Date: 19980507
Docket: IMM-3009-97
BETWEEN:
LLOYD CHARLES CLARKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.:
[1] This is an application heard in Toronto on May 4, 1998, for a stay of the execution of a removal order that would be implemented under a Direction to Report issued to the applicant for his removal on May 11, 1998.
[2] The issue raised by the application is whether, in the circumstances of this case, particularly during the continuance of a sentence of probation, ordered upon conviction of the applicant for a criminal offence, execution of the removal order earlier issued to him would be contrary to s. 50 of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act"). That provision is:
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50.(1) A removal order shall not be executed where |
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(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 |
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(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. |
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(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. |
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[3] The applicant is a native of Jamaica who came to Canada in 1976. He has here remained as a permanent resident. Since 1984 he has been convicted on a number of occasions for offences concerning narcotics. Most recently he was convicted in February 1996, in regard to offences committed in 1994, involving trafficking in narcotics. Upon conviction he was sentenced in the Ontario Court (General Division) to "Imprisonment for 2 years less 1 day concurrent on each count [of two]. Probation for 3 years on statutory terms with reporting as required by P.O.".
[4] While incarcerated in Maplehurst Correctional Centre, on May 3, 1996 he was the subject of a report, following an inquiry by an adjudicator under the Act. In the result he was reported, pursuant to s. 27 of the Act, that he is a permanent resident described in paragraph 27(1)(d)(i), that is, a person convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. With that report the adjudicator apparently also issued to the applicant a deportation order. It is that order that the Direction to Report would now seek to execute.
[5] By letter of June 25, 1996, apparently received by the applicant on July 16, 1996, while he was still held at Maplehurst, Mr. Clarke was notified of the intention to seek the opinion of the Minister pursuant to s-ss. 70(5) and 46.01(1)(e)(iv) of the Act that "you are a danger to the public in Canada". Counsel on behalf of the applicant responded to that notice by letter of July 30, 1996, with written submissions to be considered by the Minister, with the request that she should not render a decision declaring the applicant to be a danger to the public. By decision of the Minister's delegate, dated August 21, 1996, it was determined that the Minister's opinion, pursuant to s-s 70(5) of the Act, is that the applicant constitutes a danger to the public in Canada.
[6] By a Notice to Report dated and acknowledged by the applicant on June 10, 1997, the applicant was directed to report to a named Probation and Parole Officer within 2 working days of his release from Maplehurst, in accord with the probation order of February 27, 1996 by the Ontario Court, sentencing him to probation for 3 years.
[7] He may thereafter have been released from Maplehurst and then taken into custody under the Immigration Act. In any event, on September 4, 1997, an adjudicator acting under the Act ordered that the applicant be released from detention subject to terms including that he report as directed in writing for the making of removal arrangements and removal.
[8] Upon his release from detention in September 1997, he reported to his probation officer and, in accord with the terms of his probation order, he has reported to his probation officer once per month as directed by the probation officer.
[9] By Application for Leave and for Judicial Review, filed on July 18, 1997, and supported by the applicant's affidavit subsequently sworn on September 3, 1997, the applicant sought an extension of time to file his application. If leave were granted he sought an opportunity for judicial review of the decision of the Minister's delegate made August 21, 1996, said to have been communicated to the applicant on October 23, 1996, issuing the opinion that the applicant constitutes a danger to the public in Canada. Leave was granted by Order of Mr. Justice Teitelbaum, dated March 27, 1998, to commence an application for judicial review of the decision in question, and setting the matter down to be heard on June 23, 1998.
[10] Thereafter, on April 28, 1997 the applicant received the Direction to Report for removal on May 11, 1997. Counsel for the applicant requested that the departure of the applicant be delayed until after the application for judicial review was heard and disposed of, and when that was not agreed to the Notice of Motion for a stay was filed on April 29, 1998, and as noted was heard on May 4, 1998.
[11] In sum, the essential facts are that the applicant, while subject to a probation order, issued by the Ontario Court (General Division), under which he is bound by order of the Court and of his probation officer to report on a monthly basis, is now required by a Direction to Report, at a fixed time and place, for removal from Canada. There is no dispute that the Direction is in execution of a removal order earlier issued to the applicant.
[12] The circumstances here are basically similar to those dealt with by Mr. Justice Rothstein in Cuskic v. Canada (Minister of Citizenship and Immigration), (1997), 130 F.T.R. 232, except in that case the Direction to Report for removal had been complied with, and the applicant was removed from Canada before his application for judicial review of the removal order was heard, the application which raised the matter before Rothstein J. His Lordship found in that case that the Direction to Report, executing a removal order, directly resulted in contravention of the probation order made in that case by the Ontario Court and that the Direction to Report violated paragraph 50(1)(a) of the Act. The Direction was quashed as the applicant requested, but a further request, that the Minister be ordered to arrange for return of the applicant to Canada, was denied.
[13] In Cuskic, Rothstein J. certified the following question for consideration of the Court of Appeal pursuant to s. 83(1) of the Act.
