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A-499-76
Thakurdial Tulshi (Applicant) v.
Minister of Manpower and Immigration (Respondent)
and
G. Lanthier (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J. Montreal, September 27, 1976.
Judicial review—Immigration—Application to quash deportation order made under s. 18(1)(e)(ii) of Immigration Act—Whether s. 32(2) applicable—Whether, if applicable, deportation order invalid—Immigration Act, R.S.C. 1970, c. I-2, ss. 18(1)(e)(ii) and 32(2)—Federal Court Act, s. 28.
Application to set aside deportation order made pursuant to section 18(1)(e)(ii) of Immigration Act. Applicant pleaded guilty to charge of fraud and was given two-year suspended sentence. Applicant claims that, under section 32(2), the depor tation order cannot be executed until the sentence is completed and that the existing order is irregular because it did not provide for its execution to be suspended.
Held, section 32(2) applies only to persons who are in custody at the time when the deportation order is issued. In any event, the fact that the deportation might have to be postponed would not invalidate the order.
APPLICATION for judicial review. COUNSEL:
S. J. Smiley for applicant.
Suzanne Marcoux Paquette for respondent.
SOLICITORS:
S. J. Smiley for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: This is a section 28 application against a deportation order made against the applicant on the ground that he had been convict ed of an offence under the Criminal Code.
The applicant does not deny that he has been convicted of a criminal offence and that he could, therefore, be ordered deported as a person
described in section 18 (1) (e) (ii) of the Immigra tion Act'. It is common ground that he pleaded guilty to a charge of fraud and that he benefitted from a 2-year suspension of sentence.
The applicant's only attack is founded on section 32(2) of the Immigration Act. He says that by virtue of that section, the deportation order cannot be executed as long as he has not completed his sentence. In his submission, the deportation order was irregularly made in that the order did not specifically provide that its execution was to be suspended. The short answer to that contention is that section 32(2) has no application in this case. That section applies when a deportation order has been made against a person who was, at the time of its issue or before its execution, an inmate of a penitentiary, gaol, reformatory or prison; this is not the situation here. The applicant has not been imprisoned, he has not even been sentenced.
Moreover, even if the applicant could invoke section 32(2), the fact that the execution of the deportation order would be suspended would not render the deportation order invalid.
' R.S.C. 1970, c. I-2.
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