Cuskic v. Canada ( Minister of Citizenship and Immigration )
IMM-29-97
Rothstein J.
7/5/97
9 pp.
Judicial review of removal order-At expiration of sentence of imprisonment, applicant, landed immigrant, placed on probation for two years by Ontario Court (General Division)-Terms of probation requiring him to report to probation officer once per month-Ordered deported on December 13, 1994-Removed to Bosnia on January 6, 1997-Immigration Act, s. 50(1)(a) prohibiting execution of removal order where execution would directly result in contravention of any other order made by any judicial body or officer in Canada-Application allowed-Execution of deportation order preventing applicant from complying with probation order-S. 50(2), precluding execution of removal order until individual completing sentence, not entire code dealing with orders of imprisonment, probation i.e. cases in which offenders placed on probation without imprisonment-S. 50 must be read in entirety-S. 50(1)(a) applicable to probation order once individual released from imprisonment-Where Minister wishing to deport individual subject to probation order requiring presence in Canada, may take steps under Criminal Code, s. 732.2(3)(a) whereunder may request prosecutor to apply to Court making probation order to change optional conditions of order so that execution of deportation order not directly resulting in contravention of probation order-Neither prosecutor, where responsible to provincial Attorney General, nor Court bound to accede to request-If not acceded to by prosecutor or Court, then according to s. 50 Parliament intending Minister to be subject to probation order until conditions completed-Parliament, by s. 50 requiring Minister, like anyone else to respect Court orders-While understandable Parliament intending Minister should not, in deporting individual, directly contravene another Court order, on other hand purpose of probation order to protect society, facilitate offender's successful reintegration into community-Odd to preclude deportation while offender under probation for purpose of protecting society, facilitating reintegration into community which ultimately will not enter-Worthy of Parliament's attention to revisit s. 50 with a view to considering whether, in probation situations, in which offender required to report to probation officer on periodic basis or otherwise required by probation order to be present in Canada, Minister should be precluded from executing deportation order unless obtaining variation of probation order-Possibly in some circumstances deportation making more sense than continuing adherence to probation order and perhaps discretion ought to be conferred on Minister for this reason-While Court not condoning Minister acting in contravention of s. 50, not sensible to require Minister to arrange for return of applicant to continue probation to completion only to deport him again-Such result having anomalous effect of placing offenders in more advantageous position than deportees not committing offences-Parliament not enacting s. 50 to benefit offenders-Direction to report quashed, but no other direction made-Question certified: Does execution of removal order against person subject to probation order containing direction to report to probation officer on specified periodic basis directly result in contravention of order made by judicial body in Canada for purposes of s. 50(1)(a)?-Immigration Act, R.S.C., 1985, c. I-2, s. 50(1)(a)-Criminal Code, R.S.C., 1985, c. C-46, s. 732.2(3) (as enacted by S.C. 1995, c. 22, s. 6).