Date: 20000317
Docket: IMM-1031-00
BETWEEN:
| RICARDO GARDNER |
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
Introduction
[1] These reasons arise out of an application for a stay of removal of the applicant from Canada. The application first came on for hearing before me by teleconference, late on the afternoon of the 9th of March, 2000, when the applicant and his counsel anticipated that the respondent would remove the applicant to Trinidad that same night. Following that hearing, I granted a stay of removal to 3:00 p.m. on Friday, the 10th of March and adjourned the teleconference hearing to 2:15 p.m. on the 10th of March in anticipation that, by the time of resumption of the teleconference, there would be better evidence of the immediate fact situation before the Court together with a reasonably full explanation of the basis on which the respondent claimed authority to remove the applicant from Canada against his will.
[2] Unfortunately, when the teleconference hearing resumed, there was neither better evidence before the Court, nor a significantly clearer explanation of the basis claimed for the respondent"s alleged authority to remove the applicant. In the result, our of concern that the applicant was being removed from Canada against his will and without authority on the part of the respondent to do so, I issued a further order in the following terms:
The stay of removal of the applicant issued by the Court the 9th of March, 2000 effective to 3:00 p.m. this day is extended to such time as the departure order issued against the applicant on the 7th of March 2000, matures into a deemed deportation order, if that should ever occur.
The applicant has leave after the stay hereby provided expires to apply for a further stay pending determination of the application for leave herein [is determined] and, if leave be granted, pending determination of the application for judicial review herein.
Reasons will follow. [the words in square brackets appear in the original order, in error]
[3] The application for leave and for judicial review underlying the application for a stay is with respect to the issuance of a departure order against the applicant on the 7th of March.
Background
[4] The applicant is a citizen of Trinidad and is 30 years of age. He arrived in Canada as a visitor some time in 1996. His visitor"s status was once extended to the 16th of April, 1998. Since that time, he has remained in Canada without status.
[5] The applicant alleges fear of return to Trinidad by reason of what would appear to be a vendetta on the part of an individual who undertook an unsuccessful coup against the government of Trinidad. The individual, for some reason or other, at least in the mind of the applicant, holds the applicant responsible for his lack of success. The applicant did not put forward a Convention refugee claim in Canada until the 8th of March of this year. He apparently made no other attempts to regularize his status in Canada after the 16th of April, 1998.
[6] The applicant and his counsel allege that the respondent is endeavouring to remove the applicant from Canada against his will at a time when the departure order made against the applicant has not matured into a deportation order.
The issue
[7] The sole issue on this application for a stay is the authority of the respondent to remove the applicant at this time and against his will on the basis of the departure order made against the applicant. The respondent filed no affidavit on the application for a stay and I have, therefore, for the purpose of my order and these reasons, acted on the assumption that the respondent was, at all relevant times, in the course of removing the applicant against his will and solely on the basis of the departure order.
Analysis
[8] In the terminology of the Immigration Act1 (the "Act"), departure orders are included, along with deportation orders and exclusion orders, in the expression "removal order"2. Section 48 of the Act provides that a removal order, and therefore a departure order, "...shall be executed as soon as reasonably practicable". That being said, the distinction between a departure order and a deportation order is that a departure order provides an opportunity, limited in time, during which the subject of the order may voluntarily leave Canada, and in so doing, obtain a certificate of departure that enables the individual, assuming compliance with generally applicable provisions of law, to return to Canada without first obtaining the consent of the respondent.3 If the individual who is the subject of the departure order does not voluntarily leave Canada within the limited period of time provided, normally 30 days from the day on which the departure order becomes effective4, the departure order "matures", by law, into a deportation order5.
[9] All of the foregoing being said, the Act also appears to contemplate the involuntary removal of a person such as the applicant during the currency of a departure order and before it matures into a deportation order. Subsection 55(3) of the Act reads as follows:
3) A person against whom a departure order has been made
(a) who
(i) complies with section 32.01, is issued a certificate of departure under that section and leaves Canada voluntarily before the expiration of the applicable period specified for the purposes of subsection 32.02(1), or
(ii) is removed from Canada before the expiration of that period and has been issued a certificate of departure under section 32.01, or
(b) who is detained before the expiration of the applicable period specified for the purposes of subsection 32.02(1), who is still in detention under this Act at the expiration of that period and who is subsequently removed from Canada,
may, if the person otherwise meets the requirements of this Act and the regulations, return to Canada without the written consent of the Minister
(3) Peuvent revenir au Canada sans l'autorisation écrite du ministre, si elles satisfont aux exigences de la présente loi et de ses règlements, les personnes suivantes_:
a) celles qui font l'objet d'une mesure d'interdiction de séjour et qui quittent volontairement le Canada ou en sont renvoyées, conformément à l'article 32.01, avant l'expiration de la période réglementaire applicable prévue au paragraphe 32.02(1);
b) celles qui, ayant fait l'objet d'une mesure d'interdiction de séjour, sont en détention avant la date d'expiration de cette période, se trouvent encore en détention en vertu de la présente loi à cette date et sont par la suite renvoyées du Canada.
[10] Subparagraph 55(3)(a)(ii) of the Act appears to contemplate authority in the respondent to remove a person such as the applicant during the currency of a departure order and before it matures into a deportation order, impliedly at least, whether or not a certificate of departure has been issued to the individual under section 32.01 of the Act.
