IMM-3549-98
Waldeab Tewelde (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Teweldev. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J."Winnipeg, May 27; Ottawa, July 15, 1999.
Construction of statutes — Immigration Act, s. 46.01(1)(d) providing Convention refugee claimant ineligible to have claim determined by Refugee Division if determined under this Act or regulations to be Convention refugee — Judicial review of senior immigration officer's decision applicant ineligible to have Convention refugee claim referred to CRDD pursuant to s. 46.01(1)(d) — Applicant citizen of Ethiopia in 1981 — Determined to be Convention refugee in 1984 as against Ethiopia, including what now Eritrea — Acquired landed status in 1986 — Applicant now citizen of Eritrea, having no right of return to Ethiopia — In 1998 conditional deportation order issued — Applicant claiming Convention refugee status against Eritrea — Application dismissed — Interpretation Act, s. 12 requiring such fair, large, liberal interpretation as best ensures attainment of objects; s. 44(f) providing where former enactment repealed, new enactment substituted therefor, new enactment shall not be held to operate as new law, but shall be construed as consolidation, declaratory of law as contained in former enactment except to extent provisions of new enactment not in substance same as those of former enactment — Narrow interpretation of —this Act— allowing applicant to have redetermination consistent with objective of Canadian immigration policy (Immigration Act, s. 3(g)), but inconsistent with purposive approach to statutory interpretation, Interpretation Act, ss. 12, 44(f) — Act in force in 1984 same Act in force today, although substantially amended — —[T]his Act— referring to Act in which appearing, not as it read when those words inserted, but as read before and since inserted and until words —this Act— changed or Act repealed, reenacted — Question certified: does —this Act— in s. 46.01(1)(d) refer to Immigration Act as read at time current form of s. 46.01(1)(d) came into force and form since that date, or to Act in all of its forms since 1983?
Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of SIO's decision applicant ineligible to have Convention refugee claim referred to CRDD pursuant to Immigration Act, s. 46.01(1)(d) — S. 46.01(1)(d) prohibiting determination by Refugee Division if Convention refugee claimant determined under this Act, regulations to be Convention refugee — Applicant citizen of Ethiopia in 1981 — Determined to be Convention refugee in 1984 against Ethiopia, including what now Eritrea — Applicant now citizen of Eritrea, having no right of return to Ethiopia — Acquired landed status in 1986 — Conditional deportation order issued in 1998 — Seeking Convention refugee status against Eritrea — Application dismissed — Applying purposive approach to statutory construction, —this Act— referring to Act in which appears, not as it read when those words inserted into Act and thereafter, but as read before, since words inserted, and until words —this Act— changed, or Act repealed, reenacted — Applicant cannot have refugee claim determined against country not in existence when determination made and to which will be removed — Result inconsistent with objective of immigration policy set out in Act, s. 3(g), recent history i.e. fragmentation of countries.
This was an application for judicial review of a senior immigration officer's decision that the applicant was ineligible to have his Convention refugee claim referred to the Convention Refugee Determination Division of the Immigration and Refugee Board because he had been "determined under this Act or the Regulations to be a Convention refugee." The applicant was a citizen of Ethiopia. He arrived in Canada in 1981 and was found to be a Convention refugee in 1984 at a time when Ethiopia included what is now Eritrea. The applicant is now a citizen of Eritrea, not Ethiopia, and has no right of return to Ethiopia as presently constituted. He acquired landed immigrant status in 1986. After having been convicted for robbery, living off the avails of prostitution and possession of cocaine for the purpose of trafficking, he was declared a danger to the public in Canada in 1998, and a conditional deportation order was issued against him. On the same day he declared his intention to again seek Convention refugee status in Canada, and it was this declaration of intention that resulted in the decision under review. He fears persecution at the hands of agents of the Government in Eritrea because, although he fought for the liberation of Eritrea, he fought on the side of the rebels who are not in favour with the Government.
