Date: 19990616
Docket: IMM-3316-98
BETWEEN:
JAN HOY CASSELLS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant claims that he has unlawfully been denied the right to make a refugee claim.
[2] The applicant came to Canada in 1992 on a visitor's visa. He stayed after his visa expired. A deportation order was issued against him on May 19, 1995. The validity of the deportation order is not in issue.
[3] Shortly after the deportation order was made, the applicant witnessed a criminal act that led to him being placed in a witness protection program. There apparently were three persons suspected in the crime, all countrymen of the applicant. Only one of them was prosecuted.
[4] The applicant believed that the other two may have returned to their home country. With that in mind he attempted to make a refugee claim in 1995. He was unable to do so because of subsection 44(1) of the Immigration Act, which reads as follows:
| A person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifiying an immigration officer. |
[5] Various steps were taken in 1996, 1997 and 1998 with a view to the execution of the deportation order, but in each case the order was stayed because the applicant's presence in Canada was required in court proceedings.
[6] First, there was the criminal trial against the one person who was prosecuted, which ended in 1997. Then there was a summons in a family court matter to be heard in October of 1997. Gibson J. found that summons gave rise to a statutory stay under paragraph 50(1)(a). The family court matter apparently was adjourned.
[7] The latest scheduled date for the applicant's removal was April 27, 1998. On that morning the applicant faxed to the removal officer a copy of a summons he had received requiring him to appear on June 30, 1998 in a proceeding in the Ontario Court (Provincial Division). This appears to be a continuation of the adjourned family matter. It is not clear when that summons was served on the applicant.
[8] The removal officer either did not know or did not care that the summons resulted in a statutory stay of the deportation order. In any event, the applicant was arrested and forcibly removed to his home country. While there he sought the protection of the local police, because he still feared the other two suspects. The local police were unable to protect him.
[9] On April 29, 1998, members of the applicant's family filed an application in the Ontario Court, General Division for an order requiring the return of the applicant. In response to that application, counsel for the Minister apparently argued that the summons was a sham.
[10] The order was granted by Brockenshire J. on June 8, 1998. The following excerpt from his reasons clearly explains the basis of his decision:
| I have no doubt that immigration matters are best dealt with by the Federal Court system. But this, in my view, is not a case about immigration. It is about preserving the authority of the Courts - all of the Courts - against usurpation by well-meaning persons in the civil service. |
| Here, s. 50(1)(a) is a clear bar, so found in this very case, against removal in the face of a summons to a witness. The Departmental functionaries chose to make their own determination of the validity and appropriateness of a second summons to witness. In my view, they had absolutely no business to do so. It is absolutely essential that the integrity of the court process be preserved - if it is to be questioned, it will be before the courts - not in the office of a civil servant. |
[11] Brockenshire J. ordered the applicant to be returned to Canada at the Minister's expense. The Minister was ordered to pay costs on a solicitor and client basis.
[12] Upon the applicant's return to Canada, he again attempted to claim refugee status. Again he was denied access to the refugee claim process on the basis of subsection 44(1).
[13] The applicant argues that subsection 44(1) no longer applies to him because there is no longer an unexecuted deportation order against him. He argues that his removal in April of 1998 was the execution of the 1995 deportation order, even though the execution was unlawful.
[14] The question to be determined, therefore, is whether the unlawful removal of a person from Canada is the "execution" of a deportation order. In my view, the answer is no.
[15] The word "execution" has various meanings, but in the context of the execution of an order it connotes the performance of what the order contemplates. An act that is inconsistent with the order or the law on which it is based cannot be characterized as the execution of the order. Specifically, a deportation order against a person cannot be validly executed by the removal of that person in the face of a statutory stay, regardless of the motivation for the removal.
[16] Both counsel supported their interpretation of "execution" by reference to various aspects of the scheme of the Immigration Act. I do not propose to comment on those arguments in detail. It is enough to note that Parliament did not deal expressly with the possibility that the Minister's officials would act in breach of the Immigration Act, as occurred in this case. However, that does not advance the applicant's argument. I do not see how the integrity of the Immigration Act can be preserved by giving effect to an unlawful act as though it were lawful.
[17] Nor do I see any merit in the Charter argument raised by the applicant. The constitutional validity of subsection 44(1) is not in doubt. A decision to deny the applicant access to the refugee claim process on the basis of a correct interpretation of subsection 44(1) does not breach any Charter right.
[18] I will defer the issuance of an order in this case pending receipt of submissions on costs and a certified question. Deadlines were given at the hearing. All expire on July 5, 1999.
"Karen R. Sharlow"
Judge
TORONTO, ONTARIO
June 16, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3316-98
| STYLE OF CAUSE: JAN HOY CASSELLS |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JUNE 16, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SHARLOW J.
DATED: WEDNESDAY, JUNE 16, 1999
APPEARANCES: Mr. Osborne G. Barnwell
For the Applicant
Ms. Urszula Kazmarczyk
For the Respondent
SOLICITORS OF RECORD: Ferguson, Barnwell
Barristers & Solicitors
515 Consumers Road, Ste. 310
North York, Ontario
M2J 4Z2
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990616
Docket: IMM-3316-98
Between:
JAN HOY CASSELLS
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER