his case by section 73 of the former Act, and as not including stays arising by operation of law under paragraph 49(1)(b). The Minister pointed to a dictionary definition of "grant" as an active verb: "to bestow or confer". That argument could not prevail, given the inconsistency within the former Act as to how stays arose. The better view was to look at the effect of the words rather than at the accompanying verb. That view of "stay" was consistent also with the French version of section 196, which does not suggest any bestowal or conferral. In Sullivan and Driedger on the Construction of Statutes it is said that where the two versions of a statute do not say exactly the same thing, the shared common meaning is to be adopted. The Minister, on the other hand, relied upon the work on legislative interpretation by Côté, whose view is that, if the two versions seem contradictory, "reconciliation must be attempted", in one of three ways including, if one version has a broader meaning than the other, the shared meaning would be the narrower. The problem with this was that the Court was unable to accept the Minister's starting point: that use of the active verb "grant" in the English version imparts a narrower meaning.
Still, the general context of the legislation had to be kept in mind as well as Interpretation Act, section 12 which provides 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". An important objective of the IRPA is to maintain the security of Canadian society by denying access to Canada to those who are criminals or pose security risks. Under subsection 36(1), "serious criminality" is a ground of inadmissibility. The Minister argued that the purpose of section 196 is to ensure that criminals who were appealing deportation under the old legislation are treated the same as those who are serious criminals under the IRPA. But, while it is entirely clear that the IRPA seeks to deny criminals access to Canadian territory, there were three important considerations that could not be ignored: (1) the provision is transitional; (2) the parties' behaviour, until the IRPA came into force, was inconsistent with the Minister's interpretation; and (3) applicant had "vested" rights.
Those caught up in a legislative transition constitute a unique group to which the general objectives of both the old and new laws will apply. Parliament inserts transitional provisions in new legislation in order that those caught by legislative change will be treated as fairly as possible. If a previously held right is affected, upon the transitional provisions should be interpreted such that those affected are treated fairly. Where, as here, a right of appeal is being abrogated, the transitional provisions are to be interpreted such as to minimize the negative impact on the individual affected. The Minister's interpretation goes against the objective of fairness. If the intent of Parliament was to remove the right of appeal to the IAD, it would have had to do so in the clearest of terms.
Had both sides understood that section 196 of the IRPA was to be interpreted as the Minister now proposes, surely the immigration bar would have pressed for an early setting down for hearing of outstanding appeals and the Minister would have made an effort to have such appeals heard before the new legislation came into force.
While it may be correct to say that applicant has not a "vested" right, having been led by the Minister's conduct to believe that she was to have her "day in Court", fairness required that the process go forward. If a statute is capable of being read in two ways, one in accordance with natural justice principles and the other not, a court should always choose the former.
The Minister submitted that if section 196 is interpreted in this applicant's favour, that section would in no case be applicable. That would be contrary to the statutory interpretation principle that a provision must not be interpreted such as to render it "mere surplusage" or redundant. It is true that under an interpretation in applicant's favour, few cases would meet the section 196 requirements for discontinuation of an appeal from a removal order. The provision would not be entirely devoid of meaning but, even if rendered essentially "surplusage", it was necessary to weigh in the balance all of the elements of statutory interpretation. That balancing exercise militated strongly in favour of an interpretation that would allow applicant's appeal to be heard by the IAD.
Given this Court's decision that the IAD erred in its conclusion that applicant's appeal rights had been extinguished by section 196, there was no necessity for addressing the Charter issue.
The following question should be certified as one of general importance: "Does the word `stay' in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C., 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)"?
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 18(1).
| Immigration Act, R.S.C., 1985, c. I-2, ss. 23(1.1) (as enacted by S.C. 1992, c. 49, s. 13), 32(2) (as am. idem, s. 21), 49(1) (as am. idem, s. 41), 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), 73 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1), 36(1), 64, 192, 196, 197. |
| Immigration and Refugee Protection Regulations, SOR/2002-227. |
| Income Tax Act, R.S.C. 1952, c. 148. |
| Interpretation Act, R.S.C., 1985, c. I-21, s. 12. |
cases judicially considered:
applied:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333; (1993); 93 DTC 5486 (F.C.T.D.); affd (1996), 96 DTC 6570; 200 N.R. 156 (F.C.A.).
distinguished:
Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; (1975), 66 D.L.R. (3d) 449; [1976] CTC 1; 75 DTC 5451; 7 N.R. 401.
