Mokelu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 757

Date: 20020709

Docket: IMM-2981-02

Neutral citation: 2002 FCT 757

BETWEEN:

                                                        PRINCE AZUBIKE MOKELU

                                                                                                                                                       Applicant

                                                                                 and

                                                        MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

BEAUDRY J.

[1]                 On June 28, 2002, I released an order dismissing the Applicant's application for a stay of the removal proceedings to be executed against him on July 3, 2002. In that order, I indicated that reasons would follow. I therefore provide below my reasons for this order.

[2]                 The Applicant entered Canada as a visitor in 1991. In 1992, after overstaying the period allowed by his visitor status, he applied for, and was granted, Convention refugee status. Between 1992 and 2000, at least 15 convictions were registered against the Applicant. Most notably, he was convicted in March 1997 of personation and conspiracy to commit fraud, offences for which a maximum of ten years' imprisonment may be imposed, as well as obstruction of a peace officer. The convictions on the conspiracy and obstruction charges were by way of indictment. Neither the record submitted by the Respondent nor that of the Applicant disclose the sentence which was imposed on the Applicant for these offences. The Respondent only made note of these offences and their maximum possible sentences as a basis for the preparation of a report pursuant to s. 27 of the Immigration Act, which requires that reports be prepared on permanent residents who, among others have been convicted of indictable offences prior to being granted landing. The Applicant has not been granted landed immigrant status, largely due to his criminal activities.

[3]                 A deportation order was issued against the Applicant in 1997 and was stayed in 1998, subject to conditions with which the Applicant eventually failed to comply. In 2001, the Respondent sought an opinion to the effect that the Applicant constitutes a danger to the public in Canada (hereinafter referred to as a "danger opinion"). The process by which the Respondent sought the danger opinion included opportunities for the Applicant to make submissions with respect to his position, and ended on June 16, 2002 with the issuance of a danger opinion pursuant to subsection 53(1) of the Immigration Act. The decision was served upon the Applicant on June 25, 2002. The Applicant has been detained for removal since that time.

[4]                 Counsel for the Applicant argued that a statutory stay of the removal order applies in the present case to prevent the removal of the Applicant at this time. On October 9, 2001, the Applicant pleaded guilty to fraud and sentenced to time served in custody prior to entering his plea, fined $75,000 and given a conditional sentence of 18 months. However, he did not return to jail. During the period of his conditional sentence, the Applicant was required to abide by terms set out by the court. In particular, he was to reside at a specific address in Toronto and to advise the court or a supervisor of any change of name or address and to remain within Ontario absent written permission from the court or a supervisor. The Applicant was also given a twelve-month probation term which would begin following the completion of the conditional sentence. The terms of probation were nearly identical to the terms of the conditional sentence.

[5]                 The Applicant invoked subsection 50(1) of the Immigration Act, R.S.C. 1985, c. I.-2, in support of his argument that a removal order could not be executed while he is serving a conditional sentence. Section 50, in its entirety, reads:

           It is to be noted that the French version of subsection 50(2) uses the term "incarcération", whereas the English version refers to an "inmate" of one of the institutions referred to in the subsection without using the term "incarceration". The decision of the Supreme Court of Canada in R. v. Proulx (2000), 140 C.C.C. (3d) 449 (S.C.C.) discusses a discrepancy which exists between the English and French versions of paragraph 718.2(e) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 with respect to the description of penal sanctions. That paragraph reads as follows:

718.2. A court that imposes a sentence shall also take into consideration the following principles:

[...]

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [emphasis added]

718.2. Le tribunal détermine la peine à infliger compte tenu également des principes suivants_:

[...]

(e) l'examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce qui concerne les délinquants autochtones. [je souligne]

[7]                 A conditional sentence is defined as a term of imprisonment. Therefore, a conditional sentence does not fall into the category of "sanctions other than imprisonment". The court in Proulx, supra, pointed out that the interpretation of this provision as it appears in English could have the absurd result of precluding courts from considering conditional sentences as alternatives to incarceration, particularly in the case of aboriginal offenders. Such results would go against efforts to reduce the number of incarcerated persons, which was Parliament's intention in providing for conditional sentences.

