Hyperlawhypertext legal database Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) 2005 SCC 51

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Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration)

2005 SCC 51 [2005] 2 SCR 539 Court SCC Decision date 2005-09-30 Heard 2005-06-07 Docket 30332, 30334 English

PartiesOlga Medovarski Appellant·Minister of Citizenship and Immigration Respondent·Julio Esteban Appellant

Judges McLachlin, Beverley; Major, John C.; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Charron, Louise

Delivered by McLachlin C.J. (Major, Binnie, LeBel, Deschamps, Fish and Charron JJ. concurring)

On appeal from Federal Court of Appeal

Subjects Constitutional law Immigration Statutes

Contents

Reasons for Judgment — McLachlin C.J. (Major, Binnie, LeBel, Deschamps, Fish and Charron JJ. concurring)

The Chief Justice —

The core question on these appeals is whether s. 196, a transitional provision of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), removes the right to appeal an order for removal to the Immigration Appeal Division (“IAD”), in the case of persons deemed inadmissible for serious criminality (i.e., sentenced to six months or more of imprisonment). The old statute (Immigration Act, R.S.C. 1985, c. I-2) granted this right of appeal. The new statute does not for those imprisoned over two years. The transitional provision took away the right to appeal an order for removal unless a party had, under the old Act, been “granted a stay”. The old Act provided for two kinds of stays: automatic stays and actively ordered stays. The appellants enjoyed only an automatic statutory stay. If the phrase “granted a stay” indicates both kinds of stays, the appellants’ right to appeal is preserved. Conversely, if it indicates only actively ordered stays, the appellants’ right to appeal is removed.
The appellants are Olga Medovarski and Julio Esteban. Ms. Medovarski was sentenced to two years of imprisonment for criminal negligence causing death while driving a car when intoxicated. Mr. Esteban was sentenced to four years in prison for conspiracy to traffic cocaine. Both were ordered deported. Medovarski and Esteban each appealed to the Immigration Appeal Division of the Immigration and Refugee Board and their removal orders were automatically stayed. Both of those appeals were discontinued as a result of the transitional provisions of the IRPA . In each case the trial judge set aside the decision to discontinue the appeal: [2003] 4 F.C. 227, 2003 FCT 634; 237 F.T.R. 264, 2003 FC 930. In both cases the majority of the Federal Court of Appeal granted the Minister’s appeal, holding that the IRPA ’s transitional provisions intended to deny a right of appeal in the case of an automatic stay: [2004] 4 F.C.R. 48, 2004 FCA 85, and [2004] F.C.J. No. 1892 (QL).
I conclude, as did the majority of the Federal Court of Appeal, that “granted a stay” indicates only actively granted stays, and s. 196 of the IRPA therefore removes the appellants’ right to appeal the order for their removal for serious criminality. The applicable principles of statutory interpretation permit no other conclusion. The appellants’ argument that this result is unfair does not displace this conclusion. The section, properly interpreted, establishes that Parliament intended to deny a right of appeal to persons in the appellants’ circumstances. Accordingly, I would dismiss the appeals.
The transitional provisions of the IRPA include ss. 192 and 196:
192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
Section 64 of the IRPA expressly removes a right to appeal for those inadmissible on the grounds of serious criminality:
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
The appellants, Medovarski and Esteban, fall within the scope of the current s. 64 which alters the legislative regime to ensure that they have no right of appeal under the IRPA .
However, the appellants argue that since they filed a notice of appeal, which resulted in the removal order being automatically stayed pursuant to s. 49(1)(b) of the former Act, their appeal should not be discontinued under s. 196.
49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed

. . .

(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;

. . .

(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 relevant provisions of the IRPA and its predecessor statute are found in the Appendix.)

3. Analysis

The words of this statute, like any other, must be interpreted having regard to the object, text and context of the provision, considered together: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. In interpreting s. 196 to determine whether it eliminates appeals for permanent residents for whom a stay from an order for removal had been granted, I consider the purpose of the IRPA and its transitional provisions, the French and English text of s. 196, the legislative context of s. 196, and the need to interpret the provision to avoid an absurd, illogical or redundant result. Finally, I deal with concerns about unfairness to the appellants caused by the transition to the new IRPA .

