Federal Court Decisions

     IMM-29-97

BETWEEN:

     FRANK MEFRET CUSKIC

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROTHSTEIN J.:

     This judicial review involves a conflict between execution of a removal order by the Minister of Citizenship and Immigration (Minister) and a probation order of the Ontario Court (General Division). Section 50 of the Immigration Act, R.S.C. 1985, c. I-2, provides:

50. (1) A removal order shall not be executed where

(a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or

(b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings.

(2) A removal order that has been made against a person who was, at the time it was made, an inmate of a penitentiary, jail, reformatory or prison or becomes an inmate of such an institution before the order is executed shall not be executed until the person has completed the sentence or term of imprisonment imposed or as reduced by a statute or other law or by an act of clemency.

     The applicant was born in the former Yugoslavia in 1964. He became a landed immigrant in Canada in 1975. On January 14, 1994, he was convicted of unlawful confinement and sexual assault under subsection 279(2) and section 271 of the Criminal Code, R.S.C. 1985, c. C-46, as amended. On March 14, 1994, he was sentenced to two years less one day in a reformatory. At the expiration of the sentence of imprisonment, the applicant was placed on probation for a period of two years, to expire on or about March 13, 1998. The relevant terms of his probation order provide:

NOW THEREFORE, the said accused shall, for the period of two years from the date of this order or, where paragraph (d) is applicable, the date of expiration of the sentence of imprisonment, comply with the following conditions, namely, that the said accused shall keep the peace and be of good behaviour and appear before the court when required to do so by the court.

In addition, the accused shall comply with the following conditions:

(a) Report forthwith, in person to a Probation Officer in this Municipality and, thereafter, be under the supervision of a Probation Officer or a person authorized by the Probation Officer to assist in the supervision of the accused, and report at such times and places as that person may require or as follows: once per month or as often as required.

     On December 13, 1994, he was ordered deported from Canada by the Minister. After unsuccessful attempts to appeal and seek judicial review, the applicant was, by Direction to Report dated and served November 29, 1996, directed to report to Canada Immigration Centre at Pearson International Airport, Toronto for removal to Bosnia. Indeed, the applicant was removed on January 6, 1997. It is this Direction to Report that the applicant says directly results in a contravention of his probation order contrary to paragraph 50(1)(a) of the Immigration Act.

     Applicant's counsel submits that the Direction to Report should be set aside and the Minister should be required to return the applicant to Canada because the Minister violated paragraph 50(1)(a) of the Immigration Act. Minister's counsel argues that removal of the applicant from Canada did not directly result in a contravention of the probation order because:

(1)      The probation order did not make residence in Canada a condition      of probation.

(2)      Under subsection 50(2), after imprisonment a removal order may be executed.

(3)      No contravention of the probation order results unless steps are taken to enforce the probation order and there is no evidence of any such steps having been taken in this case.

     In Williams v. Minister of Employment and Immigration, [1984] 2 F.C. 269, Jerome A.C.J. prohibited execution of a deportation order where an order required the applicant to appear in Court on a specified date which he would be unable to do if he was deported. In Wood v. M.E.I. (1986), 2 F.T.R. 58, Jerome A.C.J. refused an application for prohibition because no probation officer had been designated by the Court and nothing in any conditions compelled the presence of the applicant in Canada or his attendance in Court at a specified time and place.

     In the case at bar, the applicant was required to report to a probation officer in the regional municipality of Halton "once per month or as often as required". The evidence is that he had been required to report at least once per month. Execution of his deportation order prevented him from complying with the probation order.

     Minister's counsel points out that there is provision in the Criminal Code for a probation order to require that an individual remain within the jurisdiction of the Court and that the probation order in this case contained no such condition. I do not think this argument, nor that the probation order did not make residence in Canada a condition of probation, assist the Minister. Here the applicant was required to report to a probation officer once per month. It was not a violation of the probation order for him to leave the jurisdiction or Canada provided he return and report as required. However, if he is removed by the Minister, he is prevented from returning and reporting to the probation officer thereafter. It is execution of his removal order that directly results in a contravention of the probation order.

     It is true that subsection 50(2) only precludes execution of a removal order until an individual has completed a sentence as an inmate in a penitentiary, jail, reformatory or prison. At first blush, one might think subsection 50(2) is the entire code dealing with orders of imprisonment and probation. However, there are cases in which offenders are merely placed on probation without imprisonment. Thus, section 50 must be read in its entirety. It is paragraph 50(1)(a) that applies to a probation order once the individual is released from imprisonment.

     Finally, I do not think steps taken under the probation order create the contravention. It is the other way around. Steps taken under the Immigration Act are what may give rise to the contravention. Paragraph 50(1)(a) is clear that execution of a removal order must not directly result in contravention of any other order made by any judicial body or officer in Canada. In other words, the contravention is in respect of the probation order itself and is caused by steps taken under the Immigration Act. That is what has occurred here.