Immigration Act, paragraph 46.01(1)(d) provides that a Convention refugee claimant is not eligible to have the claim determined by the Refugee Division if the person has been determined under this Act or the regulations to be a Convention refugee. In 1984 and today paragraph 3(g) declares that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted. The definition of "Convention refugee" in the Immigration Act, 1976 was amended effective January 1, 1989 (the chapter 35 amendments) to exclude therefrom persons to whom the United Nations Convention Relating to the Status of Refugees and the Protocol thereto do not apply by virtue of the exclusion clauses reflected in sections E and F of Article 1 of the Convention. Section 46.01 was added by the chapter 35 amendments. Paragraph 46.01(1)(d) assumed its current form, including adoption of the expression "this Act" on February 1, 1993 when the majority of further amendments to the Immigration Act enacted by Statutes of Canada, 1992 came into force. Interpretation Act, section 12 provides that every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. Paragraph 44(f) provides that where a former enactment is repealed and a new enactment is substituted therefor, the new enactment shall not operate as new law, but shall be construed as a consolidation and as declaratory of the law as contained in the former enactment, except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment.
The issue was whether the 1984 determination that the applicant was a Convention refugee was a determination under "this Act".
Held, the application should be dismissed.
Only if the words "this Act" were given a narrow, ordinary meaning, that is, "this Act" as it read when the current form of paragraph 46.01(1)(d ) came into force and as it has read since that time could a person such as the applicant be permitted to assert a new Convention refugee claim, having previously been so found under the "old Act": such an interpretation would be consistent with Canadian immigration policy and also appear to make sense on the facts herein, but it would not be consistent with a purposive approach to statutory interpretation. Nor would it be consistent with Interpretation Act , section 12 and paragraph 44(f). During the relevant period of time, the Immigration Act has not been repealed and replaced except in the course of enactment of the Revised Statutes of Canada, 1985. In view of the Revised Statutes of Canada, 1985 Act, section 4, that repeal and reenactment should be ignored. Thus the Act that was in force when the applicant was determined to be a Convention refugee in 1984 is the same Act that is in force today, although substantially amended. Canadian immigration policy in relation to international legal obligations with respect to refugees and Canada's humanitarian tradition with respect to the displaced and the persecuted has not changed, except as specified in section 2.1 which applies only to the Statutes of Canada, 1988, chapter 36 amendments. Nothing can be read into the change in name from the Immigration Act, 1976 to the Immigration Act as it was made in the course of statute revision and was merely grammatical or cosmetic.
The words "this Act" in paragraph 46.01(1)(d ) refer to the Act in which they appear, not as it read when those words were inserted into the Act and after that time, but as it read from time to time before the words were inserted, as it has read since the words were inserted and as it will read from time to time until the words "this Act" are changed or the Act is repealed and reenacted, otherwise than in a purely formal process, in the same or a different form. Such a conclusion is consistent with the legislative history, since 1984, of the Immigration Act and with a reasonable interpretation of other provisions of the Immigration Act in which the same words appear.
The result, that persons found to be Convention refugees against one country to which they cannot be returned, cannot have their claim to fear persecution on a Convention ground determined against a country that did not exist on the date of determination and to which they will be removed, is difficult to rationalize in the light of recent history which has seen the fragmentation of nations into smaller ones as a common occurrence and in the light of Immigration Act, paragraph 3(g).
The following question was certified: "does the phrase `this Act' found in Immigration Act , paragraph 46.01(1)(d) refer to the Immigration Act as it read at the time the current form of paragraph 46.01(1)(d) came into force and the form of that Act since that date, or to the Immigration Act, by whatever name known, in all of the forms that it has taken since 1983."
| statutes and regulations judicially considered |
| An Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28. |
| An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, S.C. 1988, c. 36. |
| An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof, S.C. 1988, c. 35, s. 37(1). |
| An Act to amend the Immigration Act and the Criminal Code in consequence thereof, R.S.C., 1985 (4th Supp.), c. 29. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 1, 2.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 1), 46.01(1) (as enacted idem, c. 28, s. 14; S.C. 1992, c. 49, s. 36), 53(1)(d) (as am. idem, s. 43; 1995, c. 15, s. 12), 70(5) (as am. by idem, s. 13). |
| Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2 "Convention refugee" (as am. by S.C. 1988, c. 35, s. 1), 2.1 (as enacted by S.C. 1988, c. 36, s. 1), 3(g ), Sch. (as am. by S.C. 1988, c. 35, s. 34). |
| Interpretation Act, R.S.C., 1985, c. I-21, ss. 12, 44(f). |
| Revised Statutes of Canada, 1985 Act, R.S.C., 1985 (3rd Supp.), c. 40, ss. 4, 5. |
| Statute Revision Act, R.S.C., 1985, c. S-20, s. 6. |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6. |
| United Nations Protocol Relating to the Status of Refugees, January 31, 1967, [1969] Can. T.S. No. 29. |
| cases judicially considered |
| applied: |
| Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.). |
| distinguished: |
| Ardon v. Canada (Minister of Employment & Immigration) (1990), 11 Imm. L.R. (2d) 131; 113 N.R. 10 (F.C.A.). |
| authors cited |
| Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994. |
APPLICATION for judicial review of a senior immigration officer's decision that the applicant was ineligible pursuant to Immigration Act, paragraph 46.01(1)(d) to have his Convention refugee claim against Eritrea referred to the Convention Refugee Determination Division of the Immigration and Refugee Board because he had been "determined under this Act or the Regulations to be a Convention refugee" against Ethiopia. Application dismissed.
