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.