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BETWEEN: and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Heard at Toronto, Ontario, on November 29, 2005. Judgment delivered at Ottawa, Ontario, on December 9, 2005.
REASONS FOR JUDGMENT BY: SEXTON J.A. CONCURRED IN BY: LINDEN J.A. NOËL J.A.
Docket: A-210-05 Citation: 2005 FCA 417
CORAM: LINDENJ.A. NOËL J.A. SEXTON J.A.
BETWEEN: SUKHDEV SINGH Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
REASONS FOR JUDGMENT [1] This is an appeal from a Federal Court dismissal of a judicial review application that had been brought by the appellant, Sukhdev Singh ("Singh"). The appellant was a permanent resident of Canada. After being convicted of robbery, he was found inadmissible on the grounds of serious criminality and ordered deported. He appealed his deportation and was granted a stay of removal that contained, among others, the condition "keep the peace and be of good behaviour." Subsequently, the appellant committed another serious offence, this time assault with a weapon, and was convicted of that crime. [2] Between the time of the assault and the conviction, on June 28, 2002, the Immigration Act, R.S.C. 1985, c. I-2 (the "Immigration Act"), which had governed the appellant to that point, was replaced by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"). A provision of the IRPA addressesindividuals such as the appellant, who are found inadmissible on the grounds of serious criminality, have obtained a stay of their removal order, and are then convicted of another serious offence. It mandates the cancellation of their stay and the termination of their appeal.
[3] The appellant claims that he continues to be governed by the old Immigration Act, which would not have cancelled his stay and terminated his appeal upon the commission of the second offence. In the decisions below, the Immigration and Appeal Division of the Immigration and Refugee Board (the "Board") and the Federal Court disagreed, finding that the provision of the IRPA applied to the appellant. They based their conclusion on a transitional provision of the IRPA, section 197. It states that the provision of the IRPA that cancels the stay and terminates the appeal applies to individuals, granted a stay of deportation under the old Immigration Act, who breach a condition of it. The main issue in this appeal is whether section 197 should be construed to apply to a breach of a condition that occurred before section 197 of the IRPA was enacted.
[4] In my view, Parliament clearly intended that the provision of the IRPA that cancels the stay and terminates the appeal apply to individuals such as the appellant, regardless of whether the condition of the stay was breached before or after the IRPA came into force. FACTS [5] The appellant is a citizen of India who became a permanent resident of Canada in 1986. In December 1998, he was convicted of robbery contrary to section 344 of the Criminal Code, R.S.C. 1985, c. C-46. Subsequently, he was determined to be inadmissible to Canada on the grounds of serious criminality and was ordered to be deported. The appellant launched an appeal of his deportation to the Board. On June 28, 2000, he obtained a stay of removal from the Board. The stay contained a number of conditions, one of which was "keep the peace and be of good behaviour."
[6] On January 20, 2001, the appellant assaulted a person. The appellant pled guilty to the offence of assault with a weapon in August of the following year. He was convicted of the crime on August 26, 2002 and sentenced to the time that he had already served 20 months. The offence of which he was convicted was one of serious criminality, falling within the terms of subsection 36(1) of the IRPA.
[7] Approximately 17 months after the assault and two months before the conviction, on June 28, 2002, the IRPA came into force, replacing the Immigration Act. On February 14, 2003, the appellant was issued a Notice of Cancellation of Stay and a Termination of Appeal (the "Notice") pursuant to the IRPA. The Notice was based on the appellant's breach of a condition of his stay, that is, to "keep the peace and be of good behaviour." Consequently, his stay was said to be cancelled by operation of law and his appeal of his deportation was terminated. The Board upheld the Notice on December 18, 2003. Approximately two months later, the appellant was removed from Canada.
STATUTORY PROVISIONS [8] The following provisions of the IRPA address the objectives of the legislation, serious criminality and stay cancellations.
[9] The following provisions of the IRPA address the transition from the prior Immigration Act regime to the current IRPA one.
