Judgments

[1993] 3 F.C 505

A-333-93

The Canadian National Parole Board, Keith Morgan and Michel Frappier (Appellants) (Respondents)

and

Fred Gibson and The Attorney General of Canada (Appellants) (Mis en cause)

v.

Steve Hutchins (Respondent) (Applicant)

Indexed as: Hutchins v. Canada (National Parole Board) (C.A.)

Court of Appeal, Mahoney, MacGuigan and Létourneau JJ.A.—Ottawa, July 5 and 7, 1993.

Parole — Appeal from trial judgment requiring parole hearing — American extradited to, convicted, sentenced in Canada — Parole Regulations, s. 11.1(1)(e) (entitling him to parole by exception for deportation hearing) repealed November 1, 1992 — Deportation order not issued until November 18, due to administrative delays — S. 11.1(1)(e) hearing denied for failure to meet statutory condition precedent of being subject of deportation order — Trial Judge holding respondent meeting two criteria for “accruing” right to review — F.C.A. holding no existing right to parole review until statutory condition precedent met — Right not accruing when existence conditional on event yet to happen — Deportation order not inevitable.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appeal from trial judgment requiring appellants to grant parole hearing — Respondent, American, extradited to Canada where convicted, sentenced — Parole Regulations, s. 11.1(1)(e) providing for parole by exception for deportation hearing, repealed before deportation order issued due to administrative delay — Parole hearing denied as condition precedent (deportation order) of s. 11.1(1)(e) not met — Appeal allowed — Respondent meeting neither of two criteria for accruing right to hearing — Issuance of deportation order not inevitable — Although respondent admitting membership in inadmissible class, adjudicator still required to hold hearing, render formal judgment.

This was an appeal from the trial judgment ordering the appellants to comply with the mandatory statutory requirements of the Parole Act and paragraph 11.1(1)(e) of the Parole Regulations and to grant the respondent a hearing for parole by exception for the purposes of deportation. The respondent, an American, had been extradited to Canada to stand trial on narcotics charges. He was convicted and sentenced to 8 1/2 years. On October 20, 1992 the Minister had cancelled the respondent’s permit to enter Canada, ordered him to leave the country and made him the subject of a report which had the effect of immediately triggering an adjudication hearing which, for purely administrative reasons, could not be held until November 18. By affidavit the respondent admitted that he was a member of an inadmissible class and consented to the issuance of a deportation order. A deportation order issued on November 18. Paragraph 11.1(1)(e) (which exempted an inmate who is the subject of a deportation order from the minimum time served requirements for parole eligibility) was repealed November 1. The respondent’s request for a parole hearing was denied because he did not meet the paragraph 11.1(1)(e) requirement of being subject to a deportation order until after its repeal. The Trial Judge held that for the respondent to succeed in his claim (1) there must have been a right at issue, and (2) that such right must have had a sufficiently advanced “accruing” status prior to or at the time of the repeal. He found that both criteria had been met and the respondent had an “accruing” right to parole review under paragraph 11.1(1)(e) when that paragraph was repealed.

Held (MacGuigan J.A. dissenting), the appeal should be allowed.

Per Létourneau J.A. (Mahoney J.A. concurring): The respondent did not have an accruing right to a parole hearing. His right under paragraph 11.1(1)(e) to a parole hearing for purposes of deportation was subject to a statutory condition precedent i.e. the issuance of a deportation order. As the deportation order was issued after the repeal of paragraph 11.1(1)(e), the respondent did not meet the first criterion as he simply had no right. Nor did he meet the second criterion. It is not the same thing to take procedural steps to acquire or realize an existing right and to take such steps to merely realize a condition precedent to the existence of that right. A right cannot be accruing when its very existence is conditional on some other event which has not yet materialized.

The issuance of a deportation order was not inevitable. There is no right to the benefit conferred by the repealed provision until the condition is actually met. Also, the Adjudicator who was required to hold a deportation hearing still had to determine whether the respondent was a member of an inadmissible class under Immigration Act, paragraph 32(5)(a), regardless of whether the respondent was willing to admit that he was a member of an inadmissible class. He had to hold a hearing and render a formal decision.

The legislative provision did not exist when the statutory precedent was fulfilled, and up to the time paragraph 11.1(1)(e) was repealed the Parole Board was not obliged to grant a hearing. Therefore, there was no corresponding right in the respondent to such a hearing. That the respondent applied for a parole hearing before the repeal of the provision, and worked hard to realize the condition precedent to his right did not change a non-existing right into an acquired or accruing right. The Trial Judge confused the procedural steps required to acquire an existing right with those required to realize a condition precedent to the existence of such right.