| appearances: |
| David Matas for applicant. |
| Joel I. Katz for respondent. |
| solicitors of record: |
| David Matas, Winnipeg, for applicant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for order rendered in English by
Gibson J.:
BACKGROUND
[]These reasons arise out of an application for judicial review of a decision of a senior immigration officer in the following terms:
Following a determination under paragraph 45(1)(a) of the Immigration Act, you have been found ineligible under section 46.01(1) to have your claim to be a Convention refugee referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The basis for the determination is as follows:
You have been determined under this Act or the Regulations to be a Convention refugee.
The decision under review is dated of June 26, 1998.
[]The applicant was born in Ethiopia in 1959. He arrived in Canada in 1981 as a student. He claimed refugee status. Under the legislative scheme then in force, he was found to be a refugee in November 1984. He achieved landed status in Canada in 1986. Effective May 24, 1993, the portion of Ethiopia in which the applicant was born, and for whose independence he fought, became Eritrea.
[]In March 1990, the applicant was convicted of robbery and on two counts of living off the avails of prostitution. In July 1997, he was convicted of possession of cocaine for the purpose of trafficking. He was declared on behalf of the respondent to be a danger to the public in Canada on April 8, 1998. The "danger opinion" issued under paragraph 53(1)(d ) [as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12] and subsection 70(5) [as am. idem, s. 13] of the Immigration Act.1 On June 10, 1998, a conditional deportation order was issued against him. On the same day, he declared his intention to again seek Convention refugee status in Canada and it was this declaration of intention that resulted in the decision here under review.
[]The relevant portion of subsection 46.01(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36] of the Immigration Act reads as follows:
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
. . .
| (d) has been determined under this Act or the regulations, to be a Convention refugee; . . . [emphasis added.] |
Simply stated, the issue on this application for judicial review is whether or not the determination made in November 1984, that the applicant was a Convention refugee in Canada, based as it was on a finding that the applicant had a well-founded fear of persecution if he were required to return to Ethiopia, was a determination under "this Act".
STATUTORY HISTORY
[]The determination of Convention refugee status made in respect of the applicant in November, 1984 was made under the Immigration Act, 1976.2 At the time of the determination, under the headings "PART I", "CANADIAN IMMIGRATION POLICY", and "Objectives", the opening words of section 3 and paragraph (g ) of that section of the Immigration Act, 1976 read as follows:
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recog-nizing the need
. . .
| (g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted; |
The opening words of section 3 and paragraph (g) of that section of the Immigration Act read the same way today.
[]By chapter 35 of the Statutes of Canada, 1988,3 assented to July 21, 1988 and proclaimed in force effective January 1, 1989, (the chapter 35 amendments) the definition "Convention refugee" in the Immigration Act, 1976 [section 2] was significantly amended to exclude from the definition persons to whom the United Nations Convention Relating to the Status of Refugees [[1969] Can. T.S. No. 6] signed at Geneva on July 28, 1951 and the Protocol [United Nations Protocol Relating to the Status of Refugees, [1969] Can. T.S. No. 29] thereto signed at New York City on January 31, 1967 (the Convention) does not apply by virtue of the "exclusion clauses" reflected in sections E and F of Article 1 of the Convention. At the same time, those sections of the Convention were added as a schedule to the Immigration Act, 1976 .
