Athwal v. Can. (M.C.I.), (1997) 220 N.R. 355 (FCA)

• Judge: Denault, Linden and Robertson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 02, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 220 N.R. 355 (FCA)

Athwal v. Can. (M.C.I.) (1997), 220 N.R. 355 (FCA)

MLB headnote and full text

Temp. Cite: [1997] N.R. TBEd. SE.010

The Minister of Citizenship and Immigration (appellant) v. Balbinder Singh Athwal (respondent)

(A-67-97)

Indexed As: Athwal v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Denault, Linden and Robertson, JJ.A.

September 11, 1997.

Summary:

An adjudicator determined that Athwal was a permanent resident convicted of an offence for which a term of imprisonment of more than six months had been imposed. He was ordered deported. He appealed. The Minister filed an opinion under s. 70(5) of the Immi­gration Act that Athwal constituted a danger to the public. The Immigration and Refugee Board Appeal Division dismissed Athwal's appeal for lack of jurisdiction. Athwal applied for judicial review.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 125 F.T.R. 185, allowed the application and referred the matter back to the Immigration Division for a determination on the merits. The court certified a question for appeal to the Federal Court of Appeal, namely, "Under s. 70(5)(c) of the Immigration Act, must an adjudicator specifically find that a person described in s. 27(1)(d) is also a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of 10 years or more may be imposed, before s. 70(5)(c) will be effective to remove the applicant's appeal to the Immigration Appeal Division, or can this finding be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with the appeal?"

The Federal Court of Appeal allowed the appeal and set aside the decision of the trial judge. The court answered the stated ques­tion, determining that the Immigration Board could make the finding that a person had been convicted of an offence for which 10 or more years of imprisonment may be imposed in the course of determining whether it had jurisdiction.

Aliens - Topic 2

Definitions and general principles - Legis­lation - Interpretation - The Federal Court of Appeal rejected the literal approach to the interpretation of s. 70(5) of the Immi­gration Act because it produced absurdities - The court stated that a contextual analy­sis of the Act reveals the absurdities that arise through a literal interpretation of s. 70(5) - See paragraphs 8 to 14.

Aliens - Topic 1797.2

Exclusion and expulsion - Deportation of persons in Canada - Deportation or removal order - Appeals - The Immi­gration Act, s. 70(5), eliminated the right of appeal to the Immigration Appeal Board where a person was determined to have been convicted of an offence for which 10 years or more imprisonment could be imposed - An appellant submitted that on a literal interpretation of s. 70(5), an ad­judicator was required to make the deter­mination before the right to appeal was lost - The Federal Court of Appeal held that the Immigration Appeal Division could make the determination in the course of determining whether it had jurisdiction to proceed with an appeal - See paragraphs 1 to 14.

Aliens - Topic 1844

Exclusion and expulsion - Immigration and Refugee Board - Jurisdiction - An adjudi­cator determined that Athwal was a person described in the Immigration Act, s. 27(1)(d)(i) - He was ordered deported - He appealed - The Minister filed an opinion under s. 70(5) of the Act that Athwal was a danger to the public - The Immigration Appeal Division dismissed Athwal's appeal for lack of jurisdiction - The motions judge quashed the decision and referred the matter back to the Immigration Appeal Division for determination on the merits - The Federal Court of Appeal quashed the motions judge's decision - The Immi­gration Appeal Division and not the ad­judicator could make the determination whether Athwal was a person convicted of an offence for which 10 years imprison­ment could be imposed in the course of determining whether it had jurisdiction - See paragraphs 1 to 14.

Aliens - Topic 1853

Exclusion and expulsion - Immigration and Refugee Board - Right of appeal - [See Aliens - Topic 1797.2 ].

Statutes - Topic 507

Interprestation - General principles - Sen­sible and not literal interpretation - [See Aliens - Topic 2].

Cases Noticed:

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 9].

Canada v. Cymerman, [1996] 2 F.C. 593; 195 N.R. 361 (F.C.A.), refd to. [para. 9].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 13].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 27(1)(d) [para. 3]; sect. 32(2) [para. 10]; sect. 70(5) [para. 5]; sect. 80.1(1) [para. 10].

Counsel:

Leigh A. Taylor, for the appellant;

Chris Elgin, for the respondent.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

McPherson, Elgin and Cannon, Vancouver, British Columbia, for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 2, 1997, before Denault, Linden and Robertson, JJ.A., of the Federal Court of Appeal. On Septem­ber 11, 1997, Robertson, J.A., delivered the following judgment for the court.