Date: 20050714
Docket: IMM-6850-04
Citation: 2005 FC 984
Ottawa, Ontario this 14th day of July, 2005
Present: THE HONOURABLE JUSTICE von FINCKENSTEIN
BETWEEN:
JOSE CARVALHO LEITE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Applicant is a citizen of Portugal and a permanent resident of Canada. He has a lengthy criminal record, including convictions arising from drug related offences. The Applicant has a serious problem with drug addiction. In March 1994 he was convicted of robbery which led to the issuance of a deportation order against him.
[2] In May 1999 the Applicant appealed the deportation order to the Immigration Appeal Division ("IAD"). The legality of the order was not challenged therefore the appeal was based on humanitarian and compassionate considerations pursuant to s. 70(1)(b) of the former Immigration Act.
[3] On May 31, 1999, having considered all of the circumstances of the Applicant's case, the IAD issued a stay of the deportation order. In its reasons, the IAD stated:
Given a consideration of all the circumstances, the panel is prepared to order a stay of the execution of the deportation order for a fixed period of four years on terms and conditions to allow the appellant an opportunity to demonstrate that his life can be changed for the better. If he fails to do so, the appellant will have to suffer the very serious consequences of his choice not to use the opportunity being given to him today.
[4] The IAD attached specific terms and conditions to the stay, including detailed reporting requirements and an oral review of the case on May 31, 2000 or an earlier date as the IAD considered necessary. The actual order however did not refer to a four year term.
[5] On May 11, 2000, the IAD held an oral review of the Applicant's stay order. The IAD noted that the Applicant had not been reporting as required, nor receiving the drug addiction therapy he acknowledged needing and had misled the previous panel concerning his continued use of cocaine. However, the IAD noted that the Applicant had positive signs of rehabilitation. Therefore, the IAD ordered that the "execution of the removal order be further stayed under the following amended terms and conditions" which included additional reporting requirements. An oral review was also to take place on October 11, 2000.
[6] On October 11, 2000 the second oral review was held. The IAD noted that her concerns had not been alleviated regarding the progress of the Applicant's rehabilitation. Further, there were criminal charges pending against the Applicant. However, based on the facts, the IAD indicated that the stay would be continued on the terms and conditions jointly recommended by counsel for the Minister of Citizenship and Immigration ("CIC") and counsel for the Applicant. The IAD warned the Applicant that:
You should be aware that if you re-offend and are convicted of a criminal offence during the remaining period of this stay, the Minister may apply to the Appeal Division to have the stay set aside, your appeal dismissed, and the deportation order executed.
The IAD then ordered that the execution of the removal order be further stayed under amended terms and conditions, which included reporting requirements. The case was also set to be reviewed by the IAD on October 11, 2003 or earlier as the IAD determined. The order was dated November 3, 2000.
[7] On August 11, 2003, the IAD sent a Notice of Review to the parties based on the November 3, 2000 amended order of the IAD. The case was to be reviewed in chambers on October 11, 2003. However if an oral review was deemed necessary, the Applicant would be given notice in advance.
[8] On September 26, 2003, the CIC officer sent a letter to the IAD indicating that there was information adverse to the interest of the Applicant - namely that he had a criminal conviction since the last review and had failed to report as required. The documents included with this letter concerning the criminal conviction indicated that the Applicant was convicted of an indictable offence (break and enter) in January 2003.
[9] On February 9, 2004 the IAD sent a Notice to Appear for an oral review of the case to be held June 15, 2004.
[10] On June 4, 2004 the CIC sent a Notice to the IAD and the Applicant alleging that by operation of law and by reason of the further criminal conviction of the Applicant dated January 29, 2004, the stay was cancelled.
[11] On June 15, 2004, the Applicant appeared before the IAD. At that time, the Applicant was provided with additional time to respond to the latest evidence of his criminal convictions. No further representations were made by the Applicant.
