CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board (IAD) having jurisdiction to review respondent’s stay of execution of removal order—In same application, Court [(2004) 42 Imm. L.R. (3d) 52] earlier referring matter back to IAD to determine whether respondent breached conditions of stay granted under former Immigration Act and retaining jurisdiction to determine whether IAD having jurisdiction to review stay—Respondent, English, permanent resident of Canada—Convicted of drug-related offences at different intervals, sentenced to imprisonment— Respondent subject of inadmissibility reports and deportation order issued—Filing equitable consideration appeal with IAD on ground married, having daughter, step-daughter—IAD granting stay subject to terms, conditions, including respondent refrain from illegal use, sale of drugs—IAD subsequently reviewing, maintaining stay of respondent’s deportation order on same terms—Respondent later pleading guilty to two charges, receiving minimal sentence, therefore breaching conditions—At next review hearing, Minister challenging IAD’s jurisdiction to review stay after coming into force of Immigration and Refugee Protection Act (IRPA), claiming respondent not having right to appeal to IAD given inadmissibility—IRPA, s. 197 main statutory transitional provision applicable to case—S. 197 referring to IRPA, ss. 64, 68(4) whose purposes either to block or statutorily terminate appeal to IAD if certain conditions met—S. 197 examined in context of ss. 190, 192, 196—S. 192 exception to immediate operation of IRPA commanded by s. 190 to every matter pending under former Act immediately before IRPA coming into force—S. 196 exception to s. 192 since discontinuing appeal to IAD made under former Act if stay not granted under former Act and appeal precluded from being made under IRPA, s. 64—S. 197 further exception to s. 192, operating only when stay granted under former Act, condition of stay breached, as in present case—Ss. 64, 68(4) referred to in s. 197 not mutually exclusive, meant to operate together—Unlike s. 196, s. 197 not providing that if appeal precluded because of s. 64 (serious criminality), appeal launched under former Act discontinued—If previously granting stay under former Act, IAD retaining jurisdiction to review adherence to conditions of stay and ability to cancel stay, direct execution of removal order if applicable—S. 196 operating only when stay not granted only referring to s. 64 and discontinuing appeal launched under former Act if s. 64 would have barred appeal— If stay granted, s. 197 making appellant subject to s. 68(4), which removes IAD’s discretion in exercise of equitable jurisdiction—Where stay granted but appellant committing subsequent serious offence, s. 197 making appellant subject to s. 68(4), cancelling stay and terminating appeal— Furthermore, appellant bound by operation of both ss. 64, 68(4) given ordinary usage of conjunction “and” found in s. 197—Reference to ss. 64 and 68(4) in s. 197 having specific purpose—Reference to s. 64 to ensure higher threshold for serious criminality of punishment by sentence of at least two years’ imprisonment met—Reference to s. 68(4) to recognize IAD having decided, under former Act, stay warranted where person found inadmissible on grounds of criminality but that person determined not to be removed from Canada for reasons of equity, compassion—Respondent’s two convictions consti-tuting breach of condition not meeting threshold of punishment by minimum six-month sentence under s. 68(4)—Application dismissed—Immigration Act, R.S.C., 1985, c. I-2— Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 64, 68(4), 196, 197—Criminal Code, R.S.C., 1985, c. C-46.
Canada (Minister of Citizenship and Immigration) v. Hyde (IMM-6961-03, 2005 FC 950, Lemieux J., order dated 7/7/05, 25 pp.)