IMM-4248-97
The Minister of Citizenship and Immigration (Applicant)
v.
Domenic Condello (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Condello (T.D.)
Trial Division, MacKay J."Toronto, April 28; Ottawa, June 2, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Reference pursuant to Federal Court Act, s. 18.3(1) — Before appeal from deportation order heard, Minister issuing danger opinion — Appeal subsequently dismissed for lack of jurisdiction — Gibson J. dismissing application for discretionary stay of removal in belief statutory stay subsisting — Application for leave, judicial review of direction to report for removal dismissed — Before removing respondent, Minister asking Court whether execution of removal order violating (1) Immigration Act, s. 49(1)(b); (2) Gibson J.'s order — Both questions answered in negative — (1) Case law as to effect of s. 70(5) on outstanding appeals to I.A.D. evolving since Gibson J.'s order — After s. 70(5) decision, s. 49(1) not applicable — No basis to claim statutory stay — (2) Order dismissing stay application not granting stay — Answering questions on reference not prejudicial to respondent.
Practice — Res judicata — Reference pursuant to Federal Court Act, s. 18.3(1) — Before appeal from deportation order against respondent heard, Minister issuing opinion under Immigration Act, s. 70(5) respondent danger to public — Appeal dismissed for lack of jurisdiction — Gibson J. dismissing application for discretionary stay of removal in belief statutory stay subsisting — Application for leave, judicial review of direction to report for removal dismissed — Before removing respondent, Minister asking Court whether execution of removal order violating Immigration Act, s. 49(1)(b), Gibson J.'s order — Doctrine of res judicata not applicable — Order dismissing application for stay neither final determination of questions raised herein, as neither question directly before Gibson J., nor declaration statutory stay existed — Order not interlocutory, but regardless, inappropriate to apply doctrine where permanent stay possible result — Parliament intending to create only temporary stay when eliminated appeal of deportation order while providing for judicial review.
This was a reference pursuant to Federal Court Act, subsection 18.3(1). The respondent was the subject of a deportation order which had been appealed, but the appeal had not been heard when the Minister issued an opinion pursuant to Immigration Act, subsection 70(5) that the respondent constituted a danger to the public. The respondent's application for leave and judicial review was dismissed when he failed to file an application record. Meanwhile, the Immigration Appeal Division dismissed the respondent's appeal for lack of jurisdiction pursuant to paragraph 70(5)(c). When the respondent was notified of a removal date, he once again filed an application for leave and for judicial review. Meanwhile, he sought a stay of removal. The preamble to Gibson J.'s March 24, 1997 order dismissing the application for a stay stated that it would be inappropriate to grant a further discretionary stay of removal since a statutory stay remained in place pursuant to paragraph 49(1)(b). (Paragraph 49(1)(b) stays the execution of a removal order until an appeal from the order has been heard and disposed of, or has been declared by the Appeal Division to be abandoned.) In his comments at the hearing, Gibson J. indicated that the reason for his order was because of the continued existence of a statutory stay. The second application for leave and for judicial review was dismissed. As there was no longer a proceeding before the Court, the respondent was directed to report for a pre-removal interview. The respondent replied that it would be contempt of court if the deportation were to take place. The Minister therefore sought clarification, seeking answers to the following questions: Would execution of the removal order violate paragraph 49(1)(b)? If not, would it violate Gibson J.'s order?
The applicant submitted that there is no statutory stay under paragraph 49(1)(b). Otherwise, persons such as the respondent would not be removable from Canada because that statutory stay would be rendered permanent by the subsection 70(5) determination. The respondent submitted that the applicant was attempting to relitigate matters, a course barred by res judicata. He also submitted that he would be prejudiced because Gibson J.'s ruling dissuaded him from pursuing his application for leave and for judicial review.
Held, both questions should be answered in the negative.
A judgment or order, not the reasons therefor, is the matter actually determined. Gibson J.'s decision was that the application for a stay be dismissed. It did not grant a stay.
The doctrine of res judicata did not apply. Gibson J.'s order, and its reasoning, were not a final determination of the questions here raised, for neither question was directly before him, or argued, in the application for a stay. Nor was Gibson J.'s order a declaration that a statutory stay existed. He expressly refused to issue an order prohibiting removal as that would amount to a declaration that a stay existed, a remedy not sought and probably not available upon judicial review. Finally, the order was not interlocutory to this proceeding as the two matters were not part of the same proceeding. Even if it were, it would be inappropriate to apply the doctrine of res judicata when the possible consequence of finding that the existence of a statutory stay is res judicata would effectively be a permanent stay. Parliament intended to create a temporary stay of removal proceedings when it eliminated the appeal of a deportation order while providing an opportunity for judicial review.
Since Gibson J.'s decision, case law dealing with the effect of subsection 70(5) on outstanding appeals to the Immigration Appeal Division has evolved. After the Minister's subsection 70(5) decision, subsection 49(1) did not apply, and there was no basis on which a statutory stay could be claimed. Removal of the respondent would not violate paragraph 49(1)(b). Nor would it violate Gibson J.'s order, which did not grant a stay of the removal order but expressly declined to do so.
Simply answering the specific questions herein could not prejudice the respondent. Nor did the respondent suffer any prejudice as a result of Gibson J.'s order. The failure to complete his earlier application for judicial review was the respondent's decision. It was the respondent's choice not to pursue his application for judicial review, in reliance on Gibson J.'s order, and he cannot now claim prejudice by answers provided to the Minister's questions.
statutes and regulations judicially considered
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.3(1) (as enacted by S.C. 1990, c. 8, s. 5).
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d)(i) (as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16), 48, 49(1)(b) (as am. by S.C. 1992, c. 49, s. 41), 70(5) (as am. by S.C. 1995, c. 15, s. 13).
cases judicially considered
applied:
Darabanitei v. Canada (Minister of Citizenship and Immigration), IMM-2524-97, F.C.T.D., Wetston J., order dated 25/7/97, not reported; Pratt v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 137 (F.C.T.D.).
distinguished:
Solis v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 693; (1997), 127 F.T.R. 218 (T.D.).
referred to:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); Jhammat v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 166 (F.C.T.D.); Wong v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 186; (1991), 49 Admin. L.R. 35; 42 F.T.R. 209 (T.D.); Tsang v. Canada (Minister of Citizenship & Immigration) (1997), 37 Imm. L.R. (2d) 1; 211 N.R. 131 (F.C.A.); Francis et al. v. Mohawk Council of Akwesasne (1993), 62 F.T.R. 314 (F.C.T.D.); Parasidis v. Canada (Minister of Citizenship and Immigration) (1997), 133 F.T.R. 73 (F.C.T.D.); Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 27 D.L.R. (3d) 249 (B.C.C.A.); Desaulniers v. Payette (1904), 35 S.C.R. 1; McKean v. Jones (1891), 19 S.C.R. 489.
REFERENCE pursuant to Federal Court Act, subsection 18.3(1) of the following questions: Would the execution of a removal order issued against the respondent violate (1) Immigration Act paragraph 49(1)(b), and (2) if not, would it violate Gibson J.'s order denying a discretionary stay in the belief that a statutory stay remained in effect? Both questions were answered in the negative.
counsel:
Diane B. N. Dagenais for applicant.
Victoria Russell for respondent.
solicitors:
Deputy Attorney General of Canada for applicant.
Victoria Russell, Toronto, for respondent.
The following are the reasons for order rendered in English by
MacKay J.: By notice of decision to refer questions or issues pursuant to subsection 18.3(1) of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], dated October 9, 1997, the applicant Minister seeks answers from the Court for the two following questions:
1. Would the execution by the Minister, in accordance with her statutory duty pursuant to section 48 of the Immigration Act [R.S.C., 1985, c. I-2], of the removal order issued against the respondent be in violation of paragraph 49(1)(b) [as am. by S.C. 1992, c. 49, s. 41] of the Immigration Act in the circumstances of this case?
2. If the answer to question 1 is in the negative, would the execution by the Minister, in accordance with her statutory duty pursuant to section 48 of the Immigration Act, of the removal order issued against the respondent be in violation of the order of Gibson J. dated March 24, 1997?
Background
The respondent, Mr. Condello, was born on January 6, 1963 and is an Italian citizen. He came to Canada with his parents and has been a landed immigrant, or permanent resident, since August 1965. On December 15, 1992, he was sentenced to 14 years for conspiracy to import a narcotic and conspiracy to traffic a narcotic, a sentence subsequently reduced to 12 years on appeal. On July 25, 1994, the respondent was ordered deported for being a person as described in subparagraph 27(1)(d)(i) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16] (the Act); namely, being a permanent resident of Canada convicted of an offence for which a term of imprisonment of more than six months had been imposed. This deportation order was appealed by the respondent to the Immigration Appeal Division on August 22, 1994. That appeal was not heard before January 16, 1996, when the Minister issued an opinion that the respondent constitutes a danger to the public, pursuant to subsection 70(5) of the Act as amended [by S.C. 1995, c. 15, s. 13] with effect from July 1995.
On February 6, 1996, the respondent sought leave to commence judicial review proceedings to challenge the subsection 70(5) determination. As the respondent did not file an application record, the application for leave and for judicial review was dismissed on May 7, 1996. Meanwhile, on March 27, 1996, the Immigration Appeal Division dismissed the respondent's appeal for lack of jurisdiction pursuant to paragraph 70(5)(c) of the Act, which decision the respondent then sought to question by an application for leave and for judicial review, filed on May 23, 1996. This second application was dismissed on September 30, 1996, by order of Mr. Justice Gibson.
On March 5, 1997, the respondent was notified that he would be removed from Canada on April 2, 1997, a decision he challenged by once again filing an application for leave and for judicial review on March 19, 1997, an application that was ultimately dismissed on August 12, 1997 when the respondent had not filed an application record. Meanwhile, on March 20, the respondent sought a stay of his removal. On March 24, 1997, Mr. Justice Gibson dismissed the application for a stay. No separate reasons were filed but in the preamble to the order dismissing the application, Gibson J. stated:
And the Court being satisfied that a statutory stay of removal of the applicant remains in place pursuant to paragraph 49(1)(b) of the Immigration Act, the applicant's appeal to the Immigration Appeal Division of the Immigration and Refugee Board having neither been heard and disposed of or declared by the Immigration Appeal Division to be abandoned, and that therefore it would be inappropriate for the Court to grant a further discretionary stay.
In the course of hearing that application, His Lordship commented upon the wording of paragraph 49(1)(b) of the Act and the fact that it had not been modified by Parliament when the Act was amended by adding subsection 70(5) to specifically deal with the circumstances of this case before the Appeal Division. In his comments at the hearing, Gibson J. clearly indicated the reasons for his conclusion in these words:
So an order will go dismissing this application for a stay, but reciting the fact that the reason for the order is because of the existence, the continued existence of the statutory stay.
As we have noted, the respondent's application for leave and for judicial review of the decision that he report for removal was dismissed on August 12, 1997. As there was no longer a proceeding before the Court, on September 4, 1997, the respondent was sent a letter directing that he report for a pre-removal interview on September 17, 1997, for his removal, then scheduled for October 29, 1997. On September 23, 1997, counsel for the respondent wrote a letter to counsel for the Minister advising that the latter would be in contempt of court owing to Gibson J.'s March 24, 1997 order if the deportation were to take place. The Minister thereupon determined to seek clarification by the Court, seeking answers to the questions posed in this application.
Position of the parties
The applicant urges that Gibson J. made it clear that his refusal to issue a discretionary stay rested on his view that a statutory stay under paragraph 49(1)(b) remained in effect. This paragraph of the Act is as follows:
49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed
. . .
