IMM-3814-98
Arshad Mahmood Chaudhry (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-3813-98
Zafar Iqbal Shouq (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Chaudhryv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Evans J."Winnipeg, January 15; Ottawa, March 8, 1999.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Applicant, citizen of Pakistan, convicted of trafficking in narcotic, ordered deported — Seeking order requiring Adjudication Division to review reasons for continued detention under Immigration Act, s. 103(6) — Person subject to order under s. 105(1) could be —detained— pursuant to Immigration Act, s. 103(6) — S. 103(6) providing important procedural protections when examination, inquiry, removal cannot take place promptly — Should be interpreted to protect liberty of person, to provide for review by Adjudication Division of reasons for continuation of s. 105(1) order — Detention review of order not required until convict eligible for day parole, unescorted temporary absence (UTA).
Constitutional law — Charter of Rights — Legal Rights — Whether depriving convict of eligibility for day parole, unescorted temporary absence detention, imprisonment within meaning of Charter, s. 9 — Person subject to s. 105(1) detained pursuant to Immigration Act, also —detained or imprisoned— under Charter, s. 9 — To establish violation of s. 9, applicant must show detention, imprisonment arbitrary — Inmate subject to s. 105(1) order arbitrarely detained if reasons for continuation of order not subject to review by Adjudication Division.
Parole — Convict, citizen of Pakistan whose visitor status had expired, serving sentence for drug trafficking — Deportation ordered — Arrest, detention warrant issued under Immigration Act, s. 103(1) — Order under Act, s. 105 for delivery into custody of immigration officer upon sentence expiration rendering convict ineligible for day parole, UTA — Parliament having created statutory eligibility for parole, denial of right to be considered for parole may constitute detention, convict having to serve sentence under more restrictive conditions than general population — Detention arbitrary absent s. 103(6) review by IRB's Adjudication Division.
These were applications for judicial review of a decision of the Immigration and Refugee Board in which the Adjudicator stated that he had no jurisdiction "unilaterally to order a detention review" under subsection 103(6) of the Immigration Act in the absence of a request by a senior immigration officer. The applicant, a citizen of Pakistan, entered Canada in July 1993 as an undocumented visitor. In October 1994 he was convicted on two counts of trafficking in a narcotic and was sentenced to 14 years' imprisonment on both counts. In March 1995 he was ordered deported, and a month later a warrant for his arrest and detention was issued under subsection 103(1) of the Immigration Act. At the same time an order was made under subsection 105(1) of the Act directing the person in charge of the institution where the applicant was incarcerated to detain him until the expiration of his sentence, and then to deliver him into the custody of an immigration officer. The purpose of such order is to prevent the convict from evading removal from Canada once released from the institution. The respondent argued that the applicant had no right to have the reasons for the continuation of a subsection 105(1) order reviewed by the Adjudication Division, or by any other independent quasi-judicial body. The following issues were raised herein: (1) whether a non-citizen who is serving sentence and is subject to an order under subsection 105(1) of the Immigration Act, and thereby ineligible to be considered for day release or unescorted temporary absence, is "detained pursuant to the [Immigration] Act . . . for removal", and thus entitled to a detention review under subsection 103(6) of the Act; (2) if not, whether the person is arbitrarely detained contrary to section 9 of the Charter or deprived of the right to equality on the ground of nationality contrary to section 15 of the Charter; (3) whether a person subject to a section 105 order prior to its amendment in 1995 is eligible for day parole or an unescorted temporary absence.
Held, the applications should be allowed.
(1) The first issue was whether an order made under subsection 105(1) of the Immigration Act can be said to "detain" the applicant within the meaning of subsection 103(6). The fact that the applicant was detained pursuant to the sentence imposed when he was convicted of a criminal offence does not necessarily prevent him from also being detained under the Immigration Act . The only effect of a subsection 105(1) order is to remove the applicant's eligibility to be considered for day parole or an unescorted temporary absence. While less oppressive than segregation (considered in "prison within a prison" cases), to be ineligible for day parole and unescorted temporary absence is a serious matter, these being tools for rehabilitating offenders and assisting their reintegration into society. The conclusion that the making of a subsection 105(1) order constitutes detaining the person against whom it is made is supported by the language of the subsection itself, in that the order to the institutional head directs that "the person continue to be detained". Accordingly, a person against whom such an order is made is "detained pursuant to the Act" for the purpose of subsection 103(6). This subsection provides important procedural protections when the examination, inquiry or removal cannot take place promptly. The fact that it was enacted prior to section 105 does not necessarily mean that it cannot now be interpreted as providing detention review for those detained under subsection 105(1). Subsection 103(6) should be interpreted as providing for the review by the Adjudication Division of the reasons for the continuation of the order, and hence of the person's detention. Detaining a person in "a prison within a prison" without a hearing before or after the order is made would breach section 9 of the Charter. Any ambiguity in subsection 103(6) should be resolved in a manner that renders it constitutional. A detention review of an order made under subsection 105(1) would not be triggered until the individual became eligible for day parole or an unescorted temporary absence. The remedy granted was a declaratory order that a person against whom a subsection 105(1) order has been issued is detained within the meaning of subsection 103(6) of the Immigration Act , and that the review provisions of that section apply to orders made under subsection 105(1).
