Date: 19991210
Docket: IMM-800-99
BETWEEN:
RICARDO ALEXANDER RUSSELL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is a motion by the applicant for costs incurred in the present proceedings.
[2] The applicant was detained by the respondent on January 30, 1999, pursuant to a warrant for his arrest that had been issued on January 21, 1999. The warrant was issued because the applicant had failed to appear on January 20, 1999, for an interview to arrange his removal from Canada. A deportation order had been issued against the applicant on September 11, 1996.
[3] On February 2, 1999, a detention review was heard by an adjudicator of the Adjudication Division of the Immigration and Refugee Board. The adjudicator concluded that the applicant would not report for removal if he was released and continued the detention of the applicant. At the time, the applicant was under a probation order from the Ontario Provincial Court requiring him to report to a probation officer on a periodic basis, an order with which he had been complying.
[4] The respondent's officials would have known about the probation order since it had been in existence for over two years, and the reason the applicant was being deported was because of his criminal record. In addition, the adjudicator was told by the applicant's counsel on February 2, 1999, that the probation order existed, and as a result of this order the applicant could not be removed from Canada.
[5] Subsection 50(1)(a) of the Immigration Act states:
| A removal order shall not be executed where; (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 ... |
[6] Counsel for the respondent told the adjudicator, at the detention hearing of February 2, that the decision of Mr. Justice Rothstein in Cuskic v. Canada (Minister of Citizenship and Immigration), [1997] 130 F.T.R. 232, allowed the detention and removal from Canada of an individual despite the existence of a probation order.1
[7] In fact, in the Cuskic decision, Mr. Justice Rothstein held that the deportation of a person, when the individual was subject to a probation order with reporting requirements, was prohibited by paragraph 50(1)(a). In addition, in Clarke v. Canada (1998) 147 F.T.R. 259, Mr. Justice MacKay dealt with essentially the same circumstances as those discussed by Mr. Justice Rothstein in Cuskic. He held that the issuance by the respondent of a Direction to Report, to execute a removal order, when the individual was subject to a deportation order, violated paragraph 50(1)(a) of the Immigration Act.
[8] In both the Cuskic and the Clarke decisions, the judges noted that it was up to Parliament to amend the statutory bar found in paragraph 50(1)(a), but in the absence of such amendment, they would apply the law as it was written. They also noted that another option open to the respondent was to obtain an amendment to the probation order to allow for the individual's deportation from Canada.
[9] An earlier decision of the Court, Wood v. Minister of Employment and Immigration (1986), 2 F.T.R. 58, held that deportation did not contravene a probation order when no probation officer has been designated by the Court and there was nothing in the probation order that required the individual to reside at a particular address in Canada, or within the jurisdiction.2 A review of that file indicates that the relevant probation order had been rescinded before the individual had been detained for removal.
[10] A second hearing to determine whether the applicant should continue to be detained was held on February 9, 1999. It was again determined that he should be detained for removal.
[11] No action was taken either before or after the applicant's detention on January 21, 1999, to obtain an amendment to the probation order.
[12] On February 19, 1999, the applicant filed the present application seeking leave to commence a judicial review of the detention decisions of February 2 and 9, 1999. Deportation was scheduled for February 25, 1999.
[13] On February 24, 1999, the applicant sought and obtained an order of this Court staying the deportation of the applicant. Mr. Justice McKeown, in granting this order, cited the Clarke and Cuskic cases, and paragraph 50(1)(a) of the Immigration Act.
[14] On March 9, 1999, the applicant was released from detention. In the course of the detention review that led to that release, it was discovered that a copy of the letter that had allegedly been sent to the applicant ordering him to report for the removal interview, and which he had denied receiving, could not be found on the respondent's file.
[15] The applicant"s motion record in furtherance of his application for leave to commence judicial review of the decisions of February 2 and February 9, was filed on April 8, 1999, and the respondent"s responding motion record was filed on May 10, 1999.
[16] One of the arguments advanced by the respondent in her motion record was that leave should not be granted to commence a judicial review proceeding because the decisions of February 2 and February 9 were now moot: the applicant had been released. In addition, it was argued that the application was defective because it sought review of two decisions in one application (Rule 302 of the Federal Court Rules, 1998).
[17] On August 27, 1999, leave was granted to commence a judicial review of the February 2, 1999 decision, and such proceeding was deemed to have been commenced.
[18] On August 30, 1999, the applicant's probation order expired.
[19] On October 20, 1999, a letter was received by the Court indicating that both parties agreed that that judicial review application was now moot and the issue remaining was the applicant"s claim for costs.