(b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned;
In Solis v. Canada (Minister of Citizenship and Immigration),1 decided shortly before his order dismissing the stay application, Gibson J. was of the view that a determination under subsection 70(5) of the Act did not eliminate the statutory stay arising pursuant to paragraph 49(1)(b). The applicant submits that Gibson J. erred in coming to this view, and relies upon the Court of Appeal decisions in Tsang v. Canada (Minister of Citizenship & Immigration),2 and Williams v. Canada (Minister of Citizenship and Immigration),3 and upon my own reasoning in Pratt v. Canada (Minister of Citizenship and Immigration),4 and the decision of my colleague, Mr. Justice Wetston in Darabanitei v. Canada (Minister of Citizenship and Immigration).5 The Minister submits that the Immigration Appeal Division no longer has jurisdiction to deal with an outstanding appeal once the opinion has been rendered that a permanent resident constitutes a danger to the public. Thus the Appeal Division cannot thereafter hear and dispose of the matter. If Gibson J.'s reasoning were to prevail, it is said persons in the same circumstances as the respondent would not be removable from Canada, for the statutory stay would, in effect, be rendered permanent by the subsection 70(5) determination. On this basis, the applicant urges that there is no statutory stay in effect pursuant to paragraph 49(1)(b).
Further, for the applicant Minister it is submitted that Gibson J.'s order cannot be interpreted as constituting a declaratory order, both because of statements made by Gibson J. in the order and because such an interpretation would exceed the jurisdiction of a motions judge dealing with a request for interim relief. This position is said to be supported by Francis et al. v. Mohawk Council of Akwesasne6 and Parasidis v. Canada (Minister of Citizenship and Immigration).7
In the alternative, the applicant submits that even if Gibson J.'s order could be said to constitute a discretionary stay, it could not survive the termination of the proceedings in which the stay was an interlocutory matter, and those proceedings, the application for leave and for judicial review, were dismissed on August 12, 1997.
For his part, the respondent urges that the applicant is simply attempting to re-litigate matters determined by Gibson J., a course barred by the principle of res judicata. The respondent, relying on several cases,8 urges that Mr. Justice Gibson's order cannot be reviewed, or changed in order for the applicant to obtain a new or different decision, as the matter at bar is not an appeal. Further, it is urged that as Gibson J.'s reasoning depends in large part on his view that a statutory stay existed, it would be prejudicial and unfair to the respondent if, should this view prove incorrect, he was not given an opportunity to have a discretionary stay fully considered. Prejudice is also said to stem from the fact that Gibson J.'s ruling that a statutory stay was in place dissuaded the respondent from pursuing his application for leave and for judicial review of the subsection 70(5) determination.
In written submissions, the applicant urges that the concept of res judicata does not apply in this area of public law and, further, the questions here raised for consideration of the Court were not finally dealt with or adjudicated by Gibson J., and thus the principle of res judicata does not apply.
Analysis
It is my view that both questions here at issue should be answered in the negative.
In the first place, it is trite law that a judgment or order, not the judge's reasons for that, is the matter actually determined. Here, the decision by Mr. Justice Gibson was that the application for a stay was dismissed. Whatever his reasons may have been, it is not possible to construe that decision as one granting a stay. In my view, it cannot be argued that the questions referred to the Court in this matter amount to an appeal of Gibson J.'s order. Those questions seek answers which are not binding, but only advisory, for the parties.
In the second place, in my opinion, the doctrine of res judicata does not here apply. Leaving aside the question of whether the doctrine applies in circumstances involving a principle of public law, a question left open by Mr. Justice Muldoon in Jhammat v. Canada (Minister of Employment and Immigration)9 and Jerome A.C.J. in Wong v. Canada (Minister of Employment and Immigration),10 it is my view that the order of Mr. Justice Gibson, and its reasoning, cannot be viewed as a final determination of the questions here at issue, for neither question was directly before him, or argued, in the circumstances of the respondent's application for a stay.
