Federal Court Decisions

 

 

 

Date: 20070208

Docket: IMM-3263-06

Citation: 2007 FC 122

Ottawa, Ontario, February 8, 2007

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

Applicant

and

 

IAN ANTHONY CRICHLOW

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

OVERVIEW

[1]               A mere error concerning a legislative provision limiting the tribunal’s powers will cause it to lose jurisdiction and subject the tribunal to judicial review. (Union des employés de service, local 298 v. Bibeault, [1988] 2 S.C.R. 1048.)

 

[2]               The appropriate standard of review with regard to an excess of jurisdiction is correctness. (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.)

[3]               Section 197 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), is a transitional provision terminating the appeal of certain categories of individuals, whose appeals were pending at the time of the coming into force of the IRPA, who have breached the conditions of their stay.

 

INTRODUCTION

[4]               The Applicant, the Minister of Public Safety and Emergency Preparedness filed an Application for Leave against the decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) on June 15, 2006 which was rendered on May 25, 2006 (the Applicant became aware of the said decision on June 1, 2006).

 

[5]               Addressing the preliminary issue as to jurisdiction, the Board determined that sections 197 and 64 of the IRPA did not apply to the Respondent, as a new decision, subject to the provisions of the IRPA, has been rendered concerning the Respondent on September 25, 2003.

 

[6]               Consequently, the Board dismissed the Minister’s application to dismiss the Respondent’s appeal due to lack of jurisdiction and retained jurisdiction to continue hearing the Respondent’s appeal.

 

 

 

 

BACKGROUND

[7]               Appearing before the Adjudication Division of the Board, the Respondent, Mr. Ian Anthony Crichlow, acknowledged that he was a citizen of Barbados and that he was a permanent resident of Canada, not a citizen of Canada. (April 30, 1998, tribunal’s record, pp. 23-37, in particular, p. 30.)

 

[8]               On June 9, 1997, Mr. Crichlow had been convicted of five counts of trafficking a narcotic and sentenced to twenty-six (26) months of imprisonment.

 

[9]               The Adjudication Division determined that the allegations in respect of Mr. Crichlow were well-founded and ordered the deportation of the Respondent under subsection 32(2) if the Immigration Act, R.S.C. 1985, c. I-2).

 

[10]           On April 30, 1998, a deportation order was issued against Mr. Crichlow pursuant to subsection 32(2) of the Immigration Act.

 

[11]           On May 1, 1998, Mr. Crichlow filed an appeal of the said deportation order with the IAD, pursuant to section 70 of the Immigration Act.

 

[12]           On February 5, 1999, Mr. Crichlow appeared before the IAD. The IAD ordered that the execution of the removal order be stayed for a period of seven (7) years.

 

[13]           The Board imposed conditions under which Mr. Crichlow was allowed to remain in Canada.

 

[14]           On July 13, 1999 and July 18, 2000, oral reviews of the stay granted to Mr. Crichlow in February 1999 were held and the stay was maintained under conditions which, however, were amended on July 18, 2000.

 

[15]           On June 28, 2002, the IRPA came into force. One of its transitional provisions, section 197, provides that if an appellant who has been granted a stay under the Immigration Act, breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of the IRPA.

 

[16]           On September 25, 2002, the IAD reviewed the stay and ordered that the stay be maintained under amended terms and conditions.

 

[17]           Under the title, Interim Reconsideration, the IAD also determined that an oral interim reconsideration of the case by the IAD would take place, prior or, on September 25, 2003.

 

[18]           It also provided for another reconsideration of the case to be held on or about February 5, 2006, that is exactly seven (7) years after Mr. Crichlow appeared before the IAD for the first time, on February 5, 1999, and was granted a seven (7) year stay.

 

[19]           An interim reconsideration of Mr. Crichlow’s case took place on September 25, 2003 as anticipated. The relevant portion of the order made by the IAD on that day reads as follows:

The removal order in this appeal is stayed, and the appeal will be reconsidered at such other time as the Immigration Appeal Division may determine. This stay is made on the following conditions – the appellant must:

 

CONDITIONS OF STAY OF REMOVAL ORDER

 

1.      Inform the Department of Citizenship and Immigration (the “Department”) and the Immigration Appeal Division in writing in advance of any change in your address.

