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.
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.