[]In the transitional provisions forming part of the chapter 35 amendments, the following portions of subsection 37(1) are of interest for the purposes of this matter:
37. (1) In this section and sections 38 to 50,
. . .
| "commencement day" means the day on which this Act comes into force; |
| "former Act" means the Immigration Act , 1976 as it read immediately before the commencement day; |
Thus, on the face of far-reaching amendments to the Immigration Act, 1976 made by the chapter 35 amendments, that came into force on January 1, 1989, the Immigration Act, 1976 that was in force when the applicant was declared to be a Convention refugee on the basis of a claim against Ethiopia was described as the "former Act".
[]The Immigration Act, 1976 was also amended by chapter 36 of the Statutes of Canada, 19884 also assented to July 21, 1988 and proclaimed in force effective January 1, 1989, (the chapter 36 amendments). Section 1 of the chapter 36 amendments added to the Immigration Act, 1976 the following heading and section:
Purposes of Amendments
2.1 The purposes of the amendments set out in An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, enacted in the second session of the thirty-third Parliament, are the following:
| (a) to preserve for persons in genuine need of protection access to the procedures for determining refugee claims; |
| (b) to control widespread abuse of the procedures for determining refugee claims, particularly in light of organized incidents involving large-scale introduction of persons into Canada to take advantage of those procedures; |
| (c) to deter those who assist in the illegal entry of persons into Canada and thereby minimize the exploitation of and risks to persons seeking to come to Canada; and |
| (d) to respond to security concerns, including the fulfilment of Canada's obligations in respect of internationally protected persons. |
The chapter 36 amendments were entitled An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof. The chapter 35 amendments, by contrast, were entitled "An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof". Thus, the "purposes of amendments" declaration added to the Immmigration Act, 1976 as section 2.1 reflected the purposes of the chapter 36 amendments and not the purposes of the chapter 35 amendments. That distinction remains reflected in section 2.1 of the Immigration Act of today.
[]The Revised Statutes of Canada, 1985 came into force on December 12, 1988, less than a month before the coming into force of the chapter 35 and chapter 36 amendments. In the Revised Statutes, the short title of chapter I-2 is the Immigration Act. Section 1 of the Act, which provides for the short title, does not appear to have been amended, apart from in the statute revision process, to delete the reference to 1976. It just happened.
[]The Revised Statutes of Canada, 1985 were prepared by the Statute Revision Commission under the authority of the Statute Revision Act.5 The powers of the Statute Revision Commission are set out in section 6 of that Act and, briefly summarized, extend to omission of expired, repealed or suspended enactments, omission from the revision of enactments that are of limited application, inclusion in the revision of portions of private enactments that are of general application, alteration of numbering and arrangement of enactments, alteration of language to produce uniformity of expression without changing the substance of an enactment, the making of minor improvements in language including changes to ensure that the form of the expression of enactments in both official languages is compatible, once again without changing substance, the making of changes to reconcile inconsistent enactments and, finally, the making of editorial and grammatical corrections and the correction of typographical errors. In short, the Statute Revision Commission had no authority to make substantive changes.
[]The work of the Statute Revision Commission as reflected in the Revised Statutes of Canada, 1985, was adopted by Parliament through the vehicle of the Revised Statutes of Canada, 1985 Act.6 Sections 4 and 5 of that Act read as follows:
4. The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts and portions of Acts repealed by section 3 and for which the Revised Statutes are substituted.
5. Where a reference is made in any Act, regulation or other instrument, document or text to any Act or portion thereof repealed by section 3, or to any expression used therein, the reference shall, after the Revised Statutes take effect, be deemed as regards any subsequent transaction, matter or thing to be a reference to the enactment in the Revised Statutes having the same effect as the repealed Act or portion thereof, or to the corresponding expression used therein.
[]Section 46.01 of the Immigration Act was added by the chapter 35 amendments.7 Paragraph (d) of subsection (1) of that section assumed its current form, including the adoption of the expression "this Act", on February 1, 1993 when the majority of further amendments to the Immigration Act enacted by chapter 49 of the Statutes of Canada, 1992 came into force. By that time, as previously noted, the scope of the definition "Convention refugee" was, as I have indicated earlier in these reasons, significantly restricted over the definition that was in force when the applicant was found to be a Convention refugee.