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"Does the execution of a removal order against a person subject to a probation order containing a direction to report to 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 s. 50(1)(a) of the Immigration Act." |
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An appeal has been initiated, but he matter has not yet been considered by the Court of Appeal.
[14] In argument before me, for the respondent it is urged that for the past year efforts have been made to arrange the applicant's removal from Canada, in particular seeking a travel document for the applicant form his native country, Jamaica. Confirmation of his status as a Jamaican national was received from the Jamaican Consulate General by message dated April 23, 1998. Thereafter, the respondent's department moved without further delay to confirm arrangements for removal of the applicant from Canada, and the Direction to Report for removal was issued.
[15] In view of these efforts, and the applicant's criminal background which led to the Minister's opinion, it is urged, with respect for the decision of Rothstein J. in Cuskic, that this Court is not bound by that decision and, in the circumstances of this case should not grant a stay. It is urged this Court should adopt a purposive approach to interpretation of paragraph 50(1)(a), to limit its application so that it would not be applicable to circumstances where removal of a person from Canada by the Minister does not defeat the ends of the Canadian justice system. It is urged a statutory stay should not be found to operate where a person to be deported is subject to a requirement to report monthly to a probation officer. Probation as noted by Rothstein J. is a process to assist reintegration of a convicted person to society in Canada, a society in which the person ordered deported has no claim to participate.
[16] I accept that the decision of another Trial Judge of this Court in an other case is not binding upon me. Nevertheless, where circumstances are basically similar, there must be persuasive argument that would lead this Court to fail to accept, in judicial deference, the considered opinion of a colleague. Rothstein J. found that execution of a removal order, in circumstances similar to those here of importance, "did directly result in contravention of the probation order made by the Ontario Court (General Division) and was therefore made in violation of s. 50(1)(a)" of the Act. I am not persuaded that his reasoning is not equally applicable to the case at bar. The question he certified for consideration by the Court of Appeal, when answered, would be equally applicable in the circumstances of this case.
[17] In the result, the Court ordered on May 5, 1998, for the reasons here set out, that the stay sought by the applicant pending determination of his application for judicial review, now set to be heard on June 23, or pending earlier negative determination by the Court of Appeal of the question certified by Rothstein J. in Cuskic. The usual requirements for a stay were canvassed at the hearing but are not here dealt with, in view of my determination that, in the circumstances of this case, a statutory stay of execution of a removal order prevails, at least as an interim measure pending one of the determinations indicated, by this Court or by the Court of Appeal. Of course, withdrawal or variation of the probation order applicable to the applicant, could also create circumstances in which execution of the removal order applicable to him would not directly contravene the order of the Ontario Court.
[18] The applicant asked for costs on a solicitor and client basis after requesting administrative action to defer any attempt to remove the applicant from Canada pending the determination of the application for judicial review, and asking that the expense of an application to the Court for a stay not be required to be incurred. When there was no agreement to defer steps to remove the applicant as requested, the applicant filed his notice of motion and motion record as required by the Federal Court Rules, 1998 which became effective on April 27, 1998.
[19] Under those Rules, 400 et seq., the Court has full discretion over the amount and allocation of costs, which may be awarded to or against the Crown, taking into account the factors to be considered under Rule 400(3), to be assessed or awarded as a lump sum (Rule 404(4)), including an award on a solicitor and client basis (Rule 400(6)(c)), and the Court may award costs of a motion in an amount fixed by the Court R. 401(1).
[20] In this case, I am not persuaded there is any basis for an award of costs on a solicitor and client basis. The mere refusal to agree to a request to defer removal of the applicant from Canada, before commencing this preceding for a stay, does not provide a basis for such an award. There is nothing improper or vexatious or even unnecessary in failing to accept a request to defer action when it is arguable, as it was in this case, whether there was an obligation to stay removal proceedings. In my view, that issue remains arguable until the question certified for consideration of the Court of Appeal in Cuskic is answered.
[21] The order issued includes an award of costs to the applicant in an amount of $1500.00. That sum was fixed taking into consideration the result of the proceeding, the importance of the issue, the applicant's proposal that removal proceedings be deferred, and the amount of work, measured in part by assessable services listed in the table at Tariff B for counsel fees and disbursements allowable on assessment under the Court's Rules. In particular, the Court has referred to the units allowable for services for preparing and filing for a contested motion in light of the requirement under Rule 364 for filing motion record, and the units allowable for appearance on a motion. Fixing an amount of costs, rather than directing they be assessed, seems appropriate in this case, as does the amount now fixed.
"W. Andrew MacKay"
Judge
Toronto, Ontario
May 7, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3009-97
| STYLE OF CAUSE: LLOYD CHARLES CLARKE |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MAY 4, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MacKAY, J.
DATED: MAY 7, 1998
APPEARANCES:
Mr. Munyonzwe Hamalengwa
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa
Barrister & Solicitor
2 Sheppard Avenue East
Suite 900
North York, Ontario
M2N 5Y7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980507
Docket: IMM-3009-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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