 

2.      Provide a copy of your passport or travel document to Department or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Department.

 

3.      Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Department.

 

…

 

5.      If charged with a criminal offence, immediately report that fact in writing to the Department.

 

…

 

13. Keep the peace and be of good behaviour.

 

(Emphasis of the Court.)

 

 

[20]           On September 25, 2003, the IAD also provided for a reconsideration of the case on or about February 5, 2006.

 

[21]           On November 22, 2005, the Minister’s representative filed an Application to the IAD to dismiss Mr. Crichlow’s appeal due to lack of jurisdiction pursuant to sections 197 and 64 of the IRPA.

 

[22]           The Minister’s representative submitted that Mr. Crichlow had been sentenced to a term of more than two years of imprisonment and found inadmissible on grounds of serious criminality.

 

[23]           Moreover, he had failed to comply with several conditions imposed upon him on September 25, 2003. For instance, he had failed to inform the Department in advance of his change of address; he had failed to complete an application for a passport or a travel document and to provide the application to the Department.

 

[24]           The Minister’s representative also specified that Mr. Crichlow had failed to abide by condition # 13, “keep the peace and be of good behaviour” and condition # 5, “if charged with a criminal offence, immediately report the fact in writing to the Department”. In this regard, he had failed to inform the Department that on July 2, 2005, he had been charged with failure to comply with condition of undertaking and recognizance as per paragraph 145(3)(b) of the Criminal Code.

 

[25]           Furthermore, although he had been charged with assault according to section 266 of the Criminal Code on April 24, 2005, and with failure to comply with condition of undertaking and recognizance according to paragraph 145(3)(b) of the Criminal Code on July 2, 2005, Mr. Crichlow had checked “no” in response to the last question of his Stay of removal order report dated September 1, 2005 which read: Since the most recent review of the conditions by the Appeal division, have you been convicted of a criminal offence or have you been charged with a criminal offence? (Stay of removal order report, tribunal’s record, p. 304.)

 

[26]           On January 20, 2006, Mr. Crichlow’s counsel filed submissions in response to the application by the Minister’s representative to dismiss the appeal. He submitted, inter alia, that Mr. Crichlow’s common law spouse had informed the Department, by fax sent on July 4, 2005, of Mr. Crichlow’s arrest for breach of condition on July 2, 2005. (Submissions in response to application to dismiss the appeal & enclosures, tribunal’s record, pp. 149-158.)

 

[27]           On February 1, 2006, in reply to the submissions filed by Mr. Crichlow’s counsel, the Minister’s representative submitted a solemn declaration by Ms. Michèle Théroux, Senior Hearings Advisor for the Canada Border Services Agency, dated January 25, 2006.

 

[28]           Ms. Théroux declared that having verified Mr. Crichlow’s file, she had found no fax, nor any other communications with regard to Mr. Crichlow having been charged with failure to comply with condition of undertaking and recognizance as per paragraph 145(3)(b) of the Criminal Code. (Reply by the Minister’s representative dated February 1, 2006 and Exhibits, tribunal’s record, pp. 167-189; Michèle Théroux’s solemn declaration dated January 25, 2006, tribunal’s record, pp. 187-189.)

 

[29]           The Minister’s representative also reported new facts which had been brought to her attention. She submitted that Mr. Crichlow had failed to inform the Department of one charge of assault in record 500-01-011765-051, as well as of four charges under paragraph 145(5.1)B of the Criminal Code in record 500-01-020419-054.

 

[30]           The Minister’s representative submitted that Mr. Crichlow had failed to report these new charges, thus breaching condition # 5, “if charged with a criminal offence, immediately report the fact in writing to the Department”, as well as the fact that he was under a warrant since December 2, 2005 for failure to appear in court on that day.

 

DECISION UNDER REVIEW

[31]           On May 25, 2006, addressing the preliminary issue as to jurisdiction, the Board determined that sections 197 and 64 of the IRPA did not apply to Mr. Crichlow and that, consequently, the IAD had jurisdiction to continue hearing Mr. Crichlow’s appeal.