(2) It was argued that depriving an inmate of eligibility for day parole or unescorted temporary absence amounts to detention or imprisonment within the meaning of section 9 of the Charter. The interpretation of Charter rights should be informed, if not always determined conclusively, by the common law. The interest protected by section 9 should not be less than that protected by habeas corpus, a writ that has been so closely linked to ensuring that individuals are not unlawfully deprived of liberty of the person that its previously quasi-constitutional status has been given a formal constitutional foundation by paragraph 10(c) of the Charter. A person subject to a subsection 105(1) order is detained pursuant to the Immigration Act and is also "detained or imprisoned" for the purpose of section 9 of the Charter. In order to establish a violation of section 9, the applicant must also show that the detention or imprisonment was arbitrary. An inmate who is the subject of a subsection 105(1) order would be arbitrarily detained if the reasons for the continuation of the order were not subject to any review by the Adjudication Division. Even though Parliament may not be constitutionally required to provide for parole, once it has created a statutory eligibility for parole, denial of the statutory right to be considered for it may constitute a detention because it causes the person concerned to serve his sentence under significantly more restrictive conditions than those applicable to the general inmate population. And if that right is removed without any kind of hearing or a review of its continuation, then the person's detention is arbitrary. Hence, a review by the Adjudication Division as soon as practicable after the order removed the inmate's eligibility, and every six months thereafter, would suffice to prevent the detention from being arbitrary. Since the right to enter, remain in and leave Canada is limited by section 6 of the Charter to Canadian citizens, courts have not subjected provisions of the Immigration Act to review under section 15 of the Charter on the ground that they discriminate on account of nationality. The function of subsection 105(1) of the Act is to ensure that those against whom orders are made appear for an examination or inquiry that may lead to their removal from Canada, or for the removal itself. This provision is therefore part of "a deportation scheme" and not subject to a section 15 review.
(3) The order made against the second applicant, Mr. Shouq, under the former section 105 of the Act was not replaced automatically with a new order by the enactment of the current subsection 105(1), nor was any new order in fact made. For these reasons, Mr. Shouq was eligible for parole and unescorted temporary absence. Questions were certified under subsection 83(1) of the Act.
| statutes and regulations judicially considered |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 6, 9, 10(c), 15. |
| Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 100, 102, 115 (as am. by S.C. 1995, c. 42, ss. 31, 69; 1997, c. 17, s. 19), 116, 119 (as am. by S.C. 1995, c. 22, ss. 13, 18; c. 42, ss. 33, 69; 1997, c. 17, s. 20), 128(3) (as am. by S.C. 1995, c. 42, s. 42). |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 37 (as am. by S.C. 1992, c. 49, s. 26), 50(2), 83(1) (as am. idem, s. 73), 103(1) (as am. idem, s. 94; 1995, c. 15, s. 19), (3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94), (6) (as am. by S.C. 1995, c. 15, s. 19), (7) (as am. by S.C. 1992, c. 49, s. 94), 105(1) (as am. by S.C. 1995, c. 15, s. 20), (2) (as am. idem). |
| Immigration Act, 1976, S.C. 1976-77, c. 52, s. 104(3)(b). |
| Immigration Regulations, 1978, SOR/78-172, s. 19(4)(k)(iv) (as am. by SOR/84-849, s. 1). |
| Prisons and Reformatories Act, R.S.C., 1985, c. P-20. |
| cases judicially considered |
| applied: |
| Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Webb v. British Columbia (Director, Lower Mainland Regional Correction Centre) (1988), 51 D.L.R. (4th) 726; 26 B.C.L.R. (2d) 354; 42 C.C.C. (3d) 267; 35 C.R.R. 173 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353. |
| referred to: |
| R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; Symes v. Canada, [1993] 4 S.C.R. 695; (1993), 110 D.L.R. (4th) 470; 19 C.R.R. (2d) 1; [1994] 1 C.T.C. 40; 94 DTC 6001; 161 N.R. 243; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81. |
APPLICATIONS for judicial review of a decision by the Adjudication Division of the Immigration and Refugee Board stating that it had no jurisdiction "unilaterally to order a detention review" under subsection 103(6) of the Immigration Act in the absence of a request by a senior immigration officer. Applications allowed.