Decision of IAD
[12] Subsequently, the IAD issued the order of July 20, 2004. The IAD found:
-that the Applicant's stay had been granted under the former Immigration Act;
-the Applicant was convicted on January 29, 2004 of trafficking a controlled substance (cocaine), contrary to subsection 5(1) of the Controlled Drugs and Substances Act, an offence punishable by a maximum term of imprisonment for life;
-this conviction triggered the application of section 197 of the Immigration and Refugee Protection Act ("IRPA"); and
-as section 197 applied, the stay must be cancelled by operation of law pursuant to subsection 68(4) of IRPA.
Issue:
[13] Did the tribunal commit a reviewable error in finding that the Applicant had breached the conditions of his stay?
Standard of Review
[14] The case involves the jurisdiction of the IAD. A jurisdictional question is considered to be a legal question, and therefore less deference is accorded to the panel's decision (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). Furthermore, this case involves the interpretation of provisions of the former Immigration Act and IRPA. Accordingly, the standard of review is correctness.
Analysis
[15] The Applicant submits that the stay commenced no later than July 19, 1999, for a fixed period of four years. Accordingly, the four year period and the conditions had expired by July 19, 2003. The conviction was dated January 29, 2004, more than six months after the expiry of the four year period. The Respondent draws a distinction between the term of the stay (as allegedly fixed for four years on May 19, 1999) and the jurisdiction of the Immigration and Refugee Board (the "Board") to terminate the stay. In his view, the stay had ended at the time the conviction occurred, however the Board still had jurisdiction to review his case and end the stay, or amend it with new conditions. The Applicant should have a hearing where he could lead new evidence and the Board would determine what to do with his case on the merits. In short, he is trying to escape the automaticity of s. 68(4) of IRPA. The Applicant alleges that he was no longer subject to the conditions of the order at the time of his 2004 conviction and the IAD has committed a reviewable error.
[16] The three review orders are attached hereto as Annex A. An examination of the orders reveals the following:
-none of the orders mentions a four year period;
-while the Board stated at the May 31, 1999 hearing that it was making an order for a fixed period of four years, the actual order did not mention any four year period. It merely stipulated eight bi-yearly report dates, set an oral review for May 31, 2000 and set a final review on May 31, 2003;
-the oral review hearing of May 11, 200 issued an order that again stipulated seven bi-yearly report dates, set an oral review for October 11, 2000 and a final review on May 31, 2003; and
-the oral review hearing of October 11, 2000 issued an order that again stipulated six bi-yearly report dates and set a final review on October 11, 2003.
[17] The relevant statutory provisions of IRPA in issue are the following:
36. (1) Serious criminality - 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 and Act of Parliament
punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more that six months has been imposed;
[...]
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 or at least two years.
68. [..]
(4) Termination and Cancellation - 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.
192. Immigration Appeal Division - 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. Stays - 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. (Underlining added)
[18] It is undisputed that s. 192 of IRPA applies in this case. The issue is whether the Applicant is caught by the automatic provisions of s. 68(4) IRPA or whether he should have a hearing on the merits.
[19] In this case the Applicant was subject to a stay order. It is well established law that the stay does not automatically expire and the applicant gains an unconditional right to stay in Canada. The IAD is not functus until it has disposed of an appeal. As Richard J. (as he then was) said in Theobalds v. Canada (MCI) [1998] F.C.J. No. 117:
11 Counsel for the applicant submits that the Board had no jurisdiction to consider the Rule 33 application because the stay had expired and the applicant was a permanent resident entitled to enter and remain unconditionally in Canada. The Board was functus because the sole matter for it to decide, the disposition of the deportation order, had already been decided by the expiry of the period during which the terms and conditions attached to his stay had to be satisfied. Counsel relies on paragraph 24(1)(b) of the Act.
12 This argument is not supported by the applicable provisions of the Immigration Act.
13 Subsection 73(1) of the Act provides that the Board may dispose of an appeal made pursuant to section 70:
(a)by allowing it;
(b)by dismissing it; or,
(c)in the case of an appeal pursuant to paragraph 70(1)(b), respecting a removal order, by directing that the execution of the order be stayed.