 

[32]           The Board based its determination in this regard on a finding that the IAD’s September 25, 2003 decision was a new decision, subject to the provisions of the new Act, as there was no reference in the September 25, 2003 decision to whether it was pertaining to a review of Mr. Crichlow’s stay granted on February 5, 1999. Nor was there any mention of the initial decision or of any subsequent reviews.

 

 

ISSUES

 

[33]           There are two issues to be determined in this case:

 

1) Did the Board err and exceed its jurisdiction by failing to determine whether Mr. Crichlow’s appeal had been discontinued pursuant to section 197 of the IRPA, based on the allegations of breach of conditions?

2) Did the Board err in finding that the September 25, 2003 decision was a new decision and not a review of Mr. Crichlow’s stay granted on February 5, 1999?

 

STANDARD OF REVIEW

[34]           At the heart of the issues raised by this case is a question of statutory interpretation. In Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85, [2004] F.C.J. No. 366 (QL), Justice John Maxwell Evans of the Federal Court of Appeal stated that the proper standard of review applicable to questions relating to the interpretation of Statutes is that of correctness :

[18]      Since the interpretation of a statute is a question of law, it is agreed that correctness is the standard of review applicable in this case. It is also agreed that the interpretation of section 196 should be approached within the following analytical framework set out in Rizzo & Rizzo Shoes and adopted by the Applications Judge (at para. 22):

Although much has been written about the interpretation of legislation ... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach on which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 78 he states:

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.

 

(See also: Singh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 417, [2005] F.C.J. No. 2046 (QL); Canada (Minister of Citizenship and Immigration) v. Hyde, 2005 FC 950, [2005] F.C.J. No. 1178 (QL), at paragraphs 22-24; Carbonaro v. Canada (Minister of Citizenship and Immigration), 2006 FC 102, [2006] F.C.J. No. 134 (QL), at paragraphs 19-20)

 

ANALYSIS

            Application raising a Jurisdictional Issue

[35]           Absent jurisdictional issues or other special circumstances, judicial review does not lie from interlocutory decisions of administrative tribunals. As a general rule, rulings made during the course of a tribunal’s proceeding should not be challenged until the proceedings have been completed. (Zündel v. Citron, [2000] F.C.J. No. 678 (QL) (F.C.A.), para. 10; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, [2001] F.C.J. No. 802 (QL) (F.C.T.D.), paras. 15-19.)

 

[36]           Nevertheless, this principle is not absolute. Judicial review of an interlocutory decision may proceed where special circumstances exist. (Szczecka v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 934 (QL) (F.C.A.).)

 

[37]           Special circumstances warranting immediate judicial review of a tribunal’s interlocutory decision have been found to exist where the jurisdiction of the tribunal was in issue. (Zündel, above, para. 15; Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] F.C.J. No. 585 (QL) (F.C.T.D.).)

 

[38]           In Roosma v. Ford Motor Co. of Canada Ltd., 53 D.L.R. (4^th) 90 (Ont.Div.Ct.), (1988) 66 O.R. (2d) 18,  the Ontario Divisional Court held that judicial review was open to challenge proceedings in a tribunal which were fatally flawed and tainted with a fatal jurisdictional defect at the outset, even where an appeal was provided.

 

[39]           In Canada (Minister of Citizenship and Immigration) v. Sohal, 2004 FC 660, [2004] F.C.J. No. 813 (QL) (F.C.), para. 16, Chief Justice Allan Lutfy determined that a jurisdictional issue was raised in an application for judicial review against the interlocutory decision of the IAD dismissing the Minister’s application to discontinue the appeal pursuant to section 196 of the IRPA. Chief Justice Lutfy ruled that the said application for judicial review should be disposed of prior to the substantive hearing.

