Date: 19980706
Docket: IMM-5331-97
BETWEEN:
LAURENCE STOCKING
| Applicant |
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant seeks to set aside a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated December 3, 1997. On September 25, 1985 the Appeal Division cancelled the stay of a deportation which had been ordered on July 22, 1994.
[2] The relevant facts are as follows. The applicant is a landed immigrant. He came to Canada in 1967 when he was 8 years old. In November 1983, he was convicted of first degree murder and sentenced to life imprisonment with no possibility of parole for 25 years. The applicant became entitled to apply for judicial review of his parole eligibility in the fall of 1997, pursuant to s. 745 of the Criminal Code.
[3] On September 25, 1995, a deportation order was made against the applicant on the basis that he was a person described in subparagraphs 27(1)(d)(i) and (ii) of the Immigration Act, S.C. 1976, C. 52. The applicant appealed the deportation order and the matter was heard by the Appeal Division on April 13, 1994. On July 22, 1994, the Appeal Division stayed the execution of the deportation order for 5 years after the applicant"s release from incarceration on full parole.
[4] On August 12, 1997, the Minister of Citizenship and Immigration (the "Minister") applied, pursuant to Rule 33 of the Immigration Appeal Division Rules (the "Rules"), for an order amending the terms of the stay imposed by the Appeal Division in its decision.
[5] Specifically, the Minister sought to obtain the following amendments:
| TAKE NOTICE that the Minister applies pursuant to Rule 33 of the Immigration Appeal Division Rules to amend the terms of stay imposed in the above-noted case. |
| The Minister is seeking to have the terms amended as follows: |
| i) to replace all references to the address, 1 Toronto Street, Suite 705, Toronto, M5C 2V6 with the current mailing address of the Appeals office as follows: Immigration Appeals Office, P.O. Box 6479, Station A, Toronto, Ontario, M5W 1X3 |
| ii) to amend the reporting condition which currently requires reporting by mail after the appellant"s parole date, to require that reporting commence immediately and continue to the date of the review, which is currently set for 5 years after the appellant"s full parole. |
| The grounds for these changes are as follows: |
| i) the Minister"s mailing address changed in 1995 and is no longer as indicated in the stay. |
ii) The stay requires the appellant to abide by certain conditions while incarcerated, such as continuing an educational program, attending drug rehabilitation, and keeping the peace. However, since the appellant is not yet required to report, there is no means of monitoring the terms of the stay. Thus, since reporting is by mail, it is not unreasonable to have it commence now rather than at a future unspecified date.
[6] A copy of the Minister"s letter of application was sent to the applicant and to his solicitor. On August 21, 1997, The registrar of the Appeal Division sent the following letter to the Minister and to the applicant:
| The Immigration Appeal Division is in receipt of your letter of 6 August, 1997, in which the Minister is seeking to amend the terms of the stay imposed in the above appeal. The Appeal Division has determined that an oral review of the stay will be conducted in order to ascertain whether the terms of the stay have been complied with. At that time the Minister will have an opportunity to make submissions on the issues outlined in your letter. |
Accordingly, the Registrar will be in touch with both parties in the near future in order to set a date for a hearing of this matter.
[7] It is important to note that the review referred to in this letter goes beyond the scope of the Minister"s Rule 33 request to amend the conditions of the stay. However, it only goes as far as indicating a review to ascertain compliance with the terms of the stay.
[8] On August 25, 1997, a formal Notice to Appear was issued by the Appeal Division advising the parties that the hearing of the Minister"s application, filed on August 12, 1997, would take place at the Joyceville Institution in Kingston, Ontario, on October 20, 1997, commencing at 9:15 a.m.. No mention was made in the Notice to Appear of the oral review outlined in the Appeal Division"s letter of August 21, 1997.
[9] As scheduled, a hearing pursuant to Rule 33 took place on October 20, 1997. The hearing was presided by Ms E. Teitelbaum. At the end of the hearing, the presiding member informed the parties that she was reserving her decision. On December 3, 1997, Ms Teitelbaum cancelled the stay of the deportation order and ordered that it be executed as soon as reasonably practical. The applicant attacks this decision on the ground that the rules of natural justice were breached. I have come to the conclusion that the applicant"s attack is well founded. My reasons are as follows.
[10] There were two matters set down for the October 20, 1997 hearing. Firstly, the Minister"s application to amend the terms of the stay and, secondly, the oral review ordered by the Appeal Division to determine whether the applicant had complied with the terms of the stay order. Even though the Notice to Appear dated August 25, 1997 only refers to the Minister"s application as the purpose of the October 20, 1997 hearing, I am of the view that the letter dated August 21, 1997 sent to the parties made it clear that the Appeal Division intended to conduct an oral review regarding compliance with the terms of the stay and it was within their jurisdiction to do so.
