Digests

Townsend v. Canada (Minister of Citizenship and Immigration)

IMM-655-03

2004 FC 293, Kelen J.

27/2/04

14 pp.

Judicial review of Immigration Appeal Division's (IAD) decision dismissing motion to reopen appeal against deportation because Immigration and Refugee Protection Act (IRPA), s. 64(1) bars appeal--Applicant 41-year-old citizen of Jamaica and permanent resident of Canada--Ordered deported due to criminal convictions in Canada--On February 18, 2000, Minister of Citizenship and Immigration rendered opinion applicant constitutes "danger to the public" of Canada pursuant to former Immigration Act (former Act), s. 70(5)-- Appeal of deportation dismissed because s. 70(5) precludes appeal by person against whom "danger opinion" issued-- After IRPA came into force, applicant moved to reopen appeal because s. 64(2) allegedly changed threshold for "serious criminality"--IAD held Immigration and Refugee Protection Regulations (Regulations), s. 326(2) provides "danger opinions" under former Act constitute "serious criminality" for purposes of s. 64(1)--Whether "danger opinion" issued against applicant under former Act precludes appeal to IAD, through operation of IRPA, s. 64(1) and Regulations, s. 326(2)--Under Regulations, s. 326(2), person subject of "danger opinion" under former Act person in respect of whom IRPA, s. 64(1) applies--S. 64(1) prohibits appeal to IAD if person found inadmissible on grounds of "serious criminality"--Applicant submits ambiguous because s. 64(2) providing, for purpose of s. 64(1), criminality must be with respect to crime punished in Canada by term of imprisonment of at least two years--Since applicant subject to imprisonment for terms of less than two years, applicant argues s. 64(1) not applicable to him--Court disagreed--Regulations, s. 326(2) intended to mean "danger opinion" under former Act still precludes appeals under IRPA--If s. 326(2) not enacted for transition, then "danger opinions" under former Act rendered meaningless--Accordingly, Governor in Council intended objective standard of criminality under former Act, which was "danger to the public", would still have effect of precluding appeal to IAD after IRPA came into force--S. 326(2) kept "danger opinion" alive--Regulatory Impact Analysis Statement supporting interpretation--No accident or oversight by Governor in Council in referring only to s. 64(1), and not s. 64(2)--Transitional provisions provide IAD not to look behind "danger opinion" by applying s. 64(2) to circumstances --Application dismissed--Question certified: If person convicted of crime that was punished in Canada by term of imprisonment of less than two years, and found to be "danger to the public" under s. 70(5) of former Immigration Act so that person had no right of appeal to IAD under former Immigration Act, does s. 326(2) of Immigration and Refugee Protection Regulations, which refers to s. 64(1) of IRPA but not s. 64(2) of IRPA, bar appeal to IAD?--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 326-- Immigration Act, R.S.C., 1985, c. I-2, ss. 70(5) (as am. by S.C. 1995, c. 15, s. 13), 71 (as am. idem, s. 14).