Canada (Minister of Citizenship and Immigration) v. Medovarski, 2004 FCA 85 (2004)

Date: 20040303

Docket: A-249-03

Citation: 2004 FCA 85

CORAM: ROTHSTEIN J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

OLGA MEDOVARSKI

Respondent

Heard at Toronto, Ontario, on February 10, 2004.

Judgment delivered at Toronto, Ontario, on March 3, 2004.

REASONS FOR JUDGMENT BY: EVANS J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

DISSENTING REASONS BY: PELLETIER J.A.

Date: 20040303

Docket: A-249-03

Citation: 2004 FCA 85

CORAM: ROTHSTEIN J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

OLGA MEDOVARSKI

Respondent

REASONS FOR JUDGMENT

EVANS J.A.

A. INTRODUCTION

[1] Olga Medovarski is a citizen of the former Republic of Yugoslavia and has been a permanent resident of Canada since 1997. In November 1999, while driving a motor vehicle when intoxicated, she was involved in an accident in which a person died. On April 2, 2001, she was convicted of criminal negligence causing death, and was sentenced to prison for two years.

[2] As a result of this conviction, a removal order was issued against Ms. Medovarski on November 21, 2001, following a hearing by the Adjudication Division of the Immigration and Refugee Board. On the same day, she filed an appeal to the Immigration Appeal Division of the Board ("IAD") against the order, pursuant to paragraph 70(1)( b ) of the Immigration Act , R.S.C. 1985, c. I-2 (" IA "), alleging that, in all the circumstances, she should not be removed from Canada. A notice from the IAD, dated April 24, 2002, informed her that her appeal would be heard on September 26, 2002.

[3] However, before Ms. Medovarski's appeal was heard, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (" IRPA ") came into effect on June 28, 2002. Subsections 64(1) and (2) abolish the right of appeal by permanent residents against removal orders on the basis of, among other things, a conviction of a criminal offence for which they were sentenced in Canada to imprisonment for at least two years. In a letter dated August 12, 2002, the Registrar of the IAD advised Ms. Medovarski that her appeal had been discontinued as a result of the new legislation.

[4] The question in this appeal is whether subsection 64(1) applies to Ms. Medovarski's appeal to the IAD. If it does, her appeal is discontinued. Whether subsection 64(1) applies depends on the interpretation of the transitional provisions governing appeals to the IAD filed before June 28, 2002. IRPA , section 192 provides that such appeals are continued under the former Act, that is, the Immigration Act . However, section 196 states that, despite section 192, an appeal is discontinued if "the appellant has not been granted a stay under the former Act".

[5] The Minister says that Ms. Medovarski has not been "granted a stay" for the purpose of section 196 because the stay referred to is the stay on the execution of a removal order granted by the IAD when it concludes pursuant to IA , paragraph 73(1)( c ) that, "in all the circumstances of the case" a person should not be removed from Canada. Since the hearing of Ms. Medovarski's appeal had not started on June 28, 2002, the IAD had not granted a stay in her favour for the purp...

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