| appearances: |
| David Matas for applicants. |
| Joel Katz for respondent. |
| solicitors of record: |
| David Matas, Winnipeg, for applicants. |
| Deputy Attorney General of Canada for respondent. |
The following are the order and the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
[1]These applications for judicial review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, were heard together pursuant to an order of MacKay J. dated November 18, 1998. There are few differences in the material facts and legal issues of the two cases. In the interest of simplicity, these reasons are based on the facts germane to the application of Mr. Chaudhry (hereinafter the applicant), but they are equally applicable to both cases. I deal subsequently with the point that is peculiar to the case of Mr. Shouq.
[2]The subject of the application is a decision by Mr. Tetreault of the Immigration and Refugee Board (Adjudication Division) (hereinafter the Adjudication Division) contained in a letter dated July 14, 1998. It was addressed to counsel for the applicant and was written in response to a letter from him dated June 2, 1998. Mr. Tetreault stated in the letter that he had no jurisdiction "unilaterally to order a detention review" under subsection 103(6) of the Immigration Act , R.S.C., 1985, c. I-2, as amended [by S.C. 1995, c. 15, s. 19] in the absence of a request by a senior immigration officer. Since no such request had been made with respect to the applicant, the Adjudicator stated that he was unable to review the reasons for the continuation of the applicant's detention.
[3]The applicant seeks an order requiring the Adjudication Division to conduct such a review, as he alleges is required by law, and an ancillary order requiring the Minister of Citizenship and Immigration (hereinafter the respondent) to request the Adjudication Division to review the reasons for the applicant's continued detention. Counsel for the applicant, Mr. Matas, maintains that this review is mandated by either subsection 103(6) of the Immigration Act properly interpreted or, in the alternative, by sections 9 and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
B. BACKGROUND
[4]The applicant, a citizen of Pakistan, entered Canada in July 1993 as an undocumented visitor and remained without authorization after his visitor status expired in December of that year. In October 1994 he was convicted on two counts of trafficking in a narcotic and was sentenced to 14 years' imprisonment on both counts, which he is serving at Stony Mountain Penitentiary.
[5]On the basis of these facts, and following an inquiry, on March 29, 1995 the applicant was ordered deported. On April 19, 1995 a warrant for his arrest and detention was issued under subsection 103(1) [as am. by S.C. 1992, c. 49, s. 94] of the Immigration Act. According to a letter of September 29, 1997, written by C. Marchand of the Canada Immigration Centre (Winnipeg), the warrant was issued because there were concerns about whether the applicant would otherwise appear for his removal.
[6]On the day that the warrant was issued an order was also made under section 105 [now subsection 105(1) (as am. by S.C. 1995, c. 15, s. 20)] of the Immigration Act directing the person in charge of the institution where the applicant was incarcerated to detain him until the expiration of his sentence, or until the expiration of the sentence as reduced by operation of law or by an act of clemency, and to deliver him into the custody of an immigration officer. The purpose of this latter order is to ensure that a person who has been ordered deported and is the subject of a warrant of arrest does not go free after serving a sentence, but is delivered up to an immigration officer in order to prevent his evading removal.
[7]In this case, however, the more important aspect of the making of an order under subsection 105(1) is that, by providing that "Notwithstanding the Corrections and Conditional Release Act" a person against whom an order is made under the subsection remains incarcerated until the expiration of his or her sentence, subsection 105(1) renders the person concerned ineligible for release on day parole or on an unescorted temporary absence pursuant to sections 102 and 116 of the Corrections and Conditional Release Act , S.C. 1992, c. 20, as amended. This is confirmed in a letter dated September 18, 1997 from the National Parole Board to the applicant. Moreover, and this is the nub of the case, on the view taken by the respondent the applicant has no right to have the reasons for the continuation of a subsection 105(1) order reviewed by the Adjudication Division, or by any other quasi-judicial body that is independent of the respondent.
C. LEGISLATIVE FRAMEWORK
[8]The following sections of the Immigration Act are central to the disposition of this application for judicial review. I have underlined the parts of these provisions that are of the most immediate relevance [ss. 103(1) (as am. by S.C. 1995, c. 15, s. 19), (3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94), (6) (as am. by S.C. 1995, c. 15, s. 19), (7) (as am. by S.C. 1992, c. 49, s. 94), 105(1) (as am. by S.C. 1995, c. 15, s. 20), (2) (as am. idem)]:
103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where
| (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and |
| (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. |
. . .