referred to:
Manning Timber Products Ltd. v. Minister of National Revenue, [1952] 2 S.C.R. 481; [1952] 3 D.L.R. 848; [1952] CTC 206; (1952), 52 DTC 1148; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025; (1992), 131 A.R. 1; 5 Alta. L.R. (3d) 1; 76 C.C.C. (3d) 97; 16 C.R. (4th) 133; 140 N.R. 327; R. v. Gladue, [1999] 1 S.C.R. 688; (1999), 171 D.L.R. (4th) 385; 121 B.C.A.C. 161; 133 C.C.C. (3d) 385; [1999] 2 C.N.L.R. 252; 23 C.R. (5th) 197; R. v. Proulx, [2001] 1 S.C.R. 61; 182 D.L.R. (4th) 1; [2000] 4 W.W.R. 21; 142 Man. R. (2d) 161; 140 C.C.C. (3d) 449; 30 C.R. (5th) 1; 49 M.V.R. (3d) 163; 249 N.R. 201; Winters v. Legal Services Society, [1999] 3 S.C.R. 160; (1999), 177 D.L.R. (4th) 94; [1999] 9 W.W.R. 327; 128 B.C.A.C. 161; 73 B.C.L.R. (3d) 193; 137 C.C.C. (3d) 371; 27 C.R. (5th) 1; 66 C.R.R. (2d) 241; 244 N.R. 203; Morguard Properties Ltd. et al. v. City of Winnipeg, [1983] 2 S.C.R. 493; (1983), 3 D.L.R. (4th) 1; [1984] 2 W.W.R. 97; 25 Man. R. (2d) 302; 6 Admin. L.R. 206; 24 M.P.L.R. 219; 50 N.R. 264.
authors cited
Black's Law Dictionary, 6th ed. St. Paul, Minn.: West Pub. Co., 1990.
Côté, P.-A. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Toronto: Butterworths, 2002.
APPLICATION for the judicial review of an Immigration Appeal Division decision to discontinue, for want of jurisdiction an appeal against a deportation order. Application granted and question certified.
appearances:
Lorne Waldman for applicant.
Catherine C. Vasilaros for respondent.
solicitors of record:
Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1]Snider J.: This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD), dated August 12, 2002, wherein the IAD discontinued Olga Medovarski's (the applicant) appeal for lack of jurisdiction.
Background
[2]The applicant is a citizen of the Republic of Yugoslavia. She was granted permanent residence upon her arrival in Canada on January 19, 1997. On November 6, 1999, the applicant was operating a motor vehicle while intoxicated and was involved in a car accident, which resulted in the death of one person. The applicant was charged with criminal negligence causing death and was sentenced to two years' imprisonment on June 25, 2001.
[3]On November 21, 2001, the applicant was ordered deported because of her criminal conviction. The applicant appealed this deportation to the IAD. She received a notice to appear from the IAD, dated April 24, 2002, stating that her appeal would be heard on September 26, 2002. On June 28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and its accompanying regulations [Immigration and Refugee Protection Regulations, SOR/2002-227] came into force. On July 23, 2002, M. Heyes, counsel for the Minister of Citizenship and Immigration, sent a notice of discontinuance to the Registrar of the IAD, requesting that the applicant's appeal be discontinued under section 196 of the IRPA.
[4]By letter dated August 12, 2002, the IAD advised the applicant that her appeal would be discontinued pursuant to sections 196 and 64 of the IRPA.
Issues
[5]The issues can be stated as follows:
1. Did the IAD err in law in concluding that section 196 of the IRPA had the effect of extinguishing the applicant's appeal rights under section 192 of the IRPA? This is essentially an issue of statutory interpretation; specifically, whether the word "stay" in section 196 of the IRPA contemplates a stay that came into effect under the Immigration Act, R.S.C., 1985, c. I-2 (the former Act) as a result of the operation of paragraph 49(1)(b) [as am. by S.C. 1992, c. 49, s. 41]?
2. Is section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) engaged on the facts of this case and, if so, did the dismissal of the applicant's appeal result in a breach of the principles of fundamental justice?
Relevant Statutory Provisions
[6]Since the first issue of this review is fundamentally one of statutory interpretation, it is useful to set out the relevant provisions in the context of the facts of this case.