[11] Following receipt of the Notice to Appear, the parties gave each other disclosure of documents. On October 5, 1997, the applicant"s solicitor, following receipt of disclosure by the Minister, wrote to the Appeal Division with a copy to the Minister enclosing those documents which the applicant intended to produce at the October 20, 1997 hearing in response to the material filed by the Minister. At page 2 of his letter, the solicitor writes the following:
I remain hopeful that the Board will be satisfied at the oral hearing that Mr. Stocking has respected the terms and conditions of the decision of the Immigration Appeal Board in 1994 and continues to justify a stay of his deportation order. ...
[12] That passage confirms that the applicant"s solicitor was aware that one of the purposes of the October 20, 1997 hearing was to ascertain whether his client had complied with the terms of the stay. Of that, there cannot be any doubt whatsoever. The applicant argues that the hearing was not a fair one. He submits that the Notice to Appear of August 25, 1997 refers only to the Minister"s application to amend the terms of the stay. As a result, the applicant submits that he only learned of the Appeal Division"s intention to conduct an oral review at the hearing itself. Clearly that argument cannot succeed. Counsel for the applicant was aware that the Appeal Division intended to conduct an oral review.
[13] Before I explain why I believe the Appeal Division"s decision of December 3, 1997 must be set aside, I wish to reproduce section 74 of the Immigration Act , R.S.C. 1985, c. I-2.
| 74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may (a) make any other removal order or conditional removal order that should have been made; or (b) in the case of an appellant other than a permanent resident, direct that the appellant be examined as a person seeking admission at a port of entry. |
74. (1) Si elle fait droit à un appel interjeté dans le cadre de l'article 70, la section d'appel annule la mesure de renvoi ou de renvoi conditionnel et peut: a) soit lui substituer celle qui aurait dû être prise; b) soit ordonner, sauf s'il s'agit d'un résident permanent, que l'appelant fasse l'objet d'un interrogatoire comme s'il demandait l'admission à un point d'entrée. |
| (2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable. |
(2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas en tant que de besoin. |
| (3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time, (a) amend any terms and conditions imposed under subsection (2) or impose new terms and conditions; or (b) cancel its direction staying the execution of the order and (i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or (ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1). |
(3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment: a) modifier les conditions imposées ou en imposer de nouvelles; b) annuler son ordre de surseoir à l'exécution de la mesure, et parallèlement: (i) soit rejeter l'appel et ordonner l'exécution dès que les circonstances le permettent, (ii) soit procéder conformément au paragraphe (1). |
[14] Subsection 74(2) provides that the Appeal Division, in granting a stay of a deportation order, may impose terms and conditions. Subsection 74(3) provides that the Appeal Division may, at any time, either amend the terms and conditions, impose new ones or cancel the stay.
[15] As I indicated earlier, there were two purposes to the October 20, 1997 meeting. As it was entitled to under subsection 74(3), the Appeal Division intended to ascertain whether the applicant had complied with the terms of the stay. It is significant to note that at page 10 of her decision cancelling the stay, presiding member Teitelbaum states unequivocally that the applicant has not breached the terms and conditions imposed upon him by the Appeal Division in 1994. Notwithstanding that the applicant had complied with the terms and conditions of his stay, Ms Teitelbaum concludes that the stay should be cancelled because, in her opinion, the applicant"s future in Canada did not seem promising. At page 10 she writes the following:
While there are no allegations that Mr. Stocking has not met the terms and conditions of his stay, I am not persuaded that his future in Canada bodes well. The panel hearing his appeal in 1994 was not privy to certain information such as institutional infractions committed before but particularly after his case was heard. This evidence is now before me. Having carefully read the panel"s reasons, I would venture to suggest that it may well have come to another conclusion, had they the benefit of this information. The Appeal Division has a very broad statutory discretion and is at liberty to review the state of a deportation order at any time. In light of the serious nature of the offence in this case I believe detailed scrutiny is appropriate in the public interest. In this review, it is necessary for me to have regard to all the circumstances of the case as at hearing date.
[16] The Appeal Division"s letter of August 21, 1997, which I reproduced in full earlier, does not constitute adequate or reasonable notice to the applicant. If the Appeal Division intended to review the applicant"s file to determine whether the stay should be continued, as it was entitled to under subsection 74(3) of the Act, it could and should have given the applicant notice of its intention to do so. What the applicant was informed of was that the Appeal Division would inquire whether he had complied with the terms of the stay. The evidence, as found by the presiding member, was that the applicant had complied with the terms imposed upon him. That, in my view, should have been sufficient to dispose of the issue before the Appeal Division on October 20, 1997. In the circumstances, I am therefore of the view that the rules of natural justice require that the decision of the Appeal Division be set aside. If the Board wishes to review the original stay it has the jurisdiction to do so, however, the rules of natural justice require that the applicant be notified of the Board"s intent and be given the opportunity to respond.
