Jones v. Canada (Minister of Citizenship and Immigration), 2002 FCT 392

                                                                                                                                          Date:    20020409

                                                                                                                             Docket:    IMM-1809-01

                                                                                                              Neutral citation:    2002 FCT 392

Ottawa, Ontario, this 9^th day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                                     CAMPS JONES

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a deportation order issued by an Expulsions Officer on April 6, 2001, directing the applicant to report for removal from Canada to Trinidad on April 18, 2001. The deportation order was stayed by Heneghan J. on April 12, 2001, pending disposition of this application for judicial review.   

Background

[2]                 The applicant arrived in Canada in 1989 as a visitor, and remained in Canada after the expiration of his visitor visa.

[3]                 The applicant and his wife have four Canadian-born children, ranging in age from four to ten years of age. He states that since his wife works, he is responsible for the care of the children throughout the day, taking them to school and other activities and back.

[4]                 In 1994, the applicant was arrested and charged with narcotics offences, and a deportation order was issued against him. The applicant did not claim Convention refugee status.

[5]                 In 1997, the applicant was convicted of possession of cocaine for the purposes of trafficking and of conspiring to import cocaine into Canada. The applicant was sentenced to five years imprisonment for each offence, to be served concurrently.

[6]                 The applicant appealed his convictions to the Ontario Court of Appeal and to the Supreme Court of Canada and was released on bail pending the outcome of the appeals. Both appeals were denied and the applicant was remanded into custody on November 8, 1999.

[7]                 On June 17, 2000, the applicant was granted day parole by the National Parole Board of Canada. The applicant achieved full parole on April 17, 2001.

Issues

1.        Whether the applicant's status as a parolee prevents his deportation from Canada.

2.         Whether the Expulsions Officer ignored the best interests of the Canadian born Children.

3.        Whether the Expulsions Officer ignored relevant evidence.

[8]                 In his affidavit in support of his application the applicant states that he relies on the materials already submitted on the motion for a stay as well as the motions judge's order and decision. The motions judge's order granting the stay, pending disposition of this application, is annexed as Exhibit "A" to the aforementioned affidavit and the motion record is annexed as Exhibit "B" to the affidavit. In the Notice of Application for judicial review the following grounds are put foward by the applicant:

1.             Subsection 114(2) of the Immigration Act.

                                 2.             The Tribunal ignored the best interests of the Canadian-born children.

3.             The tribunal ignored relevant evidence.

4.             This application raises serious issues.

5.             The Applicant and his family will suffer irreparable harm if he is removed.

6.             The balance of convenience favours the Applicant.

7.             And such further grounds as counsel may provide and this Court may permit.

8.             There is a statutory right of stay pursuant to subsection 50(2) of the Immigration Act.

[9]                 At the hearing of this matter the respondent did not object to the evidence submitted in the motion record being considered by this Court for the purpose of this application, even though the applicant's memorandum of argument addressed only one issue, that of the statutory stay pursuant to subsection 50(2) of the Immigration Act, R.S.C. 1985, c. I-2.

Should the applicant's status as a Parolee prevent his deportation from Canada.

[10]            The applicant submits that he should not be deported because he is on parole. In support of this submission the applicant relies on ss. 50(2) of the Immigration Act, which provides:

50(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 before 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. (Emphasis added)

50(2) L'incarcération de l'intéressé dans un pénitencier, une prison ou une maison de correction, antérieurement à la prise de la mesure de renvoi ou à son exécution, suspend l'exécution de celle-ci jusqu'à l'expiration de la peine, compte tenu des réductions légales de peine et des mesures de clémence. (Je souligne)

[11]            The respondent submits that, in this case, there is no statutory stay of removal pursuant to ss.50(2) of the Immigration Act by virtue of the applicant being on parole. The respondent argues that section 128 of the Corrections and Conditional Release Act, 1992, c. C-20 (Corrections Act) recognized the principle that an offender who is released on parole continues to serve his sentence until its expiration, but that the Corrections Act also creates a specific exemption to this principle for the purposes of ss. 50(2) of the Immigration Act.

[12]            The relevant portions of the Corrections Act read as follows:

128. (1) An offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law.

128. (1) Le délinquant qui bénéficie d'une libération conditionnelle ou d'office ou d'une permission de sortir sans escorte continue, tant qu'il a le droit d'être en liberté, de purger sa peine d'emprisonnement jusqu'à l'expiration légale de celle-ci.

...

...

(3) Despite subsection (1), for the purposes of subsection 50(2) of the Immigration Act and section 40 of the Extradition Act, the sentence of an offender who has been released on full parole or statutory release is deemed to be completed unless the full parole or statutory release has been suspended, terminated or revoked or the offender has returned to Canada before the expiration of the sentence according to law.