[7]The applicant was ordered deported pursuant to subsection 32(2) [as am. by S.C. 1992, c. 49, s. 21] of the former Act. That provision is as follows:
32. . . .
(2) Where an adjudicator decides that a person who is the subject of inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person.
[8]Under section 70 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] of the former Act, the applicant was entitled to an appeal of the removal order. By notice of appeal dated November 21, 2001, she exercised her right to that appeal. The applicable paragraph of that section is as follows:
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
. . .
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
[9]Once the applicant had commenced this appeal, the exclusion of her removal order was stayed pursuant to paragraph 49(b) of the former Act as follows:
49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed
[. . .]
(b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned;
[10]Had the applicant's appeal to the IAD proceeded, the IAD could have taken one of three courses of action under the former Act, one of which would have resulted in a stay of the removal order. Specifically, subsection 73(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the former Act provides that the IAD may dispose of an appeal by directing that the execution of the removal order be stayed:
73. (1) The Appeal Division may dispose of an appeal made pursuant to section 70
(a) by allowing it;
(b) by dismissing it;
(c) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal order, by directing that execution of the order be stayed; or
(d) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a conditional removal order, by directing that execution of the order on its becoming effective be stayed.
[11]On June 28, 2002, the IRPA came into effect. This Act contains a number of transitional provisions. One such provision is section 192, which provides for the continuance of appeals filed with the IAD prior to the coming into force of the IRPA:
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.
[12]Section 196 of the IRPA provides an exception to section 192 and is at issue in this case:
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
[13]The applicant concedes that she falls within section 64 of the IRPA and would not be entitled to an appeal under that section because of her criminal conviction:
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.
(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.
[14]The respondent argues that the word "stay" in section 196 of the IRPA is intended to apply only to stays granted pursuant to section 73 of the former Act and not to any other statutory stays, including those arising automatically by the operation of paragraph 49(1)(b) of the former Act. The applicant urges the Court to adopt a broader interpretation of section 196 of the IRPA.
Analysis
Issue 1: Did the IAD err in law in concluding that section 196 of the IRPA had the effect of extinguishing the applicant's appeal rights under section 192 of the IRPA?
| (i) Ordinary Meaning of Section 196 of the IRPA |
[15]First, I will review the ordinary meaning of section 196 of the IRPA. In my view, the plain meaning of section 196 of the IRPA accords with the position taken by the applicant that the automatic stay of removal pending appeal pursuant to paragraph 49(1)(b) of the former Act renders section 196 of the IRPA inapplicable.
[16]The respondent argues that the use of the active verb "grant" in section 196 ought to be read to apply only to stays that were, in some manner, conferred on the recipient; in this case, those conferred by section 73 of the former Act and not those stays that arose by operation of law under paragraph 49(1)(b) of the former Act. In support of this argument, the respondent referred to the definition in Black's Law Dictionary, 6th ed., of "grant" as an active verb, namely; "to bestow or confer". In contrast, the stay pursuant to paragraph 49(1)(b) is one that arises automatically. The respondent points out that, under the former Act, the word "grant" was always used in the context of some action; for example, subsection 23(1.1) [as enacted by S.C. 1992, c. 49, s. 13] of the former Act speaks of a "grant of landing".
[17]In my view, this argument is not sustainable. It is difficult to discern any consistency within the former Act with respect to how stays arise. In direct opposition to the use of the word "grant" in section 196 of the IRPA, I note that section 73 of the former Act provides that the IAD may dispose of an appeal by "directing that execution of the order be stayed". This is the very provision that the respondent argues is the only section that is the subject of section 196 of the IRPA. If his interpretation of the word "grant" is correct, one could argue that not even section 73 stays are caught in the operation of section 196 of the IRPA. The better view of "stay" is to look at the result or effect of the words, rather than the accompanying verb. Whether granted or directed or otherwise applied to the situation at hand, the result is a stay.
[18]This view of the word "stay" is also consistent with the French version of section 196. The words used in the French version of section 196 are "il ne fait pas l'objet d'un sursis"; this can be roughly translated as "is not the object of a stay". There is no bestowing or conferring of the stay. The English and French versions of a statute are equally authoritative and must be read together (Charter, subsection 18(1); Manning Timber Products Ltd. v. Minister of National Revenue, [1952] 2 S.C.R. 481). If the two versions do not say exactly the same thing, then the common meaning that is shared by both ought to be adopted, unless that common meaning is unacceptable for some reason (R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at page 80).
