Date: 20040506
Citation: 2004 FC 662
BETWEEN:
SOPHIA LAVERNE WILLIAMS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Summary
[1] This is another application for judicial review on the vexing issue of the application of section 196 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA").
[2] The specific issue in this judicial review is whether sponsorship appeals for landed status are subject to section 196 and as a result such appeals are discontinued when the sponsoree cannot be admitted on grounds of serious criminality and the applicant has not been granted a stay.
[3] For the reasons set forth, I find that section 196 does apply to such appeals, that the appeal was discontinued and this judicial review is dismissed.
Background
[4] The Applicant, Sophie Laverne Williams, filed an appeal of a sponsored application for permanent residence made by her husband, Errol George Williams. That appeal was filed with the Appeal Division of the Immigration and Refugee Board on November 6, 2001 pursuant to subsection 77(3) of the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act").
[5] The sponsoree, Mr. Williams, is a citizen of Jamaica who came to Canada as a visitor in 1977.
[6] Mr. and Mrs. Williams were married in 1986 and have three children, all of whom are Canadian citizens.
[7] Toward the end of 1987, Mr. Williams made an Application for Landing from within Canada, sponsored by his wife. He received a Minister's Permit a year later.
[8] Mr. Williams had been convicted of public mischief in 1982. In October 1997 while in the process of obtaining a pardon so as to assist in the sponsored landed application, Mr. Williams was charged with the offence of conspiracy to traffic in a controlled substance.
[9] On November 2, 1999, Mr. Williams was convicted of conspiracy to traffic in heroin. He was sentenced to six years imprisonment as well as six months pre-trial custody.
[10] As a result of Mr. Williams' criminal conviction he was inadmissible for landing pursuant to paragraph 19(1)(a) of the former Act. On October 24, 2001, a visa officer refused the sponsorship application.
[11] Although Mr. Williams did not have any appeal rights, Mrs. Williams did have a right to appeal the sponsorship application decision pursuant to section 77 of the former Act. Her appeal was filed with the IAD on November 6, 2001.
[12] On April 30, 2002, Mr. Williams was made the subject of a removal order. Because he had never been landed in Canada as a permanent resident, he did not have any appeal rights pursuant to section 70 of the former Act.
[13] He was immediately ordered deported which deportation was scheduled for May 22, 2002. The day before, Justice Hansen, pursuant to the Federal Court Act, R.S.C. 1985, c. F-7, issued a stay of the execution of the removal order pending the determination by the Immigration Appeal Division (the "IAD") of the sponsor's (Mrs. Williams) appeal.
[14] Immediately following Justice Hansen's stay order, there was an exchange of correspondence between counsel the essence of which was that counsel for the Respondent advised that, in view of Justice Hansen's order, the department had no intention to remove Mr. Williams until the determination of his sponsor's appeal at the IAD.
[15] On August 2, 2002, the Respondent sent a Notice of Discontinuance to the Applicant and the IAD seeking to have the Applicant's appeal discontinued pursuant to section 196 of the IRPA.
[16] The IRPA came into force on June 28, 2002. The critical provision for this case which came into force is section 196 which reads:
| 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.
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Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi. |
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[17] A hearing was held to determine if the IAD had jurisdiction to continue the appeal. On November 29, 2002, the IAD agreed with the Respondent that the appeal was discontinued.
[18] The IAD held that from the language of section 196, the statutory scheme of the IRPA, the object of Parliament in enacting the IRPA and section 196 in particular; it was evident that section 196 was applicable to sponsorship appeals.
[19] The IAD held that the two preconditions to the applicability of section 196 and to the discontinuance of the appeal had been met (1) there was not stay granted under the former Act (2) the appeal could not be made because of section 64 of the IRPA since Mr. Williams was punished in Canada by a term of imprisonment of over two years.
[20] The IAD further found that the Applicant had ample opportunity to exercise her appeal rights before June 28, 2002 and could have made a request to obtain a hearing date before June 28, 2002.
[21] Before the Court, the Applicant made two principal arguments:
1. That section 196 of the IRPA did not apply to sponsorship appeals because a sponsor could not obtain a stay under the former Act. The argument is based on the premise that Parliament would not have created a condition (obtaining a stay) which could not have been fulfilled in appropriate instances. Mrs. Williams could never have obtained a stay under the legislation.
2. In the alternative, that Justice Hansen's order constituted a stay as the Respondent was estopped from obtaining a stay.
Analysis
[22] Since the hearing of this judicial review, the Federal Court of Appeal issued its decision in Medovarski v. Canada (Minister of Citizenship and Immigration) 2004 FCA 85.
