Date: 20041224
Docket: IMM-6961-03
Citation: 2004 FC 1780
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
APPLICANT
AND:
MARTIN RICHARD HYDE
RESPONDENT
[1] Central to the determination of this judicial review application brought by the Minister of Citizenship and Immigration (the "Minister") is the application of section 197, a transitional provision, in the Immigration and Refugee Protection Act ("IRPA"). This provision reads:
| Stays 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. [emphasis mine]
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Sursis 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 à 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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[2] The respondent, Martin Hyde, a permanent resident of Canada, was granted on June 8, 1999, a stay of the execution of a removal order made against him on February 7, 1999, which he had appealed to the Immigration Appeal Division invoking that tribunal's equitable jurisdiction under section 70 of the former Act.
[3] In granting the stay, the Immigration Appeal Division ("IAD") imposed several conditions including a requirement that he refrain from the illegal use or sale of drugs and the requirement he keep the peace and be of good behaviour.
[4] Those stay conditions were renewed by the IAD when it reviewed the stay on September 1, 2000.
[5] After the IRPA came into force on June 28, 2002, Martin Hyde plead guilty to a charge that on August 2, 2002, he committed assault contrary to subsection 266(b) of the Criminal Code for which he was sentenced to eight days of imprisonment and placed on probation for a period of twelve months. He also plead guilty on that same date to another charge, that is, he committed mischief contrary to paragraph 430(4)(b) of the Criminal Code for which he was sentenced to an additional eight days of imprisonment and placed on probation for an equal period of twelve months.
[6] The IAD, in the decision which the Minister seeks to quash, states "that at the interview with the immigration officer... [Mr. Hyde] admitted that he used drugs on August 2002".
[7] What brought on the Minister's judicial review application in this particular case was the IAD's decision made on August 6, 2003, finding it had jurisdiction to review the stay which had issued on June 8, 1999.
[8] The Minister's position before the IAD was that section 64 of the IRPA applied to Mr. Hyde through the transitional provision of section 197 of the IRPA and, as a consequence, the IAD was without jurisdiction to review the stay previously granted to the execution of the removal order made against Mr. Hyde. The Minister requested the stay be cancelled and his appeal be dismissed.
[9] Section 64 of the IRPA provides that no appeal may be made to the IAD by a permanent resident if the permanent resident has been found to be inadmissible on grounds of serious criminality which in subsection 64(2) is defined, for the purposes of section 64, as a crime punishable in Canada by a term of imprisonment of at least two years.
[10] The IAD, in written reasons, rejected the Minister's position. The IAD reasoned section 197 of the Act refers not only to section 64 of the IRPA but explicitly refers to subsection 68(4). Subsection 68(4) provides:
| Termination and cancellation (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. |
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Classement et annulation (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 dès lors classé.
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[11] The certified tribunal record before me does not contain any transcript of the IAD's April 3, 2003 proceeding on the jurisdictional issue. It appears submissions on the legal question were in writing.
[12] On the face of its decision of August 6, 2003, the IAD did not make any specific finding that Mr. Hyde breached one or more of the conditions attached to his stay. My review of the record persuades me the issue of whether he breached the conditions of his stay is arguable.
[13] I agree with Mr. Justice Pinard's recent decision in Psyrris v. Canada (Minister of Citizenship and Immigration), 2004 FC 1443, a case in which he analysed the import of section 197 of the IRPA.
[14] At paragraph 9 of his decision, Justice Pinard stated:
[9] ...The application of section 197 of the IRPA relies on the presence of two conditions: first, the applicant must have been granted a stay under the former Act and second, the applicant must have breached a condition of that stay.
[15] In the case before him, Justice Pinard noted the IAD found the applicant had breached a condition of his stay and section 197 applied to his case.
[16] I add that on judicial review, Justice Pinard found the IAD's conclusion the applicant had breached a condition of the stay of his removal order was reasonable.
[17] Both counsel acknowledged the IAD had not specifically found Mr. Hyde had breached one or more conditions of his stay and the matter had to be returned to the IAD for decision on this essential pre-condition to the application of section 197 of the IRPA.
[18] That is why counsel for the Minister requested the IAD's decision be quashed and returned to it "for a new decision, with instructions, where appropriate".
[19] As will be noted, section 197 of the IRPA refers to both sections 64 and subsection 68(4) of the Act. The issue whether section 64 trumps, so to speak, subsection 68(4) was fully argued before me.
[20] In the circumstances of this case, the most appropriate remedy is to quash the IAD's decision because of its failure to determine whether Mr. Hyde had breached one or more of the conditions attached to his stay. The matter should be remitted to the IAD to enable it to make such a determination.
[21] I do not feel it appropriate to decide now the issue whether section 64 of the IRPA divests the IDA of jurisdiction in this case but I believe, because the matter was fully argued before me, I should retain jurisdiction to do so.
[22] My rationale for not deciding the section 64 issue now is because, depending on what the IDA decides, my ruling on this point may be moot or obiter. That problem would not arise, however, if the IAD decides Mr. Hyde has indeed breached one or more of the conditions attached to his stay. After making such a decision, the underlying issue related to interrelationship between section 64 and subsection 68(4) of the IRPA in the context of section 197 would be ripe for decision.
[23] For these reasons, this judicial review application is allowed, the IAD's August 6, 2003 decision is quashed, and the matter is remitted to the same panel of the IAD for decision on the sole issue whether the respondent, Martin Hyde, breached one or more conditions attached to the stay of his removal order. Upon making such decision, the IAD shall forthwith advise the Court which retains jurisdiction to determine, if appropriate, whether the IAD had jurisdiction to review the stay granted under the former Act.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
DECEMBER 24, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6961-03
STYLE OF CAUSE: THEMINISTER OF CITIZENSHIP AND
IMMIGRATION
and
MARTIN R. HYDE
PLACE OF HEARING: Montréal
DATE OF HEARING: 2-DEC- 2004
REASONS FOR ORDER: The Honourable Mr. Justice Lemieux
APPEARANCES: Me François Joyal
FOR APPLICANT
Me Ian W.H. Bailey
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal (Québec)
FOR APPLICANT
Me Ian W.H. Bailey
P.O. Box 1850
141 Grafton Street
Charlottetown,PE
C1A 7K9
RESPONDENT
IMIGRATION & REFUGEE BOARD
102-200, René-Lévesque West
East Towert
Montréal (Québec)H2Z 1X4 TRIBUNAL