3.1 Purpose of the Section 196 Transitional Provisions

The IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA , the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA .
The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1) (i) of the IRPA versus s. 3(j) of the former Act; s. 3(1) (e) of the IRPA versus s. 3(d) of the former Act; s. 3(1) (h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal.
In introducing the IRPA , the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that “those who pose a security risk to Canada be removed from our country as quickly as possible” (Standing Committee on Citizenship and Immigration, Evidence, May 8, 2001).
In summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s. 64, was to efficiently remove criminals sentenced to prison terms over six months from the country. Since s. 196 explicitly refers to s. 64 (barring appeals by serious criminals), it seems that the transitional provisions should be interpreted in light of these legislative objectives.
The appellants respond by suggesting transitional provisions are not to be interpreted with the legislative purpose in mind. Medovarski relies on the statement of Noël J. in Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333 (F.C.T.D.), where Noël J. held that “[t]ransitional provisions do not lend themselves to the scrutiny of an overly strict interpretation” and that transitional provisions “are not adopted as part of a coherent legislative plan” (p. 340). Noël J., Medovarski submits, concluded that transitional provisions are “ad hoc provisions the sole purpose of which is to ensure that the particular provision of substantive law which they accompany is introduced in an equitable manner” (p. 340).
With respect, the argument rests on a selective reading of Noël J.’s words. He did not hold that transitional provisions attract special rules of interpretation. Rather, he affirmed that in statutory interpretation, the search is always for the intention of the legislator, and where legislative purpose is relevant to a transitional provision, as here, it should be considered. He stated, at p. 337: “In each of these cases, the scope of a transitional provision must be determined from its wording, the nature of the provision of substantive law which it has the effect of suspending and the specific situation which Parliament sought to correct by enacting it.”
The appellants also argue that Noël J.’s statement that the purpose of transitional provisions is to ensure equitable treatment, means that their particular circumstances must be considered in applying s. 196 of the IRPA . They argue that equitable treatment in their cases favours preserving their right of appeal under s. 196, given their reliance on that right, and their compelling personal circumstances.
This argument confuses broad equitable outcome with equitable treatment having regard to the different schemes of the two successive statutes. Transitional provisions are enacted to catch those who fall between the cracks created by two pieces of legislation. They ensure that these individuals are not left in legal limbo, uncertain of their rights and with no applicable law. This is the equitable treatment to which Noël J. refers, not a guarantee of an equitable outcome.
The next step is to consider the terms of s. 196. The Minister and majority of the Federal Court of Appeal conclude that the use of the term “granted” indicates an actively ordered, as opposed to an automatic stay. This is supported by the definition of the term “grant” in the Concise Oxford English Dictionary (11th ed. 2004) which defines it as: “give (a right, property, etc.) formally or legally to . . . legal conveyance or formal conferment” (p. 620). This definition supports a deliberate act. The English version of s. 196 suggests that it applies only to stays actively granted. This said, it is possible to argue, for instance, that statutes can “grant” a right of appeal and that consequently the English version of s. 196 is not as clear as the Minister contends.
Against this, the appellants raise the French version of s. 196, the meaning of which is even less clear. The French text of s. 196 states:
196. Malgré l’article 192, il est mis fin à l’affaire portée en appel devant la Section d’appel de l’immigration si l’intéressé est, alors qu’il ne fait pas l’objet d’un sursis au titre de l’ancienne loi, visé par la restriction du droit d’appel prévue par l’article 64 de la présente loi.
It is argued that the French version broadly applies to all appeals that are not the “objet” of a stay, including statutory stays. However, again the matter is not entirely clear. “[L]’objet d’un sursis au titre de l’ancienne loi” is broader and more passive than the English version, which refers to “grant[ing] a stay”. The appellants argue that beneficiaries of automatic stays under the old Act are “objets” of a stay. Again, however, the matter is not entirely clear. On this interpretation it can be argued that the condition imposed by s. 196 would have little meaning (see below). Further, the companion s. 197 refers to “an appellant who has been granted a stay under the former Act” who “breaches a condition of the stay”. It uses the same language as s. 196. But s. 197 can only refer to an actively ordered stay since conditions are not imposed in an automatic stay, suggesting that s. 196 refers to an actively ordered stay.
The result is that we are dealing with an English version which arguably applies only to actively granted stays, although admitting of ambiguity, and a French version which arguably applies to all stays, whether statutory or granted, although again admitting of ambiguity.
Other uses of the word “stay” in the old and new Acts provide little assistance; the term is used in a variety of different ways depending on the context.