[23] While the Federal Court of Appeal's decision is not determinative of the issues in the present case, its decision on the meaning of "granted a stay" significantly settles the scope and rationale for that part of the provision. The observations of both the majority and minority judgments significantly inform the interpretation and application of section 196.
[24] As I understand Medovarski, supra, the term "stay" refers only to stays which operate automatically by legislated provision and, therefore, do not include "discretionary" stays attained upon application.
Standard of Review
[25] It was accepted by the parties, and I agree, that since the issue here is both jurisdictional and a question of law, the appropriate standard of review is correctness.
Interpretative Principles
[26] The Supreme Court of Canada in Rizzo v. Rizzo Shoes Ltd. (Re), [1998] S.C.J. No. 2 adopted Driedger's conclusion as to the proper approach to statutory interpretation.
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.
Plain Meaning
[27] This application can be determined on examining the plain meaning of the words in section 196 as clarified by Medovarski, supra. Mrs. Williams is an appellant, she is not entitled to an automatic stay and, therefore, "has not been granted an stay under the former Act."
[28] As to the second part of section 196, "the appeal could not have been made because of section 64 of this Act", on the facts of this case, Mr. Williams' conduct falls squarely within section 64. As such it affects both himself as well as the appeal rights of Mrs. Williams.
[29] Section 64, which falls under Division 7 "Right to Appeal", reads as follows:
| No appeal for inadmissibility 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.
64(2) Serious 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.
64(3) ... |
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Restriction du droit d'appel 64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
64(2) Grande criminalité (2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
64(3) ...
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[30] Mr. Williams is a foreign national, Mrs. Wiliams is his sponsor. He has been found to be inadmissible on grounds of serious criminality by virtue of his imprisonment for a crime exceeding two years.
[31] There is no serious issue regarding section 64 of IRPA; Mrs. Williams' appeal could not have been made.
[32] On this approach, Mrs. Williams, as an appellant, falls four-square into the two conditions which must be met in order that an appeal be discontinued.
Context
[33] Section 196 of IRPA must be considered in its context within the scheme of the legislation. The Federal Court of Appeal has dealt to some extent with section 196 as part of the transition provisions from one complex piece of legislation to another complex piece of legislation.
[34] The critical provision related to transition is section 190 which requires that existing proceedings under the former Act must now be conducted under IRPA.
| Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force. |
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La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. |
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[35] If Parliament had intended that existing rights, such as they may be, were to be preserved notwithstanding the new legislation, it could simply have said so. It is significant to a consideration of section 196 that Parliament did not do so.
[36] The only circumstances under which Parliament was prepared to depart from this basic concept that the impact of the IRPA is immediate are found in section 191 (not relevant for these purposes) and section 192. Section 192 continues any appeal filed under the former Act, with two exceptions.
[37] The two exceptions to section 192 are sections196 (at issue in this application) and 197. Both sections begin with "Despite section 192" which I conclude to mean "in spite of" or "notwithstanding".
[38] Parliament has directed that those matters governed by sections 196 and 197 are to be part of the general scheme that existing matters under the former Act are to be subject to the new IRPA. The natural consequences of this legislative scheme are that existing rights may be affected, even adversely. But this is Parliament's clear intent.
[39] Both sections 196 and 197 refer in particular to section 64. Section 64 refers specifically to "sponsors". Consequently sections 196 and 197 were intended to affect the rights of appellants who are sponsors, such as Mrs. Williams.
[40] There should be nothing new in the notion that appeals, even sponsorship appeals, are significantly affected by the fact that the sponsoree has a criminal past. Section 77 (3.01) of the former Act likewise did not permit an appeal by a sponsor when there was serious criminality (indictable offence and two years imprisonment).
[41] The interpretation of section 196 which arises from its plain meaning read in its context and in conjunction with the legislative scheme does not render section 196 somehow sterile or of little meaning.
[42] Paragraphs 49(1)(a) and (b) are provisions for automatic stays related to certain removal orders. This Court in Estaban v. Canada (Minister of Citizenship and Immigration), 2003 FC 930, dealt with a situation where section 196 was held not to be applicable and, therefore, the appeal was not discontinued.
[43] Mr. Esteban was a permanent resident who had been convicted of serious criminal offences and, therefore, could not have an appeal because of the operation of section 64 of the IRPA. However, he had secured an automatic stay and consequently, his appeal was not discontinued.
[44] Therefore, there are situations, albeit limited ones, where section 196 will operate so as to prevent the discontinuance of appeals under the former Act.
Objects and Intent
[45] The interpretation of section 196 must also be consistent with the objects of the legislation and the intent of Parliament.
[46] By tying section 196 so directly to section 64 of IRPA which covers sponsors' appeals, I conclude that it was Parliament's intent that sponsors as appellants should be subject to the consequences of section 196.
