Cuskic v. Canada (Minister of Citizenship and Immigration) (C.A.) [2001] 2 F.C. 3
Date: 20001005
Docket: A-363-97
(IMM-29-97)
CORAM: ISSAC, J.A.
LÉTOURNEAU, J.A.
McDONALD, J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent)
- and -
FRANK MEFRET CUSKIC
Respondent
(Applicant)
Heard at Toronto, Ontario on Monday, October 2, 2000
Judgment delivered at Toronto, Ontario
on Thursday, October 5, 2000
| REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. |
| IN CONCURRENCE: ISAAC J.A. |
| IN CONCURRENCE: McDONALD J.A. |
Date: 20001005
Docket: A-363-97
(IMM-29-97)
CORAM: ISSAC, J.A.
LÉTOURNEAU, J.A.
McDONALD, J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent)
- and -
FRANK MEFRET CUSKIC
Respondent
(Applicant)
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Pursuant to subsection 83(1) of the Immigration Act ("Act"), the following question was certified as one which is serious and of general importance:
| 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 specific 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? |
[2] At the outset of the hearing of this appeal, a member of the panel raised the issue of mootness because the respondent had been deported. Counsel for the appellant agreed that the issue was moot from that perspective. Moreover, she informed us that the respondent's convictions which were the basis of the removal order had been overturned by the Ontario Court of Appeal and that the respondent was now back in this country. If there was any doubt as to the mootness of the issue, this last piece of information certainly put it to rest. Yet, she submitted that the issue underlying the certified question is a recurring one of short duration which will never reach this Court of Appeal on time because the probation orders range from two to three years and they normally have expired by the time the Trial Division is required to adjudicate on it in judicial review or in stay proceedings. Cases like Russell v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1942 (F.C.T.D.) and Clarke v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 617 (F.C.T.D.) are illustrative of this problem.
[3] She also contended that a decision of this Court would, in the public interest, resolve the ambiguity surrounding the issue and would result in judicial economy in the Trial Division where these issues are currently litigated.
[4] After careful consideration of the law as stated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the appellant's arguments, the fact that the certified question is one of serious and general importance as well as consideration of the social and human costs involved in leaving the matter undecided, I have come to the conclusion that this is a proper case for this Court to exercise its discretion to hear and decide this appeal notwithstanding its mootness.
Facts and Procedure
[5] A short summary of the facts is required in order to understand and appreciate the context in which the question came to be certified.
[6] The respondent was found guilty of two criminal offences punishable by indictment which carried a term of imprisonment not exceeding 10 years: unlawful confinement of a person contrary to subsection 279(2) of the Criminal Code of Canada and sexual assault contrary to section 271 of the said Code. On the first count, he was sentenced to imprisonment for six months to be served concurrently with a sentence of two years less a day on the second count. In addition, he was subjected for a period of two years to a probation order which required, among other things such as seeking psychiatric counselling, that he reported to a probation officer once per month or as often as required.
[7] The conviction was registered on January 17, 1994. The sentence was rendered on March 14, 1994 and the probation order took effect as of the date of expiration of the sentence of imprisonment. On December 13, 1994, a removal order was issued against the respondent. He was removed on January 6, 1997 while his application for leave and judicial review was pending before the Trial Division. At the time of removal, the respondent was still the subject of the probation order as the said order was to expire on or about March 13, 1998. The respondent's application for judicial review was heard by a judge of the Trial Division and judgment issued on May 7, 1997.
The Decision of the Reviewing Judge in Judicial Review Proceedings
[8] Although the application was moot, the reviewing judge proceeded to resolve what he termed "a conflict between execution of a removal order by the Minister of Citizenship and Immigration and a probation order of the Ontario Court (General Division)". He made a number of findings but, for the purposes of this appeal, only the followings are relevant.
[9] The removal of the respondent directly resulted in a contravention of the probation order as he was prevented from reporting to the probation officer as required to do.
[10] Furthermore, subsection 50(2) of the Act is not the entire code dealing with orders of imprisonment and probation because there are cases where persons are placed on probation without imprisonment. Therefore, section 50 has to be read as a whole and it is paragraph 50(1)(a) rather than subsection 50(2) which applies to a probation order once an individual is released from imprisonment. I reproduce section 50 in its entirety for a better understanding of the reviewing judge's position and the arguments to follow:
| 50. (1) Execution Stayed Where Other Proceedings -- 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) Not to be Executed Until After Sentence Completed -- 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, in whole or as reduced by a statute or other law or by an act of clemency. 1976-77, c. 52, s. 52. |
50. (1) Sursis motivé par d'autres procédures -- La mesure de renvoi ne peut être exécutée dans les cas suivants : a) l'exécution irait directement à l'encontre d'une autre décision rendue au Canada par une autorité judiciaire; b) la présence au Canada de l'intéressé étant requise dans le cadre d'une procédure pénale, le ministre ordonne d'y surseoir jusqu'à la conclusion de celle-ci. (2) Sursis dans le cas des détenus -- L'incarcération de l'intéressé dans un pénitencier, une prison ou une maison de correction, antérieurement à la prise de la mesure de renvoi ou à son exécution, suspend l'exécution de celle-ci jusqu'à l'expiration de la peine, compte tenu des réductions légales de peine et des mesures de clémence. 1976-77, ch. 52, art. 52. |
| [11] In coming to this conclusion, the reviewing judge made three observations. First, the appellant could apply to have the conditions of a probation order that requires the subject's presence in Canada modified in order to allow for the lawful removal under the Act of a convicted person. Such application would require the cooperation and participation of provincial Crown attorneys. |
| [12] Second, there is a dichotomy between the requirement for deportation and the purpose of a probation order. While the former posits, broadly speaking, that an offender is a person that should not remain in Canada, the latter aims at rehabilitating the offender and facilitating his reinsertion in society after a term of imprisonment. I shall come back to these conflicting purposes later on. |
| [13] Finally, the judge suggested that Parliament revisits section 50 of the Act with a view to resolving the dilemma that its actual wording creates. |
| Analysis |
| [14] Section 48 of the Act imposes upon the Minister of Citizenship and Immigration ("Minister") a general duty to execute a removal order as quickly as possible by requiring that it be done as soon as reasonably practicable. It reads: |
| Execution of Orders 48. Time of Execution - Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable. |
| Exécution des mesures 48. Délai d'exécution - Sous réserve des articles 49 et 50, la mesure de renvoi est exécutée dès que les circonstances le permettent. |
| However, s. 50 outlines limited circumstances when removal orders cannot be executed. In other words, execution of a removal order is the rule, deferral of execution the exception. The problem, as the reviewing judge pointed out, originates from the broad wording of paragraph 50(1)(a). |
| [15] Counsel for the appellant first submitted a textual argument. She argued that the word "directly" found in paragraph 50(1)(a) restricts the scope of operation of that paragraph because it requires a lineal cause and effect relationship between the removal and the contravention. According to this reasoning, the Minister did not "directly" contravene the terms of the probation order since none of the terms of the order required that the respondent remained in Canada. |
| [16] Furthermore, it is not, in her view, the removal of the respondent which directly contravened the judicial order, but rather it is the respondent's inability to return to Canada which prevented his fulfilment of the conditions of the probation order. |
| [17] I need only say that there is no merit in these two technical arguments. Contrary to what the appellant believes, the obligation of the respondent to report regularly to his probation officer requires that he be in Canada to do that. It is difficult not to conclude that, at least factually, the removal of the respondent "directly" prevented him from doing so. |
| [18] As for the second argument, I believe that it results from a confusion between cause, means and effect. The plain fact is that the removal of the respondent caused his inability to meet the terms of his probation order by preventing him from appearing as requested. |
| [19] The appellant's interpretation of the word "directly" revolves around this single word operating in the confine of paragraph 50(1)(a) and out of the context of the Act as a whole. It is merely a modified version of the literal interpretation, which counsel also complained, should not have been adopted by the reviewing judge. Not surprisingly, it is of no assistance to the appellant as it leads to conclusions similar to those reached by the learned judge in applying the same canon of construction. |
| [20] More deserving of consideration, however, is the appellant's submission that the reviewing judge failed to take into account the overall purpose of the Act, especially Part III which deals extensively with the exclusion and removal of inadmissible persons. Instead the learned judge, the appellant argues, literally interpreted a specific provision such as s. 50 without giving appropriate consideration to the overall scheme created by the Act which affects the manner in which a particular or specific provision is to be interpreted. As a result, such interpretation leads to illogical conclusions as well as different results based on trivial distinctions. |
| [21] As previously mentioned and as it appears from his decision at page 7, the learned judge was aware of one odd result that his interpretation of s. 50 led to: |
| It is rather odd that if the Minister 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. |
| [22] Indeed individuals who are inadmissible in this country because of their serious criminal behaviour and the threat they pose to the life and safety of other persons, and whom the Minister is required by the Act to expel, are allowed, at great social cost, to remain temporarily in the country under a program designed to facilitate their permanent social integration when no such integration is likely or possible as they will be deported at the end of the probation order. |
| [23] Moreover, the broad interpretation given to paragraph 50(1)(a) of the Act leads to a curious result as regards the application of ss. 50(2). While, on the one hand, an individual who has served his term of imprisonment can be deported immediately upon his release from jail, another person also sentenced to a jail term cannot be so deported if, because of his dangerousness, that person has been issued a probation order in addition to his term of imprisonment. Although likely to be more dangerous, that person, as a result of the interpretation given to paragraph 50(1)(a) of the Act, is entitled to remain in the community until the order expires. |
| [24] Finally, inadmissible classes of persons under s. 19 of the Act or persons who are reported to the Deputy Minister pursuant to ss. 27(1) are unnecessarily treated differently depending on whether or not they are the subject of a probation order: ironically more favourably if they present a greater risk to the safety and security of other Canadians. |
| [25] In my view, the broad interpretation given to the specific exceptions found in s. 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, "where 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 Construction of Statutes, 3rd ed., 1994, Butterworths, Toronto, 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 s. 48 of the Act, to act diligently and expeditiously. |
| [26] To accept the interpretation given to paragraph 50(1)(a) by the reviewing judge defeats the purpose of Part III of the Act, which, it bears repeating, is to remove quickly from Canada persons who are inadmissible, and compromises the efficacy of the Act as a whole. |
| [27] For these reasons, I would allow the appeal without costs and answer the following certified question in the negative: |
| 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 specific 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?: No |
| "Gilles Létourneau" |
| J.A. |
| " I agree |
| Julius A. Isaac" |
| " I agree |
| F.J. McDonald" |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-363-97 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Appellant
(Respondent)
| - and - |
| FRANK MEFRET CUSKIC |
Respondent
(Applicant)
| DATE OF HEARING: MONDAY, OCTOBER 2, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. |
| IN CONCURRENCE: ISAAC J.A. |
| IN CONCURRENCE: McDONALD J.A. |
| DATED: THURSDAY, OCTOBER 5, 2000 |
APPEARANCES BY: Ms Lori Hendricks
For the Appellant (Respondent)
No One Appearing
For the Respondent (Applicant)
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Appellant (Respondent) |
| JACKMAN, WALDMAN & ASSOCIATES |
Barristers & Solicitors
281 Eglinton Avenue East
| Toronto, Ontario |
| M4P 1L3 |
| For the Respondent (Applicant) |
FEDERAL COURT OF CANADA
| COURT OF APPEAL |
Date: 20001005
Docket: A-363-97
BETWEEN:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Appellant
(Respondent)
| - and - |
| FRANK MEFRET CUSKIC |
Respondent
(Applicant)
REASONS FOR JUDGMENT