His Lordship's order was not a declaration that a statutory stay existed, and that issue was not directly determined. The issue before Gibson J. was whether to order a discretionary stay. His Lordship's reasons as recorded in the transcript of the hearing were that in declining to issue such a stay, he was not rendering either an order of prohibition or a declaration on the law concerning the existence of a statutory stay. In the transcript of the hearing, in refusing to issue an order prohibiting removal, Gibson J. indicated that to grant such an order would be "tantamount to a declaration that a statutory stay exists and an application for such a declaration is not before me and most likely, could not properly be on an application for judicial review."
I note for the record that the circumstances in the case differ from those dealt with by Gibson J. in Solis, in that here the Appeal Division had dimissed the respondent's appeal of his deportation order before the application for a stay. That factual difference, that in this case there was no outstanding appeal of a deportation order before the Appeal Division, would have been known to His Lordship. There is a further factual difference in the circumstances now from those prevailing at the time of Gibson J.'s dismissal of the stay application on March 24, 1997, that is that there is no longer any application for leave and for judicial review before the Court as there was on March 24, 1997 when Gibson J.'s order was made.
Gibson J.'s decision refused to extend a discretionary stay to the respondent, based on His Lordship's view that a statutory stay was still in operation. Since that decision, the jurisprudence dealing with the effect of subsection 70(5) on outstanding appeals to the Immigration Appeal Division has evolved, particularly in light of the decision of the Court of Appeal in Williams. One question before this Court is whether, in the context of the jurisprudence today, the Minister would be violating the Act in deporting the respondent. This question was not determined by Gibson J., though his order does imply an answer reflecting his understanding of the Act and the jurisprudence at that time.
I am cognizant of the fact that the matter now before the Court and that before Mr. Justice Gibson are not formally part of the same application, and in that sense Gibson J.'s order is not interlocutory to this proceeding. Even if it were, his order would not be res judicata. Moreover, I must take account of the consequences of finding that the existence of a statutory stay is res judicata, that is, that, the respondent would effectively benefit from a permanent stay because, under the prevailing interpretation of the impact of subsection 70(5) and given the dismissal of the respondent's application for judicial review filed in March 1997, the respondent is no longer subject to a judicial proceeding whose completion is required for the stay to be removed. I am not prepared, in light of Parliament's intent to eliminate an appeal of a deportation order, while providing an opportunity for judicial review, to consider that Parliament could have intended a permanent stay of a deportation order would result under a provision that was obviously intended to create a temporary stay of removal proceedings. In light of that possible result, a permanent stay, in my view applying the doctrine of res judicata would be inappropriate.
Further, the central issue in this reference, whether a statutory stay exists in the wake of a danger to the public determination made pursuant to subsection 70(5) was considered and determined in Pratt.11 There, I reviewed several cases, including the Solis and Williams decisions (the latter by the Court of Appeal), and concluded as follows:
In view of the decision in Williams, it is my opinion that the appeal to the Appeal Division initiated by Mr. Pratt, which the Division had heard but not determined, was effectively rendered nugatory, or was effectively extinguished, by Parliament's determination that in the circumstances the applicant could not exercise the right of appeal granted by s. 70(1). While it is true the Appeal Division had not heard and disposed of the appeal, it could provide no possible disposition other than to recognize that under the Act, by virtue of the Minister's opinion under s. 70(5), the Appeal Division had no jurisdiction to deal with the appeal by Mr. Pratt. In the circumstances, in my opinion the very basis of the statutory stay under s. 49(1)(b) of the Act, that is, an outstanding appeal the outcome of which was not determined, is effectively removed by the rendering of the Minister's opinion under s. 70(5). In my view, the implications of the Williams decision are clearly that the ground for a statutory stay under s. 49(1)(b) is removed once a Ministerial decision is made under s. 70(5).
Thus, I conclude that the decision to execute the outstanding deportation order was within the authority of the Minister under the Act after the opinion was determined under s. 70(5) that the applicant constituted a danger to the public in Canada. From that time the statutory stay pursuant to paragraph 49(1)(b) was effectively removed.
In Darabanitei,12 Mr. Justice Wetston set out succintly his opinion that paragraph 49(1)(b) provided no statutory stay in these circumstances.