 

[40]           As well, it has been held that interlocutory rulings are reviewable if they define the scope of the ultimate decision and are of sufficient significance. In such circumstances, an applicant need not wait until the proceedings have been completed. (Citizens’ Mining Council of Newfoundland and Labrador Inc., v. Canada (Minister of the Environment), [1999] F.C.J. No. 273 (QL) (F.C.T.D.); Canadian Telephone Employees Assn. v. Bell Canada, 2002 FCT 776, [2002] F.C.J. No. 1044 (QL) (F.C.T.D.).)

 

[41]           Moreover, it has also been held that an interlocutory ruling which affects the final rights of the parties is subject to judicial review on an immediate basis. (Groupe G. Tremblay Syndics Inc. v. Canada (Superintendent of Bankruptcy), [1997] F.C.J. No. 294 (QL) (F.C.T.D.); Canadian Telephone Employees Assn., above.)

 

[42]           It is appropriate to seek immediate judicial review of the impugned interlocutory decision. Firstly, the Bard made a determination which is fatally flawed and tainted with a fatal jurisdictional defect by wrongly deciding to retain jurisdiction over Mr. Crichlow’s appeal despite sections 64 and 197 of the IRPA, without assessing whether Mr. Crichlow has breached the conditions of his stay.

 

[43]           Moreover, the impugned decision defines the scope of the ultimate decision to be rendered by enlarging it and allowing the IAD to consider matters which arguably are outside its jurisdiction, i.e. whether, in light of humanitarian considerations, Mr. Crichlow’s breaches of conditions are serious enough to warrant dismissal of his appeal. In this regard, it is now settled in the case law that:

[25]      The seriousness of the crime committed, as evidenced by the length of the term of imprisonment imposed, which forms the basis of a deportation order, warrants the termination of the appeal for the breach of any condition to which the stay is subject.

 

 

(Canada (Minister of Citizenship and Immigration) v. Hyde, 2006 FCA 379, [2006] F.C.J. No. 1747 (QL) (F.C.A.).)

 

[44]           The impugned decision is of sufficient significance as to warrant immediate intervention by this Court.

 

Not a New Decision

[45]           Mr. Crichlow’s appeal, filed on May 1, 1998 against the deportation order issued against him on April 30, 1998 was never allowed or dismissed. The execution of the said removal order was stayed for a period of seven years and Mr. Crichlow allowed to remain in Canada under terms and conditions.

 

[46]           By granting a stay and periodically reviewing Mr. Crichlow’s case, the IAD did not finally dispose of Mr. Crichlow’s appeal filed on May 1, 1998. This is confirmed by the following quotation from Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85 (F.C.A.), [2004] F.C.J. No. 366 (QL):

[35]      …Although the IAD "disposed" of an appeal under the former Act when it directed a stay of the execution of a removal order, its decision was not final..

 

 

[47]           Mr. Crichlow was on probation and the IAD retained an ongoing jurisdiction over his case. (Grillas v. Canada (Minister of Manpower and Immigration), [1972] 2 S.C.R. 577.

 

[48]           The IAD’s decision was not final until the appeal was truly disposed of, by allowing or dismissing the appeal. (Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 (S.C.C.), para. 37.)

 

[49]           When the IRPA came into force, because Mr. Crichlow had been granted a stay under the formal Act, the IAD’s ongoing jurisdiction was preserved by section 196 of the IRPA. That section permitted Mr. Crichlow to retain the benefit of the IADs decision of February 5, 1999 and preserved the IAD’s ongoing jurisdiction over his case. (Medovarski, Federal Court of Appeal, above, para. 41.)

 

[50]           In view of this, the September 25, 2003 decision could not reasonably be viewed as a new decision, unrelated to the IAD’s initial decision of February 5, 1999.

 

[51]           On September 25, 2003, as the IAD’s jurisdiction over Mr. Crichlow’s appeal filed on May 1, 1998 had been preserved by the operation of section 196 of the IRPA, this appeal was still ongoing, the principles of litispendance and res judicata prevented the IAD from reconsidering the issue of the April 30, 1998 deportation order against Mr. Crichlow and deciding the matter anew.

 

[52]           No new appeal against the April 30, 1998 deportation order has ever been filed.

 

[53]           The review of Mr. Crichlow’s stay which occurred on September 25, 2003 was a logical step after the issuance of a stay on February 9, 1999.

