Judgments

[2000] 1 F.C. 455

A-175-99

The Minister of Citizenship and Immigration (Appellant) (Respondent)

v.

Arshad Mahmood Chaudhry (Respondent) (Applicant)

Indexed as: Chaudhryv. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Linden, Rothstein and McDonald JJ.A.—Toronto, September 7, 1999.

Citizenship and Immigration — Exclusion and removal — Removal of visitors — Respondent incarcerated upon criminal conviction — Ordered deported — Warrant for arrest, detention issued under Immigration Act, s. 103(1) as Minister concerned would not otherwise appear for removal — Order made under s. 105(1) directing continued detention until expiration of sentence — NPB refusing to consider eligibility for parole because subject to detention under s. 105(1) order — IRB refusing to order detention review under s. 103(6) — S. 105(1) order operative order causing continued detention — If individual detained because reasonable grounds to believe poses danger to public or would not appear for removal (s. 103), not being detained because of criminal conviction — S. 103(6), providing for periodic review of detention, applies.

Parole — If NPB ordering release on day parole of individual subject to Immigration Act, s. 105 order directing head of institution where incarcerated to continue detention until expiration of sentence or term of confinement as reduced by statute, and then to deliver person to immigration officer, s. 105(1) order becoming operative to continue detention — Detention then reviewable under Immigration Act, s. 103(6) — If NPB ordering continued detention, but not because of s. 105(1), detention reviewable in same manner as persons not subject to Immigration Act proceedings.

Appeal on a certified question. The respondent, a citizen of Pakistan who remained in Canada after his visitor’s status had expired, was incarcerated following a criminal conviction. He was ordered deported, and in 1995 a warrant for his arrest and detention was issued under subsection 103(1) of the Immigration Act because the Minister was concerned that he would not otherwise appear for removal. On July 28, 1997 an order was made under subsection 105(1) directing the person in charge of the institution where the respondent was held to continue to detain him until the expiration of his sentence. When the respondent became eligible for day parole, he was advised that offenders subject to detention orders under section 105 issued on or after July 10, 1995 would not be reviewed by the Board for day parole. The Adjudication Division of the Immigration and Refugee Board refused to order a detention review under subsection 103(6). The appellant conceded that if a person is detained pursuant to subsection 105(1), subsection 103(6) applies requiring his detention to be reviewed every 30 days. The question was whether the respondent was detained pursuant to subsection 105(1).

Held, the question, “Is a non-citizen who is incarcerated following a criminal conviction and is the subject of an order under subsection 105(1) of the Immigration Act and thought to be ineligible to be considered by a parole board for day release or an unescorted temporary absence thereby detained pursuant to the Immigration Act for removal and thus entitled to a review of the reasons for the continuation of the detention under subsection 103(6)?”, should be answered in the affirmative, and the appeal should be dismissed.

When the respondent became eligible for consideration for day parole and the National Parole Board refused to consider him for day parole because of the issuance of the subsection 105(1) order, the respondent was detained pursuant to subsection 105(1). Since the Board refused to even consider the respondent for day parole solely because of the subsection 105(1) order, it was that order that must be considered as the operative order causing the continued detention of the respondent.

If an individual is detained pursuant to the Immigration Act because there are reasonable grounds to believe that he poses a danger to the public or would not appear for removal from Canada, he is not being detained because of a criminal conviction. Fundamental justice requires that his detention be periodically reviewed and subsection 103(6) is the applicable provision for providing such review when his continued detention is pursuant to subsection 105(1).

It was not decided whether a subsection 105(1) order necessarily renders an individual ineligible to be considered by the National Parole Board for day parole. But if an individual subject to a subsection 105(1) order were ordered released by the National Parole Board on day parole, the subsection 105(1) order would then become operative to continue his detention and that detention would be reviewable under subsection 103(6). If he were ordered detained by the Board, but not because of subsection 105(1), his detention would be reviewable by the National Parole Board in the usual way applicable to persons not subject to Immigration Act proceedings.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 83(1) (as am. by S.C. 1992, c. 49, s. 73), 103(1) (as am. by S.C. 1995, c. 15, s. 19), (6) (as am. idem), 105(1) (as am. idem, s. 20).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110.

APPEAL on a question certified by the Trial Division (Chaudhry v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 3: is a non-citizen who is incarcerated following a criminal conviction and is the subject of an order under Immigration Act, subsection 105(1) and consequently ineligible to be considered by a parole board for day release or an unescorted temporary absence thereby detained pursuant to Immigration Act for removal and thus entitled to a review of the reasons for the continuation of the detention under subsection 103(6)? The question was answered in the affirmative, and the appeal dismissed.

APPEARANCES:

Joel Katz for appellant (respondent).

David Matas for respondent (applicant).

SOLICITORS OF RECORD:

Deputy Attorney General of Canada for appellant (respondent).

David Matas, Winnipeg, for respondent (applicant).