ADJUDICATIVE HISTORY I. THE FINDINGS OF THE BOARD [10] The Board set out two questions that, in its view, had to be affirmatively answered if section 197 was to apply to the appellant's case. They were: 1. Was the appellant granted a stay under the former Immigration Act?
2. If so, did the appellant breach a condition of the stay on or after June 28, 2002, when the IRPA came into force?
[11] In this instance, the first condition was clearly met. On June 28, 2000, the appellant had been granted a stay of deportation with conditions under the auspices of the old Immigration Act.
[12] The second condition reflected the Board's implicit belief that the legislature did not intend section 197 to have a retrospective effect. Therefore, for the Board, only breaches of conditions that occurred after the IRPA came into force triggered the application of section 197.
[13] As for the meaning of "breaches," in this case, the Board equated the breach of the condition with the conviction of the crime. The Board acknowledged that this understanding represented a departure from the prior jurisprudence. In Psyrris v. Canada(Minister of Citizenship and Immigration), [2003] I.A.D.D. No. 588 (Nos. M94-07845) it was held that the key question was whether the date of the commission of the offence, and therefore the breach, was before or after June 28, 2002.
[14] Here, however, the Board held that the condition "keep the peace and be of good behaviour" was breached upon the conviction. In the Board's view, what was required to trigger section 197 was a finding by an appropriate authority, such as a criminal court, that the offending action was criminal or otherwise disrupted or disturbed the peace or good order of Canadian society. The mere unsubstantiated allegations of wrongdoing that existed prior to such a finding could not amount to a breach of the condition.
[15] In this context, the Board addressed the argument that a breach did not exist until a conviction was pronounced by a criminal court and that when that conviction was announced, the breach reverted to when the offence was committed. The Board found that there was "a fundamental inconsistency" in this argument. In its opinion, "a breach is a breach when it is found to be a breach" that is, when a conviction is registered.
[16] The critical date for the application of section 197 was thus that of criminal conviction, not that of offence commission. In this case, the requirements of the second condition were satisfied because the appellant was convicted of assault with a weapon on August 26, 2002. Therefore, he breached a term and condition attached to his stay of removal after the IRPA came into force. Section 197 applied, thereby triggering subsection 68(4) of the IRPA. The latter provision addresses individuals found inadmissible on the grounds of serious criminality who have obtained a stay of their removal order and are convicted of another serious offence. It mandates the cancellation of their stay and the termination of their appeal. Thus, the appellant's stay was cancelled by operation of law and his appeal was terminated.
II. THE FINDINGS OF THE FEDERAL COURT [17] At the outset, the Federal Court considered the meaning of the term "breach." To do so, it relied on Black's Law Dictionary, 7th ed., in which the term was described as "a violation or infraction of a law or obligation." Accordingly, "breach" was defined by the date of commission of the offence. To consider the date of conviction determinative would be to redefine "breach" as "the affirmation of a violation or infraction of a law or obligation."
[18] However, section 197 did not state when the breach had to be committed. Consequently, the Federal Court went on to consider whether the IRPA applied retroactively to include a breach that happened before the IRPA came into force where the conviction occurred after it came into force. [19] In finding that section 197 applied to the appellant, the Federal Court drew on Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002): Today, there is only one principal or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[20] Thereafter, the Federal Court seemed to employ a contextual approach to determine whether the critical date for the application of section 197 was that of the offence commission or that of the criminal conviction. For instance, it observed that the IRPA could apply retrospectively. IRPA, section 190; Dragan v. Canada(Minister of Citizenship and Immigration) [2003] 4 F.C. 189, 2003 FCT 211 at para. 35. It felt that the key to the proper interpretation of section 197 was subsection 68(4), which uses the word "convicted." That made the appropriate date for determining whether section 197 applied that of the conviction, not that of the offence.
[21] Thus, the date for the determination of the application of section 197 and subsection 68(4) was the date of the appellant's conviction August 26, 2002. Since section 197 was enacted prior to the conviction, it was applicable to the appellant, so the Federal Court endorsed the Board's cancellation of the appellant's stay and the termination of his appeal.