Per MacGuigan J.A. (dissenting): The approach adopted by the majority was too formalistic. The immediate inevitability of a deportation order made it tantamount to an actual order, and was a sufficient fulfilment of the condition required by paragraph 11.1(1)(e) for a parole hearing. There was only one possible result of the parole hearing. The circumstances provided the respondent with an accruing right to have his case considered by the Parole Board.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 213.

Crown Lands Act, R.S.N. 1970, c. 71, s. 6(3).

Immigration Act, R.S.C., 1985, c. I-2, ss. 27, 32(5)(a) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; (4th Supp.), c. 28, s. 11).

Interpretation Act, R.S.C., 1985, c. I-21, s. 43(c).

Parole Act, R.S.C., 1985, c. P-2.

Parole Regulations, SOR/78-428, s. 11.1(1)(e) (as enacted by SOR/79-88, s. 3; 86-817, s. 3; 91-563, s. 7; rep. by SOR/92-620, s. 1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Scott v. College of Physicians and Surgeons (Saskatchewan), [1993] 1 W.W.R. 533 (Sask. C.A.); Re Chafe and Power (1980), 117 D.L.R. (3d) 117 (Nfld. S.C.T.D.); Director of Public Works v. Ho Po Sang, [1961] A.C. 901 (P.C.).

CONSIDERED:

Re Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario (1981), 32 O.R. (2d) 240; 121 D.L.R. (3d) 403; [1981] CTC 120 (C.A.); Merck& Co. Inc. v. S & U Chemicals Ltd., Attorney-General of Canada, Intervenant (1971), 65 C.P.R. 1 (Ex. Ct.).

REFERRED TO:

Re Strata Plan VR 29 (Owners) and Registrar Vancouver Land Registration et al. (1978), 91 D.L.R. (3d) 528; [1978] 6 W.W.R. 557 (B.C.S.C.).

APPEAL from trial judgment, [1993] 3 F.C. 487, ordering the appellants to comply with the statutory requirements of the Parole Act and Regulations and to grant the respondent a hearing for parole by exception for the purposes of deportation. Appeal allowed.

COUNSEL:

David Lucas for appellants.

David H. Linetsky and Milton Hartman for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellants.

Linetsky, Hartman, Montréal, for respondent.

The following are the reasons for judgment rendered in English by

MacGuigan J.A. (dissenting): I cannot agree. In my view, the approach adopted by my brothers takes the law in a more formalistic direction than I would wish to see it move.

On the facts, as of October 20, 1992, the Minister had cancelled the respondent’s permit to enter Canada, ordered him to leave the country, and made him the subject of a report which had the effect of immediately triggering an adjudication hearing, which unfortunately for purely administrative reasons could not be held before November 18, 1992. By his affidavit of the same day, the respondent declared that he was not a Convention refugee, withdrew and abandoned any such claim, and consented to the issuance of a deportation order against him.[1] In the circumstances, therefore, as the reasons for decision of the Adjudicator on November 18 reveal, he had no option not to make an order of deportation.[2] On the facts, that order was inevitable. The respondent’s death would, of course, have vitiated such a result, but only by putting an end to the problem, along with the respondent himself.

To my mind, the immediate inevitability of an order of deportation makes it tantamount to an actual order, and is a sufficient fulfilment of the condition required by paragraph 11.1(1)(e) of the Parole Regulations [SOR/78-428 (as enacted by SOR/79-88, s. 3; as am. by SOR/86-817, s. 3; SOR/91-563, s. 7] (prior to repeal [SOR/92-620, s. 1]) for a hearing before the Parole Board. Such a result goes only a step beyond that already taken by the Ontario Court of Appeal in Re Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario (1981), 32 O.R. (2d) 240, at page 250, where Thorson J.A. said that “[a] right is no less a right recognized by the law solely because all of the steps necessary to be taken before it can be acted upon may not yet have been taken.”

We are not dealing here with the mere natural affluxion of time. There is an immediacy, as well as an inevitability, in the circumstances, the deportation hearing having been set for November 18, with only one result possible.

As Thurlow J. (as he then was ) pointed out in Merck & Co. Inc. v. S& U Chemicals Ltd., Attorney-General of Canada, Intervenant (1971), 65 C.P.R. 1 (Ex. Ct.), at page 12, the real difficulty in such a case is to determine whether there is “anything that answers to the description of the words ‘right’ or ‘privilege’ ” in the Interpretation Act. In my opinion the circumstances in the case at bar provide the respondent with such an accruing right. In this I concur entirely with the full and cogent reasons for decision of the Trial Judge [[1993] 3 F.C. 487].

Of course, the right which I find the respondent to have is merely to have his case taken under consideration by the Parole Board, which in the exercise of its discretion might well refuse it, a matter on which I express no viewpoint whatsoever.

