Judgments

[1997] 2 F.C. 693

IMM-9-97

IMM-4898-96

Emmanuel Solis (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Solis v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Gibson J.—Ottawa and Winnipeg (teleconference), March 6; Ottawa, March 19, 1997.

Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Applicant in Canada since 1986 as refugee from Guatemala — Subsequently convicted of serious criminal offences — Application for discretionary stay of execution of removal order — Appeal from deportation order to Immigration and Refugee Board, Appeal Division outstanding when Minister’s delegate issuing danger opinion — Immigration Act, s. 49(1)(b) providing where appeal filed with Appeal Division, execution of removal order stayed until appeal heard and disposed of or declared abandoned — Since neither condition fulfilled, statutory stay still in existence; no need for discretionary stay — Issuance of danger opinion not precluding Appeal Division from hearing, determining jurisdiction under s. 69.4(2) — Application of s. 49(1)(b) not dependent upon Appeal Division having jurisdiction over appeal — Statutory stay triggered by filing appeal, not by Appeal Division’s jurisdiction.

Construction of statutes — Immigration Act, s. 49(1)(b) providing where appeal filed with Appeal Division, execution of removal order stayed until appeal heard and disposed of or declared abandoned — Statutory language conjunctive — Requiring appeal to be both heard and disposed of — Insufficient to merely “dispose— of appeal by Minister issuing “danger to the public” opinion — S. 49(1)(b) not leading to absurdity, repugnancy, inconsistency, requiring reading in — To adversely affect rights, legislature must do so expressly — Right not to have outstanding removal order executed where appeal therefrom filed not expressly abrogated.

This was an application for a discretionary stay of the execution of a removal order pursuant to Federal Court Act, section 18.2. A conditional deportation order was issued against the applicant, a landed immigrant, who had been convicted of a number of serious criminal offences. He appealed the deportation order to the Immigration and Refugee Board, Appeal Division. No action had been taken in respect of that appeal when it was determined by the Minister’s delegate that he constituted a danger to the public in Canada. The applicant filed an application for leave and for judicial review of that decision, which is still pending.

The issues were whether there is a statutory stay of execution of the deportation order pursuant to Immigration Act, paragraph 49(1)(b); and whether a discretionary stay should be granted.

Held, the application for a discretionary stay should be dismissed; the statutory stay remained in force, the appeal not having been heard.

A statutory stay existed pursuant to Immigration Act, paragraph 49(1)(b), which provides that where an appeal has been filed with the Appeal Division, the execution of a removal order is stayed until either: (1) the appeal has been heard and disposed of; or (2) the Appeal Division declares that the appeal has been abandoned. Neither of these conditions had been fulfilled. It was arguable that the issuance of the danger to the public opinion, in so far as it terminated the Appeal Division’s jurisdiction, “disposed” of the appeal. But the statutory language is conjunctive with respect to the hearing and disposition of the appeal; it requires that the appeal be both heard and disposed of. The appeal had not been heard.

The issuance of a “danger to the public” opinion does not preclude the Appeal Division from hearing and determining its jurisdiction under subsection 69.4(2) (which gives the Appeal Division exclusive jurisdiction to determine questions relating to its jurisdiction). It is still open to the Appeal Division to “hear and dispose” of the appeal. There was no indefinite stay.

The application of paragraph 49(1)(b) is not dependent upon the Appeal Division having jurisdiction over the appeal. Pursuant to that paragraph, it is the filing of an appeal with the Appeal Division, and not the jurisdiction of the Appeal Division, which triggers the statutory stay. The stay remains in force until either the appeal is heard and disposed of or the appeal is declared by the Appeal Division to be abandoned. Paragraph 49(1)(b) does not provide for the cessation of the statutory stay where a “danger to the public” opinion is issued. Had Parliament intended other limitations on the statutory stay, it could easily have expressed them.

Paragraph 49(1)(b), as it stands, does not lead to any absurdity, repugnancy, or inconsistency which would require the reading in of words such as “where the person against whom a deportation order was made has a right of appeal to the Appeal Division”, or “or the Appeal Division loses jurisdiction”.