[47] It is consistent and logical that Parliament would not want sponsors to enjoy greater benefits than those available to sponsoree applicants for landed status. One cannot forget that the benefits of permanent residence flow as much if not more so to the landed resident as to his or her sponsor. The benefits of landed status can well long survive beyond the relationship which gave rise to the sponsorship. Parliament was simply ensuring that that which cannot be done directly cannot be accomplished indirectly.
[48] In considering whether this interpretation is consistent with the objects of the legislation, IRPA section 3 outlines a number of objectives of the Act as it relates to immigration. Two are of particular importance to this analysis:
| (d) to see that families are reunited in Canada;
(h) to protect the health and safety of Canadians and to maintain the security of Canadian society; |
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d) de veiller à la réunification des familles au Canada;
h) de protéger la santé des Canadiens et de garantir leur sécurité; |
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[49] Not every provision of the legislation addresses each objective in subsection 3(1), nor where two or more objectives are relevant are all given equal weight.
[50] Section 64, while referring to sponsors and permanent residents, is not directed primarily at the objective of family unification.
[51] Section 64 is designed to limit the opportunity for admission to Canada by those found guilty of crimes in Canada, having been imprisoned for at least two years. That objective is to be attained whether the inadmissible person appeals directly themselves of by means of a sponsor.
[52] Section 64 is focussed primarily, if not exclusively, on the objective of safety of Canadians and the security of Canadian society.
[53] By linking section 64 and section 196 so closely, I conclude that section 196 also is intended to serve that objective. Section 196, evidently, is designed to put appellants, including sponsors, under the provisions of the new legislation and to limit, if not outright eliminate, the opportunity to continue appeals under the former Act.
[54] The plain meaning of the section as outlined earlier is, therefore, consistent with the purposes and objectives of the new legislation. Section 196 is remedial in nature and this interpretation is consistent with the remedial objectives of limiting the benefits available to those guilty of serious criminality.
[55] As the Federal Court of Appeal found at Medovarski, supra, at paragraphs 48 and 52, Parliament did not intend to preserve existing rights of appeal. Pelletier, JA, in his dissent on other grounds, also supports and confirms the rationale for excluding sponsorship appeals involving serious criminality from the benefits of section 192 (see Medovarski, supra, paragraphs 89-91).
[56] I am mindful that the result of this interpretation is that, for some families, there is likely to be pain, upset and potential dislocation. The root cause thereof is the conduct of the sponsoree. Regrettably, many families face similar consequences when a spouse or parent engages in criminal activity.
[57] Parliament has made a policy choice as to how these circumstances are to be dealt with. It has done so in clear, rational terms. It is not for the Court to second guess that policy choice.
Stay Order/Estoppel
[58] Lastly, I turn to the issue of Justice Hansen's stay order and estoppel or legitimate expectation.
[59] With regard to Justice Hansen's order, it was issued pursuant to the Federal Court Act, not the former Immigration Act. Further, consistent with the conclusion in Medovarski, supra, it was not an automatic stay and, therefore, not the stay required by section 196.
[60] With respect to legitimate expectations and/or estoppel, on the facts of this case, to the extent that the principles applied, the applicant cannot succeed.
[61] Legitimate expectation, which may be the more correct term in this situation of reliance on government action, is a procedural right, not a substantive one.
[62] To succeed on these grounds, there must be at least a holding out of a fact relevant to the matter complained of, that was acted upon knowing or expecting it would be acted upon to the other's detriment.
[63] The May 23, 2002 letter makes no representation as to the continuance of any appeal rights that would or did induce the Applicant to delay or not proceed expeditiously with its appeal rights.
[64] That the parties may, and I say may because there is only speculation on this point, have acted on a mutual misunderstanding of the law does not create estoppel such as to vitiate the discontinuance. Nothing prevented or induced the Applicant to assume that the legislation would not be followed or that there was no need to expedite the hearing. It is an equally reasonable speculation to suggest that the Applicant was content to rest easy because the removal order had been stayed.
[65] For all these reasons, this application for judicial review will be dismissed. Before an order is issued, in accordance with the Court's instruction at the hearing, the parties will have seven (7) days from the date of release of these reasons to make submissions on a certified question. Although the Respondent has already made a submission on this point, given the recent judgements, the Respondent is at liberty to file new submissions.
"Michael L. Phelan"
JUDGE
Ottawa, Ontario
May 6, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6479-02
STYLE OF CAUSE: SOPHIE LAVERNE WILLIAMS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 7, 2004
REASONS FOR ORDER OF PHELAN J.
APPEARANCES:
Isak Grushka
FOR APPLICANT
Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Isak Grushka
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT