Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317

Date: 20050927

Docket: IMM-377-05

Citation: 2005 FC 1317

OTTAWA, Ontario, this 27^th day of September, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE ROULEAU

BETWEEN:

JOSE EPIFANIO RENEDO PEREZ

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27, of a decision of an Officer of Citizenship and Immigration Canada (the "Officer"), dated January 19, 2005. In the decision, the Officer denied the Pre-Removal Risk Assessment ("PRRA") application, and found that the applicant was subject to a valid removal order.

[2]                 The Applicant is a 46-year old citizen of Mexico. He arrived in Canada in March 1991 after several months in the United States; he made a refugee claim in British Columbia. In October 1991, he stabbed a man to death at the Vancouver International Writer's Festival.

[3]                 The Applicant did not know his murder victim, nor was there any triggering incident. The Applicant was later diagnosed as a schizophrenic who was suffering from psychosis and paranoid delusions at the time of the murder, and believed the victim was an agent of the Mexican government who was after him and his family.

[4]                 In 1993, the Applicant was found not criminally responsible on the charge of first degree murder owing to his mental illness, and his sentencing was referred to the British Columbia Review Board ("the Review Board"), which issued a disposition under s. 672.81(1) of the Criminal Code on July 20, 1993, keeping him institutionalized under forensic psychiatric care.

[5]                 In 1996, the Applicant got married to a Canadian citizen named Kasandra De Bayou, a former patient at the same hospital complex who suffers from a similar mental illness.

[6]                 The Applicant's PDRCC application was refused in June 1998, and a spousal-sponsored H & C application was refused in August 2000. The Applicant filed for judicial review of this latter decision, which was dismissed by Heneghan J. on July 24, 2001. (Perez v. Minister of Citizenship and Immigration, 2001 FCT 826).

[7]                 The Review Board's most recent decision of June 24, 2004 has permitted the release of the Applicant into the community, on conditions. This is what the Applicant refers to as his "conditional discharge". The question raised in this application comes out of the conditional discharge.

[8]                 The conditions of the discharge, as provided in the Review Board=s decision, include requirements that the Applicant remain under the supervision of the same Director, that he reside in a British Columbia location approved by the Director, not change residence without the Director=s permission, that he regularly report to the Adult Forensic Psychiatric Clinic, that he return to the hospital whenever the Director is of the opinion that he needs re-assessment, and finally that he present himself to the Review Board upon request.

[9]                 The Applicant submitted a PRRA application on August 10, 2004, as he was apparently encouraged to do under the terms and conditions he allegedly signed with CIC. On January 19, 2005, CIC issued another order for his removal following a negative PRRA decision.

[10]            The PRRA decision is the subject of this application; the applicant alleges that the Officer erred in concluding that the removal order was valid.

[11]            The Applicant is arguing that the terms of his discharge triggers an automatic stay of deportation under s. 50(a) of IRPA, and that the CIC therefore does not have the jurisdiction to return him to Mexico.

[12]            Section 50(a) of the IRPA reads as follows:

[13]            The negative PRRA decision was rendered orally, with less than half a page of handwritten notes, which were submitted to the Court separately from the Tribunal Record following a Rule 9 request. The statement in the notes that sets out the Officer's reasons is as follows:

JR of removals officer=s decision to remove despite the order by FPI [sic] B conditional discharge B based upon today=s date B my decision to remove.

[14]            The Applicant submits that the conditional discharge of the Review Board constitutes a Ajudicial proceeding@ under s. 50(a) of IRPA, and therefore triggers an automatic stay of deportation. The Respondent concedes that the Review Board does constitute a "judicial proceeding". Despite this admission, there are other considerations which must be taken into account in order to perform a complete s. 50(a) analysis.

[15]            In a recent decision of the Federal Court, Alexander v. Canada(Solicitor General) 2005 FC 1147, Dawson J. certified a question regarding the valid removal of a person who may have been affected by a family court order under s. 50(a) of the IRPA. While nothing in this matter will turn on the certified question, since it pertains to the order of a family court, Dawson J. set out the following factors, which serve as guidelines for conducting an analysis under s. 50(a) of the IRPA; she states at paras 31-37 of her decision:

[31]        First, after awarding custody to Ms. Alexander, the orders went on to provide that Ms. Alexander's children "shall not be removed from the Province of Ontario". Applying the grammatical and ordinary sense of the phrase "directly contravened", as found in subsection 50(a) of the Act, I find that the orders would only be directly contravened if either of Ms. Alexander's children were removed from Ontario. The removal order applies only to Ms. Alexander, because her two children are Canadian citizens who enjoy an absolute right to remain in Canada. Thus, the removal order does not interfere with the physical location of Ms. Alexander's children. Faced with removal, Ms. Alexander could (as she had earlier contemplated if her request for a stay was unsuccessful) apply to the Ontario Court of Justice for a variation of its order, or Ms. Alexander could make arrangements to leave her children in Canada. Neither of those options would contravene the interim or final order.

