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T-641-77
Baljit Singh Chana (Applicant)
v.
Minister of Manpower and "Immigration (Respondent)
Trial Division, Dubé J.—Edmonton, February 24; Ottawa, March 2, 1977.
Immigration Practice Application for writ of prohibi
tion Whether Minister of Manpower and Immigration can compel attendance at special inquiry — Effect of Canadian Bill of Rights on federal legislation — Protection afforded by Canada Evidence Act — Immigration Act, R.S.C. 1970, c. I-2, ss. 11, 18 and 25 — Canadian Bill of Rights, S.C. 1960, c. 44, IR.S.C. 1970, App. IIIJ s. 2(d) — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5.
The applicant entered Canada as a visitor, but remained after the expiry of his visitor status without reporting to an immigration officer and, when questioned concerning his status, gave a false name. The applicant appeared before a Special Inquiry Officer and was granted a conditional release; he is now awaiting trial, having been charged with contravening section 48 of the Immigration Act. The applicant claims that he cannot be compelled to testify under oath at a special inquiry because his answers might tend to incriminate him, contrary to the provisions of section 2(d) of the Canadian Bill of Rights.
Held, the application is dismissed. The Canadian Bill of Rights provides that no law of Canada shall be construed so as to compel a person to give evidence " if he is denied counsel, protection against self crimination or other constitutional safe guards". The applicant was not denied counsel and he is fully safeguarded against self crimination by virtue of the Canada Evidence Act. In any event, the provisions of the Immigration Act are not rendered inoperative by the Canadian Bill of Rights.
Prata v. Minister of Manpower and Immigration [ 1976] 1 S.C.R. 376; Attorney General of Canada v. Jolly [1975] F.C. 216; R. v. Wolfe, Ex parte Vergakis (1965) 48 D.L.R. (2d) 608 and Xaviera DeVries v. Minister of Manpower and Immigration (unreported, S.C.C., Oct. 14, 1975), applied.
APPLICATION for writ of prohibition. COUNSEL:
D. Curtis Long for applicant. Neil Dunne for respondent.
SOLICITORS:
Covey & Behm, Edmonton, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
DUBS J.: This application, heard at Edmonton, Alberta, is for an order prohibiting the Minister of Manpower and Immigration from compelling the applicant to attend as a witness and give evidence at a special inquiry being held under the provisions of the Immigration Act', on the grounds that said provisions are rendered inoperative by paragraph 2(d) of the Canadian Bill of Rights 2 . The para graph reads:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitu tional safeguards;
Section 25 of the Immigration Act reads as follows:
25. Subject to any order or direction by the Minister, the Director shall, upon receiving a written report under section 18 and where he considers that an inquiry is warranted, cause an inquiry to be held concerning the person respecting whom the report was made.
The written report of thé immigration officer under section 18 of the Act which led to the special inquiry under the above section 25 presents a concise brief of the facts relevant to this motion:
Pursuant to subparagraphs 18(1)(e)(vi) and (viii) of the Immigration Act, I have to report that one, Baljit Singh GHANA, formerly of India, is a person other than a Canadian citizen or a person with Canadian domicile who entered Canada as a non-immigrant and remains therein after ceasing to be a non-immigrant and who remains therein by reason of any false or misleading information given by himself.
Mr. CHANA entered Canada as a visitor for a period of three (3) weeks at Winnipeg International Airport in February,
' R.S.C. 1970, c. I-2.
2 S.C. 1960, c. 44. [See R.S.C. 1970, App. III].
1975. Upon the expiry of his status he did not report to an Immigration Officer pursuant to subsection 7(3) of the Immi gration Act and has remained in Canada without Immigration status since the expiry of his visit. Mr. CHANA, when ques tioned by an Immigration Officer concerning his status in Canada, stated that his name was Ranjit Gill and that he was a landed immigrant. He later admitted that his true name was Baljit Singh CHANA and that he was not a Landed Immigrant but has assumed this identity in order to remain in Canada.
The applicant appeared before the Special Inquiry Officer on December 9, 1976. The inquiry was adjourned to December 16, 1976, with counsel and an interpreter present after which the appli cant was released from detention on a bond of conditional release. On December 17, 1976, an information was laid against him that he unlawful ly engaged in employment and that he unlawfully remained in Canada contrary to section 48 of the Immigration Act. The applicant is presently await ing trial.
A writ of prohibition may issue "Wherever any body of persons having legal authority to deter mine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority .. .". 3 In commenting on that proposition, S. A. de Smith in Judicial Review of Administrative Action, 3rd ed., listed and dis cussed the following grounds for awarding certio- rari and prohibition: (1) lack of jurisdiction, (2) breach of the rules of natural justice, (3) error of law on the face of the record, (4) fraud or collusion.
The right of aliens to enter and remain in Canada is governed by the various provisions of the Immigration Act. The Act provides for certain persons to enter and remain in Canada as non- immigrants (section 7); for Special Inquiry Offi cers to carry out inquiries (section 11) with power to examine witnesses with the authority of a com missioner under the Inquiries Act 4 (subsection 11(3)); for the Minister to arrest any person respecting whom an examination or inquiry is to be held (section 14); for an immigration officer to make a report on any person other than a Canadi- an citizen who entered Canada as a non-immi grant and remained after ceasing to be a non-
3 R. v. Electricity Commissioners [1924] 1 K.B. 171,
204-205.
4 R.S.C. 1970, c. I-13.
immigrant (subparagraph 18(1)(e)(vi)), who came into Canada and remains therein by reason of false information (subparagraph 18(1)(e)(viii)); for the Minister to order an inquiry concerning persons reported (section 25).
The Canadian Bill of Rights was invoked against a provision of the Immigration Act in Prata v. Minister of Manpower and Immigrations. Martland J., on behalf of the Supreme Court of Canada, had this to say at page 380:
The position of an alien, at common law, was briefly summa rized by Lord Denning M.R. in the recent case of R. v. Governor of Pentonville Prison [1973] 2 All E.R. 741 at p. 747, as follows:
At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason: see Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 49 at 168. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his own country at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his own country: see R. v. Brixton Prison (Governor), ex parte Soblen [1963] 2 Q.B. 243 at 300, 301. The position of aliens at common law has since been covered by various regulations; but the principles remain the same.
The right of aliens to enter and remain in Canada is gov erned by the Immigration Act.
and at page 382:
It is contended that the application of s. 21 has deprived the appellant of the right to "equality before the law" declared by s. 1(b) of the Canadian Bill of Rights. The effect of this contention is that Parliament could not exclude from the operation of s. 15 persons who. the Crown considered should not, in the national interest, be permitted to remain in Canada, because such persons would thereby be treated differently from those who are permitted to apply to obtain the benefits of s. 15. The purpose of enacting s. 21 is clear and it seeks to achieve a valid federal objective. This Court has held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner. Legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective (R. v. Burnshine (1974), 44 D.L.R. (3d) 584).
5 [1976] 1 S.C.R. 376.
Laskin J. (as he then was) gave his appreciation of the effect of the Canadian Bill of Rights on federal legislation in his dissenting judgment in Regina v. Burnshine 6 at page 714:
It is important to appreciate that the Canadian Bill of Rights does not invariably command a declaration of inopera- bility of any federal legislation affected by its terms. That may be the result, under the principle enunciated in the Drybones case, supra, if a construction and application compatible with the Canadian Bill of Rights cannot reasonably be found. The primary injunction of the Bill, however, is to determine whether a challenged measure is open to a compatible construction that would enable it to remain an effective enactment. If the process of construction in the light of the Bill yields this result, it is unnecessary and, indeed, it would be an abuse of judicial power to sterilize the federal measure.
Deportation was ordered against a non-immi grant visitor from the United States as a member of a prohibited class, being associated with the Black Panther Party, under paragraph 5(1) of the Act. His counsel contended that paragraph 5(1) was inoperative because it infringes on the free doms protected by the Canadian Bill of Rights. Thurlow J., as he then was, dismissed the argu ment in Attorney General of Canada v. Jolly' at page 229:
Counsel for the respondent, in addition to endeavouring to meet the appellant's submissions, also contended that the provi sion of subsection 5(1) of the Immigration Act is inoperative because it infringes the respondent's fundamental rights to freedom of association, freedom of speech and freedom of the press as protected by the Canadian Bill of Rights. In my opinion there is no substance in this submission. As an alien the respondent has no right to be or remain in Canada save in so far as is permitted by the Immigration Act (see Prata v. Minister of Manpower and Immigration (1975) 52 D.L.R. (3d) 383). Section 5(1) of that act simply defines a class of aliens who are not to be permitted to enter or remain in Canada. The Immigration Act is not a penal statute and in my opinion subsection 5(1) imposes no penalty upon and infringes no right of any such alien.