14 Clearly, only the action of allowing or of dismissing an appeal is a final disposition of the appeal. The action of granting a stay is a temporary measure. This is made even clearer by the following provisions of section 74 of the Act.
15 Subsection 74(2) of the Act states that where the Board grants a stay of a removal order, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Board may determine and the Board shall review the case from time to time as it considers necessary or advisable.
16 Subsection 74(3) of the Act states that where the Board has stayed the execution of a removal order it may, at any time
(a)amend its terms or impose new terms; or
(b)cancel its direction staying the execution of the order and dismiss the appeal and direct that the order be executed, or allow the appeal.
17 It is for the Board to decide whether to allow or dismiss the appeal. The appellant, in such a case, cannot acquire an unconditional right to remain in Canada absent an order of the Board. (Underlining added)
[20] Here, none of the stay orders had a defined term. The IAD, like any other Tribunal, speaks via its orders, not its reasons. The reasons merely serve to explain how a decision was reached. Thus, it is wrong to say the stay of the appeal had expired (based on the four year reference in the reasons) and that s. 68(4) no longer applied. The stay of the appeal is in force until the IAD deals with it. One should not forget that any extension of the stay is to the Applicant's benefit. As long as the stay is in force, he will not be deported. By not fixing an exact four year term, but merely by providing for review on May 31, 2003, later extended to October 11, 2003, the IAD was providing a benefit to the Applicant. He breached the conditions of his stay and as a result of the Notice of September 26, 2003, the matter was scheduled for a full oral hearing on the merits.
[21] By reason of the Notice of June 4, 2005 (triggered by his conviction for break and entering), an oral review hearing was scheduled for June 15, 2004. Thus his stay had been effectively extended to that date. During this period, he was convicted of a second offence (cocaine trafficking) on January 29, 2004, about which CIC provided notice to the IAD on June 4, 2004.
[22] Given that no fixed term was set out in any order, the Applicant had to comply with the terms of the stay until it was ended. He did not do so. Before the hearing that could have ended his stay, he was convicted under an offence referred to in s. 36(1) of IRPA. Accordingly, his stay was cancelled by operation of law under s. 68(4) of IRPA.
[23] Acceding to the Applicant's submission would:
a) mean reading a fixed term into the stay order when none was stated;
b) run counter to the legislative intent of s. 68(4), namely that anyone convicted of another offence referred to in s. 36(1) has his stay cancelled by operation of law; and
c) draw a distinction between a conviction that occurs during the alleged term of the stay and a conviction that occurs after the alleged term of the stay and before the IAD schedules its final hearing to deal with the stay.
[24] I am not prepared to read a term into the order or draw a distinction between convictions that occurred while the IAD still has jurisdiction. The stay ordered by the Board was in effect until the hearing scheduled for June 15th. The Applicant was convicted of an offence referred to in subsection 36(1) of IRPA during that time and consequently, as the IAD correctly held, the provisions of s. 68(4) apply.
Certified Question
[25] Counsel for the Applicant asked the Court to state the following question:
"Do the terms and conditions imposed by the IAD expire at the time specified for the duration of the stay or do they only expire on the day of the final disposition by the IAD?"
Counsel for the Crown did not support the posing of this question.
[26] I fail to see the relevance of this question, as in this case the IAD did not set a duration for the stay in its order. Therefore, no time was specified. I see no point in allowing, the Applicant to find a means of advancing the same argument before the Court of Appeal that did not succeed in this Court. Accordingly, no question will be certified.
ORDER
THIS COURT ORDERS that this Application be dismissed.
"Konrad von Finckenstein"
Judge
Annex A
ORDER T98-06956
Although the Immigration Appeal Division finds that the removal order made on the 4th day of September, 1998, is in accordance with the law, the Immigration Appeal Division orders that the execution of the removal order be stayed.
