Judgments

Decision Information

Decision Content

T-1011-83
Dennis Augustus Williams (Applicant) v.
Minister of Employment and Immigration and Ken Lawrence, Head of Case Presenting Officers (Respondents)
Trial Division, Jerome A.C.J.—Toronto, June 13; Ottawa, October 28, 1983.
Immigration — Deportation orders — Application to pro hibit execution of deportation order — Applicant released from custody upon recognizance pursuant to judicial release order — S. 52(1) of Act providing removal order shall not be executed where execution directly resulting in violation of other order by judicial body or officer, or presence in Canada of deportee required in criminal proceedings — Recognizance of bail not constituting judicial order — Judicial interim release order filed — Crown contending since s. 52(I)(b) dealing specifically with presence in Canada of applicant for purpose of criminal proceedings, case must be excluded from s. 52(1)(a) — Use of "or" at end of s. 52(1)(a) indicating intention paragraphs (a) and (b) deal with different situations — S. 52(I)(b) dealing with accused or witness where no Court order involved — S. 52(1)(a) dealing specifically with direct violation of order of judicial body or officer in Canada — Execution of deportation order directly resulting in violation of order made by judicial officer in Canada — Application allowed pursuant to s. 52(1)(a) so long as applicant bound by interim judicial release order — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 52.
CASES JUDICIALLY CONSIDERED
APPLIED:
Persaud v. Minister of Employment and Immigration, order dated October 14, 1981, Federal Court—Trial Division, T-4081-81, not reported.
DISTINGUISHED:
Locke v. Minister of Employment and Immigration, order dated May 17, 1978, Federal Court—Trial Divi sion, T-2015-78, not reported.
COUNSEL:
B. Knazan for applicant.
Marlene Thomas for respondents.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: This application for a writ of prohibition prohibiting execution of a deportation order against the applicant came on for hearing at Toronto, Ontario, on Monday, June 13, 1983. In the interim, applications for similar orders on iden tical grounds were brought forward on behalf of three other applicants, Bela Joseph Toth, Reginald Anthony Fernandes and Giovanni Frangipane. Accordingly, these reasons shall apply in all four cases.
The factual issues are not complex and are not in dispute. At the time that the respondents sought to execute a deportation order against the appli cant, he was facing a criminal charge in respect to which, on March 18, 1982, he was released from custody by the order of a provincial judge. During the presentation on the initial application, the only document attached to the applicant's affidavit was a form of recognizance of bail which does not appear to constitute a judicial order, as contem plated by section 52 of the Immigration Act, 1976 [S.C. 1976-77 c. 52]:
52. (1) A removal order shall not be executed where
(a) the execution of the order would directly result in a violation of any other order made by any judicial body or officer in Canada; or
(b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings.
(2) A removal order that has been made against a person who was, at the time it was made, an inmate of a penitentiary, gaol, reformatory or prison or becomes an inmate of such an institution before the order is executed shall not be executed until the person has completed the sentence or term of impris onment imposed or as reduced by a statute or other law or by an act of clemency.
The recognizance document is secondary to the issue here. Of primary interest is the release of the
applicant from custody which, according to my understanding, requires a formal order. Accord ingly, I adjourned the matter to permit counsel to file a copy of the judicial interim release order. I do not propose to repeat its entire contents. The significant portions include the following language:
WHEREAS Dennis Augustus WILLIAMS hereinafter called the accused, has been charged that he on or about the 17th day of Feb. 1982, at the Municipality of Metropolitan Toronto, in the said Judicial District committed the offence of Att. Theft.
IT IS ORDERED that the said accused be released upon his giving or entering into
2. (c) a recognizance with one or more sufficient sureties in the amount of $1500.00.
DATED at The Munici- sgd. "unintelligible"
pality of Metropolitan Judge in and for the
Toronto this 18th day Province of Ontario of March 1982
To my knowledge, there have been two previous occasions on which Judges of this Court have dealt with this argument. In the case of Locke v. Minis ter of Employment and Immigration,' Dubé J. dismissed a similar application for lack of evidence of any court order which would necessarily be violated by the execution of a deportation order. The record is sparse but it appears that the accused was released on bail upon an undertaking to appear at trial. It is not clear whether he was in custody and therefore whether a judicial release order was ever executed. The appeal to the Federal Court of Appeal was dismissed without reasons.
Subsequently, in Persaud v. Minister of Employment and Immigration, 2 Mahoney J. made a brief reference to the Locke decision and went on to distinguish the Persaud case since, in his view, there was evidence before him of an order requir ing the applicant to perform certain obligations which would be rendered impossible by execution of the deportation order. I agree with Mr. Justice
' Order dated May 17, 1978, Federal Court—Trial Division, T-2015-78, not reported.
2 Order dated October 14, 1981, Federal Court—Trial Divi sion, T-4081-81, not reported.
Mahoney's analysis of the matter, although due to the special circumstances of the Persaud case, I am not bound by his decision. The reasons to which I refer were issued on October 14, 1981, at which time Mr. Justice Mahoney ordered an adjournment of the matter to permit the parties to present further argument on whether what is now paragraph 52(1)(b) constitutes a complete answer to the applicant's case. The matter was never argued because by letter dated October 20, 1981, counsel for the Crown advised the Court that the charges which formed the basis for the release order were dropped during the course of the pre liminary hearing held on October 5 and 13, 1981. Accordingly, Nadira Persaud was discharged and at Toronto, on November 9, 1981, upon consent, the Persaud motion was withdrawn.
To repeat, however, I agree with the conclusion reached by my colleague and must find that the order which is the subject-matter of this applica tion was executed by a duly constituted provincial judge and obliges the applicant to appear in Court at Toronto on a specific date, which he would be unable to do if deported. It follows that the execu tion of the deportation order would directly result in a violation of an order made by a judicial officer in Canada, as that language is used in paragraph 52(1)(a).
The Crown also contends that since paragraph 52(1)(b) deals specifically with the presence in Canada of the applicant for the purpose of crimi nal proceedings, that case must be excluded from consideration in paragraph 52(1)(a). I am not satisfied that the argument sustains. First of all, the use of the word "or" at the end of paragraph (a) compels me to conclude that Parliament intended paragraphs (a) and (b) to deal with different situations. Secondly, paragraph (b) appears to have a redundancy within itself since it requires both the presence in Canada of the person against whom the order is made for the purposes of criminal proceedings as well as a stay of execu tion by the Minister. It seems to me rather funda mental that the Minister has the authority to withhold a deportation order or to stay its execu tion in more cases than those involving the pres-
ence of the intended deportee for criminal proceed ings, either as an accused or a witness. This specific provision in paragraph (b) must therefore be taken as an indication of Parliament's expecta tion that the Minister would defer his authority to deport to the larger role of the intended deportee in the administration of criminal justice. In any event, it is clear that the two paragraphs address different concerns. Paragraph (b) may deal with an accused person or witness where no Court order is involved. Paragraph (a) addresses itself specifi cally to direct violation of an order of a judicial body or officer of Canada. In the earlier decisions, there was no evidence of a court order containing specific requirements which the applicant would be prevented from fulfilling if deported. The order for judicial release of Williams meets those conditions and, therefore, in accordance with the terms of paragraph 52(1)(a), an order will go prohibiting the execution of the deportation order in this matter so long as the applicant continues to be bound by the provisions of the interim judicial release order of March 18, 1982. A similar order will go with respect to the other three cases.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.