(3) Where an inquiry is to be held or is to be continued with respect to a person or a removal order or conditional removal order has been made against a person, an adjudicator may make an order for
| (a) the release from detention of the person, subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond; |
| (b) the detention of the person where, in the opinion of the adjudicator, the person is likely to pose a danger to the public or is not likely to appear for the inquiry or its continuation or for removal from Canada; or |
| (c) the imposition of such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. |
. . .
(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.
(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond.
. . .
105. (1) Notwithstanding the Corrections and Conditional Release Act, the Prisons and Reformatories Act or any Act of a provincial legislature, where a warrant has been issued or an order has been made pursuant to subsection 103(1) or (3) with respect to any person who is incarcerated in any place of confinement pursuant to the order of any court or other body, the Deputy Minister may issue an order to the person in charge of the place directing that
| (a) the person continue to be detained until the expiration of the sentence to which the person is subject or until the expiration of the sentence or term of confinement as reduced by the operation of any statute or other law or by an act of clemency; and |
| (b) the person be delivered, at the expiration of the sentence or term of confinement referred to in paragraph (a), to an immigration officer to be taken into custody. |
(2) Nothing in subsection (1) shall limit the authority of any person, pursuant to any Act referred to in that subsection, to grant an escorted temporary absence pursuant to any of those Acts. [Underlining added.]
[9]Two sections of the Canadian Charter of Rights and Freedoms may also be relevant to the disposition of this application.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
. . .
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
D. THE ISSUES
[10]As already indicated, counsel for the applicant rests his case on the interpretation of the relevant provisions of the Immigration Act and, in the alternative, on sections 9 and 15 of the Canadian Charter of Rights and Freedoms. The issues raised are as follows.
| 1. Is a non-citizen, incarcerated following a criminal conviction, who is the subject of an order under subsection 105(1) of the Immigration Act, and consequently ineligible to be considered by the National 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) of the Act? |
| 2. If such a person is not so entitled under subsection 103(6), is the person thereby |
| (a) arbitrarily detained contrary to section 9 of the Charter; and |
| (b) deprived of the right to equality without discrimination on the ground of nationality as guaranteed by section 15 of the Charter? |
| 3. Is a person who is subject to an order made under section 105 before it was amended in 1995 eligible for day parole or an unescorted temporary absence? |
E. ANALYSIS
Issue 1
[11]Mr. Matas argued that a person who is the subject of a subsection 105(1) order is in the position of someone who is imprisoned in a cell that has two locks on the door, each with a different key, with no one having both keys. Thus, the National Parole Board holds the key to the grant of day parole and unescorted temporary leaves, but it cannot consider the applicant for these forms of temporary release because subsection 105(1) expressly precludes the applicant's release prior to the end of his sentence, notwithstanding the Corrections and Conditional Release Act. It should be noted here that section 105 ceases to operate when a person is released on full parole, because his sentence has expired: Corrections and Conditional Release Act, subsection 128(3) [as am. by S.C. 1995, c. 42, s. 42]. The Adjudication Division, on the other hand, holds the key to a person's release from detention under the Immigration Act. However, the respondent has taken the view that an inmate who is subject to a subsection 105(1) order is not eligible for a detention review by the Adjudication Division under subsection 103(6) because the person is not "detained pursuant to [the Immigration] Act".
[12]The question is whether an order made under subsection 105(1) can be said to "detain" the applicant within the meaning of subsection 103(6). Of course, even if the order were lifted, the applicant would still be detained in Stony Mountain, until either the expiry of his sentence, as reduced where applicable, or the National Parole Board exercises its discretion to grant him day parole or an unescorted temporary absence under sections 102 and 116 of the Corrections and Conditional Release Act . However, the fact that the applicant is detained pursuant to the sentence imposed when he was convicted of the criminal offence does not necessarily prevent him from also being detained under the Immigration Act.
[13]A helpful analogy is provided by Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, where it was held that an inmate of the Institution who had been put into administrative segregation could challenge the legality of that order by a writ of habeas corpus, which issues to order the release of a person who is being unlawfully detained, even though, if the writ were granted, the applicant would merely be released into the general penitentiary population. Whether an order has the effect of confining an inmate in a "prison within a prison", so that the individual's liberty of the person is sufficiently constrained as to engage the writ of habeas corpus , depends on how much harsher the order makes the conditions of imprisonment than those under which other inmates serve their sentence. In Cardinal it was held that the condition of the appellant's confinement in administrative segregation was sufficiently severe as to constitute a detention and the legality of the order authorizing it was therefore reviewable by habeas corpus.
