Judgments

[1993] 3 F.C. 348

A-510-92

Raj Kumar Seth (Applicant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Seth v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Hugessen, MacGuigan and Décary JJ.A.—Vancouver, May 20; Ottawa, June 7, 1993.

Citizenship and Immigration — Immigration practice — Right to silence in face of criminal proceedings not requiring Convention refugee claimant be granted adjournment of credible basis proceedings (where claimant would be compelled to give evidence which might assist Crown in criminal investigation) pending determination of criminal charges laid after arrival in Canada.

Citizenship and Immigration — Exclusion and removal — Person remaining after visitor status lost — Adjudicator not erring in law in deciding to make deportation order rather than issue departure notice as uncertainty concerning dates and length of trial on criminal charges making it impossible to establish definite date of departure.

Constitutional law — Charter of Rights — Life, liberty and security — Charter, s. 7 not requiring Convention refugee claimant be granted adjournment of credible basis proceedings (where claimant would be compelled to give evidence which might assist Crown in criminal investigation) pending determination of criminal charges laid after arrival in Canada.

Criminal justice — Evidence — Protection given to accused in criminal proceedings where compelled to testify in civil or administrative proceeding — Convention refugee claimant not entitled to adjournment of credible basis proceedings (where claimant would be compelled to give evidence likely to assist Crown in criminal investigation) pending determination of criminal charges laid after arrival in Canada.

The applicant entered Canada as a visitor and after ceasing to be such, was charged with indictable offences.

During an inquiry under section 27 of the Immigration Act, the applicant made a Convention refugee claim and sought adjournment of the credible basis proceedings pending completion of his criminal trial. He argued that since he would be compelled to give evidence respecting his personal history and circumstances relevant to his refugee claim, his Charter, section 7 right to silence in the face of criminal proceedings would be violated. The applicant believed that information obtained at the immigration inquiry would assist the criminal investigation and the obtaining of evidence to be used against him in the criminal trial. His application for an adjournment was refused by the Adjudicator.

His application for leave to commence proceedings under section 18 of the Federal Court Act was denied. At the resumed credible basis hearing, the applicant, refusing to tender any evidence, failed to establish his claim and was ordered deported from Canada.

This was an application for leave to commence proceedings under section 28 of the Federal Court Act. The relief sought was the adjournment of the credible basis proceedings until completion of the criminal proceedings.

Held, the application should be dismissed.

A review of the case law reveals that, notwithstanding section 7 of the Charter, there is no absolute right to have civil proceedings stayed in the face of criminal charges, but there is a protection, available on a discretionary basis, in extraordinary or exceptional circumstances. To elevate that limited protection to the status of a fundamental right is not justified. The applicant’s section 7 rights did not entitle him to an adjournment for the following reasons: 1) the procedure is entirely administrative in nature; it does not make any determination as to liability; its sole function is to determine the credible basis of the Convention refugee claim, not to find out whether criminal laws were infringed; 2) the documentary evidence to be filed by the applicant is essential to the work of the credible basis tribunal; 3) the use of the compelled testimony is protected in subsequent criminal proceedings by section 13 of the Charter; 4) the judge in the criminal trial could exclude any evidence that could not have been discovered without the compelled testimony of the applicant at his Convention refugee hearing; 5) there is a compelling public interest in having refugee status determined as soon as possible after a claim is made; 6) the use in the upcoming criminal trial of any evidence obtained at or through the inquiry is highly speculative and conjectural.

The Adjudicator correctly decided that he had jurisdiction to determine whether, in the circumstances of this case, fundamental justice required that an adjournment be granted.

The Adjudicator correctly decided to make a deportation order rather than issue a departure notice since he could not establish a date of departure with some degree of certainty, no date having yet been set for the trial and nobody knowing at that juncture how long the trial would take.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(c), 13.

Convention Refugee Determination Division Rules, SOR/89-103, s. 18.

Criminal Code, R.S.C. 1970, c. C-34.

