A-67-97
The Minister of Citizenship and Immigration (Appellant)
v.
Balbinder Singh Athwal (Respondent)
Indexed as: Athwalv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Denault J.A. (ex officio), Linden and Robertson JJ.A."Vancouver, September 2; Ottawa, September 11, 1997.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Jurisdiction in Immigration Appeal Division, under Immigration Act, s. 70(5), to hear appeal from deportation order made by adjudicator even though latter has not made specific finding person to be deported convicted of offence for which sentence of ten years or more could have been imposed — Literal approach to interpretation of Act, s. 70(5) (whereby adjudicator must make finding) producing result inconsistent with adjudicator's jurisdiction and transitional provision accompanying adoption of new s. 70(5).
Construction of statutes — Immigration Act, s. 70(5) — Motions Judge finding no ambiguity, rejecting invocation of —golden rule— of statutory interpretation — Literal approach not to be followed if resulting in absurdity.
An Immigration adjudicator found that the respondent was a permanent resident who fell within subparagraph 27(1)(d)(i) of the Immigration Act and a deportation order was made against him. The Immigration Appeal Division (IAD) declined to hear the respondent's appeal from that order on the ground that it lacked jurisdiction to do so because of paragraph 70(5)(c) of the Act which eliminates the right of appeal to the IAD where a permanent resident, inter alia, is determined to have been convicted of an offence for which a sentence of ten years or more could have been imposed. On judicial review, the Motions Judge agreed with the respondent's argument that his right of appeal to the IAD had not been extinguished because the adjudicator had failed to make a specific finding that he had been convicted of an offence for which a sentence of ten or more years could have been imposed. The Motions Judge thereupon certified a question concerning the interpretation of paragraph 70(5)(c) of the Act. This was an appeal from the Motions Judge's decision allowing the application for judicial review.
Held, the appeal should be allowed. Under paragraph 70(5)(c), a finding that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed can be made by the IAD in the course of determining whether it has jurisdiction to proceed with an appeal.
Paragraph 70(5)(c) provides that no appeal may be made to the IAD by a person against whom a deportation order has been made where the Minister is of the opinion that the person constitutes a danger to the public in Canada (the Minister issued a danger opinion in respect of respondent in January 1996) and the person has been determined by an adjudicator to be a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. The issue was whether the adjudicator, who did not specifically do so, was required to establish, as a finding of fact, that the respondent had been convicted of an offence for which a term of ten years of more could have been imposed.
Subsection 70(5), which was proclaimed into force on July 10, 1995, was accompanied by a transitional provision providing that the subsection applied to appeals made on or before the coming into force of that subsection (the respondent's appeal to the IAD was filed on May 11, 1995) and in respect of which the hearing had not been commenced (the appeal was heard in March 1996).
There was no ambiguity in paragraph 70(5)(c) when literally interpreted: it stated very clearly that the determination must be made by an adjudicator. However, there was a need to invoke the "golden rule" of interpretation which allows for the modification of the ordinary or grammatical sense of words to avoid absurdity or ambiguity. The literal interpretation herein lead to two absurdities: first, it forces an adjudicator to make a finding that he does not have the statutory authority to make (there is nothing in the Act which expressly empowers an adjudicator presiding at an inquiry to make factual findings other than those required for the purposes of section 27 of the Act); second, it negates the intended effect of the transitional provision with respect to those cases in which an adjudicator rendered his decision prior to paragraph 70(5)(c ) coming into force (the literal interpretation would preserve the right to appeal even though a hearing had not commenced, simply because an adjudicator did not make a particular finding of fact at a time when the relevant legislation was not even in force).
Where there are two competing interpretations of a provision, one which gives rise to an absurdity and the other does not, then it is only just and logical that the former be rejected. In this case, the literal interpretation should be rejected as producing a result which is inconsistent with the adjudicator's jurisdiction and the transitional provision, both of which are integral to the proper functioning of the Act.
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. 13.
Criminal Code, R.S.C., 1985, c. C-46, ss. 268(2), 279(2) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39).
