A-664-75
The Queen (Appellant)
v.
Roosevelt Bernard Douglas (Respondent)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, April 14, 1976.
Immigration—Respondent ordered deported—Certificate
issued under section 21 of Immigration Appeal Board Act—
Respondent seeking to quash certificate—Trial Division dis
missing motion to strike out statement of claim on grounds
that it disclosed no reasonable cause of action—Appeal—
Federal Court Rules 419, 474—Immigration Appeal Board
Act, R.S.C. 1970, c. 1-3, ss. 15(1), 21.
Respondent was ordered deported, and, pursuant to section
21 of the Immigration Appeal Board Act, a certificate,
"declaring that it would be contrary to the national interest"
for respondent to remain in Canada, was issued. Respondent
sought to quash the certificate in the Trial Division, and to
prohibit the carrying out of the deportation order. The Trial
Judge dismissed a motion to strike out the statement of claim
on the ground that it disclosed no reasonable cause of action,
and this appeal resulted.
Held, allowing the appeal, the judgment of the Trial Division
is set aside, and the statement of claim struck out. While it will
be a rare case where the Court of Appeal will overrule the Trial
Division in the exercise of its discretion as to whether it is more
appropriate to dispose of an action in a motion to strike out
(Rule 419) than to leave it to be disposed of on a question of
law set down for argument before trial (Rule 447) or to be
disposed of after trial, this is an example of a matter where it is
so clear that the discretion should have been exercised in favour
of granting the motion to strike that the Trial Division should
be overruled.
The question as to whether a section 21 certificate can only
be made after affording the person concerned a hearing has
been settled by the Prata decision ([1976] 1 S.C.R. 376). As to
the allegation that the certificate was based on Ministerial
"bias", no such inference can be drawn from the matters to
which the statement of claim has restricted the possible evi
dence concerning that question. Also, the certificate is conclu
sive, under section 21(2) "of the matters stated therein"—
including the fact that the Ministers have, as Ministers, duly
formed the opinion expressed. As was held in Prata, "The
section provides that their certificate is conclusive proof of the
matters stated in it."
There is no arguable case for prohibiting the doing of what
the statute expressly requires once an appeal from a deporta
tion order has been dismissed, even if an action against the
Queen were a proper vehicle for claiming such relief. And, it is
very doubtful whether an action would lie to quash an instru
ment such as a section 21 certificate after it has served its
purpose and its operative effect has been spent, even if it were
otherwise so defective that it might be quashed.
The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045,
considered. Prata v. Minister of Manpower and Immigra
tion [1976] 1 S.C.R. 376, followed.
APPEAL.
COUNSEL
N. A. Chalmers, Q. C., and J. P. Malette for
appellant.
J. Westmoreland -Traoré for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Mergler, Melançon, Bless, Cloutier, Marion,
Helie & Leclaire, Montreal, for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division dismissing a motion to
strike out a statement of claim on the ground that
it discloses no reasonable cause of action against
the appellant.
This Court has, on a number of occasions, dis
missed an appeal from such a judgment on the
ground that it will be a rare case where the Court
of Appeal will overrule the Trial Division in the
exercise of its discretion as to whether it is more
appropriate to dispose of an action on a motion to
strike (Rule 419) than to leave it to be disposed of
on a question of law set down for argument before
trial (Rule 474) or to be disposed of after trial.
(See, for example, The Queen v. Wilfrid Nadeau
Inc.') In my view, however, this is an example of a
matter where it is so clear that the discretion
should have been exercised in favour of granting
the motion to strike that this Court should overrule
the judgment of the Trial Division.
This is not an example of a very difficult ques
tion of law which, by mutual agreement express or
implied, the parties have cooperated in having
decided on a motion to strike. Rather, it is, as I
will attempt to show, a case where, once the
allegations in the statement of claim, the statute
[1973] F.C. 1045.
law and an authoritative decision have been exam
ined, it is quite clear that no cause of action is
disclosed by the statement of claim.
The relevant facts, as alleged by the statement
of claim, may, in my view, be summarized, for
present purposes, as follows:
1. On October 16, 1972 (When he was a citizen of
a part of the British Commonwealth of Nations
but was not a Canadian citizen and did not have
"Canadian Domicile" within the meaning of that
expression in the Immigration Act), a deportation
order was made against the respondent.
2. Pursuant to section 21 of the Immigration
Appeal Board Act, which reads, in part, as follows:
21. (1) Notwithstanding anything in this Act, the Board
shall not,
(a) in the exercise of its discretion under section 15, stay the
execution of a deportation order or thereafter continue or
renew the stay, quash a deportation order, or direct the grant
of entry or landing to any person, or
if a certificate signed by the Minister and the Solicitor General
is filed with the Board stating that in their opinion, based upon
security or criminal intelligence reports received and considered
by them, it would be contrary to the national interest for the
Board to take such action.
(2) A certificate purporting to be signed by the Minister and
the Solicitor General pursuant to subsection (1) shall be
deemed to have been signed by them and shall be received by
the Board without proof of the signatures or official character
of the persons appearing to have signed it unless called into
question by the Minister or the Solicitor General, and the
certificate is conclusive proof of the matters stated therein.
on May 24, 1973, the Minister of Manpower and
Immigration and the Solicitor General signed a
certificate "declaring that it would be contrary to
the national interest for the plaintiff (respondent)
to remain in Canada", and deposited the same in
the records of the Immigration Appeal Board.
3. A request was made to those Ministers to with
draw that certificate and such request was refused.
