Cuskic v. Canada (Minister of Citizenship and Immigration), (2000) 261 N.R. 73 (FCA)

• Judge: Isaac, Létourneau and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 02, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 261 N.R. 73 (FCA)

Cuskic v. Can. (M.C.I.) (2000), 261 N.R. 73 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. OC.034

The Minister of Citizenship and Immigration (appellant/respondent) v. Frank Mefret Cuskic (respondent/applicant)

(A-363-97)

Indexed As: Cuskic v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Isaac, Létourneau and McDonald, JJ.A.

October 5, 2000.

Summary:

Cuskic was incarcerated for two years less a day for unlawful confinement and sexual assault. After his prison term he was subject to two years' probation. The Minister of Citizenship and Immigration issued a re­moval order. Cuskic applied to quash the re­moval order on the ground that it violated the probation order.

The Federal Court of Canada, Trial Di­vision, in a decision reported 130 F.T.R. 232, quashed the Direction to Report, but declined to make any other direction. The court certified for the Court of Appeal the question of whether the execution of a re­moval order against a person subject to a probation order contravenes s. 50(1)(a) of the Immigration Act.

The Federal Court of Appeal answered the certified question in the negative.

Aliens - Topic 1798

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Execution precluded where another judicial order would be violated - Cuskic was on two years' probation after serving a sen­tence of two years less a day for forcible confinement and sexual assault - Cuskic was ordered deported - The reviewing judge held that execution of the deporta­tion order contravened the probation order under s. 50(1)(a) of the Immigration Act - The Federal Court of Appeal held that the execution of the deportation order did not contravene s. 50(1)(a) - Probation orders were not meant to defer the execution of a valid deportation order and interfere with the Minister's duty to act expeditiously - The broad interpretation of the provision given by the reviewing judge defeated the purpose of the Act and had to be rejected in favour of a plausible alternative.

Cases Noticed:

Russell v. Canada (Minister of Citizenship and Immigration) (2000) 180 F.T.R. 78 (T.D.), refd to. [para. 2].

Clarke v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 259 (T.D.), refd to. [para. 2].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 4].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 48 [para. 14]; sect. 50(1), sect. 50(2) [para. 10].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), p. 79 [para. 25].

Counsel:

Lori Hendricks, for the appellant/respon­dent;

No one appeared for the respondent/appli­cant.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant/respondent;

Jackman, Waldman & Associates, Toronto, Ontario, for the respondent/applicant.

This appeal was heard at Toronto, Ontario, on October 2, 2000, before Isaac, Létourneau and McDonald, JJ.A., of the Federal Court of Appeal. On October 5, 2000, Létourneau, J.A., delivered the following judgment for the court.