Date: 20011207
Docket: IMM-5236-01
Neutral citation: 2001 FCT 1344
BETWEEN:
GONZAGUE LOUIS, Pierre
alias Jean David Bozor
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a motion for a stay of execution of a removal order that became effective on August 27, 2001, and is supposed to be executed on December 8, 2001.
[2] The applicant brought a motion for a stay of execution earlier before Mr. Justice Lemieux on November 26, which was dismissed.
[3] However, Lemieux J. stated, at paragraph 4 of his decision, that the applicant could file a fresh motion for a statutory stay based on section 50 of the Immigration Act.
[4] It is therefore that motion that is now before the Court.
[5] Briefly, the applicant submitted that the decision by Mr. Justice Pierre Viau of the Superior Court dated September 26, 2001, is in direct conflict with the decision making the removal order; that the provisions of paragraph 50(1)(a) of the Immigration Act must be applied; and that a stay must be granted.
[6] The decision of Pierre Viau J. reads as follows:
[TRANSLATION]
September 26, 2001
Hon. Pierre Viau, JSC
Motion referred to the Master of the Rolls for proof and hearing with the requirement that the applicant serve his application on the Minister of Citizenship and Immigration and on the Directeur du Registre de l'État civil a second time and that the applicant and his spouse be heard.
The court also notes that according to applicant's counsel, the applicant entered Canada under the name of Jean David "Bozor," which was an alias used by Pierre Gonzague Louis.
Louise Vermette, judicial secty.
Pierre Viau, JSC
[7] It is apparent from that decision that Viau J. merely wanted to ensure that the motion could not be made again in writing and that given the particular circumstances of this case, he wanted the applicant and his spouse to be heard viva voce when the motion was presented.
[8] The motion in question is a motion in a non-contentious civil matter and on that point, counsel for the applicant is responsible for setting the date on which the person will appear in Court to make his motion.
[9] The applicant had always known that he had entered Canada under a false name and that he had obtained his marriage certificate also under a false name, and so, he did not need an order from a judge to tell him that if he wanted to rectify the facts, he had to appear in the Superior Court and ask to do so in accordance with the provisions of the Act.
[10] The applicant himself is largely in control of his own schedule. Nonetheless, given that the marriage was solemnized on May 26, 2001, he could have made his motion or had someone make his motion at any time after that date.
[11] The applicant received and signed the deportation order on September 27, 2001, and on November 5, 2001, he received the notice to appear at Montréal International Airport, on December 8, 2001, for his removal.
[12] The notice of presentation setting the date for the hearing of the motion for rectification of the register of civil status was dated November 21, 2001, and was served on the Directeur du Registre de l'État civil, the Minister of Justice and the Immigration Commission the following day, November 22, 2001. The Court also observed that it was on November 21, 2001, that the applicant served the first motion for a stay in execution of his removal order, scheduled for December 8, on the respondent, and that the motion itself for rectification of the register of civil status was served on the following day.
[13] Applicant's counsel could not have been unaware that the date that he himself had set for the hearing of his motion fell after the date scheduled for the removal order.
[14] I have no hesitation in finding that paragraph 50(1)(a) of the Act was not enacted to allow individuals to avoid the other obligations provided by that Act.
[15] In Cuskic v. Canada, [2001] 2 F.C. 3, the Court of Appeal stated at page 13, paragraph 25:
In my view, the broad interpretation given to the specific exceptions found in section 50, particularly paragraph 50(1)(a), leads to unjust and unreasonable consequences that cannot have been intended by Parliament. I believe it is appropriate, in the circumstances of this case, "[w]here it appears that the consequences of adopting an interpretation would be absurd ... to reject it in favour of a plausible alternative that avoids the absurdity": see R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at page 79. The plausible alternative is, in my view, that probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister's duty, pursuant to section 48 of the Act, to act diligently and expeditiously.
[16] As well, in Wood v. Minister of Employment and Immigration, 2 F.T.R. 58, Associate Chief Justice Jerome said, at page 60:
... Subsection (a) addresses itself specifically to direct violation of an Order of a judicial body or officer in Canada. In the earlier decisions, there was no evidence of a court Order containing specific requirements which the applicant would be prevented from fulfilling if deported."
...
[5] No Probation Officer has been designated by the court and nothing in any of the other conditions compels the presence of the applicant in Canada or his attendance in court at a specified time and place. Accordingly, the Probation Order does not meet the test which I laid out in the Williams decision and as a result, there is no obligation on the part of the Minister to defer in his responsibility to execute a valid Deportation Order against the applicant.
(Emphasis added)
[17] The order of Viau J. did not contain any requirement that the applicant appear in court on a specific date; only applicant's counsel and the applicant himself could determine on what date the hearing of their motion for rectification of the register of civil status could take place. The applicant could have made the motion returnable much earlier than December 8, just as it was open to him to postpone or abandon it. He is in fact under no obligation to make such a motion, nor do I believe that a court can force him to do so.
[18] To accept the applicant's arguments could ultimately allow the applicant to postpone bringing his motion for rectification of the register of civil status indefinitely and simply wait for a new deportation order to be served on him and then bring the judgment of Viau J. out again as a panacea, which it absolutely is not.
[19] I therefore have no hesitation in concluding that the order of Viau J. does not meet the criteria set out in paragraph 50(1)(a) of the Immigration Act and that there is no basis for the motion for a stay.
[20] For these reasons, this application for a stay is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 7, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-5236-01
STYLE OF CAUSE: GONZAGUE LOUIS, Pierre alias Jean David Bozor v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 6, 2001
REASONS FOR ORDER OF THE HONOURABLE BLAIS J.
DATED: December 7, 2001
APPEARANCES:
Paule Fréchette FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Paul Fréchette
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT