Ottawa, Ontario, November 22, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The issue in this application is whether the Immigration Appeal Division of the Immigration and Refugee Board has the jurisdiction to consider a challenge to the constitutionality of subsection 68(4) of the Immigration and Refugee Protection Act under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
[2] For the reasons that follow, I find that the effect of subsection 68(4) of IRPA is to deprive the IAD of jurisdiction to decide questions of law, including questions of constitutional validity. As a consequence, Mr. Ferri's application for judicial review is dismissed.
Background
[3] Loreto Lorenzo Ferri is an Italian citizen who has been in Canada since he was 11 years old. He is a permanent resident in this country. As a result of his extensive criminal record, Mr. Ferri has been subject to a deportation order since 1995, although his deportation was stayed by order of the Immigration Appeal Division of the Immigration and Refugee Board on several conditions. The stay was renewed from time to time, with the most recent order staying Mr. Ferri's deportation set to expire in December of 2002.
[4] As a result of Mr. Ferri having been convicted of possession of heroin for the purpose of trafficking, the Minister applied to cancel his stay, and terminate his appeal, due to the operation of subsection 68(4) of IRPA. This subsection provides that where the IAD has stayed a removal order involving a permanent resident who had been found to be inadmissible on the basis of serious criminality or criminality, and the individual is convicted of another serious offence, the individual's stay is cancelled by operation of law, and the appeal terminated.
[5] It is common ground that Mr. Ferri's narcotics conviction brings him within the provisions of subsection 68(4).
[6] Prior to the hearing of the Minister's application to cancel Mr. Ferri's stay and terminate his appeal, Mr. Ferri served a Notice of Constitutional Question, alleging that subsection 68(4) of IRPA violates section 7 and 15 of the Charter.
The IAD's Decision
[7] In a decision dated November 2, 2004, the IAD held that it did not have the requisite jurisdiction to consider Mr. Ferri's Charter challenge.
[8] The Board noted that subsection 162(1) of IRPA gives it the power to consider all questions of law, including questions of jurisdiction. As a result of the decision of the Supreme Court of Canada in Nova Scotia (Worker Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, the IAD is thus presumed to have jurisdiction to decide constitutional questions, unless Parliament has either expressly, or impliedly, removed that power from the tribunal.
[9] The IAD found that this presumption is rebutted in this case by the wording of subsection 68(4) of IRPA, which, it says, expressly deprives the IAD of the power to decide questions of law, including constitutionality.
[10] According to the IAD, the effect of subsection 68(4) is to limit the jurisdiction of the IAD to determining whether the factual requirements of the subsection are met. That is, the IAD can only consider whether it has previously stayed a removal order; whether the individual in question is a permanent resident or foreign national who was found inadmissible on grounds of serious criminality or criminality; and whether the individual has been convicted of another offence coming within subsection 36(1) of IRPA.
[11] The IAD concluded that once it determines that the factual requirements of the subsection have been met, it then loses jurisdiction over the individual, by operation of law.
[12] As a consequence, the IAD refused to entertain Mr. Ferri's constitutional challenge, the stay was cancelled, and his appeal terminated.
Issue
[13] The only issue in this case is whether the IAD erred in deciding that it did not have the jurisdiction to consider the constitutionality of subsection 68(4). No challenge to the constitutionality of the legislation itself is presently before this Court.
[13]
Standard of Review
[14] Neither party addressed the issue of the appropriate standard of review in their submissions. I am satisfied that a question as to the jurisdiction of an administrative tribunal to decide a question as to the constitutionality of a provision in its enabling legislation must be reviewed against a standard of correctness.
Relevant Statutory Provisions
[15] The following provisions of the Immigration and Refugee Protection Act are in issue in this case:
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3. (3) This Act is to be construed and applied in a manner that
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
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.
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.
68. (4) 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.
162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
197. 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. |
3. (3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
d) d'assurer que les décisions prises en vertu de la présente loi sont conformes B la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d'une part, d'égalité et de protection contre la discrimination et, d'autre part, d'égalité du français et de l'anglais B titre de langues officielles du Canada;
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) Ltre déclaré coupable au Canada d'une infraction B une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction B une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
b) Ltre déclaré coupable, B l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction B une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;
c) commettre, B l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction B une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
64. (1) L'appel ne peut Ltre 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.
