A-255-84
Bernetta Rhule Bowen (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Marceau and Stone JJ.—
Toronto, October 3 and 5, 1984.
Constitutional law — Charter of Rights — Self-crimination
— Applicant initially refusing to testify at immigration inqui
ry upon counsel's advice but subsequently conceding compella-
bility — Application to review and set aside deportation order
dismissed — Rationale in Webb v. Minister of Manpower and
Immigration and in Jares v. Minister of Employment and
Immigration applied — Where applicant not refusing to testi
fy, cannot say protection against self-crimination in s. 11(c) of
Charter denied, regardless of nature of proceedings or appli
cant's status as witness — S. 11(c) having no application to
testimony of person concerned at immigration inquiry since not
"person charged with an offence" — S. 24 of Charter not
applying since condition precedent to operation of s. 24, being
infringement of rights or freedoms as guaranteed by Charter,
not met — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 11(c), 24 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
•
Immigration — Case presenting officer having authority to
compel witness to testify — S. 31(1) of Regulations requiring
case presenting officer to present such evidence as deems
proper and Adjudicator allows to establish allegations against
person concerned — Definition of case presenting officer
including immigration officer representing Minister at in
quiries — S. 112 of Act providing every immigration officer
having authority to take and receive evidence under oath on
any matter arising out of Act — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 112 — Immigration Regulations, 1978,
SOR/78-172, ss. 2(1) (as am. by SOR/83-339, s. 1), 31(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Webb v. Minister of Manpower and Immigration, [19821
1 F.C. 687 (C.A.); Jares v. Minister of Employment and
Immigration, judgment dated February 10, 1983, Federal
Court, Appeal Division, A-489-81, not reported.
REFERRED TO:
R. v. Cole (1980), 54 C.C.C. (2d) 324 (Man. Cty. Ct.);
R. v. Wooten (1983), 5 D.L.R. (4th) 371 (B.C.S.C.); R.
v. Forrester (1982), 2 C.C.C. (3d) 467 (Ont. C.A.).
COUNSEL:
Bill Wong for applicant.
Carolyn P. Kobernick for respondent.
SOLICITORS:
Yee, Wong & Lee, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: Counsel for the applicant made
several attacks on the legality of the deportation
order. His principal attack was based on para
graph 11(c) of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)] which reads:
11. Any person charged with an offence has the right
(e) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
Counsel pointed to the comments of the
Adjudicator (transcript, page 15) where he
expressed the view that the applicant was a com-
pellable witness at his own inquiry and, relying
mainly on the Cole case' submitted that the
Adjudicator erred in law in ruling that the appli
cant was a compellable witness because of the
provisions of paragraph 11(c) of the Charter
(supra).
The transcript of the inquiry reveals (page 17)
that the applicant, initially, refused to testify at
the inquiry on the advice of counsel but later
retreated from this position, also on the advice of
counsel. I say this because applicant's counsel at
the inquiry (who was a different counsel than the
one appearing before us) stated (transcript, page
18): "I don't want to repeat myself, but Miss
R. v. Cole (1980), 54 C.C.C. (2d) 324 (Man. Cty. Ct.).
Rhule is submitting to your jurisdiction. If you
were to call her and ask questions she would
answer all questions that the Adjudicator asks. I
believe, in having looked at the law, the Adjudica
tor has the power to call her and ask questions and
she must respond to your questions." In the cases
of Webb v. Minister of Manpower and
Immigration 2 and Jares v. Minister of Employ
ment and Immigration' this Court held that
where, as here, the applicant did not refuse to
testify, that the protection against self-crimination
afforded by the Canadian Bill of Rights [R.S.C.
1970, Appendix III] cannot be said to have been
denied, quite apart from any argument as to the
nature of the proceedings or the applicant's status
as a witness in it. In my view the same rationale
applies to any submission based on paragraph
11(c) of the Charter. It can hardly be said that
this applicant was being "compelled" to be a wit
ness at her inquiry when the solicitor representing
her conceded her compellability as a witness to
answer all questions asked by the Adjudicator. The
only factual difference between the Webb and
Jares cases and the instant case is that whereas in
both of those cases the subject of the inquiry was
ordered to give evidence and did give evidence, in
this case the Commission presented its case with
out the applicant's testimony (see transcript, page
18). I think this factual difference strengthens the
view that, on these facts, the submissions based on
paragraph 11(c) cannot be sustained. I have the
further view that paragraph 11(c) of the Charter
has no application to the testimony to be given by
the person concerned at an inquiry under the
Immigration Act, 1976 [S.C. 1976-77, c. 52] the
purpose of which is to determine a person's status
under that Act, since that person cannot be said to
be a "person charged with an offence". 4
2 [1982] 1 F.C. 687 (C.A.).
3 Judgment dated February 10, 1983, Federal Court, Appeal
Division, A-489-81, not reported.
° For a similar view see R. v. Wooten (1983), 5 D.L.R. (4th)
371 (B.C.S.C.). See also R. v. Forrester (1982), 2 C.C.C. (3d)
467 (Ont. C.A.).
Counsel for the applicant also submitted that
even if the Adjudicator had the power to compel
the applicant to testify, the case presenting officer
had no such authority and, therefore, the
Adjudicator erred in proposing to allow the case
presenting officer to question the witness. The
short answer to this objection is that Regulation
31(1) [Immigration Regulations, 1978, SOR/78-
172] provides: "When the requirements of section
29 have been met, the case presenting officer shall
present such evidence as he deems proper and the
adjudicator allows to establish the allegations that
have been made against the person concerned."
Additionally, "case presenting officer" is defined
in subsection 2(1) of the Regulations [as am. by
SOR/83-339, s. 1] as "... an immigration officer
who represents the Minister at inquiries; (agent
chargé de présenter le cas)". Furthermore section
112 of the Act provides that: "Every immigration
officer has the authority to administer oaths and to
take and receive evidence under oath on any
matter arising out of this Act." Based on the
above-quoted provisions of the Act and Regula
tions, I conclude that this submission is without
merit.
Counsel also submitted that section 24 of the
Charter would apply. I do not agree. A condition
precedent to the operation of section 24 is that a
person's rights or freedoms, as guaranteed by the
Charter, have been infringed or denied. Since I
have concluded that the applicant has not made
out a case for infringement of his rights or free
doms under paragraph 11(c) or any other section
of the Charter it follows, in my view, that the
condition precedent to the operation of section 24
has not been met in this case.
For the above reasons, I would dismiss the sec
tion 28 application.
MARCEAU J.: I agree.
STONE J.: I agree.
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.