In my opinion the appeal should therefore be dismissed. No request was made for costs.

* * *

The following are the reasons for judgment rendered in English by

Létourneau J.A.:

Facts and procedure

This is an appeal from a decision of a Judge of the Trial Division granting the respondent a mandamus with certiorari in aid and ordering the appellants to comply with the mandatory statutory requirements of the Parole Act[3] and paragraph 11.1(1)(e) of the Regulations[4] and to grant the respondent a hearing for parole by exception for the purposes of deportation. The learned Trial Judge found that the respondent had an “accruing” right to parole review under paragraph 11.1(1)(e) of the Parole Regulations at the time that paragraph was repealed on November 1, 1992.[5] The Parole Act was repealed by s. 213 of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

The respondent, who is an American, sought with seven other Americans to import in Canada a large quantity of hashish. They were extradited to Canada. The respondent was convicted on October 13, 1992 of conspiracy to traffic in a narcotic and sentenced to eight and a half years’ imprisonment.

Following the respondent’s conviction, the deportation process was activated. On October 20, 1992, a report was prepared under subsection 27(2) of the Immigration Act [R.S.C., 1985, c. I-2] setting out the fact that the respondent was part of an inadmissible category: the respondent is not a Canadian citizen or permanent resident and would not be granted entry if he applied for it. The report was immediately reviewed by a designate of the Deputy Minister who directed pursuant to subsection 27(3) of the Immigration Act that an inquiry be held. The earliest available date for a hearing was November 18, 1992. The inquiry was on consent set to that date and, at the end of it, a deportation order was issued.

On October 20, 1992, the respondent was informed by his counsel that the Parole Act and its Regulations were to be repealed on November 1, 1992 and that, as a result, he would lose his right to parole by exception for the purposes of deportation. The repealed provision, to wit paragraph 11.1(1)(e) of the Regulations, read:

11.1 (1) Subject to subsection (2), sections 5 and 9 do not apply to an inmate

…

(e) who is the subject of a deportation order under the Immigration Act, an order to be surrendered under the Extradition Act or an order for return under the Fugitive Offenders Act, where the order requires that the inmate be detained until deported, surrendered or returned, as the case may be.

From that moment, the respondent did whatever he could, but to no avail, to be made the subject of a deportation order before paragraph 11.1(1)(e) was repealed on November 1, 1992. I shall add, in passing, that there is no evidence that the authorities somewhat delayed the process. On the contrary, the respondent was convicted on October 13 and the full process leading to a deportation order was completed by November 18.

On December 22, 1992, the respondent was informed by Parole Board officials that his request for a parole hearing could not be granted because he did not meet the requirements of paragraph 11.1(1)(e) until November 18, 1992. Hence, the proceedings seeking a mandamus to compel the grant of a parole hearing.

The decision under appeal

Before the Trial Judge and before us, the respondent contended on the basis of paragraph 43(c) of the Interpretation Act[6] that he had an “accruing” right to a parole review under paragraph 11.1(1)(e) of the repealed Regulations given the inevitability of a deportation order being rendered:

43. Where an enactment is repealed in whole or in part, the repeal does not

…

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed.

The learned Trial Judge reviewed the case law relating to “accrued” and “accruing” rights based on a repealed legislative provision. For the respondent to succeed in his claim, he concluded that there must have been a right at issue[7] and that such right must have had a sufficiently advanced “accruing” status prior to or at the time of the repeal.[8] He also added that some step must have been taken or some event must have occurred toward the realization of the right before the repeal of the enactment.[9]

Applying these principles to the facts of this case, the learned Trial Judge concluded as follows [at page 503]:

I have concluded that the present applicant has also satisfied both criteria and is thus entitled to the relief sought. He has established a right particular to himself. He has availed himself in fact of the possibility presented by the exception in paragraph 11.1(1)(e) and thereby placed himself in the requisite distinctive legal position. He has also met the second criterion of acting upon that right sufficiently to warrant its protection, having gone through all the available procedural steps in order to obtain the deportation order that would perfect his right to parole review, and having in fact applied for parole review.

Whether the respondent had an “accruing” right to a parole hearing

With respect, I disagree. The respondent’s right under paragraph 11.1(1)(e) was subject to a statutory condition, to wit the issuance of a deportation order. It was a statutory condition precedent to the existence of his right. The respondent had no right under that paragraph until the condition precedent to its existence had been satisfied. He had no right to a parole hearing for purposes of deportation unless and until a deportation order was issued against him. As such order was only issued after the repeal of paragraph 11.1(1)(e), the respondent did not meet the first criterion as he simply had no right.