     For these reasons, I find that execution of the removal order in this case did directly result in a contravention of the probation order made by the Ontario Court (General Division) and was therefore made in violation of paragraph 50(1)(a) of the Immigration Act and must be quashed.

     Having come to this conclusion, however, I think two further observations are in order. First, the Minister of Citizenship and Immigration is not completely hamstrung in cases such as this. In the event the Minister wishes to deport an individual who is subject to a probation order that requires his presence in Canada, the Minister may take steps under paragraph 732.2(3)(a) of the Criminal Code, R.S.C. 1985, c. 46, as amended, which provides:

732.2 (3) A Court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor

(a) make any changes to the optional conditions that in the opinion of the Court are rendered desirable by a change in the circumstances since those conditions were prescribed....

Under these provisions, the Minister may ask the prosecutor to apply to the Court having made the probation order to change the optional conditions of the order so that execution of a deportation order should not directly result in contravention of the probation order. It is true that the prosecutor, at least where responsible to a provincial Attorney General, is not bound to accede to the request of the Minister. Nor of course is the Court that made the probation order. However, the Minister may make the request. If it is not acceded to by the prosecutor or the Court, then according to section 50 of the Act, it is Parliament's will that the Minister be subject to the probation order until its conditions have been completed. Parliament, by section 50 of the Immigration Act, requires that the Minister, even in carrying out the public interest as perceived by her, must, like any one else, respect orders of a Court. In view of section 50, when dealing with a convicted person, the Minister may well have to do more than merely issue an order executing a deportation order when other orders respecting the individual are extant.

     Second, while the wording of section 50 has led me to the conclusion I have reached in this case, I have some difficulty with the intent of section 50 itself. I can understand Parliament's intention that the Minister should not, in deporting an individual, directly contravene another court order. On the other hand, probation is for the purposes of protecting society and for facilitating the offender's successful reintegration into the community (see paragraph 732.1(3)(h) of the Criminal Code). It is rather odd that if the Minister of Citizenship and Immigration wishes to deport an individual, she should be precluded from doing so while the offender is under probation for the purpose of protecting society and facilitating his reintegration into a community in which, ultimately, he will not enter in any event. I would think it is worthy of Parliament's attention to revisit section 50 of the Immigration Act with a view to considering whether, in probation situations, in which an offender is required to report to a probation officer on a periodic basis or is otherwise required by the probation order to be present in Canada, the Minister of Citizenship and Immigration should be precluded from executing a deportation order unless she obtains a variation of the probation order. It may be that in some circumstances, deportation makes more sense than continuing adherence to a probation order and perhaps a discretion ought to be conferred on the Minister for this reason. Alternatively, if it is deemed desirable that the Court issuing the probation order continue to control an offender, perhaps the Immigration Act or Criminal Code might be amended to provide for the Minister to make application directly to that Court for a variation of the probation order thereby enabling her to make submissions herself without having to rely on the cooperation of the prosecutor to do so.

     Counsel for the applicant says that the Direction to Report pursuant to which the applicant was deported should be set aside and the Minister should arrange for the return of the applicant to Canada. While I agree with counsel that the Minister has violated section 50 of the Immigration Act, I do not think it follows that this is a case in which the Court should direct the Minister in the manner requested. Parliament did not enact section 50 to benefit offenders. Section 50 was enacted to provide direction in the case of conflict between orders made by the Minister and orders of other judicial bodies or officers in Canada. Generally, that direction is that execution of a deportation order is to be subservient to the paramountcy of any other order. While this Court cannot condone the Minister acting in contravention of section 50 in this case, it would not be sensible to require the Minister to arrange for the return of the applicant to continue his probation to completion, only then to deport him again. Such a result would have the anomalous effect of placing offenders in a more advantageous position than deportees who had not committed offences and were not subject to court orders. Finally, there are no particularly compelling facts in this case to justify such a direction.

     As a result, I would quash the Direction to Report but make no other direction.

     Counsel for the respondent has requested certification of a question of general importance for appeal:

Does the execution of a removal order against a person subject to a probation order containing a direction to report to a probation officer on a specified periodic basis or as required by the probation officer, directly result in a contravention of an order made by a judicial body in Canada for purposes of paragraph 50(1)(a) of the Immigration Act?

     This question will be certified.

     Counsel for the applicant has requested certification of the following question:

If the Minister has violated section 50, is it appropriate for the Court to direct that the Minister return the applicant to Canada?

It seems to me that whether the Minister should be required to return an applicant will have to be decided on the facts of each case. As such, I do not think this is a question of general importance and will not certify it for appeal.

     Marshall Rothstein

    

     J U D G E

OTTAWA, ONTARIO

MAY 7, 1997