Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), (2005) 339 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Major, Binnie, LeBel, Deschamps, Fish and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 07, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 339 N.R. 1 (SCC);2005 SCC 51;50 Imm LR (3d) 1;EYB 2005-95306;[2005] CarswellNat 2943;339 NR 1;[2005] ACS no 31;[2005] SCJ No 31 (QL);142 ACWS (3d) 480;[2005] 2 SCR 539;258 DLR (4th) 193

Medovarski v. Can. (M.C.I.) (2005), 339 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.R. TBEd. SE.021

Olga Medovarski (appellant) v. Minister of Citizenship and Immigration (respondent)

(30332)

Julio Esteban (appellant) v. Minister of Citizenship and Immigration (respondent)

(30334)

(2005 SCC 51; 2005 CSC 51)

Indexed As: Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration)

Supreme Court of Canada

McLachlin, C.J.C., Major, Binnie, LeBel, Deschamps, Fish and Charron, JJ.

June 7, 2005.

Summary:

Medovarski and Estaban (the appellants) were permanent residents of Canada who were ordered deported under the Immigration Act because of criminal convictions. They each appealed to the Immigration Appeal Di­vision (IAD) of the Immigration and Refu­gee Board and their removal orders were au­to­matically stayed under s. 49(1)(b) of the Immigration Act. Subsequently, on June 28, 2002, the Immigration and Refugee Protec­tion Act (IRPA) was proclaimed, replacing the Immigration Act. The appel­lants were noti­fied that their appeals were discontinued as a result of the transitional provisions of the IRPA and, in particular, s. 196 which pro­vided that certain appeals to the IAD made before the coming into force of the IRPA shall be discontinued if the appellants had not been granted a stay under the former Act. The appellants applied for judicial re­view.

The Federal Court, in both cases, allowed the applications and set aside the decisions to discontinue the appeal. The court opined that s. 196 contemplated a statutory or automatic stay as well as actively granted stays. There­fore since the appellants had been granted a statutory stay, their appeals were not discon­tinued. (For the case of Medovarski - see 234 F.T.R. 101 and for Estaban - see 237 F.T.R. 264). The Minister of Citizenship and Im­migration appealed.

The Federal Court of Appeal, in both cases granted the appeal, holding that the IRPA's transitional provisions were intended to deny a right of appeal in the case of an automatic stay (i.e., s. 196 referred only to actively granted stays). (For the appeal respecting Medovarski - see 318 N.R. 252. Estaban's ap­peal is not reported in this series of re­ports). Medovarski and Estaban appealed.

The Supreme Court of Canada dismissed the appeals. The court agreed with the ma­jority of the Court of Appeal, that the phrase "granted a stay" indicated only actively granted stays. Thus, since Medovarski and Estaban were never the beneficiaries of ac­tively granted stays (only automatic stays), s. 196 did not apply to them and their right to appeal their orders for removal on the basis of criminality were not preserved.

Aliens - Topic 2

Definitions and general principles - Legis­lation - Interpretation - [See first Aliens - Topic 3 ].

Aliens - Topic 3

Definitions and general principles - Legis­lation - Transitional provisions - General - Section 196, a transitional provision of the Immigration and Refugee Protection Act (IRPA), provided that in the case of an ap­pel­lant facing removal for serious crimi­nality, an appeal made to the Immigration Ap­peal Division (IAD) before the IRPA came into force "shall be discontinued if the appellant has not been granted a stay under the former Act" - The Supreme Court of Canada, in interpreting s. 196, considered 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 - The court also con­sid­ered con­cerns about unfairness caused by the tran­sition to the new IRPA - See para­graphs 8 to 50.

Aliens - Topic 3

Definitions and general principles - Legis­lation - Transitional provisions - General - Section 196, a transitional provision of the Immigration and Refugee Protection Act (IRPA), provided that in the case of an ap­pellant facing removal for serious crimi­nality, an appeal made to the Immigration Appeal Division (IAD) before the IRPA came into force "shall be discontinued if the appellant has not been granted a stay under the former Act" - The Supreme Court of Canada held that the phrase "granted a stay" in s. 196 indicated only actively granted stays as opposed to auto­matic stays - Therefore where a person fac­ing removal had filed an appeal to the IAD under the former Immigration Act and thus had their removal automatically stayed pursuant to s. 49(1)(b) of that Act, their appeal was deemed discontinued when s. 196 of the IRPA came into force -The court stated that the principles of statutory interpretation permitted no other conclusion - An allegation of unfairness did not displace this conclusion - Section 196, properly interpreted, established that Parliament intended to deny a right of ap­peal to persons in these circumstances - See paragraphs 1 to 50.