And further orders that the appellant shall be allowed to remain in Canada under the following terms and conditions:
[1] Report in writing to the Regional Manager, Immigration Appeals, Citizenship and
Immigration, GTEC, Hearings and Appeals, P.O. Box 6479, Station "A", Toronto, Ontario, M5W 1X3, on October 31, 1991, and every 6 months there after on the following dates:
April 31, 2000 October 31, 2000
April 31, 2001 October 31, 2001
April 31, 2002 October 31, 2002
April 31, 2003
The Appellant shall report in writing. The reports are to contain details of the Appellant's:
[a] employment or efforts to obtain employment if unemployed;
[b] current living arrangements;
[c] marital status or common-law relationships;
[d] attendance at meeting of Alcoholics Anonymous, or any other drug or alcohol
rehabilitation program;
[e] participation in drug addiction counselling;
[f] other relevant changes of personal circumstances.
[2] Report in writing any change of address to the Regional Manager, Immigration Appeals,
Citizenship and Immigration, GTEC, Hearings and Appeals, P.O. Box 6479, Station "A", Toronto, Ontario, M5W 1X3, and the Registrar, Immigration and Refugee Board, Appeals Division, 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7, within 72 hours of making such a change.
[3] Report in writing any criminal convictions FORTHWITH to the Regional Manager,
Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O. Box 6479, Station "A", Toronto, Ontario, M5W 1X3.
[4] Make reasonable efforts to seek and maintain full-time employment and FORTHWITH
report any change in employment.
[5] Attend a drug rehabilitation program. NOTE: IF YOU WITHDRAW YOUR CONSENT
TO THE FOREGOING CONDITION, YOU MUST BRING AN APPLICATION TO THE IAD FORTHWITH TO HAVE THIS CONDITION REMOVED.
[6] Make reasonable efforts to maintain yourself in such a condition that:
(a) your drug addiction will not cause you to conduct yourself in a manner dangerous to yourself or anyone else; and
(b) it is not likely you will commit further offences.
[7] Not knowingly associate with individuals who have a criminal record or who are engaged
in criminal activity.
[8] Not own or possess offensive weapons or imitations thereof.
[9] Refrain from the illegal use or sale of drugs.
[10] Keep the peace and be of good behaviour.
[11] Enroll in and/or attend a drug rehabilitation program or addiction control program on or
before June 1, 2000. NOTE: IF YOU WITHDRAW YOUR CONSENT TO THE FOREGOING CONDITION, YOU MUST BRING AN APPLICATION TO THE IAD FORTHWITH TO HAVE THIS CONDITION REMOVED.
An oral review of the case will take place on or about the 31st day of May, 2003. Or at such earlier date as it considers necessary or advisable.
ORDER T98-06956
The Immigration Appeal Division orders that the execution of the removal order be further stayed under that following amended terms and conditions:
1. Report in writing to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O. Box 6479, Station "A", Toronto, Ontario M5W 1X3, on July 1, 2000 and every six (6) month(s) thereafter on the following dates:
October 31, 2000
April 31, 2001
October 31, 2001
April 31, 2002
October 31, 2002
April 31, 2002
2. When reporting in writing the appellant shall complete and submit a reporting form. Each reporting is to contain details of the appellant's:
- employment and written confirmation from employer or efforts to obtain employment if
unemployed;
- current living arrangements;
- marital status of common-law relationships;
- attendance at any educational institution and any change in that attendance;
- attendance at any drug or rehabilitation program; and
- other relevant changes of personal circumstances.
3. Report in writing any change of address to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O Box 6479, Station "A", Toronto, Ontario, M5W 1X3, and the Immigration and Refugee Board, Appeal Division, 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7, within 72 hours of making such a change.
4. Report in writing any criminal convictions FORTHWITH to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O Box 6479, Station "A", Toronto, Ontario, M5W 1X3.