POSITIONS OF THE PARTIES
[]Both counsel before me referred me to Ardon v. Canada (Minister of Employment & Immigration)8 and decisions of the Appeal Division of the Immigration and Refugee Board following upon the Ardon decision. While the facts on which the Ardon decision is based, superficially at least, are quite similar to this matter, it interpreted a version of paragraph 46.01(1)(d) of the Immigration Act that precedes the current version of that paragraph and did not include the expression "this Act". I find it to be of little aid to me in determining this matter. The limited aid that I gather from it is an acknowledgement in that decision that the chapter 35 and chapter 36 amendments were "substantial" and the notation that the Act in force in 1986 was, at the time of the Ardon decision [at page 132], "often referred to as the `old' Immigration Act ." Similarly, I find the decisions of the Appeal Division of the Immigration and Refugee Board to be of no value in determining this matter since they derive from the Ardon decision, notwithstanding that they appear to have substantially expanded on that decision.
[]Counsel referred me to two provisions of the Interpretation Act9 to the following effect:
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
. . .
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
. . .
| (f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment; |
[]Counsel also referred me to Driedger on the Construction of Statutes10 where, at page 35, under the subheading "Propositions comprising purposive analysis", the following appears:
The purposive approach to statutory interpretation may be summarized by the following proposition.
| (1) All legislation is presumed to have a purpose. It is possible for courts to discover, or to adequately reconstruct, this purpose through interpretation. |
| (2) Legislative purpose should be taken into account in every case and at every stage of interpretation, including the determination of ordinary meaning. |
| (3) Other things being equal, interpretations that are consistent with or promote legislative purpose should be preferred and interpretations that defeat or undermine legislative purpose should be avoided. |
| (4) The ordinary meaning of a provision may be rejected in favour of an interpretation more consistent with the purpose if the preferred interpretation is one the words are capable of bearing. |
While counsel referred me in particular to the fourth proposition, I will be guided in what follows by the totality of the four propositions and by section 12 and paragraph 44(f) of the Interpretation Act, quoted above.
[]Finally, counsel for the respondent referred me to a number of other provisions of the Immigration Act in which the expression "this Act" is used and urged that I should not adopt an interpretation of that expression in the context of paragraph 46.01(1)(d ) that would be inconsistent with what must be considered to be the "plain and obvious" meaning of the same expression in other contexts in the same Act.
ANALYSIS
[]The incorporation by reference of the exclusion clauses of the Convention into the definition brought Canada's definition of "Convention refugee" substantially more into line with that contained in international instruments than had previously been the case. For example, persons guilty of war crimes or guilty of crimes against humanity would not have been excluded from being found to be Convention refugees in Canada at the time the applicant was so found. By contrast, since 1989 and on the basis of appropriate evidence, such a person would have been so excluded. To interpret paragraph 46.01(1)(d ) so as to allow a person such as the applicant to face a redetermination is, I am satisfied, entirely consistent with the objective of Canadian immigration policy set out in paragraph 3(g) of the Immigration Act, albeit not with certain principles of interpretation to which I have earlier referred and to which I will return later. If persons, such as the applicant herein, were given the opportunity to assert a new claim to Convention refugee status, having previously, under what is referred to in the Ardon decision as the "old Act" been so determined, their claim could then be adjudged with reference to the exclusion clauses of the Convention. This result could only be achieved if the words "this Act" were given what I construe to be a narrow, ordinary meaning, that is, "this Act" as it read when the current form of paragraph 46.01(1)(d ) came into force and as it has read since that time.
[]Such an interpretation would also appear to make eminent sense on the facts of this particular matter. The applicant was determined, many years ago, to be a Convention refugee as against Ethiopia at a time when Ethiopia included what is now Eritrea. The applicant is now a citizen of Eritrea, not Ethiopia, and has no right of return to Ethiopia as presently constituted. He alleges that his current fear relates not to persecution in Ethiopia, which would be irrelevant since he has no right to return there, but rather to a fear of persecution in Eritrea because, although he fought for the liberation of Eritrea and thus obtained Convention refugee status against Ethiopia, he fought on the side of rebels who are not in favour with the Government of Eritrea and he fears persecution at the hands of agents of that government.
