A-375-98
Peter Ndebele Gwala (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Gwalav. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Strayer, Décary and Robertson JJ.A. "Vancouver, May 21, 1999.
Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Certified question — Senior immigration officer not having implied jurisdiction to decide questions of law for reasons given by F.C.T.D. Judge reported at [1998] 4 F.C. 43.
Federal Court jurisdiction — Trial Division — Certified question — Contrary to Trial Judge's finding, reported at [1998] 4 F.C. 43, F.C.T.D., when hearing application for judicial review, having jurisdiction to decide constitutional challenge to validity of section of Immigration Act although tribunal lacking jurisdiction to decide question — Relevant provisions of Federal Court Act amended since cases upon which Trial Judge relied — Tribunal basing decision on constitutionally invalid provision committing jurisdictional error — To determine whether tribunal acting within jurisdiction, constitutionality of conferring provision must be assessed.
| statutes and regulations judicially considered |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12. |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 46.4 (as enacted by S.C. 1995, c. 15, s. 11), 83(1) (as am. by S.C. 1992, c. 49, s. 73). |
| cases judicially considered |
| applied: |
| Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43; (1998), 147 F.T.R. 246; 44 Imm. L.R. (2d) 1 (F.C.T.D.) (as to SIO's lacking jurisdiction to decide question of law); Raza v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 161 (F.C.T.D.). |
| not followed: |
| Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43; (1998), 147 F.T.R. 246; 44 Imm. L.R. (2d) 1 (F.C.T.D.) (as to jurisdiction of F.C.T.D. to decide, on judicial review, constitutional question where tribunal lacking such jurisdiction). |
| referred to: |
| Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 91 CLLC 14,023; 126 N.R. 1; Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.). |
APPEAL with respect to certified questions in Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43; (1998), 147 F.T.R. 246; 44 Imm. L.R. (2d) 1 (T.D.). Questions answered and appeal dismissed.
| appearances: |
| Carolyn McCool for appellant. |
| Brenda Carbonnell for respondent. |
| solicitors: |
| Legal Services Society, Immigration & Refugee Law Clinic, Vancouver, for appellant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for judgment of the Court delivered orally in English by
[1]Décary J.A.: This is an appeal with respect to the following question certified by Madam Justice Tremblay-Lamer1 pursuant to subsection 83(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)] (the Act):
Whether SIOs [senior immigration officers] have the implied jurisdiction to decide questions of law? If not, whether the Trial Division, when hearing an application for judicial review under section 18.1 of the Federal Court Act, has the jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act?
The Trial Judge decided that senior immigration officers do not have the implied jurisdiction to decide questions of law. As a result, relying on the decision of the Supreme Court of Canada in Tétreault-Gadoury v. Canada (Employment and Immigration Commission),2 and of this Court in Canada (Attorney General) v. Sirois,3 she decided that the Trial Division of the Federal Court was itself without jurisdiction in judicial review proceedings to decide constitutional questions which a senior immigration officer could not have entertained.
[2]The learned Judge went on, in case she had wrongly declined jurisdiction, to consider the arguments submitted by the parties with respect to the constitutionality of section 46.4 [as enacted by S.C. 1995, c. 15, s. 11] of the Act. She concluded that section 46.4 did not offend sections 7 and 12 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and she dismissed the application for judicial review.
[3]We agree with the Trial Judge that the senior immigration officer does not have jurisdiction to decide questions of law for the very reasons she gave. The first part of the certified question will therefore be answered in the negative.
[4]We respectfully disagree, however, with her conclusion to the effect that the Federal Court of Canada is therefore without jurisdiction, in judicial review proceedings, to decide constitutional questions. In that regard, we are in general agreement with the reasons for judgment of Mr. Justice Muldoon in paragraphs 18 to 31 (at pages 168-170) of his recent decision in Raza v. Canada (Minister of Citizenship and Immigration),4 which he summarized as follows in paragraph 18 (at page 168):
With respect, however, it seems that Gwala was, as the learned judge herself seemed to suspect, incorrectly decided on the issue of whether this court has jurisdiction to hear constitutional challenges in the circumstances at bar. There are two reasons: the expanded provisions of the Federal Court Act which were not in place when Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; 96 N.R. 34 (F.C.A.) or Tétreault-Gadoury were decided (but referred to by Nadon, J. in Mobarakizadeh, above); and second, that a tribunal which bases its decision on a constitutionally invalid provision commits a jurisdictional error. Thus, by implication, in order to determine whether a decision-maker acted within its jurisdiction, the constitutionality of the conferring provision must be assessed.
The second part of the certified question will therefore be answered in the affirmative.
[5]The Trial Judge could then, as she effectively did, go on to examine whether section 46.4 of the Act offended sections 7 and 12 of the Charter. As she declined to certify a question with respect to her conclusion on that issue, we shall refrain from expressing any view on it.
[6]The certified question will be answered as follows:
| Whether SIOs [senior immigration officers] have the implied jurisdiction to decide questions of law? |
| Answer: No |
| If not, whether the Trial Division, when hearing an application for judicial review under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], has the jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act? |
| Answer: Yes |
and the appeal will be dismissed.
1 ;Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43 (T.D.), at p. 63.
2 [1991] 2 S.C.R. 22.
3 (1988), 90 N.R. 39 (F.C.A.), at p. 42.
4 (1998), 157 F.T.R. 161 (F.C.T.D.).