[22] Finally, pursuant to subsection 74(d) of the IRPA, the Federal Court certified the following serious question of general importance: What is the appropriate interpretation of the time of breach, as regards s. 197 of the IRPA: - the time of conviction, or the time of commission of the offence and how can s. 197 be applied retroactively / retrospectively for a situation where an offence occurred prior to June 28th, 2002, but the conviction occurred after the coming into force of the IRPA, and be reconciled with the whole of the Act.
ANALYSIS I. STANDARD OF REVIEW [23] The parties concur that the standard to be applied when reviewing the Board's interpretation of the relevant IRPA provisions is correctness. Medovarski v. Canada(Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48, 2004 FCA 85, aff'd 2005 SCC 51 at para. 18.
[24] The question of whether the Federal Court selected and applied the correct standard of review to the Board's decision is one of law. Therefore, it is also reviewable on a standard of correctness. Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 43.
[25] The Federal Court did not explicitly discuss the appropriate standard of review to be applied in this case. However, it did offer a fresh interpretation of the legislation. Therefore, it must be taken to have reviewed the Board's decision on a standard of correctness. That was indeed the appropriate approach.
[26] The task of this court is to review the Federal Court's interpretation of the IRPA. Questions of statutory interpretation are questions of law. As such, they are also reviewed on a correctness standard. Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 8.
II. THE CORRECTNESS OF THE DECISIONS BELOW [27] Although in the end, both the Board and the Federal Court came to the same and what I believe to be the correct conclusion, neither of them took quite the same path to it. Unfortunately, in my view, both of their chosen routes pulled them somewhat off course, albeit in different ways.
[28] The Board equated a declaration of wrongdoing from an authoritative source (a conviction) with the actual disruption of the peace and bad behaviour by the appellant. This seems counterintuitive to me. Regrettably, the Board did not elaborate on its concerns about the alternative argument that the authoritative declaration of wrongdoing simply confirms for legal purposes that the offence, and thus the disturbance of the peace and bad behaviour, occurred in the past. In my opinion, the actions that constitute the offence, even if responsibility for them is only allocated upon conviction, are what actually disrupt the peace and good order of Canadian society. In other words, although it may be only upon conviction that one may be able to determine that the appellant breached a condition of the stay, it is nevertheless the offence itself that constitutes the breach of the condition. Conceivably, however, a breach could be established without a conviction, where there is other clear evidence of the offensive behaviour.
[29] I believe that the Federal Court was correct in finding that the condition of the stay was breached when the offence was committed. However, its use of subsection 68(4) to apply section 197 to the appellant is of concern to me.
[30] Section 197 essentially sets out a threshold test. It defines whom among those with pending notices of appeal that were originally brought under the old Immigration Act are caught by subsection 68(4) of the new IRPA. Even upon finding that section 197 applies to the appellant, conditions in subsection 68(4) must still be met before it can serve to cancel the appellant's stay and terminate his appeal. For example, after the stay was granted, the appellant must have been convicted of another offence referred to in subsection 36(1) of the IRPA for subsection 68(4) to apply to him.
[31] To me, it seems improper to rely on the conditions in subsection 68(4), such as "convicted of another offence," to determine whether section 197 is applicable to the appellant. After all, only if the conditions in section 197 are met do the conditions in subsection 68(4) ever become relevant in the legal analysis. Using the subsequent stages of analysis to define the threshold threatens to eviscerate the threshold.
[32] In this court, the appellant essentially cobbles together bits and pieces from the Board and Federal Court decisions to construct a favourable outcome for himself. For instance, the appellant endorses the Federal Court's determination that the breach occurs at the time of the offence. Then, the appellant invokes the Board's two-step approach to section 197 and observes that the second stage is not met in this instance. After all, the "breach" of the condition defined by the Federal Court as the offence itself did not occur on or after June 28, 2002, when the IRPA came into force. Therefore, section 197 does not render subsection 68(4) applicable to the appellant.