5. Make reasonable efforts to seek and maintain full-time employment and FORTHWITH report any change in employment.
6. Attend a drug or rehabilitation program and provide written progress assessments from program provider with your reporting form. NOTE: IF YOU WITHDRAW YOUR CONSENT TO THE FOREGOING CONDITION, YOU MUST BRING AN APPLICATION TO THE IAD FORTHWITH TO HAVE THIS CONDITION REMOVED. (NOTE: THIS CONDITION SHOULD ONLY BE IMPOSED WITH THE APPELLANT'S PRIOR CONSENT).
7. Make reasonable efforts to maintain yourself in such condition that:
(a) your drug addiction will not cause you to conduct yourself in a manner dangerous to yourself or to anyone else; and
(b) it is not likely you will commit further offences.
8. Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity.
9. Not own or possess offensive weapons or imitations thereof.
10. Refrain from the illegal use or sale of drugs.
11. Keep the peace and be of good behaviour.
ORAL REVIEW
An oral review will take place on the 11th day of October, 2000.
Take notice that the Immigration Appeal Division will review the case on or about the 31st day of May, 2003, or at such earlier date as it considers necessary or advisable.
ORDER T98-06956
The Immigration Appeal Division orders that the execution of the removal order be further stayed under the following amended terms and conditions:
1. Report in writing to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O. Box 6479, Station "A", Toronto, Ontario, M5W 1X3, on Tuesday, October 31, 2000.
2. Report in person to the immigration officer at the reporting centre at 60 Richmond Street East, Toronto, M5C 1N8 on Tuesday, December 5, 2000 between 9:00 a.m. to 11:30 a.m. or 1:00 p.m. to 3:00 p.m. and every six (6) month(s) thereafter on the following dates:
June 5, 2001
December 4, 2001
June 4, 2002
December 3, 2002
June 3, 2003
3. When reporting in person the appellant shall complete and submit a reporting form. Each reporting form is to contain details of the appellant's:
- employment of written confirmation from employer or efforts to obtain employment if
unemployed;
- current living arrangements;
- marital status of common-law relationships;
- attendance at any educational institution and any change in that attendance;
- attendance at a drug or rehabilitation program; and
- other relevant changes of personal circumstances.
4. Report in writing any change of address to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O Box 6479, Station "A", Toronto, Ontario, M5W 1X3, and the Immigration and Refugee Board, Appeal Division, 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7, within 72 hours of making such a change.
5. Report in writing any criminal convictions FORTHWITH to the Regional Manager, Immigration Appeals, Citizenship and Immigration, GTEC, Hearings and Appeals, P.O Box 6479, Station "A", Toronto, Ontario, M5W 1X3.
6. Make reasonable efforts to seek and maintain full-time employment and FORTHWITH report any change in employment.
7. Attend a drug rehabilitation program and provide written progress assessments from program provider with the reporting form. NOTE: IF YOU WITHDRAW YOUR CONSENT TO THE FOREGOING CONDITION, YOU MUST BRING AN APPLICATION TO THE IAD FORTHWITH TO HAVE THIS CONDITION REMOVED. (NOTE: THIS CONDITION SHOULD ONLY BE IMPOSED WITH THE APPELLANT'S PRIOR CONSENT).
8. Make reasonable efforts to maintain yourself in such condition that:
(a) your drug addiction will not cause you to conduct yourself in a manner dangerous to yourself or anyone else; and
(b) it is not likely you will commit further offences.
9. Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity.
10. Not own or possess offensive weapons or imitations thereof.
11. Refrain from the illegal use or sale of drugs.
12. Keep the peace and be of good behaviour.
Take notice that the Immigration Appeal Division will review the case on or about the 11st day of October, 2003, or at such earlier date as it considers necessary or advisable.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6850-04
STYLE OF CAUSE: JOSE CARVALHO LEITE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 30, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINKENSTEIN, J.
APPEARANCES BY:
Mr. Avi Sirlin
Applicant
Ms. Sally Thomas
Respondent
SOLICITORS OF RECORD:
Avi Sirlin
Toronto, ON
Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
Respondent