[32]        Second, subsection 50(a) of the Act is substantially similar to paragraph 50(1)(a) of the now repealed Immigration Act, R.S.C. 1985, c. I-2 (set out in Appendix D) to these reasons. In view of the similarity between the two provisions, assistance in interpreting the current provision is provided by the jurisprudence that considered the meaning of paragraph 50(1)(a) of the former Act.

[33]        In Mobtagha v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249 (T.D.) my colleague Mr. Justice Rouleau considered whether a deportation order was stayed in circumstances where the person subject to the order had been found not guilty of a criminal offence by reason of insanity and so had been placed in custody pursuant to an order made by the Lieutenant Governor of Québec. At the time removal was contemplated, the requirement of incarceration had been lifted, on condition that the person concerned live in an approved place, keep appointments made by his physician or therapist, take medication, and keep the peace. Mr. Justice Rouleau reviewed the prior jurisprudence of this Court, which he found was to the effect that a stay arose under the legislation only if the person concerned was subject to a judicial order which contained specific provisions which would be violated if a deportation order was executed. Mr. Justice Rouleau found there to be no statutory stay in existence in the case before him because an order of the Lieutenant Governor of Québec was not an order made by a judicial body, and because none of the conditions required the person concerned to appear before a tribunal at a particular time or place.

[34]        This jurisprudence supports the interpretation of subsection 50(a) of the Act that the requirement of direct contravention of a court order requires that an express provision of an order be incompatible or irreconcilable with removal of the person concerned.

[35]        Third, statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal considered whether the execution of a removal order against a person subject to a probation order that contained a direction to report to a probation officer on a specific, periodic basis, would directly contravene the probation order so as to invoke the statutory stay available under paragraph 50(1)(a) of the former Act. The Court of Appeal acknowledged that the obligation of the person concerned to report regularly to his probation officer required that he be in Canada. Notwithstanding that, the Federal Court of Appeal found that paragraph 50(1)(a) could not be literally interpreted without giving appropriate consideration to the overall scheme of the former Act. At paragraphs 25 and 26, Mr. Justice Létourneau wrote for the Court:

[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.

[36]        On that basis, the Court concluded that execution of the removal order would not directly contravene the probation order so as to give rise to a statutory stay.

[37]        In the present case, I find that the Act comprises a comprehensive scheme which allows for the immigration of foreign nationals to Canada and for the protection of those in need of Canada's surrogate protection. Central aspects of that scheme, for the purpose of these proceedings, are:

1.           Non-citizens do not have an unqualified right to enter or remain in Canada (see: Canada(Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at page 733.

2.           Where an enforceable removal order exists in respect of a foreign national, the foreign national is obliged to leave Canada immediately, and the Minister is required to enforce the order as soon as is reasonably practicable (see: subsection 48(2) of the Act).

3.            The Federal Court has exclusive jurisdiction to issue prerogative relief, including interim relief, under the Act.

[16]            To summarize, the three factors considered by Dawson J. in Alexander, supra, can be set out as follows:

(i)                  An analysis under s. 50(a) must be given a narrow scope, and therefore the words "directly contravened" must be narrowly interpreted in assessing the decision made in a judicial proceeding;

(ii)                The case law surrounding s. 50(1)(a) of the former Immigration Act must be given due regard, as the current legislation is similar to the former legislation; and

(iii)              Statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament, including the consideration that non-citizens do not have an unqualified right to enter or remain in Canada, and that a valid deportation order must be enforced as soon as is reasonably practicable.

[17]            These three factors, as set out by Dawson J., and summarized above, do not comprise an exhaustive list of factors to be considered in a s. 50(a) assessment, but rather serve as an illustrative list. Each case must be examined on the merits and facts of, and the factors are an illustrative set of guidelines for such an analysis. In addition the factors are not necessarily cumulative. Each case should be examined on the merits, and the decision maker should determine the weight to be given to each factor in a particular set of circumstances. Given the three factors presented by Dawson J., the present matter can be examined.

[18]            The first factor takes a narrow interpretation of s. 50(a) of the IRPA, and examines the conditions which would, according to the applicant, be violated by the enforcement of the removal order. In the applicant's case, there is no express provision, in the Review Board's conditions, stating that he can not be deported on a valid removal order issued by CIC. The conditions imposed by the Review Board include requirements that the Applicant remain under the supervision of the same Director, that he reside in a British Columbia location approved by the Director and not change residence without the Director=s permission, that he regularly report to the Adult Forensic Psychiatric Clinic, that he return to the hospital whenever the Director is of the opinion that he needs re-assessment, and that he present himself to the Review Board upon request. None of the listed conditions directly prohibit the enforcement of a valid deportation order on a person who is inadmissible to Canada. As the wording of s. 50(a) must be interpreted narrowly, there would be no direct contravention of the conditions if the valid deportation order were to be enforced.

[19]            In my opinion, the conditions imposed by the Review Board would not be directly contravened by the enforcement of a valid removal order. For the direct contravention principle to apply, express language prohibiting the deportation of an inadmissible person from Canada would have to be used by a decision maker in a judicial proceeding.

[20]            Even if express language is used as a result of a judicial proceeding, the other factors considered by Dawson J. in Alexander still have to be considered, and may function to override the express language. As mentioned, the factors are not cumulative, and each factor must be considered individually for each factual scenario. The first factor weighs against the applicant, and the second factor can now be examined.