[14]In principle, therefore, it may be possible to say that a person against whom a subsection 105(1) order is made is thereby "detained pursuant to [the Immigration] Act" within the meaning of subsection 103(6). Whether such an order should be so characterized depends on an assessment of the significance of the benefit that it has removed from the applicant, and the degree to which the conditions under which he is consequently required to serve his sentence have been made harsher than those experienced by most other inmates.
[15]On the one hand, it could be said that, since the only effect of the order is to remove the applicant's eligibility to be considered for day parole or an unescorted temporary absence, it cannot be equated with, say, the revocation or even the refusal of these benefits: mere eligibility, after all, is no guarantee that these temporary leaves will in fact be granted. On the other hand, of course, ineligibility ensures that they cannot be.
[16]Moreover, while not perhaps as so obviously oppressive as segregation, to be ineligible for day parole and unescorted temporary absence is a serious matter, since they are regarded as important tools for helping to achieve the statutory purposes of rehabilitating offenders and reintegrating them into society. A person is normally eligible for these forms of temporary release well before being eligible for full parole: see Corrections and Conditional Release Act, sections 115 [as am. by S.C. 1995, c. 42, ss. 31, 69; 1997, c. 17, s. 19], 119 [as am. by S.C. 1995, c. 22, ss. 13, 18; c. 42, ss. 33, 69; 1997, c. 17, s. 20].
[17]For an individual to be deprived of the opportunity of spending time outside the institution in preparation for full parole is surely sufficiently serious to constitute "detention", especially since the subsection 105(1) order may remain in place for the remainder of the sentence. Again, it may be relevant to observe by way of analogy that the Supreme Court of Canada has held that the legality of a refusal to permit a person to apply for parole has been held to be reviewable by habeas corpus : R. v. Gamble, [1988] 2 S.C.R. 595. Escorted temporary absences, on the other hand, have a more limited function, and it is not material for present purposes that those subject to a subsection 105(1) order are still eligible for them by virtue of subsection 105(2).
[18]The conclusion that the making of a subsection 105(1) order constitutes detaining the person against whom it is made is also supported by the language of the subsection itself, in that the order to the institutional head directs that "the person continue to be detained" [underlining added]. Accordingly, a person against whom such an order is made is "detained pursuant to th[e] Act" for the purpose of subsection 103(6). Continuing a person's detention past a point when it would otherwise have ended, and detaining a person, is, as Mr. Matas maintained, a distinction without a difference. In any event, it is "the reasons for the continued detention" [underlining added] of the individual that are reviewed under subsection 103(6).
[19]In addition, the fact that a subsection 105(1) order may only be made against a person who has been the subject of either a warrant of arrest and detention under subsection 103(1), or a detention order of an adjudicator under paragraph 103(3)(b), provides a critical link between subsections 103(6) and 105(1). This is because arrest and detention warrants and detention orders issued under these subsections are made in respect of persons who are the subject of removal orders, or of examinations or inquiries that may result in their removal. Subsection 103(6) provides for the review of the reasons for the continuing detention pursuant to the Act for "an examination, inquiry or removal".
[20]Nonetheless, as Mr. Katz argued on behalf of the respondent, subsection 103(6) would seem to contemplate situations very different from that of deportees who are already imprisoned under a sentence of a court following their convictions for criminal offences. Its provisions are most obviously designed for the person who would otherwise have been at liberty but is detained because there are grounds to believe that the person either poses a danger to the public, or will not appear for an examination, an inquiry or removal.
[21]Subsection 103(6) provides important procedural protections when the examination, inquiry or removal cannot take place promptly. Thus, if the proceeding or the removal does not occur within forty-eight hours, the person is entitled to a detention review "forthwith", and if it is delayed further, within the next seven days and every thirty days thereafter. Such elaborate provisions would seem an appropriate check on the exercise of a most unusual power, namely the power of administrative officials to detain without a hearing a person who has not been charged with or convicted of a criminal offence, and would otherwise be at liberty.
[22]The history of these sections of the Immigration Act confirms that Parliament did not originally intend subsection 103(6) to extend to those who were already incarcerated following criminal convictions. This is obvious from the fact that, in its present form, subsection 103(6) was enacted by S.C. 1992, c. 49, section 94, with a minor amendment enacted by S.C. 1995, c. 15, subsection 19(2), whereas the current section 105 was added later by S.C. 1995, c. 15, section 20, including the provision that the section operates notwithstanding the Corrections and Conditional Release Act and the Prisons and Reformatories Act [R.S.C., 1985, c. P-20].
