Digests

Mokelu v. Canada (Minister of Citizenship and Immigration)

IMM-2981-02

2002 FCT 757, Beaudry J.

9/7/02

11 pp.

Application for stay of removal proceedings to be executed against applicant--Applicant entered Canada as visitor in 1991--Applied for, granted Convention refugee status --Between 1992 and 2000, at least 15 convictions registered against applicant--Latter convicted in March 1997 of personation, conspiracy to commit fraud, obstruction of peace officer--Deportation order issued against applicant in 1997, stayed in 1998, subject to conditions not complied with-- Applicant invoked Immigration Act, s. 50(1) in support of argument removal order could not be executed while serving conditional sentence--French version of s. 50(2) uses term "incarcération", whereas English version refers to "inmate" of one of institutions without using term "incarceration"-- S.C.C. decision in R. v. Proulx, [2000] 1 S.C.R. 61 discussed discrepancy between English, French versions of Criminal Code of Canada, s. 718.2 with respect to description of penal sanctions--Conditional sentence defined as term of imprisonment, not falling into category of "sanctions other than imprisonment"--Applying reasoning set out in Proulx with respect to interpretive issue, meaning common to both versions of Immigration Act, s. 50(2) that provision applies with respect to persons serving sentences in custody--Two versions of s. 50(2) reflect intention provision have effect of preventing removal from Canada only of persons subject to sanctions involving custody in institutions whose primary purpose correctional in nature--F.C.A. decision in Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 (C.A.) applied--Unduly broad interpretation of s. 50(1)(a) would result in probation orders, meant to protect public, facilitate reintegration of offender into society, being used to prevent removal of those who, in opinion of respondent, should not remain in society, would be less of danger to society if removed from it--Purposes of sets of conditions imposed on applicant include preventing him from causing harm of same nature that resulted in convictions entered against him--Execution of removal order consistent with that purpose--To interpret s. 50 in such way as to permit applicant to remain in Canada would reward him for conduct, contrary to deterrent, punitive aims of criminal sentencing-- Execution of removal order against applicant not contravening Immigration Act, s. 50--Application dismissed--Immigration Act, R.S.C., 1985, c. I-2, s. 50--Criminal Code, R.S.C., 1985, c. C-46, s. 718.2 (as enacted by S.C. 1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95(c); 2001, c. 41, s. 20).