[19]The respondent referred me to P.-A. Côté, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, Ontario: Carswell, 2000) (Côté). According to Côté, at page 327, where two versions of the same enactment seem contradictory "reconciliation must be attempted" in one of three ways:
1. if the versions are manifestly irreconcilable, look to the legislative history of the provision;
2. if one version is ambiguous, while the other is plain and unequivocal, the latter is preferred; and
3. if one version has a broader meaning than the other, then the shared meaning is the more narrow of the two.
[20]The respondent urged me to apply the third test cited in Côté, supra. That is, if one version has a broader meaning than the other, the shared meaning should be the more narrow of the two. I do not agree with the starting point of the respondent that the use of the active verb "grant" in the English version results in a narrower meaning. As I discussed above, given the inconsistent use of the word "grant", the better approach to interpreting the English provision is to focus on the result. In both the English and French, the effect of the provision is a stay and the two versions are not "manifestly irreconcilable". In the alternative, the French is plain and unequivocal and, on the basis of the second test cited in Côté, supra, is to be preferred.
[21]In conclusion on this point, I am of the view that, on an ordinary reading of the words of section 196 of the IRPA, a stay in place because of the operation of paragraph 49(1)(b) of the former Act is a stay for the purposes of this section.
| (ii) General Context of the Legislation |
[22]As informed by the jurisprudence, I cannot leave the matter here. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (Rizzo Shoes), Iacobucci J., writing for a majority of the Supreme Court of Canada, outlined the following framework for statutory interpretation at paragraph 21:
Although much has been written about the interpretation of legislation . . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[23]The purposive approach to statutory interpretation adopted in Rizzo Shoes, supra, has been applied by the Supreme Court of Canada in many cases (see, e.g. Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025).
[24]The Supreme Court of Canada has also emphasized the importance of section 12 of the Interpretation Act, R.S.C., 1985, c. I-21 in interpreting federal legislation (R. v. Gladue, [1999] 1 S.C.R. 688). Section 12 of the Interpretation Act provides as follows:
12. 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.
[25]Thus, the words of section 196 of the IRPA must be "read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo Shoes, supra, at paragraph 21).
Overall Objectives
Les objectifs globaux
[26]The immigration objectives of the IRPA are set out in subsection 3(1) of the IRPA. The relevant paragraphs of subsection 3(1) are as follows:
3. (1) The objectives of this Act with respect to immigration are
. . .
(h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(i) 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; and [Emphasis added.]
[27]Subsection 36(1) of the IRPA addresses inadmissibility on the grounds of serious criminality:
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;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
[28]In the submission of the respondent, the purpose of section 196 of the IRPA is to ensure that individuals found to be serious criminals under the former Act and who were in the process of appealing their deportation are treated in the same manner as those found to be serious criminals under the IRPA. This purpose is consistent with the emphasis on the protection of the public and the removal of serious criminals from Canada in the IRPA. According to the respondent, in order to give effect to this purpose, section 196 of the IRPA needs to be interpreted in a manner that ensures it is applied to individuals on the basis of their serious criminality. As a result, the respondent submits that section 196 of the IRPA does not refer to the automatic stay of removal pending the appeal of a deportation order provided for in paragraph 49(1)(b) of the former Act. This interpretation gives meaning to both conditions set out in section 196 of the IRPA and properly places the emphasis on the serious criminality of the applicant. Serious criminals who had actually been granted a stay by the IAD under the former Act, as opposed to by the automatic operation of law, would be still entitled to have their appeal heard pursuant to section 192 of the IRPA. In addition, together with section 197, there is a symmetry and harmony to the IRPA.
[29]I do not disagree with the analysis of the respondent as to the intent of the legislative scheme as a whole; there is a clear intent to limit the rights of convicted criminals. Paragraph 3(1)(i) could not be clearer when it states that an objective of the IRPA is to deny "access to Canadian territory to persons who are criminals". However, what this analysis avoids is any discussion of three important factors that I view as significant in the determination of this issue:
1. the provision in question is part of the transitional provisions of the IRPA;
2. the parties' behaviour, prior to the coming into force to the coming into force of the IRPA, was not consistent with the respondent's interpretation; and
3. the applicant held special or "vested" rights.
Transitional Provisions
[30]For purposes of establishing the intent of the legislation in question, I believe that I should also examine the intent of sections 192 and 196 of the IRPA as transitional provisions.