3.3 Principles of French and English Statutory Interpretation

There is some conflict in the lower courts and between the parties as to the approach that should be adopted with respect to conflicting French and English versions of legislation. However, this dispute was addressed and resolved by this Court in R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6, supported by earlier decisions, particularly Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62. These cases, while not cited by the Federal Court of Appeal, guide the analysis of bilingual statutes.
In interpreting bilingual statutes, the statutory interpretation should begin with a search for the shared meaning between the two versions: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327. In Daoust, Bastarache J. held for the Court that the interpretation of bilingual statutes is subject to a two-part procedure.
First, one must apply the rules of statutory interpretation to determine whether or not there is an apparent discordance, and if so, whether there is a common meaning between the French and English versions. “[W]here one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning”: Schreiber, at para. 56, per LeBel J. Schreiber concerned a discrepancy between the French version of s. 6 (a) of the State Immunity Act , R.S.C. 1985, c. S‑18 , which stated that the exception to state immunity is narrowly “décès” or “dommages corporels”, compared to the broader English “death” or “personal injury”. Given the conflict between the two provisions the Court adopted the clearer and more restrictive French version. The common meaning is the version that is plain and not ambiguous. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Daoust, at paras. 28-29.
Second, one must determine if the common meaning is consistent with Parliament’s intent: Daoust, at para. 30.
I now turn to the application of these principles to the facts in this case.
If the English version of s. 196 is interpreted as applying only to actively granted stays, and if the French version is read as referring to all stays, including automatic ones, the two versions are inconsistent. One then looks for the common meaning, which is normally the narrower meaning. In this case, the narrower version is the English version of s. 196. This suggests that the English meaning prevails, and the provision is confined to actively granted stays.
If both the English and French versions are seen as ambiguous, the result is the same. One reconciles them at the first step by finding the common meaning, which again is the narrower meaning.
The final step asks whether the results comport with Parliament’s intent. Here they do. The narrower interpretation accords with Parliament’s general object of abolishing appeals where a permanent resident has been found inadmissible on the grounds of serious criminality and is sentenced to a prison term of over two years, while preserving appeals in cases where the merits were such that a stay is ordered.
As we have seen, consideration of the purpose and language of s. 196 tend to suggest that it was intended to apply only to actively granted stays. This conclusion is reinforced by the absurd effect of the interpretation advocated by the appellants. If s. 196 applies to automatic stays, then it effectively becomes redundant and is reduced to an essentially meaningless statutory provision.
The appellants’ interpretation results in three related problems.
First, s. 192 provides that appeals are continued “[i]f a notice of appeal has been filed”. Section 49(1)(b) of the former Act automatically stayed the execution of a removal order once the appeal has been filed. This would mean that the appellants’ removal orders were automatically stayed by the simple act of filing an appeal. They argue that this should result in their appeals being continued pursuant to s. 192 of the IRPA . However, s. 196 states that “[d]espite section 192, an appeal made to the Immigration Appeal Division . . . shall be discontinued if the appellant has not been granted a stay”. Since the appellant has already automatically been granted a stay under s. 49(1)(b), requiring that a stay be granted for the operation of s. 196 would make no sense since an automatic stay is already in place. Further, the use of “if” or “si” in s. 196 creates a condition. If the appellants’ interpretation is accepted then there is no condition to satisfy since every appeal pending before the IAD would be continued. Therefore, the automatic stay imposed with the filing of the appeal cannot be enough; more is needed to give meaning to s. 196 and the conditional phrase, “if the appellant has not been granted a stay”.
Second, the appellants’ argument leads to the absurdity of concluding that Parliament intended to eliminate appeals for inadmissible people outside the country, while allowing appeals to proceed for inadmissible persons who are in the country. Section 49(1) applies only to removal orders, and hence only to people within the country. This leaves the unanswered question: why would Parliament create a broad exemption for persons in the country yet accord none to similar persons outside the country?
Third, the appellants’ interpretation appears to result in a redundancy inconsistent with the purpose of the Act. As just discussed, s. 49(1)(b) of the former Act imposes an automatic stay when an appeal is filed. Thus the simple act of filing an appeal would exempt the appeal from being discontinued by s. 196 of the IRPA . Thus there is little left for s. 196 to discontinue other than appeals that have been granted to s. 49(1.1) appellants. These people are a subset of serious criminals in the system. This raises the question of why Parliament would confine the provision to a subset, when its legislative purpose was concerned with serious criminals generally. As Evans J.A. stated, there is no cogent policy rationale for such a distinction (para. 43).
The appellants counter with their own redundancy argument, which in the end has little merit. They argue that the Minister’s interpretation of s. 196 would render the provision redundant because under the former Act, the only way that a deliberate stay could be “granted” was via s. 73(1)(c). This was one way the IAD could “dispose” of an appeal. However, both ss. 192 and 196 refer to an appeal in progress as opposed to an appeal that has been “disposed” of. As a result, according to the appellants, s. 196 cannot apply to a deliberate stay since under s. 73(1)(c) there is no such thing as a stay granted in an ongoing appeal.
This argument is answered simply by pointing out that granting a stay under s. 73(1)(c) was merely a temporary measure, and the IAD retained an ongoing supervisory jurisdiction. Its decision was not final: Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577. The appeal would only truly be disposed of, or terminated, when the appeal was allowed or dismissed.
In the end, the Minister’s claim that the appellants’ interpretation would render the transitional provisions largely redundant and meaningless is persuasive, and the appellants provide no viable counter argument.

