Date:20001116
Docket:A-452-99
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
NOËL J.A.
BETWEEN:
JAN HOY CASSELLS
Appellant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, Thursday, November 16, 2000
Judgment delivered from the Bench at Toronto, Ontario,
on Thursday, November 16, 2000
| REASONS FOR JUDGMENT OF THE COURT PRONOUNCED BY: DÉCARY J.A. |
Date: 20001116
Docket: A-452-99
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
NOËL J.A.
BETWEEN:
JAN HOY CASSELLS
Appellant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, November 16, 2000)
DÉCARY J.A.
| _. This appeal deals with the following certified question stated by Madam Justice Sharlow (then sitting in the Trial Division): |
| For the purpose of the Immigration Act, is a deportation order against a person executed when the Minister causes that person to be removed form Canada while the deportation order is the subject of a statutory stay? [1999] F.C.J. No. 1155 (QL). |
| _. In the case at hand, a deportation order had been issued against the appellant on May 19, 1995. On April 29, 1998, the appellant was removed from Canada at a time he had been requested by a subpoena to attend a court hearing. The appellant's wife and family sought an injunction in the Ontario Court, General Division against the Minister of Citizenship and Immigration for the return to Canada of the appellant. That Court issued the injunction on June 8, 1998, on the basis that the summons acts as a statutory stay upon deportation orders and that the deportation of the appellant had been illegal (see subsection 50(1) of the Act). |
| _. Upon arrival in Canada, the appellant attempted to make a claim for refugee status but was informed that in light of the outstanding deportation order of May 19, 1995, he was banned from making a claim under subsection 44(1) of the Immigration Act, which states: |
| 44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.
|
44. (1) Toute personne se trouvant au Canada peut revendiquer le statut de
réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel.
|
| _. The issue before Sharlow J. was whether the unlawful removal from Canada of the appellant constituted an "execution" of the deportation order, with the result that it could no longer be said that there was, outstanding, a deportation order against the appellant. |
| _. The learned judge found, and rightly so in our view, that as the deportation order had never been validly executed, it was not executed within the meaning of subsection 44(1). It is the execution of the deportation order that was found to be illegal, not the deportation order itself. The sole effect of the Ontario Court decision was to place the appellant in the situation he would have been in had he not been illegally removed from Canada. |
| _. This case is obviously distinguishable from Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290, where this Court found that the voluntary departure from Canada was a removal whose effect was to execute a first deportation order. |
| _. The appellant also relies on Raman v. Canada (Minister of Citizenship and Immigration) [1999] 4 F.C. 140, where this Court expressed the view that: |
| Parliament's purpose in enacting this section was clearly to prevent people, after being excluded from Canada on the basis of an initial story, from changing their story to claim refugee status. (At paragraph 9.) |
| _. The appellant seems to argue that, as a result, this is the only scenario in which the section can come into play. The Court in Raman happened to be dealing with a case where someone had changed their story after their arrival in Canada, and found that subsection 44(1) was clearly intended to deal with such a situation. The Court was obviously not deciding the meaning of the word "executed" nor was it suggesting that the provision contemplated no other scenario or had no other purpose. |
| _. The certified question will therefore be answered in the negative and the appeal will be dismissed without costs. |
"Robert Décary"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: JAN HOY CASSELLS |
Appellant
- and -
AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, NOVEMBER 16, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT PRONOUNCED BY: DÉCARY J.A. |
Delivered at Toronto, Ontario on Thursday, November 16, 2000
APPEARANCES: Mr. Osborne Barnwell
Mr. David Tyndale
| SOLICITORS OF RECORD: Ferguson Barnwell |
Barrristers & Solicitors
310-515 Consumers Rd.
North York, Ontario
M2J 4Z2
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 20001116
Docket: A-452-99
BETWEEN:
Appellant
- and -
AND IMMIGRATION
Respondent
THE COURT
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