[23]In my opinion, however, the fact that subsection 103(6) predated subsection 105 does not necessarily mean that it cannot now be interpreted as providing detention review for those detained under subsection 105(1). This is because the reference in subsection 103(6) to those detained pursuant to the Immigration Act who are the subject of an order under subsection 103(1) or paragraph 103(3)(b) should be interpreted to include those detained in the exercise of powers contained in the Immigration Act as it was in 1992 and as it may be amended from time to time.
[24]In Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, Sopinka J. said (at page 552) that:
. . . any reference in a federal statute to the Acts of the federal Parliament must be taken to mean those Acts as they exist from time to time: see s. 10 of the Interpretation Act [R.S.C., 1985 c. I-21].
This presumption should be equally applicable to the case at bar, where the reference to a federal statute, namely, the Immigration Act, is to the very same Act in which the reference is made.
[25]It would be unduly narrow to interpret subsection 103(6) as referring only to the Immigration Act as it was when enacted, and would leave a significant gap in the statute. If the language and structure of statutory provisions permit, they should be interpreted in a manner that protects the liberty of the person.
[26]Accordingly, the fact that the scope of the writ of habeas corpus is broad enough to enable a person to challenge the legality of an order made under subsection 105(1) is a further indication that subsection 103(6) should be interpreted to provide for the review by the Adjudication Division of the reasons for the continuation of the order, and hence of the person's detention. Moreover, it is also my view that to detain a person in "a prison within a prison" without a hearing either before or after the order is made would be a breach of section 9 of the charter: see paragraphs 37-47. Hence, any ambiguity in subsection 103(6) should be resolved in a manner that renders it constitutional: Symes v. Canada , [1993] 4 S.C.R. 695, at pages 751-752.
[27]On the interpretation of the Act that I favour, a detention review of an order made under subsection 105(1) would not be triggered until the individual became eligible for day parole or an unescorted temporary absence, because prior to that it would not have adversely affected the conditions of the individual's incarceration.
[28]Counsel for the respondent suggested that section 103 should be read as a self-contained code, and that the omission of an express provision for detention review in section 105 is an indication of Parliament's intention that there should be none. However, the fact that all those who are made subject to a subsection 105(1) order are also the subject of an administrative action under subsection 103(1) or paragraph 103(3)(b) provides a link back into section 103. In any event, subsection 103(6) is in its terms clearly not limited to those detained under section 103.
[29]Mr. Katz also argued that, since the purpose of day parole and unescorted temporary absences is to assist in the rehabilitation of offenders and their reintegration into Canadian society (see section 100 of the Corrections and Conditional Release Act), it is scarcely applicable to those who are liable to be removed from Canada when they have served their sentence. It therefore makes little sense, he contended, to interpret subsection 103(6) as creating procedural protections against the removal of a right (eligibility for day parole or unescorted temporary absence) from persons who were never the intended beneficiaries of it.
[30]I do not find this argument persuasive. First, there is no suggestion in the provisions of the Corrections and Conditional Release Act that, in the absence of a subsection 105(1) order, a person against whom a deportation order has been made is not eligible for either of these forms of release. Indeed, if they were not eligible, the aspect of subsection 105(1) being considered here would presumably be redundant.
[31]Second, as Mr. Matas pointed out, not all persons who are the subject of deportation orders are excluded from Canadian society. Some deportees, for example, are permitted to re-enter Canada on a Minister's permit issued on humanitarian or compassionate grounds under section 37 [as am. by S.C. 1992, c. 49, s. 26] of the Immigration Act. And some removal orders may be incapable of execution: see Immigration Regulations, 1978, SOR/78-172, as amended, subparagraph 19(4)(k)(iv) [as am. by SOR/84-849, s. 1]. Thus, to the extent that day parole and unescorted temporary absences are intended to benefit only those who will rejoin Canadian society, this category will include some, at least, of those against whom subsection 105(1) orders have been made.
[32]Third, even those subject to subsection 105(1) orders are entitled to full parole (paragraph 105(1)(a)), although a person under a deportation order who is released on full parole, another rehabilitative and reintegrative measure, may then be removed from Canada: Corrections and Conditional Release Act, subsection 128(3), and Immigration Act, subsection 50(2).