3.5 Other Arguments

To counter the apparent redundancy of s. 196 on their interpretation, the appellants raise a series of practical considerations that they submit should inform the interpretation of s. 196. These normative arguments may suggest an absurdity or legislative intention and inform the context of an enactment. As such, they may be properly considered in interpreting a disputed provision.
The appellants’ first practical argument is that had they known that their right to appeal would be retroactively removed, they would have proceeded differently in their criminal trials. The two appellants are in different positions in this regard, although Esteban adopts many of Medovarski’s facts to support his case.
Medovarski claims that had she known that she might be denied an appeal by s. 196 (and s. 64), she would have instructed her counsel to bring this fact to the attention of the sentencing judge, in support of a sentence of two years less a day, as opposed to two years. According to her, interpreting s. 196 in a manner which continues her appeal because of the automatic stay remedies this unjust situation. However, s. 64 has caught, or is likely to catch, any number of permanent residents who are or were in prison serving two-year terms at the time the IRPA was passed. They too might have sought two-year sentences less a day had they known that a two-year sentence would remove their right of appeal under the IRPA . Parliament chose not to account for this obvious situation.
The appellants’ second practical argument is that they are left in a worse position than had their cases been dealt with under either Act exclusively. Even though the IRPA removed a right of appeal, the appellants would have had other procedural protections, including an assessment report had they been dealt with entirely under the IRPA : ss. 44(1) and 44(2). Under the former Act, procedures of equitable review were conducted at a later stage via the appeal. Parties were also given notice that the Minister intended to issue a “danger opinion” (which removed a right of appeal) (s. 70(5)) and an opportunity to make submissions. Under the transitional provisions as interpreted by the Minister, the appellants have lost recourse to both the former and the later mechanisms of appeal or review.
The Minister raises factors which it submits balance the appellants’ concerns. Medovarski will not be deported without an assessment of the risks she might face in her home country: IRPA , ss. 112(1) , 113 (d), 97 and 114(1) (b). Medovarski and Esteban can always appeal on humanitarian and compassionate grounds although they will have to do this outside the country: IRPA , s. 25(1) . Finally, they retain their right to seek leave and judicial review of the removal order and other decisions leading to it: s. 72 of the IRPA . It remains true that the appellants were left with fewer options than had they proceeded exclusively under either Act. However, this alone does not suffice to negate the inference flowing from other considerations that Parliament intended this result.
The appellants’ third practical argument is that their appeals were discontinued after they had been filed. However, this argument is answered by the fact that the express purpose of the IRPA ’s transitional provisions is to deal with these pending appeals. Section 196 expressly provides that it operates despite s. 192, which is only engaged if a notice of appeal has been filed under the former Act. Thus any unfairness on this account is contemplated by the legislation.
Finally both appellants raise Charter arguments. Medovarski claims that s. 196 violates her s. 7 rights to liberty and security of the person. She claims that deportation removes her liberty to make fundamental decisions that affect her personal life, including her choice to remain with her partner. Medovarski argues her security of the person is infringed by the state-imposed psychological stress of being deported. Medovarski further alleges that the process by which her appeal was extinguished was unfair, contrary to the principles of fundamental justice.
The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms .
Even if liberty and security of the person were engaged, the unfairness is inadequate to constitute a breach of the principles of fundamental justice. The humanitarian and compassionate grounds raised by Medovarski are considered under s. 25(1) of the IRPA in determining whether a non-citizen should be admitted to Canada. The Charter ensures that this decision is fair: e.g., Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Moreover, Chiarelli held that the s. 7 principles of fundamental justice do not mandate the provision of a compassionate appeal from a decision to deport a permanent resident for serious criminality. There can be no expectation that the law will not change from time to time, nor did the Minister mislead Medovarski into thinking that her right of appeal would survive any change in the law. Thus for these reasons, and those discussed earlier, any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.
Esteban asserts that Charter values should inform the interpretation of s. 196. Charter values only inform statutory interpretation where “genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14. Both readings are not equally in accordance with the intention of the IRPA . Thus it is not necessary to consider Charter values in this case.

3.6 Conclusion on the Meaning of Section 196

Despite the fairness arguments raised by the appellants, I conclude that the interpretation of s. 196 they suggest leads to a legislative redundancy and is inconsistent with the objectives of the IRPA . This conclusion finds further support in the text of s. 196 and principles of interpretation of bilingual statutes.

4. Conclusion

Section 196 of the IRPA , properly interpreted, applies only to actively granted stays. The appellants were never the beneficiaries of actively granted stays. Therefore, s. 196 does not apply to them and their right to appeal their orders for removal were not preserved.
I would dismiss the appeals with costs to the respondent.

Cases cited

Statutes and regulations cited