[54]           Moreover, the fact that the September 25, 2003 decision was simply a review of Mr. Crichlow’s stay, not a new decision unrelated to the IAD’s initial decision of February 5, 1999, is confirmed by the decision of the Board, dated September 25, 2002, providing for an interim reconsideration of Mr. Crichlow’s stay on or about September 25, 2003.

 

[55]           It is also confirmed by the minutes of the September 25, 2003 hearing itself that the presiding member expressly mentioned that the date of September 25, 2003 had been set for an interim reconsideration of the Respondent’s stay, granted pursuant to subsection 74(2) of the new repealed Immigration Act.

 

[56]           It was unreasonable to conclude that the September 25, 2003 decision was a new decision, unconnected with the February 5, 1999 decision, which had the effect of disqualifying Mr. Crichlow from the application of the transitional provision set out in section 197 of the IRPA.

 

[57]           The only appropriate finding to be made was that Mr. Crichlow’s appeal had not been finally determined yet, that it was still ongoing and consequently, the September 25, 2003 decision was not a new decision. It was an interim reconsideration of the stay that had been directed by the IAD on February 5, 1999.

 

Error Consequential to Jurisdiction

[58]           Based on the erroneous determination that the September 25, 2003 decision was a new decision, unrelated to the initial decision of February 9, 1999, the Board decided that sections 64 and 197 of the IRPA did not apply. It consequently retained jurisdiction over Mr. Crichlow’s appeal, without considering the effect of the transitional provision and without considering the Minister’s evidence regarding numerous breaches of conditions by Mr. Crichlow.

 

[59]           The error committed by the Board in its assessment of the September 25, 2003 decision resulted in another error, where the Board found that it should retain jurisdiction over Mr. Crichlow’s appeal despite sections 64 and 197 of the IRPA. These conclusions are patently unreasonable. It is expressed in the transitional provisions of the IRPA, that appeals to the IAD are terminated in certain circumstances.

 

[60]           The Board’s decision to retain jurisdiction on Mr. Crichlow’s appeal, on the grounds that section 197 of the IRPA did not apply, without considering the Minister’s evidence regarding numerous breaches of conditions by Mr. Crichlow, constitutes a clear excess of jurisdiction. Such an excess of jurisdiction, even if committed in the best possible good faith, will result nonetheless in the decision being set aside. (Syndicat des employés de production du Québec et de l’Acadie v. Canada (Labour Relations Board), [1984] 2 S.C.R. 412.)

 

[61]           A mere error concerning a legislative provision limiting the tribunal’s powers will cause it to lose jurisdiction and subject the tribunal to judicial review. (Union des employés de service, local 298 v. Bibeault, above.)

 

[62]           The appropriate standard of review with regard to an excess of jurisdiction is correctness. (Pezim, above.)

 

[63]           Section 197 of the IRPA is a transitional provision terminating the appeal of certain categories of individuals, whose appeals were pending at the time of the coming into force of the IRPA, who have breached the conditions of their stay.

 

[64]           Section 197 of the IRPA reads as follows:

 

[65]           The relevant part of section 64 of the IRPA reads as follows:

 

[66]           Subsection 68(4) of the IRPA reads as follows:

 

[67]           On April 30, 1998, Mr. Crichlow was found inadmissible by the Adjudication Division pursuant to paragraph 27(1)(d) of the now repealed Immigration Act, for having been imposed a term of imprisonment of more than six (6) months, i.e. Mr. Crichlow was actually imposed a term of imprisonment of twenty-six (26) months: (Minutes of the IRB’s Adjudication Division held at Montreal in the case of Anthony Ian Crichlow on April 30, 1998, tribunal’s record, p. 35.)

 

[68]           Mr. Crichlow is inadmissible on grounds of serious criminality as described in subsection 64(2) of the IRPA.

 

[69]           On February 9, 1999, the IAD ordered under the Immigration Act that the execution of the removal order against Mr. Crichlow be stayed for a period of seven (7) years.