[33]Counsel for the respondent also suggested that the power conferred by subsection 105(1) cannot said to be exercisable on a whim or arbitrarily, since a subsection 105(1) order can only be made in respect of a person against whom a subsection 103(1) warrant or a paragraph 103(3)(b) detention order has been issued. Before either of these may be issued there must be reasonable grounds for the Deputy Minister, a senior immigration officer or an adjudicator to believe that the person is a danger to the public or may not appear for the examination, inquiry or removal. Moreover, warrants issued or orders made under section 103 are reviewable in the Federal Court and will be held invalid if found to have been made in abuse of the statutory discretion.
[34]However, the limited grounds of review available on an application for judicial review, and the time that it may take for an application to be decided, make this a much less effective remedy than a prompt on-the-merits review of a subsection 105(1) order by an adjudicator. I note also that counsel for the respondent did not argue that it would frustrate the operation of the Immigration Act, or create grave administrative difficulties, if subsection 103(6) were interpreted to extend to the review of orders made under subsection 105(1).
[35]In my view, therefore, the applicant's interpretation of subsection 103(6) is correct. As for the remedy, I do not believe that it is necessary for me to issue mandatory orders to the Adjudication Division or to the respondent in order to give effect to my decision. It is sufficient to grant a declaratory order that a person against whom a subsection 105(1) order has been issued is detained pursuant to the Immigration Act within the meaning of subsection 103(6), and that the review provisions of that section apply to orders made under subsection 105(1).
Issue 2
[36]Because of my conclusion on the interpretation of the Immigration Act, it is not strictly necessary for me to address fully the extensive arguments advanced by Mr. Matas to the effect that, if subsection 105(1) orders are not subject to subsection 103(6), these orders are invalid, in the absence of any kind of review of the reasons for their continuation. This conclusion is required by section 9 of the Charter, because the detention would otherwise be arbitrary, and by section 15 of the Charter, because only non-citizens can be subject to a subsection 105(1) order, so that the power to issue such an order discriminates against the applicant on the ground of nationality, an "analogous ground" to those listed in section 15: Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143.
Section 9
[37]The argument here is that depriving an inmate of eligibility for day parole or unescorted temporary absence, a statutory right enjoyed by other inmates, amounts to detention or imprisonment within the meaning of section 9 of the Charter. Detention or imprisonment for constitutional purposes should surely be determined by reference to the scope of the interest in personal liberty that is protected by the writ of habeas corpus. The interpretation of Charter rights should be informed, if not always determined conclusively, by the common law. I see no reason why the definition of the interest protected by section 9 should be less than that protected by habeas corpus, a writ that historically has been so closely linked to ensuring that individuals are not unlawfully deprived of liberty of the person that its previously quasi-constitutional status has been given a formal constitutional foundation by paragraph 10(c) of the Charter.
[38]Having decided with the assistance of the jurisprudence on the scope of habeas corpus that a person subject to a subsection 105(1) order is detained pursuant to the Immigration Act, I have no difficulty in concluding further that the applicant is also "detained or imprisoned" for the purpose of section 9.
[39]However, in order to establish a violation of section 9 the applicant must also show that the detention or imprisonment was arbitrary. The question is, therefore, whether a person is arbitrarily detained by an order that is made by the Deputy Minister, and liable to be continued for the remainder of his sentence or until full parole is granted, without any review of the reasons for its continuation on the basis of a hearing before an independent tribunal.
[40]In my view, despite the statutory requirement that the Deputy Minister, a senior immigration officer or an adjudicator must have had reasonable grounds under subsection 103(1) or (3) for believing that the person might not otherwise report for an examination, inquiry or removal, a penitentiary inmate who is the subject of a subsection 105(1) order would be arbitrarily detained if the respondent's interpretation of subsection 103(6) were correct, and the reasons for the continuation of the order were accordingly not subject to any review by the Adjudication Division.
[41]In Webb v. British Columbia (Director, Lower Mainland Regional Correction Centre) (1988), 51 D.L.R. (4th) 726 (B.C.C.A.) it was held that the power under then paragraph 104(3)(b) [S.C. 1976-77, c. 52] to issue a warrant for the detention of a person who is a danger to the public or would not otherwise appear for an examination, inquiry or removal does not authorize an arbitrary detention because it is exercisable on objective grounds and, Macfarlane J.A. said at page 729, because it:
. . . provides protection to the person who is detained by insuring a regular review of his case, at which time the reason for his detention must be re-examined and reasons given for his further detention.
It is a reasonable inference from these reasons that, had the statute not provided an opportunity for an independent review of the reasons for the continuation of the order, the Court would have found subsection 103(3) to be contrary to section 9 of the Charter. This is the conclusion that I would reach on the facts of the present case as regards subsections 103(6) and 105(1).
