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T-3968-76
In re Supinder Singh Manhas and in re an immi gration inquiry pending before W. M. Wilson and in re the Immigration Act and Immigration Regulations
Trial Division, Addy J.—Calgary, November 8; Ottawa, November 18, 1976.
Prerogative writs Application for writ of prohibition against Special Inquiry Officer convening and presiding over special inquiry concerning applicant—First special inquiry adjourned sine die because of Special Inquiry Officer's incapacity to continue—Whether inquiry can continue under another officer or must begin anew—Application dismissed— Immigration Act, R.S.C. 1970, c. I-2, ss. 11, 18, 22, 23, 25, 27(4) and 28.
APPLICATION for writ of prohibition. COUNSEL:
John A. Sutherland for applicant. Neil Dunn for respondent.
SOLICITORS:
John A. Sutherland, Calgary, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
ADDY J.: The following written reasons are given pursuant to the request made for same by counsel for the respondent, Special Inquiry Offi cer, following my dismissal of the application with oral reasons at the time of the hearing.
The application was for a writ of prohibition to prohibit a Special Inquiry Officer of a Canadian Immigration Centre from convening and presiding over a special inquiry concerning the applicant.
Another Special Inquiry Officer had opened an inquiry and had proceeded to conduct the inquiry and to hear evidence in connection therewith. In order to allow the applicant to obtain further evidence in support of his right to stay in Canada, the hearing was adjourned and, subsequently, apparently because of the ill-health of the first
Special Inquiry Officer, as appears from a letter dated the 16th of September, 1976 received from the Department of Manpower and Immigration which letter is annexed to the affidavit of the applicant, the hearing was further adjourned sine die. At a later date, the applicant received notice to appear on the 12th of October 1976 for the purpose of an inquiry before the respondent against whom the writ of prohibition was sought.
The first paragraph of the record of the opening of that proceeding, on the 12th of October 1976, clearly states that the first Special Inquiry Officer was indisposed by reason of a serious illness and that it was not expected that he would be available to resume the inquiry.
The only evidence before me as to the ground upon which the respondent assumed jurisdiction to conduct an inquiry was the above statement on the record of the second inquiry that the first Special Inquiry Officer was incapacitated through illness. The applicant failed to bring before me any evi dence whatsoever to establish that the latter would be able to continue the inquiry and, since the onus is on the person seeking prohibition to establish all of the facts required to support the application, I must assume that the grounds stated by the respondent are true and that the original officer is in fact incapable of continuing his inquiry because of ill-health. The question therefore resolves itself into determining whether the fact that the first Special Inquiry Officer is unable to continue with the inquiry constitutes sufficient grounds to pro hibit the respondent from instituting an inquiry.
The applicant insists that, even though he might be unable to continue the inquiry, the original Special Inquiry Officer must make his findings on the basis of the evidence heard by him and then, and only then, could the second officer continue the inquiry.
Section 11 of the Immigration Act outlines the powers and authority of a Special Inquiry Officer in conducting inquiries under the Act. It also provides that immigration officers in charge are ex officio Special Inquiry Officers and that the Min ister may nominate other Special Inquiry Officers. Section 22 provides that where an immigration officer is of the view that the person should not be admitted to Canada, he may cause the person to
be detained and report him to a Special Inquiry Officer. Under section 23, upon receipt of a report under section 22 (except in the case of persons coming to Canada from the U.S.A. or Saint- Pierre -and-Miquelon), the Special Inquiry Officer may detain the person and cause the inquiry to be held. Under section 25 the Director of Immigra tion, subject to any other direction of the Minister, upon receiving a report under section 18 from a constable, a police officer, a clerk or secretary of a municipality or an immigration officer, shall also cause an inquiry to be held by a Special Inquiry Officer. Section 27(4) provides for the holding of other subsequent inquiries and section 28 provides that any hearing may be re-opened and that a Special Inquiry Officer after hearing additional evidence may amend or reverse a previous decision.
Both the Act and reported jurisprudence are apparently silent as to when a Special Inquiry Officer can be relieved of an inquiry once he has begun one. Having regard, however, to the above- quoted sections regarding the duties of a Special Inquiry Officer, the purpose of those inquiries and the method of conducting them, I find no difficulty in coming to the conclusion that, where an inquiry is commenced, it may be interrupted and a new one begun if the original officer is unable to continue because of ill-health. There are other causes which might justify such an action, for instance, where the Special Inquiry Officer dies or ceases to be employed as such or where, during the course of an inquiry, it is discovered that he might have an interest in the proceedings which would be likely to create a real conflict of interest.
It would be ludicrous if in such circumstances the conducting of an inquiry would be forever interrupted and that no fresh one could be sub stituted therefor without special legislation.
However, having regard to the powers of a Special Inquiry Officer under section 11 and the manner in which he is obliged to conduct the inquiry, his duties are not simple administrative ones and he would not be entitled, as suggested by the applicant, to adopt any interim conclusions arrived at by a previous Special Inquiry Officer
who had not completed his inquiry without satisfy ing himself of the accuracy of those conclusions. The inquiry by the officer must be a fresh one conducted by him based on evidence which he accepts and which satisfies him as to accuracy, weight and relevancy. There is nothing, however, in the present case which would indicate that the Special Inquiry Officer had any intention of acting in any way contrary to that principle.
For the above reasons, the substance of which was given orally at the hearing, the application was dismissed.
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