Aliens - Topic 3

Definitions and general principles - Legis­la­tion - Transitional provisions - General - Section 196, a transitional provision of the Immigration and Refugee Protection Act (IRPA), provided that in the case of an ap­pellant facing removal for serious crimi­nality, an appeal made to the Immigration Appeal Division (IAD) before the IRPA came into force "shall be discontinued if the appellant has not been granted a stay under the former Act" - The Supreme Court of Canada held that the phrase "granted a stay" in s. 196 indicated only actively granted stays as opposed to auto­matic stays - Therefore where a person fac­ing removal had filed an appeal to the IAD under the former Immigration Act and thus had their removal automatically stayed pursuant to s. 49(1)(b) of that Act, their appeal was deemed discontinued when s. 196 of the IRPA came into force -The court rejected the argument that s. 196 violated liberty and security rights under s. 7 of the Charter - The court stated that the deportation of a non-citizen did not itself implicate the liberty and security interests protected by s. 7, and even if these inter­ests were engaged, the unfairness wrought by the transition to the new legis­lation did not reach the level of a Charter violation (i.e., did not constitute a breach of the prin­ciples of fundamental justice) - See para­graphs 45 to 48.

Aliens - Topic 1797.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Depor­tation or removal order - Appeals or judi­cial review - [See all Aliens - Topic 3 ].

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - [See all Aliens - Topic 3 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - [See third Aliens - Topic 3 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See third Aliens - Topic 3 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See third Aliens - Topic 3 ].

Civil Rights - Topic 3181

Trials - Due process, fundamental justice and fair hearings - Administrative and non­criminal proceedings - Right of appeal - [See third Aliens - Topic 3 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See third Aliens - Topic 3 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See third Aliens - Topic 3 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - Section 196, a tran­sitional provision of the Immigration and Refugee Protection Act (IRPA), pro­vided that in the case of an appellant fac­ing re­moval for serious criminality, an appeal made to the Immigration Appeal Division (IAD) before the IRPA came into force "shall be discontinued if the appellant has not been granted a stay under the former Act" - The Supreme Court of Canada looked to both versions of s. 196 in decid­ing whether the provision applied to statu­tory stays as well as to actively granted stays - The court noted that the versions were conflicting and there was a need to seek a common meaning, which in this case was the narrower meaning in the Eng­lish version - The English meaning was also more in line with Parliament's intent (i.e., that s. 196 applied only to actively granted stays) - See paragraphs 18 to 30.

Words and Phrases

Granted a stay - The Supreme Court of Can­ada held that the phrase "granted a stay" in s. 196 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, indicated actively granted stays as opposed to automatic or statutory stays - See para­graphs 1 to 50.

Cases Noticed:

Canada v. Trade Investments Shopping Centre Ltd., [1993] 2 C.T.C. 333 (F.C.T.D.), refd to. [para. 14].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 23].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 23].

Grillas v. Minister of Manpower and Im­migration, [1972] S.C.R. 577, refd to. [para. 37].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 46].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 47].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1, refd to. [para. 48].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 49(1)(b) [para. 7]; sect. 64 [para. 5]; sect. 192, sect. 196 [para. 4].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legis­lation in Canada (3rd Ed. 2000), p. 327 [para. 24].

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 8].

Counsel:

Lorne Waldman and Brena Parnes, for the appellant, Medovarski;

David Matas, for the appellant, Esteban;

Bernard Laprade and Normand Lemyre, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the appellant Medovarski;

David Matas, for the appellant, Estaban;

Department of Justice, Ottawa, Ontario, for the respondent.

These appeals were heard by McLachlin, C.J.C., Major, Binnie, LeBel, Deschamps, Fish and Charron, JJ., of the Supreme Court of Canada. The decision of the court was heard and delivered on June 7, 2005, with the following written reasons filed on Sep­tember 30, 2005, by McLachlin, C.J.C.