4. On April 23, 1975, the Immigration Appeal
Board dismissed the respondent's appeal from the
deportation order.
5. It is to be "inferred"
(a) that the said Ministers were "biased" in
their "decision" concerning the issuance of the
"certificate", and
(b) that the "certificate" was issued illegally,
irregularly and without permitting the respond
ent a just and fair hearing in accordance with
the fundamental principles and traditions of
Canadian justice and in accordance with the
Canadian Bill of Rights, from the following:
(a) Plaintiff was not an alien in accordance with the
definitions under the Immigration Act and the Citizenship
Act, and that the Ministers did not in consequence have
the right to exercise a royal prerogative insofar as the
Plaintiff was concerned;
(b) Plaintiff was resident in Canada legally for a period of
almost 10 years prior to his conviction, and had thus
acquired a right of domicile under the Citizenship Act,
which in Plaintiff's case, afforded him the right to apply
for Citizenship on or after November 24th, 1969;
(c) The question of whether Plaintiff's presence in Canada
is contrary to the national interest must be evaluated at the
time that Plaintiffs appeal was dealt with by the Immigra
tion Appeal Board and the Defendant WARREN ALLMAND
was obliged in law to review the grounds of the certificate
deposited in Plaintiff's appeal;
(d) The decision of the Defendants WARREN ALLMAND
and ROBERT KNIGHT ANDRAS to issue and to file a
certificate was based on hearsay evidence, unopposed
information, and on a unilateral decision which was made
without proper examination of all the facts thus depriving
Plaintiff of the right to a fair hearing, the right to cross-
examine, the right to defend himself, and the right to prove
his innocence which, in Plaintiffs case, is and should be
guaranteed by a presumption of the law;
On these allegations of fact, the respondent, by the
statement of claim, which was filed on July 23,
1975, sought the following relief:
(a) An order of this Honourable Court quashing the
certificate filed against Plaintiff under Section 21 of the
Immigration Appeal Board Act;
(b) An order prohibiting the employees of the Minister of
Manpower and Immigration from carrying out the depor
tation order dated October 16th, 1972; 2
The difficult questions of law as to whether a
section 21 certificate can only be made after
affording the person concerned a hearing as con
2 The statement of claim also asks for a third order but,
according to the reasons delivered by the learned Trial Judge,
this claim was abandoned on the hearing of the motion to
strike.
templated by the authorities concerning decisions
to which the principles of natural justice apply or
whether such a certificate can be attacked by
virtue of the provisions of the Canadian Bill of
Rights have, in my view, been settled, by the 1975
decision of the Supreme Court of Canada in Prata
v. Minister of Manpower and Immigration, 3 con
trary to the case set up by the statement of claim
on behalf of the respondent, and, from that point
of view, I can see no arguably relevant distinction
in the special facts of this case such as the fact
that, while the respondent was not a Canadian
citizen and did not have Canadian domicile, he
was a British subject by virtue of his citizenship in
some part of the British Commonwealth other
than Canada or the fact that he had been legally
resident in Canada for 10 years.' In so far as this
branch of the attack on the certificate is con
cerned, the matter is, in my view, as far as this
Court is concerned, settled by the decision of the
Supreme Court of Canada in Prata.
In so far as the attack on the certificate is based
on Ministerial "bias", it is to be emphasized that
such alleged "bias" is confined to an inference
that, it is said, is to be drawn from the statements
that I have quoted from the statement of claim. In
my view, no matter what state of facts is to be
regarded as falling within such an allegation of
bias—whether it be in the wide sense attributable
to that word when used with reference to judicial
acts or in the sense of an improper abuse of purely
Ministerial powers or in some sense falling be
tween those two possible uses of the word—no
inference of bias can be drawn from the matters to
which the statement of claim has restricted the
possible evidence concerning that question. That
being so, I must respectfully disagree with the
learned Trial Judge that there is a question of fact
that cannot "be weighed fairly unless evidence is
given in order to determine, if necessary, whether
or not there was any bias...." Quite apart, how
ever, from such conclusion based on the way in
which "bias" was alleged by this particular state
ment of claim, as it seems to me, the "certificate"
is conclusive, by virtue of section 21(2), "of the
matters stated therein"—including the fact that
the Ministers have, as Ministers, duly formed the
3 [1976] 1 S.C.R. 376.
4 Compare sections 2, 3 and 4 of the Immigration Act.
opinion expressed. See Prata v. Minister of Man
power and Immigration (supra) per Martland J.,
delivering the judgment of the Supreme Court of
Canada, where he said [at page 381]: "The section
provides that their certificate is conclusive proof of
the matters stated in it."
I am, therefore, of opinion that there is no
arguable case for an order "quashing" the
section 21 certificate.
In so far as the claim for an order prohibiting
the carrying out of the deportation order is con
cerned, the facts alleged supply no arguable case,
in my view, for prohibiting the doing of what the
statute expressly requires once an appeal from a
deportation order has been dismissed 5 even if an
action against Her Majesty were a proper vehicle
for claiming such relief.
Finally, I should like to raise a substantial
doubt, which exists in my mind, as to whether an
action would lie to quash an instrument such as a
section 21 certificate after it has served its purpose
and its operative effect has been spent, even if it
were otherwise so defective that it might be
quashed.
For the above reasons, I am of opinion that the
appeal should be allowed with costs in this Court
as well as in the Trial Division, that the judgment
of the Trial Division should be set aside, and that
the statement of claim should be struck out on the
ground that it discloses no reasonable cause of
action against the appellant.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
5 Compare section 15(1) of the Immigration Appeal Board
Act.
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.