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1) (as am. by S.C. 1992, c. 49, s. 16), (d)(i),(ii), (3) (as am. idem), 32(2) (as am. idem, s. 21), 69.4(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 70(5)(c) (as am. by S.C. 1995, c. 15, s. 13), 80.1 (as enacted by S.C. 1992, c. 49, s. 70).
cases judicially considered
applied:
Canada v. Cymerman, [1996] 2 F.C. 593; (1996), 19 C.C.E.L. (2d) 226; 96 CLLC 210-027; 195 N.R. 361 (C.A.).
considered:
R. v. McIntosh, [1995] 1 S.C.R. 686; (1995), 95 C.C.C. (3d) 481; 36 C.R. (4th) 171; 178 N.R. 161; 79 O.A.C. 81; 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1.
APPEAL from the Motions Judge's decision ([1997] F.C.J. No. 95 (T.D.)) allowing a judicial review application of the Immigration Appeal Division of the Immigration and Refugee Board decision declining to hear the respondent's appeal stemming from a deportation order made against him by an adjudicator. Appeal allowed.
counsel:
Leigh A. Taylor for appellant.
Chris Elgin for respondent.
solicitors:
Deputy Attorney General of Canada for appellant.
McPherson, Elgin and Cannon, Vancouver, for respondent.
The following are the reasons for judgment rendered in English by
Robertson J.A.: The Immigration Appeal Division of the Immigration and Refugee Board (the IAD) declined to hear the respondent's appeal stemming from a deportation order made against him by an adjudicator. The IAD found that it lacked jurisdiction to hear the appeal because of paragraph 70(5)(c) [as am. by S.C. 1995, c. 15, s. 13] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act). That provision eliminates the right of appeal to the IAD where a person, inter alia, is determined to have been convicted of an offence for which a sentence of ten years or more could have been imposed. The respondent sought judicial review of the IAD's decision arguing that his right to appeal had not been extinguished because the Adjudicator failed to make that specific finding as required by paragraph 70(5)(c). The appellant Minister (the Minister) countered that on a proper construction of that paragraph the IAD, and not the Adjudicator, was authorized to make the necessary finding. The Motions Judge [[1997] F.C.J. No. 95 (T.D.)] agreed with the respondent's construction of paragraph 70(5)(c) and allowed the judicial review application, entitling him to an appeal on the "merits". It is against this background that the Motions Judge was prepared to certify the following question for our consideration [at paragraph 22]:
Under s. 70(5)(c) of the Immigration Act, must an adjudicator specifically find that a person described in paragraph 27(1)(d) is also a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed, before s. 70(5)(c) will be effective to remove the Applicant's appeal to the Immigration Appeal Division, or can this finding be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with the appeal?
In my respectful view, the learned Motions Judge erred in his construction of paragraph 70(5)(c) of the Act. The essential facts leading up to this appeal are not in dispute.
On October 5, 1994 an immigration officer issued a written report under section 27 [as am. by S.C. 1992, c. 49, s. 16] of the Act alleging, based on information in his possession, that the respondent was a person described in subparagraphs 27(1)(d)(i) and (ii) of the Act, being a permanent resident who:
27. (1) . . .
(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed,
In his report the immigration officer made specific reference to the fact that the respondent was a permanent resident of Canada who had been convicted of an offence under subsection 268(2) of the Criminal Code [R.S.C., 1985, c. C-46], sentenced to three years in a penitentiary and that the maximum sentence for this offence was fourteen years. Reference was also made to a conviction under subsection 279(2) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39] of the Criminal Code for which the respondent received a three year sentence. Under that provision the maximum term of imprisonment could not exceed ten years.
Pursuant to subsection 27(3) of the Act, the respondent was directed to an inquiry by notice dated January 18, 1995 for the purpose of determining whether a deportation order should be made against him. The inquiry was held on May 11, 1995 and an adjudicator concluded that the respondent was a permanent resident who fell within subparagraph 27(1)(d)(i), an allegation that was admitted by the respondent. The adjudicator made no other findings. As mandated by subsection 32(2) [as am. by S.C. 1992, c. 49, s. 21], a deportation order was made against the respondent. On May 11, 1995 he filed a notice of appeal with the IAD.
On July 10, 1995 subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Act was proclaimed into force. That provision has the effect of extinguishing the right of appeal to the IAD of a person in defined circumstances. Subsection 70(5) states:
70. . . .
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. [Emphasis added.]
For the purposes of this appeal it is important to emphasize that the right of appeal is lost where: (1) a deportation order has been made; (2) the Minister has issued an opinion that the person constitutes a danger to the public in Canada (a "danger opinion"); and (3) the person has been determined by an adjudicator to be a permanent resident as described in paragraph 27(1)(d ). These three requirements were fulfilled in this case. The issue on appeal is whether the adjudicator is required to establish, as a finding of fact, a fourth requisite: namely that the person was convicted of an offence for which a term of ten years or more could have been imposed.
Subsection 70(5) was accompanied by a transitional provision that has the effect of rendering subsection 70(5) retroactive ([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] subsection 13(4) of Bill C-44). The transitional provision states:
13. . . .
(4) Subsection 70(5) of the Act, as enacted by subsection (3) [of Bill C-44], applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the deportation order or conditional deportation order referred to in subsection 70(5). [Underlining added.]
The foregoing provision has the effect of eliminating any claim to a vested right of appeal where the hearing of a person's appeal had not commenced on or before July 10, 1995. It applies to the respondent in this case whose appeal was heard in March 1996. The transitional provision substitutes the right of appeal with the right to seek judicial review of the deportation order.
On January 10, 1996, the Minister issued a danger opinion. On March 26, 1996 the respondent's appeal to the IAD was dismissed under paragraph 70(5)(c) of the Act for lack of jurisdiction. In rendering its decision, the IAD had before it a copy of the report of the immigration officer referred to earlier in these reasons, containing specific references to the convictions, sentence imposed and maximum sentence available. While the respondent challenges the IAD's construction of paragraph 70(5)(c), he does not concede nor challenge the finding that he is in fact a permanent resident of Canada who was convicted of an offence for which a term of imprisonment of ten years or more could have been imposed.
In the opinion of the Motions Judge there is no ambiguity in paragraph 70(5)(c). That provision [at paragraph 16] "stipulates very clearly that the determination [of having been convicted of an offence for which a sentence of ten years or more could have been imposed] must be made by an adjudicator." Having found no ambiguity, the Motions Judge rejected the need to invoke the "golden rule" of interpretation which allows for the modification of the ordinary or grammatical sense of words to avoid absurdity or ambiguity. The Motions Judge recognized that it is vital to the respondent's case that a "strict interpretation" of paragraph 70(5)(c ) be applied as the Minister's interpretation would allow for the immediate execution of the deportation order.
It cannot be denied that, on first reading, paragraph 70(5)(c) of the Act contemplates that an adjudicator will make the determination that a person was convicted of an offence for which a sentence of ten years or more could have been imposed. At this point it is worth restating the disputed portion of that paragraph:
70. . . .
(5) No appeal may be made to the Appeal Division . . . [where] the person has been determined by an adjudicator to be
. . .
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
Counsel for the respondent maintains that there is no ambiguity and, thus, no need to search out Parliament's intent through the employment of other interpretative rules. On the other hand, counsel for the Minister contends that the interpretation being placed on paragraph 70(5)(c) of the Act leads to two "absurdities" if a literal analysis is adopted. First, it forces an adjudicator to make a finding that he or she does not have the statutory authority to make. Second, it negates the intended effect of the transitional provision with respect to those cases in which an adjudicator rendered his or her decision prior to paragraph 70(5)(c ) coming into force. The respondent replies that where a statutory provision is clear and unambiguous, it must be enforced no matter how harsh or absurd the result may be. In support of his position the respondent relies on the Supreme Court of Canada's decision in R. v. McIntosh, [1995] 1 S.C.R. 686 in which Lamer C.J., writing for the majority, utilized what is arguably a literal interpretation of a provision of the Criminal Code. In my opinion that decision does not require courts to interpret statutory provisions in a vacuum, nor ignore the context of legislation. As I said in Canada v. Cymerman, [1996] 2 F.C. 593 (C.A.), at page 619, "you cannot take a section out of the Act, interpret it in isolation from its context and then put it back into the Act with the meaning assigned." A contextual analysis of the Act, including paragraph 70(5)(c ) reveals the absurdities that arise in accepting the Motions Judge's literal interpretation of that provision.
An adjudicator clearly lacks the express authority to make a determination that a person has been convicted of an offence for which a sentence of ten years or more could have been imposed. Paragraph 70(5)(c) of the Act is not an enabling provision. Rather that provision merely sets out the criteria that have to be met before the right of appeal to the IAD is extinguished. Nothing in sections 80.1 [as enacted by S.C. 1992, c. 49, s. 70], 27 or 32 contradicts this understanding. Section 80.1 defines the arbitrator's [sic] jurisdiction. The most relevant portion states:
80.1 (1) Subject to section 40.2, an adjudicator has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in the course of proceedings that are required by this Act to be held before an adjudicator.