[21]            The second factor to be considered is the case law related to the former Immigration Act. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal found that a probation order requiring the offender to report regularly to a probation officer could not operate to stay a deportation order. In Mobtagha v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 108, the Federal Court enforced a deportation order against a person who had been found not criminally responsible, and who had been ordered into the custody of a mental hospital. The Mobtagha decision found that the decision had not been made by a judicial body or officer in Canada, and also found that the purpose of the custody order was to protect the public, as was the purpose of the deportation order, so they were not in conflict. The first factor in Mobtagha would not necessarily be a factor under the IRPA, given the change of wording, but the second factor weighs against the applicant in the instant matter, as the conditions and the deportation are not in conflict, since both serve to protect the public.

[22]            In addition, in Mokelu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 757, Beaudry J. found that an offender could be deported while serving a conditional sentence because s. 50 of the old Act applied only to sentences served in a penitentiary, jail, reformatory, or prison. He also endorsed the Cuskic view that the overall purposes of the old Act must be taken into account when interpreting section 50, together with those of the Criminal Code.

[23]            In the current matter, the applicant has been found not criminally responsible due to mental illness, and there have been conditions imposed on him by a Review Board. As noted above, the conditions imposed by the Review Board do not constitute a direct prohibition for the purposes of s. 50(a) of the IRPA. In addition, the case law under the former Act states that a person who is on parole, a person not in a penitentiary, jail, reformatory, or prison, or a person who has been found not criminally responsible and is subject to conditions, can be deported under a valid deportation order. The second factor, given the case law under the former Act, is to be weighed against the applicant in the present matter.

[24]            As with the first two factors, the third factor also weighs against the applicant. The purpose of the IRPA, with respect to valid deportation orders, is to prevent non-citizens from entering or remaining in Canada, as well as to enforce valid deportation orders expediently (as soon as reasonably practicable). The Federal Court of Appeal in Cuskic, supra, clearly set out that the purposes of the legislation are an overriding factor in considering s. 50(a). Dawson J. reinforced the validity of the Cuskic decision in Alexander, supra, at para 35, which I reproduce again here for ease of reference:

[35]        Third, statutory provisions are to be construed harmoniously with the scheme and object of the Act and the intention of Parliament. In Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3, the Federal Court of Appeal considered whether the execution of a removal order against a person subject to a probation order that contained a direction to report to a probation officer on a specific, periodic basis, would directly contravene the probation order so as to invoke the statutory stay available under paragraph 50(1)(a) of the former Act. The Court of Appeal acknowledged that the obligation of the person concerned to report regularly to his probation officer required that he be in Canada. Notwithstanding that, the Federal Court of Appeal found that paragraph 50(1)(a) could not be literally interpreted without giving appropriate consideration to the overall scheme of the former Act. At paragraphs 25 and 26, Mr. Justice Létourneau wrote for the Court:

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.

[25]            To prevent the deportation of the applicant, based on the decision of the Review Board would contradict the purposes of the IRPA, and compromise the efficacy of the IRPA as a whole. The Minister has a duty to remove inadmissible people as soon as reasonably practicable, and must not be prevented from completing that duty without a clear and express non-removal condition, which does not exist in the instant application. The applicant, as a non-citizen, has no unqualified right to remain in Canada, and, therefore, the Minister has a duty to enforce the valid deportation order.

[26]            In addition, the absurdity of the circular argument was pointed out by the respondent:

"And we come to this circle, like over and over again. We cannot deport him because the B.C. Review Board will not absolutely discharge him because of the prospect of deportation."

To allow this application would create a statutory loophole which directly contrasts with the purpose of the IRPA.

[27]            In summary, all three factors weigh against the applicant, and the application should be dismissed. The conditions imposed by the Review Board do not directly contravene a valid deportation order, for the purposes of s. 50(a) of the IRPA, and the case law under the former Act, in combination with Alexander, supra, confirms that a valid deportation order can be enforced against a person who has been found not criminally responsible who is no longer detained, even if the person is still subject to conditions or parole in Canada. Finally, the purpose of the IRPA and the intention of Parliament support the consideration that non-citizens do not have an unqualified right to enter or remain in Canada, and that a valid deportation order must be enforced as soon as is reasonably practicable. As all three of the factors weigh against the applicant, given the facts of the instant application, the application must be dismissed.

ORDER

THIS COURT ORDERS that the application for judicial review is dismissed.

"Paul U.C. Rouleau"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-377-05

STYLE OF CAUSE:                         Jose Epifanio Renedo Perez v.The Minister of Citizenship and Immigration

PLACE OF HEARING:                    VANCOUVER, B.C.

DATE OF HEARING:                       September 2, 2005

REASONS FOR ORDER:              ROULEAU J.

DATED:                                              September 27, 2005

APPEARANCES:

Mr. Christopher Elgin                                                             FOR APPLICANT

Ms. Helen Park                                                                       FOR RESPONDENT

SOLICITORS OF RECORD:

Elgin, Cannon & Associates

Vancouver, B.C.                                                                     FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                    FOR RESPONDENT