Nor can it be said that he had met the second criterion. It is one thing to take procedural steps to acquire or realize an existing right. It is another to take such steps to merely realize a condition precedent to the existence of the said right. One cannot be accruing a non-existing right. To put it another way, a right cannot be accruing when its very existence is conditional on some other event which has not yet materialized. For example, if upon application a legislative provision confers a benefit to a person who is 40 years of age and if that provision is repealed, can it be seriously contended that a person who is 20 or 39 has an accruing right to that benefit because he applied for it before the provision was repealed?

The respondent contends that his deportation was inevitable and therefore that the condition precedent would have necessarily been met. But, barring death which would also make a deportation order a useless and impossible condition to meet, so would have been, for example, an objective requirement like age. Yet in both cases there is no right to the benefit conferred by the repealed provision until the condition is actually met.

In addition, the Adjudicator who was required to hold a deportation hearing still had to determine whether or not the respondent was a member of an inadmissible class under paragraph 32(5)(a) [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; idem (4th Supp.), c. 28, s. 11] of the Immigration Act. The fact that that decision was an easy one to make because of the respondent’s willingness to admit that he was a member of an inadmissible class and the fact that, in that sense, the deportation order was inevitable do not relieve the Adjudicator of the duty to follow the procedure enacted by Parliament. He had to hold a hearing and render a formal decision at which time the statutory condition for a parole hearing would be met.

There is consensus among the authorities on the need to satisfy statutory conditions precedent to the existence of a right before claiming it. After reviewing a number of cases dealing with the notion of “accruing rights”, Cameron J.A. wrote in Scott v. College of Physicians and Surgeons:

In each of these cases “rights”, as such, had become specific to the person claiming them, and the events or conditions specified in the repealed statute had occurred or been met before repeal. And so in each, the person asserting the right was held to have had an “acquired” or “accrued right” as of the day of repeal. [Emphasis added.][10]

The case of Re Chafe and Power[11] bears some analogy with the present instance. In that case, the applicant could obtain a grant if the Minister was satisfied that the conditions specified in the lease had been complied with within the required time. By the time the Minister had become satisfied that the terms of the lease had been complied with, his obligation to issue the applicant a grant for agriculture under subsection 6(3) of the Crown Lands Act [R.S.N. 1970, c. 71] had been removed. In dismissing the applicant’s claim that he had an “accruing” right, Goodridge J. wrote:

Nevertheless, I cannot find that up to the time that the legislation was repealed any obligation existed, and in the absence of an obligation, I cannot find that any right existed.

…

It cannot be said that an interest in land is accruing merely because the occupier is doing certain work thereon that when completed will entitle him to such an interest. Contractual rights may arise upon completion of the work but statutory rights only accrue if the provision for the same exists when the conditions precedent have been fulfilled.

Quite apart from that, it is not the clearing and cultivation that is the condition precedent here, but the satisfying of the Minister as to compliance with the terms of the lease.

…

I do not think it can be argued that a right may partly exist” that “accruing” refers to the performance of conditions precedent in sequence. [Underlining added.][12]

In the case at bar, the legislative provision did not exist at the time the statutory condition precedent was fulfilled and, up to the time the Parole Act and Regulations were repealed, no obligation existed on the Parole Board to grant a hearing. There being no obligation on the Parole Board, there was no corresponding right in the respondent to such a hearing. The fact that the respondent applied for a parole hearing before the repeal of the provision and that he worked hard, but in vain, to realize the condition precedent to his right cannot and does not change a non-existing right into an acquired or accruing right. As the Privy Council said in Director of Public Works v. Ho Po Sang,[13] a case dealing with accrued rights:

It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.[14]

It would have been different if the respondent’s right had existed because the condition precedent had been satisfied and if procedural steps had been taken to realize or acquire that right prior to or at the time the regulatory provision was repealed. In my view, the learned Trial Judge confused the procedural steps required and taken to acquire or realize an existing right with the procedural steps required and taken to realize a condition precedent to the existence of such right. As Goodridge J. said in Re Chafe and Power,[15] “accruing” right under paragraph 43(c) of the Interpretation Act does not refer to the performance of conditions precedent.

There is no doubt the respondent was liable to a deportation hearing under the Immigration Act and that he took the necessary steps to be made the subject of a deportation order. That, however, does not confer him an “accruing” right to a parole hearing under the Parole Act when a deportation order under the Immigration Act is a statutory condition precedent to the existence of that right under the Parole Act and such condition had not been met at the time the provision of the Parole Act and Regulations was repealed.

For these reasons, I would allow the appeal and set aside the judgment granting a mandamus with certiorari in aid against the appellants. There should be no order as to costs as the appellants have not sought them.

Mahoney J.A.: I agree.

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