[17] A few comments must be made regarding the hearing of October 20, 1997. The first part of the hearing was devoted to the Minister"s application to modify the terms of the stay. The clerk of the Appeal Division opened the hearing as follows:
This is a hearing of an application pursuant to Rule 33 of the Immigration Rules. The Minister is seeking to have the terms of the (inaudible). The applicant is the Minister of Citizenship and Immigration and is represented by counsel, ...
[18] No mention is made by the clerk of the Appeal Division"s intention to conduct an oral review. The Minister"s application was dealt with quickly as the applicant did not oppose the amendments sought by the Minister. At page 14 of the transcript, the exchanges regarding the Minister"s application come to an end and then the possibility of an oral review is first raised. For a better understanding of what took place, I reproduce pages 14 and 15 of the transcript.
| MS. ZORIC [the Minister"s representative]: Yes. Other than, I mean there"s this material here, I did have some questions about some of it in terms of, it"s not informative enough but there"s stuff with respect to the most recent progress summary over which we have some concern. It"s not really elaborated heavily and I can"t necessarily say what the results have been but there"s things in these reports with respect to inciting a hunger strike, fights with inmates, these things I don"t think have resulted in convictions but they"re here I guess as question marks for the Minister. And I don"t know if Mr. Stocking is going to testify about them but they"re here. |
| PRESIDING MEMBER: Well you"re at liberty to question him. |
| MS. ZORIC: But he"s not, I don"t know if he"s, if you"re going to impose that it become an oral now as a result of our motion. |
| PRESIDING MEMBER: Well if it"s not going to be oral review why did we come all the way to Kingston. |
| MS. ZORIC: Well this is it, I think it is an oral review. |
| PRESIDING MEMBER: This is something that could have been done by mail. We"ll have an oral review. |
| MS. ZORIC: That"s right. Well we would ask for that. |
| COUNSEL [for the applicant]: So just to be clear then, with respect to the terms that were set out in the letter and we"ve agreed to those terms that you"re requesting and now we"re going on with respect to -- what exactly are we doing then beyond --- |
| PRESIDING MEMBER: Well I"d like review of what has happened since the imposition of the stay. |
| COUNSEL: Okay, that"s fine. |
| PRESIDING MEMBER: That takes care of all these preliminary matters does it? |
| MS. ZORIC: Yes. |
| PRESIDING MEMBER: Do you have anything, Mr. Mattson? |
| COUNSEL: No, Madam Chair. |
| PRESIDING MEMBER: No? Miss Zoric. |
| MS. ZORIC: Did you want me to call the appellant? |
| PRESIDING MEMBER: Mm-hmm. |
| MS. ZORIC: But I don"t want to call him because I would rather cross-examine him. I don"t know what he"s been doing or whatever. |
| PRESIDING MEMBER: All right. |
| MS. ZORIC: Perhaps Mr. Mattson could given an outline of --- |
| COUNSEL: I have no disclosure other than the fact that you wanted those three terms. I didn"t, Mr. Stocking is here if the Chair would like to ask him questions I have no problem but --- |
| PRESIDING MEMBER: It"s not my function to ask him questions. |
| COUNSEL: I know, that"s what I --- |
| PRESIDING MEMBER: This is an oral review. You are the one who called it, Ms. Zoric. |
| MS. ZORIC: Yes. |
| PRESIDING MEMBER: The Minister called it, it is incumbent on you --- |
| MS. ZORIC: All right. |
PRESIDING MEMBER: --- to get the ball rolling so to speak and then Mr. Mattson can ---
[19] First of all, the Appeal Division called the oral review when it sent out its letter of August 21, 1997. At no time prior to the hearing did the Minister request that an oral review take place. It is clear from the transcript that the oral review was brought to the fore not by Ms Zoric but by the presiding member of the Appeal Division. Ms Zoric did not believe that she could begin an oral review since the Minister had not given notice of such an intention. It was the presiding member who told Ms Zoric that there was going to be an oral review. At page 14 of the transcript, the presiding member states that the review would examine what had happened since the stay had been imposed in 1994. It is clear from Ms Teitelbaum"s decision that she not only reviewed the events which had occurred since the stay, but that she examined events which had occurred prior to the 1994 hearing. For example, at page 10 of her decision, she states that the 1994 panel was not aware of the fact that the applicant had committed institutional infractions prior to the 1994 hearing.
[20] In my view, if the intention of the Appeal Division was to reexamine all of the circumstances relating to the applicant"s conduct in and out of prison, all it had to do was to give proper notice of its intention. It failed to do this and, in the circumstances, its decision of December 3, 1997 cannot stand. The Appeal decision cancelling the stay order made by that division on July 22, 1994 shall be quashed.
[21] There is one final matter. Counsel for the Minister argued that because the applicant had not objected to the oral review during the hearing, he had waived his right to raise this issue. After carefully reviewing the transcript of the hearing, I have come to the conclusion that the applicant did not waive his right to raise the natural justice issue.
"MARC NADON"
JUDGE
Ottawa, Ontario
July 6, 1998