By Cindy Ramkissoon-Shears

The information contained in this article should not be taken as legal advice. It is important to seek legal advice if your situation, or that of someone you know, is similar to the facts set out in this case.

Larry (not his real name) is a permanent resident of Canada. He sought judicial review at the Federal Court of Canada of an Immigration Appeal Division (“IAD”) decision that dismissed his appeal of a removal order (“Revocation Decision”). Larry was previously granted a stay of his removal (“Stay Decision”) for 3 years in September 2024. However, because he was subsequently convicted after his Stay Decision, his stay was revoked by operation of law under s. 68(4) of the Immigration and Refugee Protection Act (“IRPA”).

Larry, through his lawyer, addressed several issues at his Federal Court hearing, as he believed both decisions were linked, including, but not limited to the objective of s. 68(4) of IRPA is to allow for the removal of individuals who commit new offences after benefiting from a “second chance.”; the wording of s. 68(4) of IRPA does not provide for the revocation of the stay because the offence leading to the conviction was committed before the granting of the stay; the IAD was already aware of the charge against him when the stay was granted; and the IAD “could have simply awaited the outcome of the pending charges and then ruled on the appeal. This, in itself, aligns with IRPA’s objective of promoting a fair and efficient procedure.”

The Attorney General of Canada (“AGC”), representing both the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, argued that the IAD’s decision was reasonable. Because s. 68(4) of IRPA does not require the commission of a “new” offence after the granting of a stay, it only requires that the person be convicted of “another” offence, as defined under s. 36(1) of IRPA, which constitutes serious criminality, for the stay to be revoked.

The Judge found that both IAD decisions were unreasonable and were the product of an unfair procedure.

Firstly, the Court found that the IAD failed to address in the Stay Decision the offence committed before the granting of the stay, demonstrating a lack of responsiveness to Larry’s arguments. By failing either to consider an exemption under s. 68(4) of IRPA for Larry’s pending charges, so that his stay would remain in force in the event of a conviction, or to await the outcome of the charge before deciding on the stay, the IAD breached procedural fairness. This, in turn, affected the IAD’s handling of Larry’s case.

Secondly, the Revocation Decision failed to demonstrate the degree of responsiveness required by law regarding the central concerns raised by Larry before the decision was issued.

In making its findings, the Judge determined that administrative law jurisprudence recognizes that procedural fairness and the reasonableness of a decision frequently overlap. The Court therefore found that the IAD completely ignored the pending charge in its Stay Decision, failed to address the impact of an imminent conviction, omitted any mention of an exemption, and denied Larry an opportunity to be heard. By repeating these omissions in the Revocation Decision, both decisions were found to be unreasonable.

The Judge added in the decision that “the Court is of the view that the facts of this case raise a serious question of general importance.” Specifically, “where a removal order has been stayed, does s.68(4) of IRPA apply to convictions rendered after a stay has been granted for offences under s. 36(1) of IRPA committed before the stay, where the IAD was aware of the pending charges at the time the stay was granted?”

Last month, I wrote about my client, Michael, who is in a similar circumstance, so it will be very interesting to see how the IAD applies this case law to his matter. Given that the above question is of general importance and was certified by the Court, it will also be interesting to learn the outcome of that decision. In Michael’s case, the IAD Member reserved its decision on whether to exempt him from s. 68(4) of IRPA and recently directed us and the Minister to provide further submissions in light of this Federal Court decision.

In Michael’s case, his pending charges were disclosed at his IAD hearing, during which issues of prejudice were addressed, including our application for a Private Hearing and Confidentiality Order, both of which were denied. Although Michael’s rights were protected given the objections I raised, the IAD and the Minister did not want to wait for his pending charges to be dealt with before deciding on a stay because his criminal court trial date was scheduled too far in the future.

I believe this Federal Court case may be considered precedential, not only because of other decisions concerning the subject matter relevant to s. 68(4) of IRPA, but primarily because of the finding that it would be a breach of procedural fairness for the IAD not to consider these issues when granting a stay.

Cindy Ramkissoon-Shears is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone: 416 789 5756.

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