[8]                 The court invoked a principle of interpretation applicable to resolving conflicts between the two official versions of a statute. In order to resolve this conflict, it is necessary to look for a meaning common to both. It was noted in Proulx that the French version of the provision uses the term "sanctions substitutives" (Proulx, at paragraph 95). Lamer C.J.C. remarked that this phrase more faithfully reflects the intention of Parliament that courts consider sanctions which are substitutes for the traditional practice of placing offenders in custodial institutions. These substitutes include not only probation, which is a substitute to terms of imprisonment, but also a conditional sentence, which is a term of imprisonment but is also an alternative to incarceration.

[9]                 Given the possible undesirable results of the interpretation of the English version of paragraph 718.2(e), the Supreme Court stated that the word "imprisonment" in paragraph 718.2(e) should be interpreted as "incarceration" rather than in its technical sense of encompassing both incarceration and a conditional sentence" (Proulx, at paragraph 95). This would ensure a general understanding that courts should consider alternatives to incarceration, including conditional sentences.

[10]            Applying the reasoning set out in Proulx with respect to this interpretive issue, the meaning common to both versions of ss. 50(2) of the Immigration Act is that the provision applies with respect to persons who are serving their sentences in custody. This interpretation is supported by statutes in which the term "inmate" is defined. For instance, ss. 2(1) of the Corrections and Conditional Release Act, S.C. 1992, c. C-20 [hereinafter CCRA], in which definitions for the purposes of the CCRA are set out, "inmate" is defined as follows:

(a) a person who is in a penitentiary pursuant to

(i) a sentence, committal or transfer to penitentiary, or

(ii) a condition imposed by the National Parole Board in connection with day parole or statutory release, or

(b) a person who, having been sentenced, committed or transferred to penitentiary,

(i) is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or

(ii) is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service;

« _détenu_ » Personne qui, selon le cas_:

a) se trouve dans un pénitencier par suite d'une condamnation, d'un ordre d'incarcération, d'un transfèrement ou encore d'une condition imposée par la Commission nationale des libérations conditionnelles dans le cadre de la semi-liberté ou de la libération d'office;

b) après avoir été condamnée ou transférée au pénitencier, en est provisoirement absente soit parce qu'elle bénéficie d'une permission de sortir ou d'un placement à l'extérieur en vertu de la présente loi, soit pour d'autres raisons - à l'exception de la libération conditionnelle ou d'office - mais sous la supervision d'un agent ou d'une personne autorisée par le Service.

[11]            The Federal Court of Appeal studied the meaning of the word "inmate" in deciding that a person remanded to a psychiatric facility for observation was not ineligible for unemployment insurance benefits by virtue of being an "inmate of any prison or similar institution", as defined at the time in paragraph 45(a) of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48. That Court held that the intent of Parliament was to deny benefits to those held in prisons or in institutions which closely resemble prisons. A mental health facility was held not to be such an institution (Crupi v. Canada (Employment and Immigration Commission), [1986] 3 F.C. 3).

[12]            In the present case, the two versions of ss. 50(2) of the Immigration Act reflect the intention that this provision have the effect of preventing the removal from Canada only of those persons who are subject to sanctions which involve custody in institutions whose primary purpose is correctional in nature. This can be said of both versions notwithstanding the apparent differences in their respective wording. Such an interpretation makes intuitive sense in that subsection 50(2) operates to prevent persons who are incarcerated as a consequence of illegal conduct from having a removal order relieve them of the obligation to serve their terms of incarceration. Such a consideration is not present in the case of conditional sentence.

[13]            The Applicant raised the interpretation of s. 50 of the Immigration Act in the context of its submissions with respect to whether or not a serious issue justifying the stay has been made out, as required by the first part of the three-part test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302. Although this segment of the test normally is dealt with in a summary manner, given the low threshold that applicants have to satisfy, it is helpful to deal fully with this issue at this time.

[14]            The Applicant invoked Proulx. He cited this decision in support of his submission that the penal sanctions to which he is subject are such that s. 50 of the Immigration Act precludes his removal from Canada. The Applicant correctly states that Proulx reflects the definition of a conditional sentence as a sentence of imprisonment. This is the definition intended by the relevant amendments to the Criminal Code. That said, the reality of a conditional sentence is that it is served elsewhere than in the custodial setting of a penitentiary or jail.

[15]            Inasmuch as a conditional sentence is served elsewhere than in a penitentiary, jail, reformatory or prison, a person subject to a removal order cannot invoke subsection 50(2) to stay that removal order pending the completion of a conditional sentence. At issue, therefore, is the extent to which paragraph 50(1)(a) applies to this conditional sentence in its capacity as an "order made by any judicial body or officer in Canada".