In order to adversely affect a citizen’s right, the legislature must do so expressly. That principle should be extended to include the rights of a long-term resident. The clear and unequivocal right not to have an outstanding removal order executed where an appeal from the removal order to the Appeal Division has been filed, had not been specifically abrogated although it was undeniably open to the legislature to do so.

The application for a discretionary stay should be denied, the statutory stay remaining in effect. Alternatively, the applicant had failed to establish that he would face irreparable harm should he be deported to Guatemala and that the balance of convenience was in his favour.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, S.C. 1995, c. 15, s. 15(3).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (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), 32.1(4) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12), 46.01(1)(e)(iv) (as am. by S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 49(1)(a) (as am. by S.C. 1992, c. 49, s. 41), (b) (as am. idem), (1.1) (as am. idem), 53(1)(d) (as am. idem, s. 43; 1995, c. 15, s. 12), 69.4(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 70(5) (as am. by S.C. 1995, c. 15, s. 13), 77(3) (as am. idem, s. 15).

CASES JUDICIALLY CONSIDERED

APPLIED:

Grand Trunk Pacific Railway Co. v. Dearborn (1919), 58 S.C.R. 315; 47 D.L.R. 27; [1919] 1 W.W.R. 1005; Morguard Properties Ltd. et al. v. City of Winnipeg, [1983] 2 S.C.R. 493; (1983), 3 D.L.R. (4th) 1; [1984] 2 W.W.R. 97; 25 Man. R. (2d) 302; 6 Admin. L.R. 206; 24 M.P.L.R. 219; 50 N.R. 264.

DISTINGUISHED:

Tsang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 151 (F.C.A.).

REFERRED TO:

Wellesley Hospital v. Lawson, [1978] 1 S.C.R. 893; (1978), 76 D.L.R. (3d) 688; 15 N.R. 271.

APPLICATION for a discretionary stay of execution of a removal order pursuant to Federal Court Act, section 18.2, where there was an outstanding appeal against the deportation order and a subsequent Ministerial opinion that the applicant constituted a danger to the Canadian public. Application dismissed because the statutory stay under Immigration Act, paragraph 49(1)(b) remained in effect.

COUNSEL:

David H. Davis for applicant.

Mark G. Mason for respondent.

SOLICITORS:

David Matas, Winnipeg, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: These reasons arise out of an application by the applicant, Emmanuel Solis, for an order, pursuant to section 18.2 of the Federal Court Act,[1] staying the execution of a removal order issued against him. Removal was scheduled for March 6, 1997. This application was heard by way of a teleconference on that day. I dismissed the application. At the request of counsel for the respondent, I undertook to provide reasons. These are my reasons.

The applicant, who was born on December 26, 1976, and his family, came to Canada in 1986 as refugees from Guatemala. On November 22, 1990 they were granted landed immigrant status. Since 1992, the applicant has been convicted of various criminal offences. In 1992, he was convicted of break and enter with intent. In 1993, he was convicted of robbery and possession of a weapon. In 1993, he was convicted of robbery and assault. In 1994, he was convicted of robbery, possession of a weapon and being unlawfully at large. In 1995, he was convicted of break, enter, and theft.

On the basis of the 1994 convictions, an inquiry was held before an immigration adjudicator (the adjudicator) on November 30, 1994. The adjudicator found the applicant to be a person described in subparagraph 27(1)(d)(i) of the Immigration Act[2] (the Act). On this basis, the adjudicator issued a conditional deportation order against the applicant pursuant to subsection 32.1(4) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12] of the Act. The applicant filed an appeal to the Appeal Division of the Immigration and Refugee Board (the Appeal Division) against the deportation order. To date, no action has been taken by the Appeal Division in respect of the applicant’s appeal.

By letter dated April 24, 1996, Citizenship and Immigration Canada informed the applicant that the respondent would be considering whether the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] and subparagraph 46.01(1)(e)(iv) [as am. by S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Act. The letter invited the applicant to make representations to the Minister. That letter was later replaced by another letter from Citizenship and Immigration Canada dated September 17, 1996. In the second letter, Citizenship and Immigration Canada informed the applicant that the respondent would be considering whether the applicant was a danger to the public in Canada pursuant to subsection 70(5), subparagraph 46.01(1)(e)(iv) and paragraph 53(1)(d) [as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12] of the Act. The second letter disclosed the material that would be relied on by the Minister and provided the applicant with fifteen days from the date of receipt of the letter to submit representations.

