[2001] 2 F.C. 3
A-363-97
(IMM-29-97)
The Minister of Citizenship and Immigration (Appellant) (Respondent)
v.
Frank Mefret Cuskic (Respondent) (Applicant)
Indexed as: Cuskic v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Isaac, Létourneau and McDonald JJ.A.—Toronto, October 2 and 5, 2000.
Federal Court jurisdiction — Appeal Division — Mootness — Appeal from F.C.T.D. decision allowing application for judicial review of removal order; certifying question: whether execution of removal order against person subject to probation order containing direction to report to probation officer directly results in contravention of order made by judicial body in Canada for purposes of Immigration Act, s. 50(1)(a) — Respondent convicted of, sentenced for criminal offences, including two-year probation order requiring reporting monthly to probation officer — Deported while under probation order — Convictions forming basis of removal order overturned; respondent back in Canada — Proper case for Court to exercise discretion to hear, decide appeal notwithstanding mootness having regard to fact certified question one of serious, general importance; social, human costs in leaving matter undecided; promoting judicial economy in F.C.T.D. as issue underlying certified question recurring one never reaching F.C.A. on time due to probation orders normally having expired before F.C.T.D. required to adjudicate.
Citizenship and Immigration — Exclusion and Removal — Removal of Permanent Residents — Appeal from F.C.T.D. decision allowing application for judicial review of removal order, certifying question: whether execution of removal order against person subject to probation order containing direction to report to probation officer directly results in contravention of order made by judicial body in Canada for purposes of Immigration Act, s. 50(1)(a) — Respondent’s sentence for criminal offences including two-year probation order requiring reporting monthly to probation officer — Deported while under probation order — Under Immigration Act, s. 48 removal order to be executed as soon as practicable — S. 50 outlining exceptions — S. 50(1)(a) prohibiting execution of removal order where execution of order would directly result in contravention of order made by judicial body in Canada — F.C.T.D. holding removal of respondent directly resulting in contravention of probation order as prevented from reporting to probation officer — Interpretation leading to unjust, unreasonable consequences not intended by Parliament i.e. persons inadmissible because of criminal behaviour, threat posed to others, allowed to remain in country temporarily under program designed to facilitate permanent social integration when such integration impossible as will be deported — Interpretation resulting in absurd consequences to be rejected in favour of plausible alternative avoiding absurdity — Plausible alternative that probation orders not meant to defer execution of valid removal order, interfere with Minister’s duty to act diligently, expeditiously — F.C.T.D.’s interpretation defeating purpose of Act, Part III to remove quickly from Canada inadmissible persons — Certified question answered in negative.
This was an appeal from the Trial Division’s decision allowing an application for judicial review of a removal order and certifying the following question: 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 Immigration Act, paragraph 50(1)(a)?
The respondent was found guilty of two criminal offences. In addition to a sentence of imprisonment, he was placed on probation for two years and required to report monthly to a probation officer. At the time of his removal, the respondent was still on probation. The Trial Division Judge found that the removal of the respondent directly resulted in a contravention of the probation order as his removal prevented him from reporting to the probation officer. Furthermore, he held that Immigration Act, paragraph 50(1)(a) applied rather than subsection 50(2), which applies to a probation order once an individual is released from prison. Section 48 provides that, subject to section 50, a removal order shall be executed as soon as reasonably practicable. Paragraph 50(1)(a) prohibits the execution of a removal order where the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada. The respondent had already been deported when the convictions, upon which the removal order was based, were overturned by the Ontario Court of Appeal. He is now back in Canada.
Held, the appeal should be allowed and the certified question answered in the negative.
Although this was a moot case in that respondent had already been deported and was now back in Canada, the issue underlying the certified question is a recurring one which will never reach the Federal Court of Appeal on time in that probation orders have normally expired by the time the Trial Division is called upon to adjudicate judicial review or stay proceedings. As pointed out by counsel for the Minister, a decision of this Court would resolve the ambiguity on this issue and promote judicial economy at the Trial Division level. Having regard to the fact that the question was one of serious and general importance, as well as considering the social and human costs involved in leaving the matter undecided, this was a proper case for the Court to exercise its discretion to hear and decide this appeal notwithstanding its mootness.
The broad interpretation given by the Judge below 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. Individuals who are inadmissible because of serious criminal behaviour and the threat that they pose to the life and security of other persons, and whom the Minister is required by the Act to expel, would be 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 when the probation order expires. Moreover, while 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 deported if, because of his dangerousness, he has been placed upon 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), is entitled to remain in the community until the order expires. Finally, inadmissible classes of persons under section 19 or persons who are reported to the Deputy Minister 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. It is appropriate 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. The plausible alternative is 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, to act diligently and expeditiously. The effect of the Trial Division Judge’s interpretation of paragraph 50(1)(a) would be to defeat the purpose of Part III of the Act, which is to remove quickly from Canada persons who are inadmissible, and to compromise the efficacy of the Act as a whole.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, ss. 271 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10; S.C. 1994, c. 44, s. 19), 279(2) (as am. by S.C. 1997, c. 18, s. 14).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83), 27(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5), 48, 50(1),(2), 83(1) (as am. by S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110.
REFERRED TO:
Russell v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 248 (F.C.T.D.); Clarke v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 259 (F.C.T.D.).
AUTHORS CITED
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from the Trial Division decision allowing an application for judicial review of a removal order on the ground that removal would directly result in a contravention of a probation order ((1997), 130 F.T.R. 232), contrary to Immigration Act, paragraph 50(1)(a) which prohibits the execution of a removal order where it would directly result in a contravention of any other order made by any judicial body in Canada. Appeal allowed.
APPEARANCES:
Lori Hendriks for appellant (respondent).
No one appearing for respondent (applicant).
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for appellant (respondent).
Jackman, Waldman & Associates, Toronto, for respondent (applicant).
The following are the reasons for judgment rendered in English by
[1] Létourneau J.A.: Pursuant to subsection 83(1) of the Immigration Act [R.S.C., 1985, c. I-2, (as am. by S.C. 1992, c. 49, s. 73)] (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), 3 Imm. L.R. (3d) 248 (F.C.T.D.) and Clarke v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 259 (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 [R.S.C., 1985, c. C-46 (as am. by S.C. 1997, c. 18, s. 14)] and sexual assault contrary to section 271 [as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10; S.C. 1994, c. 44, s. 19] 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 report 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 [(1997), 130 F.T.R. 232 (F.C.T.D.)].
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 [at paragraph 1] “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)”. He made a number of findings but, for the purposes of this appeal, only the following 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) 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, in whole or as reduced by a statute or other law or by an act of clemency.
[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 revisit 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:
48. Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.
However, section 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 remain 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 confines 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 section 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 paragraph 12, the learned Judge was aware of one odd result that his interpretation of section 50 led to:
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.
[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 subsection 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 section 19 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83] of the Act or persons who are reported to the Deputy Minister pursuant to subsection 27(1) [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5] 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 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.
[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 compromise 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
Isaac J.A.: I agree.
McDonald J.A.: I agree.