[42]Counsel for the respondent argued that, since section 9 does not guarantee a right to parole, a statutory provision that deprives a person of the right to be considered for parole without any review of the reasons for the continuation of the order cannot be in violation of section 9.
[43]I do not find this a persuasive argument. Even though Parliament may not be constitutionally required to provide for parole, once it has created a statutory eligibility for parole, day or full, denial of the statutory right to be considered for it may constitute a detention because it causes the person concerned to serve his or her sentence under significantly more restrictive conditions than those applicable to the general inmate population. And if the statutory right is removed without any kind of hearing or a review of its continuation, then the person's detention is surely arbitrary: compare R. v. Swain, [1991] 1 S.C.R. 933, at pages 1012-1013.
[44]As I have already indicated, I used section 9 to resolve a possible ambiguity in the words "detained pursuant to th[e] Act" in subsection 103(6), and construed it to include a periodic review of orders made under subsection 105(1). If I am wrong on this point, then for the statute to comply with section 9, it may not be necessary to require that the reasons for subsection 105(1) orders be reviewed as frequently as are the reasons for detaining individuals held only under either section 103, or other sections of the Act.
[45]There are degrees of detention in the constitutional sense, and the deprivation of the right to be considered for day parole or an unescorted temporary absence is a lesser denial of liberty of the person than the confinement of someone who would otherwise be at large. Hence, a review by the Adjudication Division as soon as practicable after the order removed the inmate's eligibility, and every six months thereafter that the order remained in effect, would suffice to prevent the detention from being arbitrary.
[46]Counsel for the respondent did not argue that, if in breach of section 9 of the Charter, the relevant provisions of the Immigration Act were justifiable under section 1.
[47]Were it necessary for the disposition of this application, I would be prepared to remedy the constitutional defect in the scheme by reading into subsection 105(1) the underlined words:
105. (1) . . . the Deputy Minister may issue an order, [reviewable under subsection 103(6) as soon as practicable after the person's eligibility for day parole or unescorted temporary absence is removed, and every six months thereafter that it is in force,] to the person . . . directing that . . . .
Section 15
[48]Since the right to enter, remain in and leave Canada is limited by section 6 of the Charter to Canadian citizens, courts have not subjected provisions of the Immigration Act to review under section 15 on the ground that they discriminate on account of nationality. As Sopinka J. said in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at page 736:
There is . . . no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.
[49]The function of subsection 105(1) is to ensure that those against whom orders are made appear for an examination or inquiry that may lead to their removal from Canada, or for the removal itself. This provision is therefore a part of "a deportation scheme". It is accordingly not subject to section 15 review, even though a subsection 105(1) order can deprive only those penitentiary inmates who are non-citizens of the right to be considered for day parole or an unescorted temporary absence.
Issue 3
[50]Finally, turning to the application of Mr. Shouq, counsel for the respondent pointed out that a section 105 order had been made against him before the current version of the section was enacted. The former version did not preclude a person against whom it was made from eligibility for day parole or an unescorted temporary absence.
[51]The order made against Mr. Shouq under the former section 105 was not replaced automatically with a new order by the enactment of the current subsection 105(1), nor was any new order in fact made. Mr. Katz therefore submitted that Mr. Shouq is already eligible for day parole or temporary unescorted absence on the same basis as any other inmate, and so no order of this Court is required before he may be considered for either of these forms of temporary leave.
[52]However, to remove any doubt, the order made in respect of Mr. Shouq will be a declaration that, for the reasons in the above paragraph he is eligible for parole and unescorted temporary absence.
[53]For these reasons, these applications for judicial review are granted. The answers to the questions that I posed in paragraph 10 are as follows:
1. Yes
2. (a) Yes (b) No
3. Yes
[54]After receiving submissions from counsel for the parties following their review of a draft of these reasons, I have certified the following questions pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act with respect to the applicant Chaudhry:
| 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)? |
| 2. If subsection 103(6) of the Immigration Act does not apply to orders made under subsection 105(1), does the Act violate section 9 of the Canadian Charter of Rights and Freedoms? |
| 3. If there is a violation of section 9, is it appropriately remedied by reading into subsection 105(1), immediately following the words "the Deputy Minister may issue an order", the words "reviewable under subsection 103(6) as soon as practicable after the order removes the person's eligibility for day parole and unescorted temporary absence and every six months thereafter that the order is in force"? |
Despite the able submissions of counsel, I was not persuaded that a serious question of general importance arises from this case with respect to section 15 of the Charter.