(Emphasis added)

(3) Pour l'application du paragraphe 50(2) de la Loi sur l'immigration et de l'article 40 de la Loi sur l'extradition, la peine d'emprisonnement du délinquant qui bénéficie d'une libération conditionnelle totale ou d'office est, par dérogation au paragraphe (1), réputée être purgée sauf s'il y a eu révocation, suspension ou cessation de la libération ou si le délinquant est revenu au Canada avant son expiration légale. (Je souligne)

[13]            The applicant argues that the latter part of subsection 3 of section 128 of the Corrections Act cannot apply in his case since, given that he did not leave Canada, he therefore could not be considered as having returned to Canada before the expiration of the sentence. I am of the view that this argument has no merit. By virtue of the ss. 128(3) of the Corrections Act, the applicant's sentence was deemed to be completed upon obtaining full parole on April 17, 2001, and the execution of his removal order was therefore no longer stayed under ss. 50(2) of the Immigration Act, as of that date. I agree with the submissions of the respondent that Parliament's intention could not be expressed in any clearer terms and I conclude that the applicant is therefore eligible for deportation. My colleague, Madame Justice Tremblay-Lamer, addressed the very same issue in Gordon v. Canada (Solicitor General), [1993] F.C.J. No 832, online: QL, and determined that the sentence of a person released on full parole is deemed to have been competed by virtue of ss. 128(3) of the Corrections Act and stated at page 3 of her reasons, that "...Given the applicant has been on full parole since December 1991, there is no doubt whatsoever of this provision's application to him." I agree with my colleague's reasons and conclusion.

[14]            The applicant also argues that he cannot be deported, since his parole is subject to certain conditions, including a condition to report once a month to his parole or probation officer. I also find this argument to be without merit. The legislation is clear, the sentence of an offender who has been released on full parole is deemed to have been completed. Conditions in a parole order cannot usurp such clearly expressed statutory language. The sentence is deemed to be completed, therefore the statutory stay pursuant to ss. 50(2) of the Immigration Act cannot apply.

Other grounds in the Notice of Application

[15]            With respect to the other grounds raised in the notice of application, I note that the applicant, by his affidavit of June 11, 2001, relies on "the materials already submitted on the motion for a stay as well as the motions judge's order and decision." These materials, including an affidavit sworn April 10, 2001, in support of the motion for a stay were annexed to the applicant's affidavit of June 11, 2001, in support of this application for judicial review. The applicant did not address any of these "grounds" in his memorandum of law and argument. The respondent consequently did not in its memorandum address any of these issues either, although, as I indicated earlier in these reasons, the respondent did consent that the materials be considered. At the hearing of this matter, the applicant's counsel directed these materials to the Court for consideration, but focussed his argument on the statutory stay by virtue of his status as a parolee. The respondent argued that the materials in question do not establish an evidentiary basis upon which the Court could conclude that the officer erred in the exercise of his discretion.

[16]            I have considered the items listed in the notice of application as grounds upon which the applicant bases this judicial review, including the ground put forward that the Expulsions Officer ignored the best interest of the Canadian-born children and that the officer ignored relevant evidence. I have reviewed all of the materials submitted including the affidavit of Elizabeth Melowany, Expulsions Officer, sworn on April 12, 2001, and the affidavit of the applicant in support of his stay application sworn April 10, 2001. After considering the evidence as presented, and the discretion of the Expulsions Officer, I am satisfied that the applicant has not established an evidentiary basis upon which this Court could find that the expulsions officer committed a reviewable error in the exercise of his discretion. I therefore conclude that on these other "grounds" raised by the applicant in the notice of application there is no basis upon which this Court would be justified in intervening.

[17]            The applicant has submitted, for my consideration, the following two questions for certification:

           1.         If the applicant is required to report to a Parole and Probation Officer once a month and this condition has not been waved or changed, and the Warranty Expiry Date is in 2004, can it be said that the applicant has completed his sentence and therefore deportable and in the face of the Supreme Court of Canada statement in Regina v. C.A.M., 105 C.C.C. (3d) 327 at 359 that a person on parole continues to serve a sentence for the full duration of the offender's numerical of life sentence despite the modification of the conditions of sentence?

2.         Is the condition imposed by an [sic] Parole and Probation Officer stipulating that an offender report once a month not a decision of a judicial officer which must not be contravened for the purpose of effecting a deportation order and is a reporting condition not part of continuing to serve a sentence?

[18]            I am satisfied that these are not serious questions of general importance as contemplated by subsection 83(1) of the Immigration Act. I am of the view that these questions are answered in the clear language of section 128 of the Corrections Act. These proposed questions will therefore not be certified.

[19]            For the above reasons this application for judicial review will be dismissed.

                                                                            ORDER

THIS COURT ORDERS that:

1.         This application for judicial review of the decision of E. Malowany, Immigration Expulsions Officer made on April 6, 2001, is dismissed.

                                                                                                                               "Edmond P. Blanchard"             

                                                                                                                                                               Judge