[31]Parliament acknowledges that a change from one legislative framework to another will affect parties who have commenced some actions under the repealed legislation. This group of affected parties is usually easily defined and is a finite subset of the much larger group of parties impacted by the new legislation. While those caught in the transition are subject to the new statute as a whole, they form a unique group to whom the general objectives of both the new law and the old law will apply. Thus, almost every statute that is intended to replace an existing statute contains transitional provisions. Given this situation, I believe that it is reasonable to conclude that an objective of Parliament is to ensure that those who are caught by legislative change are treated as fairly as possible. This objective would apply in the context of interpreting the transitional provisions of a new statute. Accordingly, where a right previously held is being affected, the transitional provision should be interpreted in a manner that respects not only the overall intent of the IRPA, but also the more limited intent of treating individuals who were caught by changing legislation fairly.
[32]This approach to the interpretation of transitional provisions is consistent with that set out by Noël J. in Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333 (F.C.T.D.), affd (1996), 96 DTC 6570 (F.C.A.), at paragraphs 31 and 32:
Transitional provisions do not lend themselves to the scrutiny of an overly strict interpretation. It should be borne in mind that transitional provisions are secondary and incidental to the provisions of substantive law which they accompany. Unlike taxing provisions, they are not adopted as part of a coherent legislative plan in which the provisions must interrelate with one another in a logical scheme. They are ad hoc provisions the sole purpose of which is to ensure that the particular provision of substantive law which they accompany is introduced in an equitable manner.. . .
In my view, when a question of interpretation arises as to the scope of a transitional provision, it must be answered by reference to the provision of substantive law it accompanies and the specific situation which Parliament sought to alleviate by introducing it.
[33]Applied to the situation before me, where the right to an appeal is being removed, the context requires an interpretation that minimizes the negative impact on the applicant. As interpreted by the respondent, section 196 operates to strip a previously held right from many individuals. Arguably this is not in keeping with the general objectives of fairness and minimization of the impact on those who, through no fault of their own, are caught in the face of changing legislation.
[34]It should be pointed out that this does not, in any way, affect the operation of the non-transitional provisions or the objectives of the IRPA as a whole. Nor does it mean that Parliament could not have removed the right of appeal to the IAD; however, if Parliament wishes to remove that right, it must do so in the clearest of terms.
Behaviour of Parties
[35]Although the IRPA came into effect on June 28, 2002, it received Royal Assent on November 1, 2001. Both the applicant and the respondent were aware of its provisions for a significant period of time prior to its coming into force. However, notwithstanding their knowledge of the new provisions, neither the applicant nor the respondent conducted themselves in a manner consistent with the interpretation of section 196 of the IRPA put forth by the respondent. If the respondent's interpretation is correct, why was there not a hue and cry from the immigration bar and pleas to set down those appeals that were "in the works"? Why was there no apparent effort made by the respondent to hear outstanding appeals before June 28, 2002?
[36]The applicant made her application for an appeal to the IAD in November 2001. On April 24, 2002, barely two months before the coming into force of the IRPA, the applicant received a notice to appear setting down her appeal for September 26, 2002. The notice made no reference to the IRPA or the effects of the IRPA on the applicant's appeal. Assuming good faith, as I should, there is only one reasonable explanation of this notice; the respondent was interpreting section 196 of the IRPA as not applicable to the applicant.
Special or "Vested" Rights
[37]The applicant submits that by making application and having a hearing set down that she held "vested" rights. Such rights should not be revoked. The respondent relies on the case of Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, to argue that the applicant had no "vested" right to have the provisions of the former Act continue to apply.
[38]I note that Gustavson, supra, was a case involving the application of provisions of the Income Tax Act, R.S.C. 1952, c. 148. This case, on the other hand involves the rights of individuals. Further, the applicant had already exercised her right under the former Act and a hearing had been set down. While I might not characterize this as having established a "vested" right, I certainly would opine that, having exercised her right under the former Act and having been led to believe by the actions of the respondent that she would have her "day in Court", fairness would require that the process continue, unless taken away by clear and unmistakable terms.
[39]On the matter of fairness, I note the comments of Iacobucci, J. in the case of Chieu, supra, at paragraph 71:
When faced with the problem of a statute which can be read in two ways, one that accords with the principles of natural justice and one that does not, this Court has consistently adopted the interpretation that favours a fuller assurance that the requirements of natural justice will be met.