 

[70]           On November 22, 2005, as well as on February 1, 2006, the Minister presented serious allegations of breaches of conditions by Mr. Crichlow having occurred in 2005.

 

[71]           Section 197 provides for an exception to the general rule set out in section 192 of the IRPA, allowing for the continuation under the former Immigration Act of appeals to the IAD filed immediately before the coming into force of the IRPA.

 

[72]           Section 197 concerns individuals, like Mr. Crichlow, who are inadmissible on grounds of serious criminality as described in subsection 64(2) of the IRPA, whose deportation order was stayed under the Immigration Act and who committed a breach of the conditions of their stay. It captures serious criminality in respect of individuals sheltered under section 192 who breach any condition of their stay. They are subject to section 64 and subsection 68(4) of the IRPA.

 

[73]           The Board erred in law and exceeded its jurisdiction or failed to exercise its jurisdiction by finding that section 197 did not apply to Mr. Crichlow and by not considering the Minister’s evidence regarding numerous breaches of conditions by Mr. Crichlow.

[74]           Had the Board correctly exercised its jurisdiction and found the allegations of breach of conditions by Mr. Crichlow to be well-founded, the Board would not have an alternative but to terminate Mr. Crichlow’s appeal.

 

[75]           It is now settled in the case law that when an individual described in section 64 of the IRPA, subject of a pending stay of removal granted by the IAD under the now, repealed Immigration Act, breaches any condition of his stay, the said individual’s appeal is discontinued under section 197 of the IRPA. (Hyde, Federal Court of Appeal, above.)

 

[76]           In two previous decisions, this Court had adopted the Federal Court of Appeal’s view on that issue. (Carbonaro v. Canada (Minister of Citizenship and Immigration), 2006 FC 102, [2006] F.C.J. No. 134 (QL); Bautista v. Canada (Minister of Citizenship and Immigration), 2006 FC 30, [2006] F.C.J. No. 49 (QL).)

 

[77]           The Federal Court of Appeal in Hyde, above, states as follows:

[22]      Section 197 merely says that, if an appellant has breached a condition imposed on the stay of his removal, "the appellant shall be subject to the provisions of section 64 and subsection 68(4)" of IRPA. For an appellant to be subject to both provisions does not necessarily mean that both must apply to the facts of a given case before section 197 kicks in to terminate an appeal. "And" may, after all, be conjunctive or disjunctive, according to context.

 

[23]      Nonetheless, any ambiguity in the English version of section 197 is not present in the French text, which contains no equivalent to the word "and" between the provisions in question. Without referring to the French version, the Judge attached great importance to the presence of "and", which he regarded as conjunctive. After stating that an appellant is subject to the restriction on the right of appeal in section 64, the French version of section 197 concludes: "le paragraphe 68(4) lui étant par ailleurs applicable"; that is, "subsection 68(4) being otherwise applicable to him". The sense of this is that, if section 64 does not apply to a particular appellant, subsection 68(4) does.

 

[24]      The interpretation of section 197 adopted in Bautista and Carbonaro is more coherent, or harmonious, with the design of the legislative scheme, in that it mirrors the way in which section 64 and subsection 68(4) operate in post-IRPA cases. That is, section 64 denies any right of appeal to the IAD to a person who is ordered deported on the ground that he or she has been convicted of an offence for which a sentence of imprisonment of two years or more was imposed. However, such a person, like Mr. Hyde, who appealed and was granted a stay pre-IRPA, will not be removed, provided that they comply with the conditions of the stay.

 

[25]      The seriousness of the crime committed, as evidenced by the length of the term of imprisonment imposed, which forms the basis of a deportation order, warrants the termination of the appeal for the breach of any condition to which the stay is subject.

 

[26]      In contrast, a person who is ordered deported on the basis of a conviction for an offence for which a sentence of less than two years was imposed may still appeal to the IAD post-IRPA. If the IAD stays the removal, the appeal is only terminated automatically if the appellant is subsequently convicted of an offence punishable by up to ten years' imprisonment, or the appellant is sentenced to more than six months' imprisonment. Thus, when a deportation order is based on a sentence of less than two years, and the appellant satisfies the IAD that, "in all the circumstances", removal should be stayed, the appeal is only terminated, as subsection 68(4) directs, for a subsequent conviction of one or more of the serious offences described in subsection 36(1).