I have considered a number of decisions with respect to the existence of a statutory stay. In particular, Solis v. Canada, [1997] F.C.J. No. 315 and Pratt v. Canada, [1997] F.C.J. No. 522. I have also considered M.E.I. v. Williams, [1997] F.C.J. No. 393. After considering these authorities, as well as the legislative framework contained in the Immigration Act, I am of the opinion that subsection 70(5) of the Act removes the applicant's right to appeal to the IAD in these circumstances. Therefore, paragraph 49(1)(b) does not apply.
The decisions, in both Pratt and Darabanitei, in my opinion, support the determination that in the circumstances of this case the Minister may, at this time, deport the respondent without violating provisions of the Act. In Pratt, the applicant's appeal to the Appeal Division had been heard but not "disposed of" when removal was initiated for which a stay was sought. Here, the respondent's appeal was disposed of by the Appeal Division which determined it had no jurisdiction to hear the matter, a decision in accord with subsection 13(4) of S.C. 1995, c. 15, the amending Act, which provided for the application of subsection 70(5). After the decision on behalf of the Minister under subsection 70(5), in the words of Wetston J., subsection 49(1) did not apply and there was no basis on which a statutory stay could be claimed. Thus the answer to the first question posed by the applicant Minister, in my opinion, is "No". Removal of the respondent from Canada would not violate paragraph 49(1)(b ) of the Act in the circumstances of this case.
I also conclude that removal of the respondent would not violate the order of Gibson J. and thus, I answer question 2 in the negative. I stress again that his order did not grant a stay of the removal order, rather he expressly declined to do so.
With regard to the respondent's arguments regarding prejudice, with respect, it seems to me that simply answering the specific questions here at issue could not have the effect of prejudicing the respondent. While there may well be an outstanding deportation order concerning the respondent, there is no outstanding order for him to report for removal. Should he again be directed to report for removal, he may decide to seek leave and another application for judicial review and a further discretionary stay which would be determined on its merits. Even if this were not the case, I am not persuaded that the respondent suffered any prejudice as a result of the order of Gibson J. The failure to complete his earlier application for judicial review was the respondent's decision, whatever the reason. It was not directed by the order of Gibson J. If the respondent, in reliance on that order, decided not to pursue his application for judicial review, that choice was his and having made it he cannot claim prejudice would arise by answers now provided to the questions raised by the Minister.
Conclusion
An order issues setting out each of the questions asked by the applicant Minister, with the answer "No" to each question, as follows:
Question 1: Would the execution by the Minister, in accordance with her statutory duty pursuant to section 48 of the Immigration Act, of the removal order issued against the respondent be in violation of paragraph 49(1)(b) of the Immigration Act in the circumstances of this case?
Answer: No.
Question 2: If the answer to question 1 is in the negative, would the execution by the Minister, in accordance with her statutory duty pursuant to section 48 of the Immigration Act, of the removal order issued against the respondent be in violation of the order of Gibson J. dated March 24, 1997 rendered in the matter of Condello v. Canada (Minister of Citizenship and Immigration) (Court file No. IMM-1140-97)?
Answer: No.
1 [1997] 2 F.C. 693 (T.D.).
2 (1997), 37 Imm. L.R. (2d) 1 (F.C.A.).
3 [1997] 2 F.C. 646 (C.A.).
4 (1997), 130 F.T.R. 137 (F.C.T.D.).
5 Unreported order, IMM-2524-97, July 25, 1997 (F.C.T.D.).
6 (1993), 62 F.T.R. 314 (F.C.T.D.).
7 (1997), 133 F.T.R. 73 (F.C.T.D.).
8 Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 27 D.L.R. (3d) 249 (B.C.C.A.); Desaulniers v. Payette (1904), 35 S.C.R. 1; McKean v. Jones (1891), 19 S.C.R. 489.
9 (1988), 6 Imm. L.R. (2d) 166 (F.C.T.D.).
10 [1991] 2 F.C. 186 (T.D.).
11 Supra, note 4, at pp. 151-152.
12 Supra, note 5.