[]In the circumstances in which the applicant now finds himself, counsel for the applicant urges it would simply not make sense to interpret the Immigration Act, and in particular the words "this Act" in paragraph 46.01(1)(d ), in such a manner as to deny the applicant an opportunity to have his Convention refugee claim determined, or redetermined, against his current fear in the light of current geographical realities and political conditions. Counsel pointed out that the phenomenon which confronts this applicant, that is, the fragmentation of the nation from which he came to Canada, is not an uncommon one in the world of today. Indeed, counsel urged, fragmentation of nations into smaller nations is a common occurrence in the world of at least the past decade and of today.
[]With some reluctance, I conclude that such an interpretation of paragraph 46.01(1)(d), and in particular the words "this Act" in that paragraph, would not be consistent with a purposive approach to statutory interpretation. Nor is it an interpretation that is consistent with section 12 and paragraph 44(f ) of the Interpretation Act.
[]During the period of time that is relevant on the facts of this matter, the Immigration Act, by whatever name, has not been repealed and replaced except in the course of enactment of the Revised Statutes of Canada, 1985. In light of section 4 of the Revised Statutes of Canada, 1985 Act quoted earlier, I am satisfied that that repeal and reenactment should be ignored. Thus, the Act that was in force when the applicant was determined to be a Convention refugee in 1984 is the same Act that is in force today, albeit the Act has been substantially amended. No special purposes were enunciated for the chapter 35 amendments as they were for the chapter 36 amendments. If Parliament had in mind special purposes such as those advocated on behalf of the applicant herein, those purposes could have been identified. They were not. In this regard, the contrast between the chapter 35 amendments and the chapter 36 amendments is stark. Canadian immigration policy in relation to international legal obligations with respect to refugees and Canada's humanitarian tradition with respect to the displaced and the persecuted has not changed, except as specified in respect of the chapter 36 amendments.
[]Nothing can be read into the change in name from the Immigration Act, 1976 to the Immigration Act. Made as it was in the course of the statute revision, it cannot be interpreted to be anything more than grammatical or cosmetic.
[]Similarly, I read nothing into the fact that, in transitional provisions forming part of the chapter 35 amendments, the pre-chapter 35 amendments Act was referred to as the "former Act". Similarly, the acknowledgement in Ardon11 that the pre-chapter 35 amendments Act was known as the "old" Immigration Act cannot aid the applicant. Convenient terminology adopted by those who regularly use the Immigration Act cannot constitute, of itself, an aid to interpretation.
[]The words "this Act" in paragraph 46.01(1)(d ) have a plain meaning. They refer to the Act in which they appear, not as it read when those words were inserted into the Act and after that time but as it read from time to time before the words were inserted, as it has read since the words were inserted and as it will read from time to time until the words "this Act" are changed or the Act is repealed and reenacted, otherwise than in a purely formal process, in the same or a different form. I am satisfied that this conclusion is the only one open that is consistent with the legislative history, since 1984, of the Immigration Act . It is of some solace that such a conclusion, at least in the submission of counsel for the respondent, is consistent with a reasonable interpretation of other provisions of the Immigration Act in which the same words appear.
[]All of the foregoing being said, I am disappointed that, in the result, persons such as the applicant, found to be Convention refugees against one country to which they cannot be returned, cannot have their claim to fear of persecution on a Convention ground determined against a country that did not exist on the date of determination and to which they will be removed. That result is difficult to rationalize in the light of recent history and in the light of paragraph 3(g) of the Immigration Act.
CONCLUSION
[]On the basis of my interpretation of the relevant legislative history and of the foregoing analysis, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[]At the close of the hearing of this matter, I indicated to counsel that I was inclined to allow this application for judicial review. Whether influenced by that indication or not, counsel agreed to certification of a question in the following terms:
Does the phrase "determined under this Act or the Regulations, to be a Convention refugee" found in s. 46.01(1)(d) of the Immigration Act , R.S.C., 1985, c. I-2, refer only to the current Immigration Act, or to both the Immigration Act 1976 and the current Immigration Act?