[33] This approach is incorrect. The principal problem with the reasoning of both the Board and the Federal Court is that neither seemed to appreciate that section 197 might actually have retrospective effects. To be sure, in general, statutes are not to be construed as having retrospective operation. However, such a construction may expressly or by necessary implication be required by the statutory language. Gustavson Drilling (1964) Ltd. v. Canada(Minister of National Revenue - M.N.R.), [1977] 1 S.C.R. 271 at 279. Where the legislature has clearly intended the legislation to have retrospective effects, the courts must respect them. As was recently explained by the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at para. 69: Except for criminal law, the retrospectivity and retroactivity of which is limited by s. 11(g) of the [Canadian] Charter [of Rights and Freedoms], there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our Constitution. Professor P. W. Hogg sets out the state of the law accurately (in Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 48-29):
Apart from s. 11(g), Canadian constitutional law contains no prohibition of retroactive (or ex post facto laws). There is a presumption of statutory interpretation that a statute should not be given retroactive effect, but, if the retroactive effect is clearly expressed, then there is no room for interpretation and the statute is effective according to its terms. Retroactive statutes are in fact common. [emphasis added]
[34] In my view, this is the case with section 197. It does not specify that the appellant shall be subject to the provisions of subsection 68(4) if the appellant "breaches a condition of the stay upon or after the coming into force of this Act." Parliament did not state when the breach is to occur in section 197 because it did not want to limit the application of the provision. Simply put, section 197 is intended to apply to all those granted a stay under the old Immigration Act who breach a condition of it, regardless of when they do so.
[35] The retrospective effect of section 197 is clear when it is considered in the context of the other transitional provisions of the IRPA. Essentially, sections 190, 192 and 197 operate together to define to whom the IRPA retrospectively applies.
[36] According to section 190 of the IRPA, the IRPA applies to every application, proceeding or matter under the old Immigration Act that is pending or in progress immediately before the IRPA comes into force. To be precise, this obviously retrospective provision states:
Therefore, prima facie, the IRPA applies to the appellant's appeal.
[37] Section 192, however, provides an exception to section 190 for those who have filed a notice of appeal. Their appeals are to be continued under the Immigration Act:
This exception, with nothing more, would mean that the appellant's right to an appeal would be governed by the old Immigration Act.
[38] Section 197 contains an exception to the section 192 exception. The former provision captures those sheltered under section 192 who breach a condition of their stay. They are subject to section 64 and subsection 68(4) of the IRPA:
This exception brings the IRPA back into play, so that the appellant's appeal rights are governed by the IRPA.
[39] Read in sequence, each of these three transitional provisions covers a smaller group of those with pending notices of appeal originally brought under the old Immigration Act. Section 190 mandates that the IRPA applies to all of those in this category. Section 192 carves out a group of these individuals to whom the IRPA does not apply. Finally, section 197 dictates that section 64 and subsection 68(4) of the IRPA apply to selected individuals in that section 192 group. Together, these provisions render the IRPA retrospectively applicable to individuals such as the appellant.
[40] Even if it could not be said that Parliament's intention was clear about the application of section 197, in my view, the presumption against retrospectivity does not apply to this provision. That rule of statutory interpretation is irrelevant to statutes that aim at protecting the public. As the Supreme Court of Canada explained in Brosseau v. Alberta(Securities Commission), [1989] 1 S.C.R. 301 at para. 51: Elmer Driedger summarizes the point in "Statutes: Retroactive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264, at p. 275
In the end, resort must be had to the object of the statute. If the intent is to punish or penalize a person for having done what he did, the presumption [against retroactivity or retrospectivity] applies, because a new consequence is attached to a prior event. But if the new punishment or penalty is intended to protect the public, the presumption does not apply.
