Certified Question on Affect of Convictions on a Stay of Removal

The Federal Court in Carran v. Canada (Public Safety and Emergency Preparedness) has certified the following question of general importance:

During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay?

The case involved a permanent resident who had several criminal convictions.  On May 13, 2008, a Minister’s delegate referred the permanent resident to an admissibility hearing.  The delegate noted that the individual had 14 convictions, as well as an outstanding criminal charge.  On April 23, 2009, the permanent resident and the Canada Border Services Agency (“CBSA“) made a joint recommendation to the Immigration Appeal Division (the “IAD“) to stay the deportation of the individual for a period of 24 months.  The IAD accepted the joint recommendation, and stayed the deportation.

On December 2, 2010, the permanent resident pled guilty to the outstanding charge, and received a sentence of one day incarceration, and 18 months probation.  The CBSA upon discovering this conviction made an application to cancel the stay of removal, and deport the permanent resident.  The IAD canceled the stay, citing section 68(4) of the Immigration and Refugee Protection Act (the “Act”), which states that:

If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

The permanent resident sought judicial review in Federal Court, and made the following arguments regarding the unresolved issue of whether  the phrase “convicted of another offence” in s. 68(4) of the Act only applies to offences which occur after a stay of removal, or before.  His arguments included that:

  1. Limiting the application of s. 68(4) to offences committed after the imposition of a stay serves a practical purpose even when limited to offences committed after the stay, namely, “the mandatory cancellation of a stay and termination of appeal when a person under stay subsequently commits a subsection 36(1) offence”; and
  2. That including convictions which occur prior to the imposition of the stay leads to a consequence that serves no legitimate criminal purpose and no legitimate immigration enforcement purpose of ensuring safety and security of the residents in Canada.

The Federal Court disagreed, and found that the wording of the Act is clear, and that those words must be assigned their ordinary meaning.  The Court however recognized that there is some uncertainty on the issue, and certified the above question.


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