 

[27]      To interpret section 197 as permitting Mr. Hyde's appeal to proceed because the offences of which he was convicted, after being granted a stay, were not so serious as to come within subsection 36(1) in effect ignores the fact that he was ordered deported on the basis of a sentence which was so serious that he would have been precluded from appealing to the IAD at all, if he had filed his appeal after IRPA came into effect.

 

[28]      Section 64 deals with those ordered deported on the basis of a sentence of more than two years, who consequently have no right of appeal. Subsection 68(4) necessarily deals with those ordered deported on the basis of a lesser sentence, who hence have a right of appeal, which they may lose if they commit a subsection 36(1) offence after the grant of a stay.

 

[29]      By definition, these are different groups of persons, since a person who has committed a section 64 offence, and files an appeal to the IAD post-IRPA, has no right of appeal and can thus never have his removal stayed subject to conditions. In a post-IRPA appeal, subsection 68(4) can thus only apply to persons who have not committed a section 64 offence. In view of this, it would be anomalous if section 197 were to treat alike those who, after IRPA came into effect, had no right of appeal at all by virtue of section 64, and those who had a right of appeal.

 

[30]      Counsel for Mr. Hyde submitted that the inclusion in section 197 of the reference to section 64 was to set a threshold on the application of section 197. Thus, section 197 would never apply to an appellant who had been ordered deported on the basis of an offence for which he had been sentenced to less than two years' imprisonment. There are, however, at least three difficulties with this argument.

 

[31]      First, the French version of section 197 indicates that the reference to section 64 is to restrict the right to appeal: "l'interéssé ... est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi".

 

[32]      Second, the argument involves saying that Singh v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 70, 2005 FCA 417, was wrongly decided. Mr. Singh had been ordered deported on the basis of an offence for which he had been sentenced to 20 months (para. 6) (that is, a sentence to which section 64 did not apply). Nonetheless, the Court held that his appeal to the IAD was terminated by section 197 because, while the execution of his removal order was stayed, he committed an offence to which subsection 68(4) applied. On Mr. Hyde's theory, section 197 should have been found not to apply to Mr. Singh because he did not fall within both section 64 and subsection 68(4).

 

[33]      Third, it is difficult to find a rationale for concluding that Parliament intended that a person ordered deported on the basis of a sentence of eighteen months' imprisonment should have his stay cancelled and his appeal terminated as a result of subsequently committing an offence to which subsection 68(4) applies, if he filed his appeal post-IRPA, but not if he filed it pre-IRPA. Indeed, such a result would be inconsistent with the statutory purpose of these sections discussed below. [Emphasis of the Court.]

 

 

 

[78]           The Application for judicial review should be granted, as the Board erred in law, exceeded its jurisdiction or failed to exercise its jurisdiction by not determining whether, on the facts of the case, Mr. Crichlow was within the parameters of section 64 of the IRPA and whether he had breached any condition of his stay, thus, putting into effect section 197.

 

CONCLUSION

[79]           In light of the above, the application for judicial review is allowed and the matter is returned for a redetermination of the Minister’s application to dismiss Mr. Crichlow’s appeal due to lack of jurisdiction by a newly constituted panel.

 

JUDGMENT

 

THIS COURT ORDERS that the application for judicial review be allowed and the matter be remitted for redetermination by a differently constituted panel;

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-3263-06

 

STYLE OF CAUSE:                          THE MINISTER OF PUBLIC SAFETY

                                                            AND EMERGENCY PREPAREDNESS

                                                            v. IAN ANTHONY CRICHLOW

 

 

 

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      January 30, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          SHORE J.

 

DATED:                                             February 8, 2007

 

 

 

APPEARANCES:

 

Mr. William Sloan	FOR THE APPLICANT
Ms. Marie Nicole Moreau	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE APPLICANT
WILLIAM SLOAN Montreal (Quebec)	FOR THE RESPONDENT