Representations were made by and on behalf of the applicant. On December 5, 1996, a delegate of the Minister determined that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5), subparagraph 46.01(1)(e)(iv) and paragraph 53(1)(d). On December 27, 1996 the applicant filed an application for leave and for judicial review of this decision. The application is still pending. The applicant’s stay application, the subject of these reasons, was based on this application for judicial review and a second closely related application.

Counsel for the applicant argued that the applicant continues to enjoy a statutory stay of execution of the deportation order by virtue of paragraph 49(1)(b) [as am. by S.C. 1992, c. 49, s. 41] of the Act. In the alternative, counsel urged that I grant a discretionary stay. He contended that there is a serious issue to be tried, that the applicant would face irreparable harm should he be deported back to Guatemala and that the balance of convenience favours the applicant. All of the applicant’s support is here in Canada; he has no support, familial or otherwise, in Guatemala.

Counsel for the respondent, relying on Tsang v. Canada (Minister of Citizenship and Immigration),[3] argued that the statutory stay under paragraph 49(1)(b) does not apply to the applicant because the issuance of the “danger to the public” opinion extinguished the jurisdiction of the Appeal Division in this matter. He further argued that a discretionary stay is not warranted on the facts of this case. He conceded that the applicant’s application for leave and for judicial review gives rise to a serious triable issue. However, counsel for the respondent submitted that there is no evidence of irreparable harm should the applicant be returned to Guatemala and that because of the applicant’s criminal conduct, the balance of convenience favours the removal of the applicant.

I concluded that the applicant’s application for a discretionary stay, pursuant to section 18.2 of the Federal Court Act should be dismissed on the basis that there already exists a statutory stay pursuant to paragraph 49(1)(b) of the Act. Alternatively, I was satisfied that the applicant had failed to establish that he would face irreparable harm should he be deported to Guatemala and that the balance of convenience was in his favour.

The Act provides for a statutory stay of execution of a removal order under subsection 49(1) which reads in part as follows:

49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed

(a) in any case where the person against whom the order was made has a right of appeal to the Appeal Division, at the request of that person until the time provided for the filing of the appeal has elapsed;

(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.

Subsection 49(1.1) reads:

49. …

(1.1) Subsection (1) does not apply to

(a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or

(b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims.

The language of the opening words of subsection 49(1) and paragraph (b) of that subsection is clear. Where an appeal has been filed with the Appeal Division, the deportation order is stayed until either: (1) the appeal is heard and disposed of; or (2) the Appeal Division declares that the appeal has been abandoned. Neither of these conditions has been fulfilled. It is arguable that the issuance of the “danger to the public” opinion, in so far as it terminates the Appeal Division’s jurisdiction, “disposes” of the appeal. However, the statutory language is conjunctive with respect to the hearing and disposition of the appeal; it requires both that the appeal be “heard” and that the appeal be “disposed of”. In this case the appeal certainly was not “heard”. Therefore, whether or not it has been “disposed of”, by reason of the decision in Tsang, is not dispositive. In the result, the statutory stay remains in effect.

In Tsang, the Court of Appeal was faced with the interpretation of subsection 15(3) of An Act to amend the Immigration Act and the Citizenship Act and to make a Consequential Amendment to the Customs Act[4] (Bill C-44), being a transitional provision for “danger to the public” opinions under subsection 77(3) [as am. by S.C. 1995, c. 15, s. 15] of the Act. The certified question before the Court was as follows [at paragraph 7]:

When an appeal is made by a sponsor to the Immigration Appeal Division (“IAD”) prior to July 10, 1995, with respect to a sponsoree who is inadmissible pursuant to s. 19(1)(c), (c.1), (c.2) or (d) of the Immigration Act, and the hearing before the IAD has commenced after July 10, 1995, does the effect of the Minister issuing a “danger to the public” opinion extinguish the sponsor’s right of appeal pursuant to s. 77(3.01) of the Act and s. 15(3) of Bill C-44 and thereby terminate the jurisdiction of the IAD with respect to the appeal?