The following are the reasons for judgment of the Court rendered in English by

[1]        Rothstein J.A.: This is an appeal by the Minister of Citizenship and Immigration under subsection 83(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)] on three questions certified by Evans J. [[1999] 3 F.C. 3. The first question reads [at page 26]:

1.   Is a non-citizen who is incarcerated following a criminal conviction and is the subject of an order under subsection 105(1) of the Immigration Act and consequently ineligible to be considered by a parole board for day release or an unescorted temporary absence thereby “detained pursuant to the [Immigration] Act … for removal”, and thus entitled to a review of the reasons for the continuation of the detention under subsection 103(6)?

Evans J. answered this question in the affirmative.

[2]        The facts may be briefly stated. The respondent is a citizen of Pakistan and remained in Canada after his visitor status had expired. He was incarcerated at Stony Mountain Penitentiary in Manitoba after being convicted in October 1994 on two counts of trafficking in narcotics and sentenced to 14 years’ imprisonment. On March 29, 1995 the Minister ordered the respondent deported. On April 19, 1995 a warrant for the respondent’s arrest and detention was issued under subsection 103(1) [as am. by S.C. 1995, c. 15, s. 19] of the Immigration Act[1], apparently, because the Minister was concerned that the respondent would not otherwise appear for removal.

[3]        On July 28, 1997 an order was made under subsection 105(1) [as am. idem, s. 20][2] directing the person in charge of the institution where the respondent was held to continue to detain him until the expiration of his sentence.

[4]        It appears that at some point the respondent became eligible for day parole. However, he was advised by the National Parole Board that offenders subject to detention orders under section 105 of the Immigration Act issued on or after July 10, 1995 would not be reviewed by the Board for day parole. By order dated July 14, 1998 the Adjudication Division of the Immigration and Refugee Board refused to order a detention review under subsection 103(6) [as am. idem, s. 19] of the Immigration Act.[3]

[5]        The Minister concedes that if a person is detained pursuant to subsection 105(1) of the Immigration Act, subsection 103(6) applies requiring his detention to be reviewed at least every 30 days. The only question in this case is whether the respondent was detained pursuant to subsection 105(1).

[6]        The Minister says that as the respondent was never subject to an order releasing him on day parole by the National Parole Board, he was never subject to detention under subsection 105(1). In other words, his detention continued pursuant to his sentence and the refusal of the National Parole Board to release him on day parole and not because of an order to continue detention under subsection 105(1) of the Immigration Act.

[7]        We are in agreement with Evans J. that, in effect, when the respondent became eligible to be considered by the National Parole Board for day parole and the Board refused to consider him for day parole because of the issuance of the subsection 105(1) order, the respondent was detained pursuant to subsection 105(1). In coming to this conclusion we do not say that the National Parole Board would necessarily have released the respondent on day parole. However, if the Board refused to even consider the respondent for day parole solely because of the subsection 105(1) order, it is that order that must be considered as the operative order causing the continued detention of the respondent.

[8]        At the Trial Division the Minister argued that a review under subsection 103(6) was not applicable when detention was continued under an order under subsection 105(1). The Minister did not take that position in this appeal and indeed, she could not. If an individual is detained pursuant to the Immigration Act because there are reasonable grounds to believe he poses a danger to the public or would not appear for removal from Canada, he is not being detained because of a criminal conviction. Fundamental justice requires that his detention be periodically reviewed and subsection 103(6) is the applicable provision of the Immigration Act providing for such review when his continued detention is pursuant to subsection 105(1).

[9]        We agree with Evans J. and would therefore answer the first question in the affirmative.

[10]      However, we would observe that in the way the question is framed, it assumes that where an individual is the subject of an order under subsection 105(1), he is definitely ineligible to be considered by a parole board for day parole. This was not a question that was argued before us and indeed the decision of the National Parole Board not to consider the respondent for day parole was not the subject of a judicial review. Therefore, we will not decide whether a subsection 105(1) order necessarily renders an individual ineligible to be considered by the National Parole Board for day parole. However, we would observe that if an individual subject to a subsection 105(1) order were ordered released by the National Parole Board on day parole, the subsection 105(1) order would then become operative to continue his detention and that detention would be reviewable under subsection 103(6). If he were ordered detained by the National Parole Board, but not because of subsection 105(1) of the Immigration Act, his detention would be reviewable by the National Parole Board in the usual way applicable to persons not subject to Immigration Act proceedings.

[11]      For these reasons we restate the question we are answering affirmatively as follows:

Is a non-citizen who is incarcerated following a criminal conviction and is the subject of an order under subsection 105(1) of the Immigration Act and thought to be ineligible to be considered by a parole board for day release or an unescorted temporary absence thereby detained pursuant to the Immigration Act for removal and thus entitled to a review of the reasons for the continuation of the detention under subsection 103(6)?

[12]      Counsel advised the Court that the respondent has been deported. Although this case was moot, the issue here is one that may arise in the future and we have therefore exercised our discretion to hear and decide the first certified question. See Borowski v. Canada (Attorney General).[4]

[13]      Questions 2 and 3 certified by the learned Judge were contingent on a negative decision in respect of question 1. As question 1 has been decided in the affirmative it is not necessary to deal with questions 2 and 3.

[14]      The appeal will be dismissed with costs.

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