Section 27 governs reports filed on permanent residents. The relevant paragraph as referred to in paragraph 70(5)(c), does not instruct adjudicators to make a finding of a conviction for which a sentence of ten years or more could have been imposed. Instead, paragraph 27(1)(d) provides:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed. [Emphasis added.]
Finally, section 32 of the Act governs the deportation of permanent residents in certain circumstances. Subsection (2) states:
32. . . .
(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. [Emphasis added.]
In summary, there is nothing in the Act which expressly empowers an adjudicator presiding at an inquiry to make factual findings other than those required for the purposes of section 27 of the Act. That section makes no reference to the specific finding required under paragraph 70(5)(c) for a right of appeal to be eliminated. I recognize that read in isolation, the subsection might suggest that the adjudicator has an implied power to make the necessary finding of fact. In my opinion, there are two reasons why such an implication is unwarranted in this case. First, subsection 69.4(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] gives the IAD "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction" with respect to appeals made under section 70. Thus, it is reasonable to maintain that it was Parliament's intention to vest the IAD with the responsibility of determining whether a person had been convicted of an offence for which a prison term of ten years or more could have been imposed. This conclusion is reinforced when consideration is given to the eviscerating effect that a contrary opinion would have on the application of the transitional provision. Therein lies the second reason for rejecting the idea that an adjudicator has the implied authority to make the finding in issue.
The transitional provision anticipates situations in which an adjudicator had made a deportation order pursuant to sections 27 and 32 of the Act and an appeal was then filed with the IAD prior to paragraph 70(5)(c) coming into effect on July 10, 1995. (I note that the Motions Judge stated in error that the relevant date is July 10, 1996.) In such circumstances, a person does not have a vested right of appeal unless the hearing of their appeal has commenced on or before that date. The interpretation placed on paragraph 70(5)(c) by the respondent and accepted by the Motions Judge would preserve the right to appeal even though a hearing had not commenced, simply because an adjudicator did not make a particular finding of fact at a time when the relevant legislation was not even in force. For this reason alone the respondent's interpretation of paragraph 70(5)(c) cannot be accepted. It is one thing to ask this Court to accept that an adjudicator has the implied power to make a required finding of fact and quite another to ask it to adopt an interpretation which would fundamentally alter another, namely a transitional provision. I take it to be accepted law that where there are two competing interpretations of a provision, one of which gives rise to an absurdity and the other does not, then it is only just and logical that the former be rejected.
The respondent submits that notwithstanding any absurdity which may arise from the interpretation placed on paragraph 70(5)(c) of the Act by the Motions Judge, it is not permissible to engage in interpreting a provision which is clear and unambiguous. The respondent relies on the Supreme Court's decision in McIntosh, supra. In light of the fact that paragraph 70(5)(c) is not an enabling provision conferring jurisdiction on an adjudicator to make the required finding of fact, I do not feel compelled to address this particular argument. In any event, in McIntosh, Lamer C.J. embarked upon a contextual analysis of the provision in question (see pages 696 to 707 of the decision), despite his view that the language was clear and unequivocal. His contextual analysis is inevitably overlooked by those who rely on McIntosh as supportive of a literal approach: see generally 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919 where L'Heureux-Dubé J. details the confusion of late in the Supreme Court's approach to statutory interpretation including the Court's decision in McIntosh. Given that Lamer C.J. specifically noted at page 705 of McIntosh that, "The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests", his comments on statutory interpretation are more applicable to the criminal context. In this case, I reject the literal approach as producing a result which is inconsistent with the adjudicator's jurisdiction and the transitional provision, both of which are integral to the proper functioning of the Act.
I find that paragraph 70(5)(c) does not require an adjudicator to determine that a person was convicted of an offence for which a term of ten years or more may be imposed. For the above reasons the appeal must be allowed, the order of the Motions Judge set aside and the stated question answered as follows:
Under paragraph 70(5)(c), a finding that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed can be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with an appeal.
Denault J.A.: I agree.
Linden J.A.: I agree.