Cassells v. Canada ( Minister of Citizenship and Immigration )
IMM-3316-98
Sharlow J.
16/6/99
5 pp.
Applicant entering Canada in 1992 on visitor's visa-Shortly after deportation order issued in 1995, applicant witnessing criminal act, resulting in placement in witness protection program-Suspects countrymen of applicant, two of whom may have returned to home country-Applicant's refugee claim precluded by Immigration Act, s. 44(1) because removal order made, but not executed against him-In 1996, 1997 execution of deportation order stayed because applicant's presence in Canada required in court proceedings-In 1998 applicant arrested, forcibly removed to home country notwithstanding outstanding summons to appear in proceeding in Ontario Court (Provincial Division)-Ontario Court (General Division) ordering applicant be returned to Canada at Minister's expense; ordering Minister to pay costs on solicitor and client basis-Basis for decision preservation of courts' authority against usurpation by well-meaning civil servants-Notwithstanding s. 50(1)(a) clear bar against removal in face of summons to witness, departmental officials making own determination of validity, appropriateness of second summons-Had no business doing so-Upon return to Canada, applicant's claim to refugee status again denied on basis of s. 44(1)-Applicant arguing s. 44(1) no longer applicable because no longer unexecuted deportation order against him-Arguing 1998 removal constituting execution of 1995 deportation order, even though execution invalid-Unlawful removal of person from Canada not "execution" of deportation order-In context of execution of order "execution" connoting performance of what order contemplating-Act inconsistent with order or law on which based cannot be characterized as execution of order-Parliament not dealing expressly with possibility Minister's officials would act in breach of Immigration Act as occurring herein-Integrity of Act cannot be preserved by giving effect to unlawful act as though lawful-Immigration Act, R.S.C., 1985, c. I-2, ss. 44(1) (as am. by S.C. 1992, c. 49, s. 35), 50(1)(a).