Virginia Olavarria (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
and
Jean-Charles Meilleur, Inquiry Officer (Respond-
ent)
and
The Deputy Attorney General of Canada (Mis en
Cause)
Court of Appeal, Jacket( Ci., Thurlow J. and
Hyde D.J.—Montreal, October 23, 1973.
Immigration—Inquiry by special inquiry officer—Duty tc
advise person not represented by counsel of his right to
counsel—"Counsel" includes adviser other than lawyer—
Immigration Inquiries Regulations, s. 3.
Section 3 of the Immigration Inquiries Regulations pro
vides that when a person in respect of whom an inquiry is
being held before a special inquiry officer is present but not
represented by counsel, the presiding officer shall "inform
the said person of his right to retain, instruct and be repre
sented by counsel at the inquiry". The French version of the
word "counsel" is shown as "avocat ou autre conseiller".
Held, on an application for judicial review, the word
"counsel" in the English version includes both lawyer and
other adviser.
JUDICIAL review.
COUNSEL:
William G. Morris for applicant.
Romeo Leger for respondent.
SOLICITORS:
Hubscher, Morris & Trevick, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT Ci. (orally)—Mr. Leger, we are all
agreed that it is not necessary to hear you. I
shall express shortly my reasons for so
concluding.
In my view, there is only one submission that
has been made in support of this section 28
application to set aside a deportation order that
deserves special comment. That submission was
that the deportation order should be quashed for
failure to comply with section 3 of the Immigra
tion Inquiries Regulations which, inter alia,
imposes on a special inquiry officer, in certain
circumstances, a duty to inform the person in
respect of whom an inquiry is being held of his
right to retain, instruct and be represented by
counsel at the inquiry.
That duty only applies where the person in
respect of whom the inquiry is being held is
present at the inquiry but "is not represented by
counsel". The neat question to be decided on
this application is whether the word "counsel"
in section 3 of the Immigration Inquiries Regu
lations is used in the narrow sense of "lawyer"
or whether it includes any person representing
the person concerned whether or not he is a
lawyer. If the word "counsel" in section 3 has
the narrow sense of "lawyer", then there was,
in this case, a duty under section 3 to inform
that was not carried out. If the word "counsel"
in that section has the wider sense of adviser
whether or not a lawyer, there was no duty to
inform under section 3 in the circumstances of
this case and the attack on the deportation order
fails.
The first step in considering this matter is to
refer to the provision in the Immigration Act,
R.S.C. 1970, c. I-2 that expressly deals with the
right to "counsel". That provision, which is
section 26(2), reads, in the English version, as
follows:
(2) The person concerned, if he so desires and at his own
expense, has the right to obtain and to be represented by
counsel at his hearing.
and it reads, in the French version, as follows:
(2) L'intéressé, s'il le désire et à ses propres frais, a le droit
d'obtenir un avocat, et d'être représenté par avocat, lors de
son audition.
Here it is quite clear, when both versions are
read, that the statutory provision is designed to
confer, on the person concerned, a right to be
represented at the inquiry, if he so desires, by a
lawyer.
The second step is section 3 of the Immigra
tion Inquiries Regulations, which reads in part,
in the English version, as follows:
3. At the commencement of an inquiry where the person
in respect of whom the inquiry is being held is present but is
not represented by counsel, the presiding officer shall
(a) inform the said person of his right to retain, instruct
and be represented by counsel at the inquiry; and ... .
and reads in part, in the French version, as
follows:
3. Au début d'une enquête, si la personne qui fait l'objet de
cette enquête est présente, mais n'est pas représentée par un
avocat ou autre conseiller, le président de l'enquête doit
a) informer ladite personne de son droit de retenir les
services d'un avocat ou autre conseiller, de lui donner ses
instructions et de se faire représenter par lui à l'enquête;
et....
The Immigration Inquiries Regulations were
made in 1967 by the Minister of Manpower and
Immigration under the powers conferred on him
by section 62 of the Immigration Act, R.S.C.
1952, c. 325, as amended (now found in section
58 of c. I-2 of R.S.C. 1970). That section reads
as follows:
62. The Minister may make regulations, not inconsistent
with this Act, respecting the procedure to be followed upon
examinations and inquiries under this Act and the duties and
obligations of immigration officers and the methods and
procedure for carrying out such duties and obligations
whether in Canada or elsewhere.
If one referred only to the English version of
section 3 of the Immigration Inquiries Regula
tions, one would be constrained to the view that
the world "counsel" therein had the same mean
ing as that word has in section 26(2) of that Act
and was, therefore, used in the sense of "law-
yer". However, when the French version is
referred to, it is found that, where the English
version refers to "counsel", it unambiguously
refers to both lawyer and other adviser. As the
word "counsel" in the English language has a
sense that is wide enough to include an adviser
whether or not he is a lawyer, it must be con
cluded that, in section 3 of the English version
of the Immigration Inquiries Regulations, the
word has been used in this wider sense. See
section 8(2) of the Official Languages Act.
When section 3 of the Immigration Inquiries
Regulations is so construed, the result is that the
duty to inform only arises thereunder when the
person concerned is not represented by a lawyer
or other adviser and that when a duty does arise
thereunder, it is a duty to inform the person
concerned
(a) of his right under section 26(2) of the
Immigration Act to be represented by a
lawyer, and
(b) of the right to be implied, unless it is
expressly or impliedly negatived, to be repre
sented by any agent of his choice whether or
not he is a lawyer. See Pett v. Greyhound
Racing Association Ltd. [1969] 1 Q.B. 125
and Enderby Town Football Club Ltd. v.
Football Ass'n. Ltd. [1970] 3 W.L.R. 1021 at
page 1025.
That conclusion as to what the Regulation was
designed to accomplish seems to me to be one
that is of practical effect and that flows from
the words used in the Regulation.
On that view of the Regulation, there was no
breach of it in this case and the section 28
application should be dismissed.
I express no opinion as to whether, in the
circumstances of this case, a failure to comply
with section 3 of the Immigration Inquiries
Regulations would necessarily have given rise to
a right to have the deportation order quashed.
I also wish it to be understood that, while
there was no application before us on behalf of
the infant children referred to in the deportation
order, in my view, in the absence of some
material that was not before us, that order was
wrongly made. In the absence of other circum
stances, I should have thought that the respond
ent would voluntarily take steps to correct the
deportation order in so far as the infant children
are concerned, if necessary by a consent to a
judgment of the Court on proceedings launched
for that purpose.
* * *
THURLOW J. and HYDE D.J. concurred.
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.