[11] Madame Justice Sharlow, then of the Trial Division of this Court, dealt with this issue in the following excerpt from her reasons in Trasmundi v. Canada (Minister of Citizenship and Immigration)6 where she wrote:
The applicant"s argument is that because of section 32.02 of the Immigration Act, the departure order and the detention are inconsistent as a matter of law, and the latter must therefore be unlawful.
As I understand the argument, it may be summarized as follows. The departure order requires the applicant to leave Canada but his detention prevents him from complying. A departure order is a device by which the Minister gives a person the right to leave Canada voluntarily, subject only to reporting to the appropriate official under section 32.01 for issuance of a certificate of departure. A departure order is deemed by subsection 32.02(1) to be a deportation order if no certificate of departure is issued within the time limit in the Regulations. ... Pursuant to subsection 32.02(3), the deeming rule in subsection 32.01(1) [this would appear to be an error and should be a reference to subsection 32.02(1)] does not apply to a person who is detained after a departure order is made against him and who is still in detention when the specified period expires. Therefore, in this case the departure order cannot become a deportation order as long as the applicant remains in detention. Not only does the applicant"s detention prevent him from leaving voluntarily, the Minister is prevented from removing him involuntarily, which means that he could remain in detention in perpetuity. It must follow that the detention is unlawful.
The error in this reasoning is that the Minister is not precluded from removing the applicant involuntarily ... . A departure order, like a deportation order, is a removal order and is enforceable in the same way. There is a difference between the two kinds of order, in that the subject of a departure order may have a superior right under section 55 to return to Canada after his departure. [citations omitted]
[12] The fact situation before Madame Justice Sharlow was, apparently quite different from the facts, as they are known, on this application. That being said, with great respect, I am not in full agreement with Madame Justice Sharlow"s reasoning. I am not prepared to interpret subparagraph 55(3)(a )(ii) of the Act, or the reality that a departure order, like a deportation order, is a removal order, in such a way as to conclude that a departure order is enforceable in the same way as a deportation order. To so conclude, would, I am satisfied, vest the respondent with authority to thwart the legislative scheme that distinguishes between departure orders and deportation orders. It would allow the respondent to remove from Canada a person, such as the applicant, against his or her will, without allowing the person to obtain the benefit of the fact that an adjudicator chose to issue a departure order against him or her rather than a deportation order. In order to avoid this result, I interpret subparagraph 55(3)(a)(ii) and the Act more generally as only vesting the respondent with authority to involuntarily remove a person against whom a departure order has been made in circumstances where a certificate of departure has been issued under section 32.01 of the Act to the person.
[13] On the very limited evidence before me in this matter, I am satisfied that the respondent had the authority under section 103 of the Act to arrest and detain the applicant if the respondent formed the view that there were reasonable grounds to believe that the applicant would not voluntarily leave or appear for involuntary removal from Canada. The limited evidence before me indicates that the applicant was in fact arrested and was taken under escort from the Ottawa region to Toronto. What the evidence before me does not disclose is whether, having gotten the applicant as far as Toronto, the respondent proposed to remove the applicant from Canada against his will, at a time when he was still under a departure order and not under a deportation order, without first issuing to the applicant a certificate of departure under section 32.01 of the Act.
[14] I do not share the concern of counsel before Madame Justice Sharlow, reflected in the foregoing quotation from her reasons in Trasmundi, that an interpretation such as I have adopted could result in a person such as the applicant being held in detention in perpetuity. I can identify four responses to that concern. First, if, finding himself or herself in detention, a person agreed to leave voluntarily on provision to him or her of a certificate of departure, the respondent would be under an obligation in law to facilitate such a departure. Second, if, finding himself or herself in detention, a person adamantly refused to leave voluntarily, then under my interpretation of subparagraph 55(3)(a)(ii) of the Act, the respondent could nonetheless remove the person against his or her will on provision of a certificate of departure of the person. Third, the Act provides that detention is subject to regular periodic review and, if the decisions on those reviews remained steadfastly against the person in detention, those decisions could be made the subject of judicial review. Finally, if the person in detention determined to remain in detention indefinitely rather than depart voluntarily, and the respondent was not prepared to issue a certificate of departure to him or her, I am not prepared to conclude that it is beyond the capacity of the respondent"s officers to release the person from detention but keep him or her under intensive surveillance so that, when the removal order matures into a deportation order, he or she could then be apprehended and involuntarily removed. I acknowledge that this last procedure could be cumbersome and expensive but I cannot conceive that the respondent would often be called upon to resort to it.
[15] Based on the foregoing analysis, in the absence of some form of assurance that the respondent would, before removing the applicant against his will, issue a certificate of departure to the applicant, I issued the order quoted above.
[16] I have intentionally not commented in these reasons on the issue of whether or not a departure order was properly issued against the applicant. I am satisfied that that is not an issue for consideration on the application for a stay that was before me. Rather, it is an issue for consideration on the application for leave and, if leave be granted, on the application for judicial review that underlies the application that was before me.
___________________________
| J.F.C.C. |
Ottawa, Ontario
March 17, 2000
__________________2 See the defenition "removal order" in subsection 2(1) of the Act .
3 See subsections 55(1) and (3) of the Act.
4 See subsection 27(1) of the Immigration Regulations, 1978 , SOR/78 172.