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
68. (4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l'étranger est reconnu coupable d'une autre infraction mentionnée au paragraphe 36(1), l'appel étant dPs lors classé.
162. (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait -- y compris en matiPre de compétence -- dans le cadre des affaires dont elle est saisie.
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti B la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable.
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The Jurisprudence Relating to the Charter Jurisdiction of Administrative Tribunals
[16] The jurisprudence governing the power of administrative tribunals to apply the provisions of the Canadian Charter of Rights and Freedoms has undergone a significant evolution in the last 15 years.
[17] The issue was first addressed by the Supreme Court of Canada in a trilogy of cases decided in the early 1990's: see Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. These cases emphasized the compelling policy considerations favouring the jurisdiction of administrative tribunals to determine the constitutionality of their enabling legislation. These policy considerations include the principle that invalid laws should not be applied, whether by the Courts or administrative tribunals, as well as the principle that Canadians should be able to assert their rights in the most accessible forum available.
[18] The Court also felt that there was a benefit to be derived by having constitutional questions determined in the first instance in the environment in which the legislation operates. The informed opinion of expert tribunals was felt to be of assistance to the Courts that would ultimately be called upon to decide these issues.
[19] This ability of administrative tribunals to decide constitutional questions was not viewed by the Supreme Court as usurping the role of the Courts as final arbiters of constitutionality, as tribunal decisions would always be reviewed against a standard of correctness.
[20] Some five years later, the Supreme Court revisited the trilogy in Cooper v. Canada(Human Rights Commission), [1996] 3 S.C.R. 854. In Cooper, the Court appeared to retreat somewhat from its initial position, by applying the trilogy somewhat narrowly. According to Cooper, administrative tribunals will not automatically have the power to deal with Charter challenges to their enabling legislation. Such jurisdiction would only be found to exist where the tribunal's enabling legislation either expressly or by implication conferred the power on the tribunal in issue to decide such questions.
[21] In determining whether an administrative tribunal implicitly had the power to decide questions of constitutionality, it will be necessary to conduct a pragmatic and functional analysis of the tribunal and its jurisdiction. Consideration would have to be given to factors such as whether the tribunal had the power to determine questions of law, as well as to various practical matters, including the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal. At the same time, the Supreme Court observed that there could be pragmatic and functional policy concerns that argue for or against the tribunal having constitutional competence, while, at the same time, observing that such concerns will never supplant the intention of the legislature.
[22] In a strong dissent, Justices McLachlin and L'Heureux-Dubé clearly viewed the majority decision in Cooper as representing a significant retreat from the position originally espoused by the Supreme Court in the trilogy. In advocating greater latitude for administrative tribunals to apply the Charter, Justice McLachlin wrote that:
The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. [ ¶ 70]
[23] In 2003, the Supreme Court revisited the issue yet again in the Martin decision previously cited, with the Court reappraising and restating the rules concerning the jurisdiction of administrative tribunals to apply the Charter. Martin identifies a series of factors that must be considered in determining whether a particular tribunal has the jurisdiction to determine the constitutional validity of its enabling legislation.
[24] In answering this question, Martin teaches that one must look first to whether the administrative tribunal has the express or implied jurisdiction to decide questions of law arising under the challenged provision. Explicit jurisdiction must be found in the terms of the statutory grant of authority, whereas implied jurisdiction must be found by looking at the statute as a whole. Relevant factors in this regard will include the statutory mandate of the tribunal in issue, and whether deciding questions of law is necessary for the effective fulfilment of this mandate; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. In relation to this last point, the Supreme Court was clear that practical considerations, cannot, however, override a clear implication from the statute itself.
[25] Where a tribunal is found to have the jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter.
[26] Finally, where a party asserts that a tribunal lacks jurisdiction to apply the Charter, Martin establishes that the burden will be on that party to rebut the presumption in favour of Charter competence. This presumption may be rebutted by demonstrating either that there has been an explicit withdrawal of authority to consider the Charter, or that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. In this regard, the Supreme Court observed that such an implication should normally arise from the terms of the statute itself, as opposed to external considerations.
[27] How then do these principles apply in this case?
Mr. Ferri's Position
[28] In support of his contention that the IAD has the necessary jurisdiction to entertain his Charter challenge, Mr. Ferri points to subsection 162(1) of IRPA, which empowers the IAD to determine all questions of law, including questions of jurisdiction, in dealing with matters before it.
[29] Moreover, Mr. Ferri says, the Martin decision is clear that a party should be able to assert his or her Charter rights in the most accessible forum, which, in this case, is the IAD.
[30] Mr. Ferri submits that the decision of this Court in Kroon v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 857, 2004 FC 697, which held that the IAD lacks the power to decide the constitutionality of section 64 of IRPA, is distinguishable from the present case. In this regard, Mr. Ferri observes that while both section 64 and subsection 68(1) of the Act limit the jurisdiction of the IAD, under section 64, the IAD is precluded from asserting jurisdiction over an individual from the outset, whereas cases coming under subsection 68(1) of the Act involve situations where the IAD has already assumed jurisdiction over a person, having previously stayed the individual's removal.
[31] Further, given that the IAD has sole and exclusive jurisdiction over matters falling within subsection 68(1) of IRPA, Mr. Ferri says that there is no other forum in which he could challenge the constitutional validity of the provision in question.
[32] A review of the statutory scheme as a whole also militates in favour of the IAD having Charter competence under subsection 68(1), Mr. Ferri says. In addition to subsection 162(1) conferring the power on the IAD to decide questions of law, Mr. Ferri points to paragraph 3(3)(d) of IRPA, which requires that the Act be construed in a manner that ensures that decisions taken under the Act are taken in a manner that is consistent with the Charter.
[33] Mr. Ferri also points to the fact that IAD hearings are adjudicative in nature, as well as the fact that the IAD can hear and receive the evidence that he wants to adduce in support of his constitutional challenge. Given that he is already before the IAD, it is, therefore, the most accessible forum for the determination of the constitutional issue.
[34] The combined effect of these factors is that the IAD's conclusion that it lacked the necessary jurisdiction to decide the constitutional issue was wrong, Mr. Ferri says. As a consequence, the decision should be set aside, and the matter remitted to the IAD for redetermination.
Analysis
[35] In light of the Supreme Court's ruling in Martin, the fact that subsection 162(1) of IRPA empowers the IAD to determine all questions of law (including questions of jurisdiction) in dealing with matters before it, suggests that the IAD does indeed have the power to determine the constitutionality of subsection 68(1) of the Act. Moreover, given that Mr. Ferri is already before the IAD, that tribunal is indeed the most accessible forum for him to mount his Charter challenge, further militating in favour of finding that the IAD has Charter jurisdiction in this case.
[36] However, Martin also makes it clear that before the Court can look to these types of considerations in a jurisdictional analysis such as this, the first issue that has to be addressed is whether the tribunal in question has the express or implied jurisdiction to decide questions of law arising under the challenged provision.
[37] Reference must thus be had to the wording of subsection 68(4), which will be repeated here for ease of reference:
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68. (4) 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. |
68. (4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l'étranger est reconnu coupable d'une autre infraction mentionnée au paragraphe 36(1), l'appel étant dPs lors classé. |
[38] As was noted earlier, the parties agree that Mr. Ferri's situation falls squarely within this provision. The only question is whether the effect of the wording of the section is to deprive the IAD of jurisdiction to hear and decide Mr. Ferri's constitutional argument.
[39] I am of the view that while the IAD may have a general power to decide questions of law and jurisdiction necessary for the resolution of cases coming before it, the effect of the wording of subsection 68(4) is to expressly limit the jurisdiction of the IAD in relation to individuals in Mr. Ferri's situation to the determination of whether the facts of an individual case bring the appellant within the wording of the provision, thus rebutting the presumption in favour of Charter jurisdiction.