[20] Federal Court Immigration Rule 22 provides:
| No costs shall be awarded to or payable by any party in respect of an application or an appeal under these Rules unless the Court, for special reasons so orders. |
[21] Counsel for the applicant argues that special reasons exist as a result of the blatant disregard by the respondent of the applicable law. He argues that: the respondent detained the applicant for removal when she had no legal authority to remove the applicant from Canada; the respondent's officials should have known that there was a statutory bar in the Immigration Act, a statute for which the respondent is responsible; the adjudicator was blatantly and shamefully misled by the respondent's counsel on February 2, 1999; and, in any event, the adjudicator should have known the applicable law, by at least February 2, 1999, when counsel brought it to her attention. Counsel states that in such circumstances, the decision to detain the applicant was high-handed and unreasonable and constituted conduct that justifies an award of costs.
[22] Counsel for the respondent argues that the conduct was not high-handed and unreasonable; and that while the adjudicator may have erred in her interpretation of the Immigration Act, and there may have been an insufficient awareness of the impact of the Clarke and Cuskic decisions, being in error is not high-handed and unreasonable conduct. Counsel argues that until the appeal of the Cuskic decision is decided by the Federal Court of Appeal, the adjudicator could not be said to be operating in disregard of paragraph 50(1)(a) of the Immigration Act. Counsel also argues that, in any event, the impact of the February 2 detention decision became moot with the subsequent decision of February 9, and certainly by the date of the applicant"s release from detention on March 9, 1999. It is argued, that any costs subsequently incurred in pursuing the present application were unnecessary.
[23] I will deal with the last point first. The argument that the February 2 decision was rendered moot by that of February 9, and certainly by March 9, when the applicant was released, was before Mr. Justice Denault when he granted leave to commence this judicial review proceeding. He clearly rejected that argument. Indeed, there is an argument that until the probation order expired the issue was not moot.
[24] The argument that the adjudicator, counsel for the respondent, and officials in the enforcement branch simply made errors, and were not acting in a high-handed fashion, is not credible. At best, those actions constituted gross negligence. Also, I find counsel's argument that Cuskic does not establish the law until it is confirmed by the Court of Appeal very troubling. This is particularly so given that the existence and pace of that appeal is determined to a large extent by the respondent. It would seem from the facts of this case that the respondent takes the position that Trial Division decisions can be ignored until they are confirmed by the Federal Court of Appeal. This is not correct.
[25] The Cuskic and Clarke decisions were not recently decided. The Clarke decision had been rendered eight months before the applicant was asked to report for removal, and the Cuskic decision a year before that. The Clarke decision made it very clear that it was illegal to issue a Notice to Report to an individual who was subject to a probation order containing a direction to report to a probation officer on a specific periodic basis, or as required by the probation officer. The enforcement branch ignored the law. The adjudicator ignored the law. The respondent's counsel before the adjudicator blatantly misinterpreted the law. I consider that these circumstances constitute special reasons.3
[26] Counsel for the respondent argues that in any event the costs of the February 9 and the March 9 detention hearings, the stay application of February 24, and the consequent perfecting of the application by the filing of the motion record should not be included in any cost award that is granted.
[27] I have not been persuaded that the scope of a cost award should be so limited. The costs incurred all arose as a consequence of the February 2, 1999 decision and within the parameters of the present proceeding.
[28] An order for costs in accordance with these reasons will issue.
Judge
OTTAWA, ONTARIO
December 10, 1999
__________________
1 Affidavit of Mr. Vitorovich on which he was not cross-examined, explains: 4. In reply to our submissions, the Minister's representative informed us that due to the decision of the Federal Court of Canada in Cuskic v. Canada (MCI) [1997] F.C.J. No. 571 DRS 97-14228 Court File No. IMM-29-97 this was no longer a serious issue. He continued to advise us that although he Minister may take steps to lift the probation order as to allow the deportation of a person whom was order removed from Canada, that by virtue of the decision in Cuskic the Minister is no longer obliged to do so as deporting a person without such a step would be an insignificant breach of an Act of Parliament.
5. The Adjudicator agreed with this assessment and expressed her belief that this was a minor issue. She added that even if the Minister had to lift the probation order, that this could be done with great facility, and thus would not be a significant bar to the deportation of the Applicant.
2 There are also two cases that found that paragraph 50(1)(a ) operated to prevent removal when the individual was subject to an order requiring him to report to Court on a specified date: William v. M.E.I., [1994], 2 F.C. 269 (F.C.T.D.); Garcia v. M.E.I., [1993] F.C.J. No. 39 (F.C.T.D.).
3 In Canada (Min. of Employment and Immigration) v. Ermeyev (1994), 83 F.T.R. 158 (T.D.), costs were awarded where the respondents had been put to a great deal of unnecessary trouble and expense by the way the Minister's officials had dealt with them and in the manner in which the litigation was conducted on behalf of the Minister.
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