Whereas under section 11 of the Immigration Act the Special Inquiry Officer has power to summon a person and require him to testify under oath and the latter is obligated to answer, he may, however, seek the protection of the Canada Evi-
6 [1975] 1 S.C.R. 693.
7 [1975] F.C. 216.
dence Act 8 against self criminating questions and his answers thereto cannot be received against him in any subsequent criminal proceedings, including proceedings on charges then pending against him for offences under the Immigration Act. 9 Thus the applicant may not invoke the Canadian Bill of Rights for protection against self crimination, as protection is already afforded him by section 5 of the Canada Evidence Act.
That very point was made by Chief Justice Laskin in the unreported case of Xaviera DeVries v. Minister of Manpower and Immigration'°:
We do not need to hear you Mr. Ainslie and Mr. Bowie. A narrow point is raised by Mr. Laidlaw, namely that having regard to the terms of s. 5(d) of the Immigration Act, as contrasted with s. 5(e), the Canadian Bill of Rights applies to entitle the appellant to refuse to answer questions which would shew her to be guilty of a crime involving moral turpitude. The appellant in seeking the privilege of admission to Canada presented herself for examination, she appeared to testify before the Immigration Appeal Board, and she asked for and was granted the protection of the Canada Evidence Act. There is accordingly no ground upon which she can claim the protec tion of any applicable rule against self-crimination. The appeal accordingly dismissed.
The Supreme Court of Canada decision in Batary v. Attorney-General for Saskatchewan" was relied on by counsel for both parties to but tress their respective propositions. In that case the Supreme Court held that a provincial statute pro viding that a person charged with murder was a compellable witness at a coroner's inquest into the death in question was ultra vires.
Speaking for the majority, Cartwright J., having reached the conclusion that under the law of Eng- land, as of July 15, 1870, a person charged with murder and awaiting trial could not be compelled to testify at the coroner's inquest, said that it would require clear words to bring about so corn
8 R.S.C. 1970, c. E-10.
9 Regina v. Wolfe, Ex parte Vergakis (1965) 48 D.L.R. (2d)
608.
1° Unreported F.C.A. A-190-73, Supreme Court of Canada,
October 14, 1975.
11 [1966] 3 C.C.C. 152.
plete a change in the law. He concluded at pages 163 and 164:
I think the conclusion inescapable that by enacting s. 15 it its present form the Legislature intended to change the law anc to render a person charged with murder compellable to give evidence at the inquest on the body of his alleged victim. Suck legislation trenches upon the rule expressed in the maxim nemc tenetur seipsum accusare which has been described (by Cole- ridge, J., in R. v. Scott (1856), Dears. & B. 47 at p. 61, 169 E.R. 909) as "a maxim of our law as settled, as important anc as wise as almost any other in it". This rule has long formes part of the criminal law of England and of this country. With great respect for the contrary view expressed in the Court of Appeal, I am of opinion that any legislation, purporting tc make the change in the law referred to in the first sentence of this paragraph or to abrogate or alter the existing rules which protect a person charged with a crime from being compelled tc testify against himself, is legislation in relation to the criminal law including the procedure in criminal matters and so within the exclusive legislative authority of the Parliament of Canada under head 27 of s. 91 of the B.N.A. Act.
But in my view, Parliament did intend to render a non-immigrant compellable to give evidence at a special inquiry caused to be held by the Minister pursuant to a report concerning that person and did so with clear words in sections 11, 18 and 25 of the Immigration Act, and whereas the Legislature of Saskatchewan may not enact legislation in rela tion to the criminal law, the exclusive jurisdiction of the Parliament of Canada in relation to immi gration is not in dispute, at least not in this application.
Paragraph 2(d) of the Canadian Bill of Rights provides that no law of Canada shall be so con strued as to compel a person to give evidence "if he is denied counsel, protection against self crimina- tion or other constitutional safeguards". The appli cant was not denied counsel and he is fully safe guarded against self crimination by virtue of the Canada Evidence Act. The provisions of the Immigration Act are not rendered inoperative by the Canadian Bill of Rights and the applicant is compellable to give evidence at the special inquiry.
The application is therefore dismissed with costs.
ORDER
The application is dismissed with costs.
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