[40] That is, the IAD's jurisdiction is limited to answering the following questions:
1. Is the individual in question a foreign national or permanent resident?
2. Has the individual previously been found to be inadmissible on grounds of serious criminality or criminality?
3. Has the IAD previously stayed a removal order made in relation to that individual?
4. Has the individual been convicted of another offence referred to in subsection 36(1)?
[41] If the answer to each of these questions is in the affirmative, as is admittedly the case here, then the section is clear: the IAD loses jurisdiction over the individual, with the stay being cancelled and the appeal being terminated by operation of law.
[42] While Mr. Ferri has advanced a number of arguments that would favour finding Charter jurisdiction in the IAD in cases such as this, these considerations cannot override the express wording of the statute. In this regard, the wording of subsection 68(4) clearly reflects Parliament's intent to limit the jurisdiction of the IAD in cases such as this.
[43] This interpretation is consistent with the fact that, in enacting the Immigration and Refugee Protection Act in 2002, Parliament re-balanced the interests of public safety and individual rights by broadening the categories of persons who may be removed without an appeal to the IAD: Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 366 at ¶ 55, aff'd [2005] S.C.J. No. 31, 2005 SCC 51. While Medovarski dealt with section 64 of IRPA, I am of the view that this observation is equally applicable to the present case.
[44] As was noted previously, Justice Rouleau came to a similar conclusion in the Kroon case previously cited. While Kroon also dealt with section 64 of IRPA, rather than subsection 68(4), I am of the view that his reasoning is equally applicable in this case. The fact that section 64 operates to prevent the IAD from assuming jurisdiction over an individual, whereas subsection 68(1) of the Act contemplates situations where the IAD has already assumed jurisdiction over a person does not, in my view, justify ignoring the express language of the provision, and finding constitutional jurisdiction where it would not otherwise exist.
[45] Finally, reference should be made to the decision in Canada(Minister of Citizenship and Immigration) v. Reynolds, [1997] F.C.J. No. 1763, 139 F.T.R. 315. Reynolds was decided under subsection 70(5) of the previous Immigration Act, which deprived a would-be appellant of a right of appeal in relation to a deportation order that had previously been stayed, where the individual in question had been found to be a danger to the public. The respondent relies on Reynolds in support of its contention that the IAD is without jurisdiction to entertain Mr. Ferri's constitutional challenge.
[46] While in Reynolds the Court came to a similar conclusion as to the IAD's lack of jurisdiction to decide a Charter question in analogous circumstances, I am reluctant to ascribe too much weight to the decision in Reynolds, given that it was decided under the previous Immigration Act and does not deal with the provision of the Immigration and Refugee Protection Act under scrutiny in this case.
[47] Even more importantly, Reynolds was decided prior to the Supreme Court of Canada's reformulation of the test for determining whether an administrative tribunal has Charter competence. While Martin does not appear to explicitly overrule every aspect of the Reynolds decision, I am nevertheless satisfied that the case must be approached with some caution for these reasons. As a consequence, I prefer to rely upon the analysis articulated above.
[48] Finally, I do not accept that Mr. Ferri will be left without a forum in which to pursue his constitutional challenge to subsection 68(4) of IRPA. It is entirely open to him to commence an action in this Court, seeking a declaration that the legislative provision in issue is unconstitutional. It would then also be open to Mr. Ferri to adduce the evidence before this Court that he believes will support his challenge.
Conclusion
[49] For these reasons, the application is dismissed.
Certification
[50] The parties jointly propose the following question for certification:
Does the Immigration Appeal Division have the jurisdiction to determine a constitutional challenge to section 68(4) of the Immigration and Refugee Protection Act?
[51] I agree that this is an appropriate question for certification, and accordingly, the question will be certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. The following serious question of general importance is certified:
Does the Immigration Appeal Division have the jurisdiction to determine a constitutional challenge to section 68(4) of the Immigration and Refugee Protection Act?
"Anne Mactavish"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9738-04
STYLE OF CAUSE: LORETO LORENZO FERRI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 1, 2005
AND ORDER: The Honourable Madam Justice Mactavish
APPEARANCES:
Joel Sandaluk FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOEL SANDALUK
Mamann & Associates
Barristers & Solicitors
74 Victoria St #303
JOHN H SIMS, Q.C
Deputy Attorney General of Canada
Dept of Justice
Toronto, ON FOR THE RESPONDENT