[40]Surely the same principle should operate in these particular circumstances to afford the applicant the continuation of her appeal.
| (iii) Remaining Applicability of Section 196 of the IRPA |
[41]Lastly, Parliament intended that its words have some meaning. Words of a statute are not to be ignored. Thus, a legislative provision should not be interpreted so as to render it "mere surplusage" (R. v. Proulx, [2001] 1 S.C.R. 61, at paragraph 28 ), meaningless, pointless or redundant (Winters v. Legal Services Society, [1999] 3 S.C.R. 160; Morguard Properties Ltd. et al. v. City of Winnipeg, [1983] 2 S.C.R. 493).
[42]Given that removal is stayed pending appeal of the deportation order in virtually all cases, the respondent argues that the effect of this interpretation is that section 196 of the IRPA may not be applicable in any cases. There is no question that the respondent's interpretation would result in a large number of cases for which an appeal would be denied, thus giving the provision applicability.
[43]The applicant, on the other hand, points out that, under the proposed interpretation, there would still be cases where section 196 of the IRPA would operate to remove any appeal to the IAD. In particular:
Included in the category of persons who would be affected by section 196 are persons who at the time of the hearing did not have outstanding appeals pending before the Board but who after proclamation of IRPA were granted an appeal. Thus, for example a person who was ordered deported and who had his appeal dismissed prior to the coming into effect of IRPA would not be affected by section 49(1)(b) and would not have had a stay in effect at the time of the proclamation of IRPA. If after IRPA's proclamation he had his appeal reinstated section 196 would come into play and he would not have a right to appeal. Thus section 196 would apply to persons who had had appeals under the former Act which were dismissed or discontinued and hence did not have stays in effect under the former Act at the time of proclamation of IRPA.
[44]As admitted by the applicant, this group to whom section 196 of the IRPA would apply is very small. Since almost all appellants, including those who would now be prohibited from making an appeal by section 64 of the IRPA, had an automatic stay of removal, rarely would a situation satisfy the requirements of section 196 of the IRPA for the discontinuation of an appeal from a removal order.
[45]Nevertheless, I am satisfied that the section, as interpreted by the applicant, is not completely devoid of meaning.
[46]Further, even if section 196, as a result of the applicant's interpretation becomes essentially "surplusage", I am not persuaded that the respondent's arguments should prevail. This situation demands a more careful analysis based on consideration and balancing of all elements of statutory interpretation. Balancing those elements militates strongly in favour of an interpretation that permits the applicant to have her appeal heard by the IAD. The unacceptable alternative would be to apply an interpretation to the provision that results in a wider applicability but that ignores the plain meaning of the words and that does not result in fair treatment of the applicant.
Conclusion
[47]In summary on this issue, I am of the view that the interpretation of section 196 put forward by the applicant gives a meaning to section 196 that results in "such fair, large and liberal construction and interpretation as best ensures the attainment of its objects" (Interpretation Act, section 12). Specifically, I am satisfied that his interpretation:
1. is supported by the ordinary meaning of the words, in both English and French;
2. is in accord with the general context of the legislation and, in particular, with the transitional provisions of the IRPA;
3. results in a more equitable treatment of the applicant; and
4. does not render the provision completely meaningless.
[48]Accordingly, I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into effect as a result of the operation of paragraph 49(1)(b) of the former Act. My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the applicant and others in her position; it only determines that Parliament did not do so for this applicant.
[49]As a result, the IAD erred in concluding that section 196 had the effect of extinguishing the applicant's appeal rights under section 192 of the IRPA.
Issue 2: Is section 7 of the Charter engaged on the facts of this case and, if so, has there been a violation of the applicant's rights under that provision?
[50]Given my conclusions with respect to the first issue, there is no need for me to address this issue.
Question for Certification
[51]The applicant proposed that I certify the following question as one of general importance that is determinative of this case:
Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C., 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?
[52]The respondent did not oppose the certification of this question as worded. I am mindful of the fact that this is a transitional provision that applies to a finite class of persons. At this time, it is difficult to ascertain how many individuals would fall into this category. However, I am satisfied that the population affected by this decision is significant enough in size to warrant classifying this question as one of general importance. Accordingly, I will certify the question.
ORDER
| THIS COURT ORDERS that: |
| 1. This application for judicial review is allowed. |
| 2. The following question is certified: |
| Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C., 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)? |