[41] Section 197 and subsection 68(4) of the IRPA are not intended to punish the appellant, but to protect the public. According to subsection 3(1) of the IRPA, the legislation is designed:
[42] In Medovarski v. Canada(Minister of Citizenship and Immigration); Esteban v. Canada(Minister of Citizenship and Immigration), 2005 SCC 51 at para. 10, the Supreme Court of Canada acknowledged the protective nature of the IRPA: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. [emphasis added]
[43] Indeed, in introducing the IRPA, the Minister of Citizenship and Immigration voiced the concern that "those who pose a security risk to Canadabe removed from our country as quickly as possible." Ibid. at para. 12. As this court has observed, the "IRPA's objective [is] protecting the public interest by providing the legal means for securing the expeditious removal from Canada of those who, among other things, have committed serious criminal offences." Medovarski v. Canada(Minister of Citizenship and Immigration), 2004 FCA 85, aff'd 2005 SCC 51 at para. 52.
[44] In conclusion, section 197 is clearly intended to be retrospective and, in any event, the presumption against retrospectivity does not apply to this protective legislation. The appellant breached a condition of his stay by committing assault with a deadly weapon on January 20, 2001. Consequently, section 197 applies to his case and renders subsection 68(4) applicable to him. Both the Board and the Federal Court were correct in upholding the appellant's stay cancellation and appeal termination.
[45] I would also like to observe that absurd results would follow from not understanding section 197 as having retrospective effects. For instance, serious criminals would not be subjected to the more stringent standards of the IRPA, simply because their crimes were committed before June 28, 2002. Meanwhile, other serious criminals would have their appeals terminated and stays cancelled, merely because they breached the conditions of their stays after June 28, 2002. Clearly, there is no rational basis for distinguishing between these two groups.
[46] Finally, I would like to comment on an alternative argument of the respondent, the Minister of Citizenship and Immigration. The respondent suggests that section 197 covers the appellant, even if the provision is not understood to have retrospective effects. It is argued that the appellant breached the condition to "keep the peace and be of good behaviour" twice. First, he did so before the IRPA came into force, when he committed the offence. Then, he did so again when he was convicted of the offence. The latter of these breaches, the conviction, occurred after the IRPA came into force. It suffices to trigger section 197 and therefore subsection 68(4).
[47] In light of the reasoning above, it is not strictly necessary to deal with this argument. Nevertheless, I should say that I have some difficulty with it. It seems illogical to conclude that two breaches flow from a single act. Suppose, for instance, that section 197 mandated that, for subsection 68(4) to apply, the appellant must have breached a condition of his stay twice. Could this appellant be said to have committed two breaches? I should think not, because he committed only one act that disturbed the peace. He was of bad behaviour when he committed the offence. In the criminal proceedings, he did not disrupt the good order of Canadian society. Instead, he was convicted by a court of law. I fail to see how the appellant's involvement in legal proceedings can be construed as bad behaviour. The conviction merely represents the legal recognition of the fact that, in the past, the appellant committed an offence. That offence amounted to a disruption of the peace and good order of Canadian society and therefore a breach of a condition of the appellant's stay of removal.
ANSWER TO THE CERTIFIED QUESTION [48] The appropriate interpretation of the time of breach, as regards section 197 of the IRPA, is the time of the offence. Section 197 is retrospectively applicable to a case in which an offence occurred prior to June 28, 2002, but the conviction occurred after the coming into force of the IRPA. The wording of the section, particularly when it is read in the context of its companion transitional provisions in the IRPA, reveals that Parliament intended section 197 to have retrospective effects. Even if the legislature's intention on this point were not clear, the presumption against retrospectivity does not apply to section 197 because that provision is designed to protect the public.
DISPOSITION [49] In the result, subsection 68(4) of the IRPA applies to the appellant through the operation of section 197 of the IRPA. The appeal should be dismissed with costs.
"I agree. A.M. Linden J.A."
"I agree. Marc Noël J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-210-05
STYLE OF CAUSE: SUKHDEV SINGH and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 29, 2005
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: LINDEN J.A. NOËL J.A.
APPEARANCES:
SOLICITORS OF RECORD:
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