Kanes v. Canada ( Minister of Employment and Immigration )
IMM-1918-93
Cullen J.
14/12/93
10 pp.
Application for judicial review of refusal of permanent residence application because criminally inadmissible -- Applicant from Sri Lanka -- Found to have credible basis to refugee claim -- Applied for permanent residence from within Canada June 23, 1992 -- Application could not proceed as criminal charges pending -- Convicted of summary offence of failing to remain at scene of accident in September 1992 -- In second week of January 1993 Immigration requesting documentation confirming conviction for summary conviction offence -- Applicant applied for necessary documents on January 18, picked them up January 26 -- Swearing delivered documents personally on January 27 -- Pursuant to departmental policy, applicant not provided with receipt for documents -- Date stamp on envelope February 2, 1993 -- Before February 1, 1993 amendment, s. 19(2)(a) precluding admission of persons convicted of offence punishable by way of indictment -- Subsequent to amendment, s. 19(2)(a) precluding admission to persons convicted of indictable offence or offence for which may be prosecuted by indictment or punishable on summary conviction -- Applicant informed inadmissible because of criminal record -- Application allowed -- Reasonable to assume applicant acted swiftly in delivering documents -- Consistent with behaviour in requesting forms as soon as notified documents required, telling police of urgency of request and picking them up as soon as ready -- No reason to believe would have delayed until following week to deliver documents -- Documents delivered prior to February 1, 1993 -- Under Bill C-86, s. 109 if application still pending on February 1, 1993 amended s. 19(2)(a) would apply -- S. 109 expressly overriding any common law presumption against retrospective application in change of legislation -- Not merely referring to procedural matters -- As no retroactive application of regulations may be used to impair rights or obligations already accrued unless regulations explicitly allowing it, question becoming whether right to landed status accrued prior to change in legislation -- As s. 19(2)(a) specifically amended to include hybrid offences which proceed by summary conviction as grounds for denying landing, unreasonable to read previous subsection as including this type of summary conviction as would render amendment meaningless -- Legislation prior to February 1, 1993 not including offence for which applicant convicted as bar to landing -- Receipt of confirmation of applicant's summary conviction last step required to formalize status as landed immigrant -- Landing would have been granted, but for delay, change in legislation -- As document demonstrating criminal admissibility delivered prior to change in legislation, final decision made to grant application for residence and application not still pending when legislation changed -- Immigration Act, R.S.C., 1985, c. I-2, ss. 19(2)(a) (as am. by S.C. 1992, c. 49, s. 11), 83 (as am. idem, s. 73) -- An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 109 -- Refugee Claimants Designated Class Regulations, SOR/90-40 (as am. by SOR/92-13).