Marceau J.A., writing for the Court, on the basis of his interpretation of subsection 15(3), answered the above question in the affirmative. The implication of this holding is that the issuance of a “danger to the public” opinion terminates the jurisdiction of the Appeal Division, at least in the circumstances there under consideration.

Counsel for the respondent submits that Tsang supports the proposition that, because the issuance of a “danger to the public” opinion terminates the Appeal Division’s jurisdiction to entertain an appeal, paragraph 49(1)(b) cannot apply to continue a stay in favour of the applicant. He submits that the appeal that existed before the Appeal Division prior to the issuance of “the danger to the public” opinion no longer exists and the Appeal Division cannot hear and, dispose of, or declare abandoned, the applicant’s appeal. To decide otherwise would be to grant an indefinite stay as the appeal could never be heard and, disposed of or declared abandoned as the Appeal Division is without jurisdiction to do so.

I cannot agree. First, the application of paragraph 49(1)(b) was not before the Court of Appeal in Tsang. Although the implication of Tsang is that the issuance of the “danger to the public” opinion terminates the Appeal Division’s jurisdiction over the appeal, Marceau J.A. did not go so far as to say that in such circumstances, the Appeal Division would be precluded from determining its own jurisdiction pursuant to subsection 69.4(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act. In respect of subsection 69.4(2), he commented [at paragraphs 8-9]:

In a recent decision of the Appeal Division, Watson v. Canada (Minister of Citizenship and Immigration), May 21, 1996, T94-07075—on which counsel were invited to comment as a preliminary issue—a doubt was raised as to the validity of the question here certified by the motions judge. The author of the decision suggested that the application in the Trial Division was concerned with the validity of the Minister’s opinion in the circumstances of the case, not with the consequence of its issuance on the sponsorship proceedings. The question as formulated was not before the motions judge, as required by section 83 of the Act, and in fact could not be, since subsection 69.4(2) of the Act reserves to the Appeal Division “exclusive jurisdiction” to determine questions relating to its jurisdiction:

69.4 (2) The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class.

In my respectful opinion, the point raised by the Appeal Division member is ill-taken. There is simply no distinction between the so-called “validity” of the Minister’s opinion as “to the time and the circumstances in which it was issued”—the issue as presented in the review application—and its effect on the jurisdiction of the Appeal Division—which is obviously how the judge saw the application and disposed of it. The “validity” of the Minister’s opinion is necessarily dependant [sic] on its consequence; it will be said to be “valid” if it produces the only thing it is meant to produce, i.e. if it extinguishes the appeal, the sole purpose of the ministerial power. On the other hand, the use by Parliament of the phrase “exclusive jurisdiction” in subsection 69.4(2) of the Act certainly has significance and mandates deference to the view of the Appeal Division when what is involved is a question of interpretation of the general scheme of the Act, as in the case of Canada (Solicitor General) v. Kainth (F.C.A.), (1994) 170 N.R. 367. However, it cannot be understood as restraining the constitutional power and duty of the Court to dispose of a question of construction of a specific legislative provision establishing the jurisdiction of a tribunal by requiring that the views of the tribunal be sought first.

In my view, the above comments by Marceau J.A. stand for the proposition that subsection 69.4(2) does not have the effect of restraining the Court from disposing of a question concerning the Appeal Division’s jurisdiction without first allowing the Appeal Division the opportunity to deal with that question. It does not stand for the proposition that the issuance of a “danger to the public” opinion has the effect of precluding the Appeal Division from hearing and determining its jurisdiction under subsection 69.4(2). Granted, any determination by the Appeal Division concerning its jurisdiction would have to be in accordance with the pronouncements of this Court. Nonetheless, it is still open to the Appeal Division to “hear and dispose” of the applicant’s appeal. Thus, counsel’s argument regarding an indefinite stay being granted by virtue of paragraph 49(1)(b) cannot be sustained.