[16]            The decision of the Federal Court of Appeal in Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.) is particularly helpful in this regard. Although that case in particular dealt with a probation order, much of the discussion in that decision is applicable to the case at bar.

[17]            The court in Cuskic, supra, held that paragraph 50(1)(a) is not contravened by the removal of a person subject to a probation order requiring him or her to report to a probation officer in accordance with that order. Of note is that the court exposed the paradox of permitting those who have committed criminal acts and are sufficiently dangerous to be subject to probation upon release from incarceration to remain in Canada, while those who do not pose such a risk are removed from Canada upon release. Létourneau J.A. concluded that where it appears that the consequences of adopting an interpretation would be absurd, it should be rejected in favour of a plausible alternative that avoids the absurdity (Cuskic at paragraph 25).

[18]            I share the concern, expressed in Cuskic, that the effect of an unduly broad interpretation of paragraph 50(1)(a) would result in probation orders, which are meant to protect the public and facilitate reintegration of an offender into society, being used to prevent the removal of those who, in the opinion of the Respondent, should not remain in that society and would be less of a danger to that society if removed from it.

[19]            Subsequent cases have adopted the narrow interpretation of ss. 50(1) recommended in Cuskic. In R. v. Ramkissoon, [1997] O.J. No. 5031 (Q.L.), the Ontario Court of Justice (General Division) held that the removal of the defendant, which led to withdrawal by the Crown of the charges against him, did not violate s. 50. Since the defendant was not required to be present in court in order to hear the withdrawal of the charges, the case was not one contemplated by para. 50(1)(b), which prohibits the removal of a person whose presence is required in criminal proceedings. The prejudice to criminal justice, or lack thereof, was a factor in this decision.

[20]            Similarly, in Damiye v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 70 (T.D.), the court held that given the undertaking of the Crown that the charges against the applicant would be stayed upon his removal from Canada, his presence would not be required in any criminal proceeding and, therefore, paragraph 50(1)(b) would not be violated.

[21]            This court shares the view expressed in Cuskic and subsequent cases that the overall purposes of the Immigration Act must be taken into consideration when interpreting section 50. I would add that the purposes of the Immigration Act and the goals and purposes that sentences ought to reflect, as expressed in the Criminal Code, should be considered together in order to determine the appropriate course of action.

[22]            The issue with respect to the conditional order in the case before this court is complicated to some extent by conflicting submissions with respect to the status of the conditional sentence against the Applicant. According to the affidavit sworn by Mr. Jason Atkinson, an immigration officer employed by the Respondent, the Applicant's probation officer informed him that the Applicant was no longer under a conditional sentence, and that probation had been in effect since January, 2002. The Applicant argues that he is still under a conditional sentence.

[23]            For the purposes of the present case, it is not necessary to decide the nature of the criminal sanction to which the Applicant is currently subject. The conditions, including reporting to an official, whether that official is a supervisor in the case of a conditional sentence, or a probation officer in the case of a probation order, and remaining within Ontario absent permission to do so, are similar in both cases.

[24]            In his affidavit, Mr. Atkinson refers to Ms. Adele Whaul as the Applicant's probation officer. Whether she is acting as the Applicant's probation officer or is in fact his supervisor during the completion of his conditional sentence, she has, according to Mr. Atkinson, indicated that she would not object to removal of the Applicant before completion of the period during which criminal penalties are being applied against the Applicant.

[25]            The purposes of the set of conditions imposed on the Applicant include preventing the Applicant from causing harm of the same nature that resulted in convictions being entered against him. The execution of a removal order is consistent with this purpose. To interpret s. 50 in such a way as to permit the Applicant to remain in Canada would effectively reward him for his conduct, which would run counter to the deterrent and punitive aims of criminal sentencing.

I therefore find that the execution of the removal order against the Applicant does not contravene s. 50 of the Immigration Act.

[26]            Since the Applicant has not met the burden of proof of a serious issue, it is not necessary to dispose of the other two elements of the Toth test, irreparable harm and balance of convenience.

[27]            For the above reasons, I have ordered that the application for a stay of the removal order against the Applicant be dismissed.

(signed) Michel Beaudry

Judge

OTTAWA, Ontario

July 9, 2002