As can be seen from these reasons, I eventually reached a different conclusion regarding the outcome of this matter. Nonetheless, I remain satisfied that a question in the nature of the question proposed would be appropriate for certification. I was satisfied that the proposed question was a serious question and I was further satisfied that it was also one of general importance. In the light of my analysis, I determined to rephrase the proposed question as follows:
| Does the phrase "this Act" found in paragraph 46.01(1)(d ) of the Immigration Act, R.S.C., 1985, c. I-2, as amended, refer to the Immigration Act as it read at the time the current form of paragraph 46.01(1)(d) came into force and the form of that Act since that date, or to the Immigration Act, by whatever name known, in all of the forms that it has taken since 1983? |
[]Counsel for the respondent developed some concerns regarding the question for certification that had been submitted on consent and wrote to the Court requesting an opportunity to review draft reasons and to make further submissions regarding certification. Even without that request, I would have circulated draft reasons for further consideration of the question of certification, given the ultimate outcome at which I had arrived. Thus, draft reasons reflecting the question that I proposed to certify were circulated.
[]Counsel for the applicant requested modification of the question I proposed to certify to refer to the year 1976, or the year 1978, the year the Immigration Act, 1976 came into force. Counsel submitted that, in the broader context, the year 1983 referred to in the question as I proposed to certify it had "no general legal significance".
[]"General legal significance" is not relevant to the certification of a question. In Liyanagamage v. Canada (Minister of Citizenship and Immigration) ,12 Mr. Justice Décary wrote at page 5:
In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application . . . but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
The modification of the question proposed by counsel for the applicant would extend the question beyond one that is determinative of the appeal of this matter and would extend it to a question, not only determinative, but also in the nature of a reference or an application for a declaratory judgment. For these reasons, and given the indication provided by counsel for the respondent that the proposed question is "acceptable" I would not propose to modify the proposed question. It goes without saying, though I will nonetheless say it, that, in my opinion, the question as proposed "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application".
[]Counsel for the applicant proposed a second question for certification in the following terms:
Is a person who has been recognized as a Convention refugee on the basis that he is "outside the country of the person's nationality" [see Immigration Act , section 2(1), "Convention refugee", (a)(i)] properly described as a person who "has been determined under this Act or the Regulations to be a Convention refugee" in section 46.01(1)(d) of the Immigration Act in a situation where, subsequent to the refugee determination, the country of which the person was a national has fragmented, and the country of which the person is now a national is a new country that did not exist at the time of the refugee determination?
The question was also proposed in another alternative form. Counsel urges that such a question should be certified since it would specifically address the issue of "country fragmentation".
[]I am satisfied that the additional question proposed is encompassed within the terms of the question that will be certified, although not in as graphic terms related to the facts of this matter. I am further satisfied that no advantage would be served by certification of a second question. In Baker v. Canada (Minister of Citizenship and Immigration),13 Madam Justice L'Heureux-Dubé, for the majority wrote:
The Court of Appeal held, in accordance with its decision in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), that the requirement, in s. 83(1), that a serious question of general importance be certified for an appeal to be permitted restricts an appeal court to addressing the issues raised by the certified question. However, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at para. 25, this Court held that s. 83(1) does not require that the Court of Appeal address only the stated question and issues related to it:
| The certification of a "question of general importance" is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not the certified question. |
Rothstein J. noted in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.), that once a question has been certified, all aspects of the appeal may be considered by the Court of Appeal, within its jurisdiction. I agree. The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a question of general importance has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here.
[]On the basis of the foregoing authority, I am satisfied that certification of a second question is entirely redundant. Once a question is certified, "[a]ll issues raised by the appeal may therefore be considered [on the appeal]."
1 R.S.C., 1985, c. I-2, as am.
2 S.C. 1976-77, c. 52.
3 Also cited as R.S.C., 1985 (4th Supp.), c. 28.
4 Also cited as R.S.C., 1985 (4th Supp.), c. 29.
5 R.S.C., 1985, c. S-20.
6 R.S.C., 1985, c. 40 (3rd Supp.).
7 R.S.C., 1985 (4th Supp.), c. 28, s. 14.
8 (1990), 11 Imm. L.R. (2d) 131 (F.C.A.).
9 R.S.C., 1985, c. I-21, as am.
10 Third edition by Ruth Sullivan, (Toronto: Butterworths, 1994).
11 Supra, note 8.
12 (1994), 176 N.R. 4 (F.C.A.).
13 (1999), 174 D.L.R. (4th) 193 (S.C.C.), at p. 207.