Secondly, counsel’s argument rests on the erroneous assumption that the application of paragraph 49(1)(b) is dependent upon the Appeal Division having jurisdiction over the appeal. This assumption is not supported by the language of paragraph 49(1)(b). Pursuant to that paragraph, it is the filing of an appeal with the Appeal Division, and not the jurisdiction of the Appeal Division, which triggers the statutory stay. The stay remains in force until either: (1) the appeal is heard and disposed of; or (2) the appeal is declared by the Appeal Division to be abandoned. Paragraph 49(1)(b) does not provide for the cessation of the statutory stay where a “danger to the public” opinion is issued. Had Parliament intended that the application of the statutory stay under paragraph 49(1)(b) be confined to situations where the person against whom a removal order was made has a right of appeal to the Appeal Division or where a “danger to the public” opinion had not been issued, it could have easily done so. In fact, Parliament has expressly broadened the application of paragraph 49(1)(b), by contrast with paragraph 49(1)(a) [as am. by S.C. 1992, c. 49, s. 41]. In paragraph 49(1)(a), there is a qualification that the person in question must have a right of appeal to the Appeal Division. There is no such qualification under paragraph 49(1)(b). At the same time, all of subsection 49(1) is subject to subsection 49(1.1), which excludes the application of subsection 49(1) in certain specified situations. However, subsection 49(1.1) does not extend to the situation where the Appeal Division has lost jurisdiction by virtue of the issuance of a “danger to the public” opinion.

Thirdly, in order for me to reach the conclusion urged by counsel for the respondent, I would have to read in the words “where the person against whom a deportation order was made has a right of appeal to the Appeal Division” at the beginning of paragraph 49(1)(b), the words “or the Appeal Division loses jurisdiction” at the end of that paragraph, or similar words to that effect. Alternatively, I would have to read in words to subsection 49(1.1) to exclude from the ambit of subsection 49(1), persons who have lost their right of appeal to the Appeal Division because of the issuance of a “danger to the public” opinion. I decline to do so. In Grand Trunk Pacific Railway Co. v. Dearborn,[5] Chief Justice Davies laid down the general principle governing the reading in or deletion of statutory language. He states at pages 320-321:

I cannot admit the right of the courts where the language of a statute is plain and unambiguous to practically amend such statute either by eliminating words or inserting limiting words unless the grammatical and ordinary sense of the words as enacted leads to some absurdity or some repugnance or inconsistency with the rest of the enactment, and in those cases only to the extent of avoiding that absurdity, repugnance and inconsistency.

This principle was reiterated by the Supreme Court of Canada in Wellesley Hospital v. Lawson.[6]

I am not persuaded that the application of paragraph 49(1)(b), as it stands, leads to any absurdity, repugnancy or inconsistency which would require me to read in words.

Finally, in Morguard Properties Ltd. et al. v. City of Winnipeg[7] Mr. Justice Estey, speaking for the Court, wrote:

In more modern terminology the courts require that, in order to adversely affect a citizen’s right, whether as a taxpayer or otherwise, the Legislature must do so expressly. Truncation of such rights may be legislatively unintended or even accidental, but the courts must look for express language in the statute before concluding that these rights have been reduced. This principle of construction becomes even more important and more generally operative in modern times because the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive. The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions when the rights of the citizen are involved. The Legislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct that inadequacy of expression. This is more true today than ever before in our history of parliamentary rule.

I am satisfied that the same can be said with regard to adverse effects on rights of long-term residents of Canada, such as the applicant. Equally, I am satisfied that the passage applies to failure to truncate rights where that failure may have been legislatively accidental or a mere oversight. Here, there can be no question that the respondent would have the Court truncate a clear and unequivocal right, the right not to have an outstanding removal order executed where an appeal from the removal order to the Appeal Division has been filed, absent very specific statutory conditions. I am satisfied that that right has not been specifically truncated where it was undeniably open to the legislature to do so.

Thus, as I concluded there is a statutory stay in place, I declined to exercise my jurisdiction to grant a discretionary stay pursuant to section 18.2 of the Federal Court Act, even if I were otherwise persuaded to do so, which, as indicated earlier, I was not.

For the foregoing reasons, the application for a stay of execution of the deportation order against the applicant was dismissed.

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