Criminal Code, R.S.C., 1985, c. C-46, s. 465(1)(c).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 28 (as am. idem, s. 8).

Immigration Act, R.S.C., 1985, c. I-2, ss. 27(2)(e),(3), 29(1), 32(7) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11), 43(1) (as am. idem, s. 14), 45(2) (as am. idem), 46(2) (as am. idem), 50.

Immigration Regulations, 1978, SOR/78-172, s. 35(1) (as am. by SOR/89-38, s. 13).

Narcotic Control Act, R.S.C., 1985, c. N-1, s. 4(1).

National Defence Act, R.S.C., 1985, c. N-5, s. 45 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60).

CASES JUDICIALLY CONSIDERED

APPLIED:

Haywood Securities Inc. v. Inter-Tech Group Inc. (1986), 24 D.L.R. (4th) 724; [1986] 2 W.W.R. 289; (1985), 68 B.C.L.R. 145 (B.C.C.A.); Tyler v. M.N.R., [1991] 2 F.C. 68; (1990), 91 DTC 5022; 120 N.R. 140 (C.A.); Meade v. Canada, [1991] 3 F.C. 365; (1991), 81 D.L.R. (4th) 757; 45 F.T.R. 52 (T.D.); Re Cheung and Minister of Employment and Immigration (1981), 122 D.L.R. (3d) 41; (1981), 36 N.R. 563 (F.C.A.); Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242; (1991), 83 D.L.R. (4th) 440; 14 Imm. L.R. (2d) 13; 127 N.R. 342 (C.A.); Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.); Murray v. Minister of Employment and Immigration, [1979] 1 F.C. 518; (1979), 23 N.R. 344 (C.A.).

CONSIDERED:

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 67 D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161; Hongkong Bank of Canada v. Legion Credit Union, [1990] B.C.J. No. 1095 (C.A.) (Q.L.); Cheung v. British Columbia (Attorney General) (1993), 76 B.C.L.R. (2d) 305 (S.C.); British Columbia Securities Commission v. Branch (1990), 68 D.L.R. (4th) 347; (1990), 43 B.C.L.R. (2d) 286 (S.C.); affd (1992), 63 B.C.L.R. (2d) 331 (C.A.); Canada (Minister of Employment and Immigration) v. Lundgren, [1993] 1 F.C. 187 (T.D.).

REFERRED TO:

Dubois v. The Queen, [1985] 2 S.C.R. 350; (1985), 66 A.R. 202; 23 D.L.R. (4th) 503; [1986] 1 W.W.R. 193; 41 Alta. L.R. (2d) 97; 22 C.C.C. (3d) 513; 48 C.R. (3d) 193; 18 C.R.R. 1; 62 N.R. 50; R. v. Mannion, [1986] 2 S.C.R. 272; (1986), 75 A.R. 16; 31 D.L.R. (4th) 712; [1986] 6 W.W.R. 525; 47 Alta. L.R. (2d) 177; 28 C.C.C. (3d) 544; 53 C.R. (3d) 193; 25 C.R.R. 182; 69 N.R. 189; R. v. Kuldip, [1990] 3 S.C.R. 618; (1990), 61 C.C.C. (3d) 385; 1 C.R. (4th) 285; 1 C.R.R. (2d) 110; 414 N.R. 284; 43 O.A.C. 340; R. v. Hebert, [1990] 2 S.C.R. 151; [1990] 5 W.W.R. 1; 47 B.C.L.R. (2d) 1; 57 C.C.C. (3d) 1; 77 C.R. (3d) 145; 49 C.R.R. 114; 110 N.R. 1; R. v. Chambers, [1990] 2 S.C.R. 1293; [1990] 6 W.W.R. 554; (1990), 49 B.C.L.R. (2d) 299; 59 C.C.C. (3d) 321; 80 C.R. (3d) 235; 119 N.R. 321; R. v. Broyles, [1991] 3 S.C.R. 595; (1991), 120 A.R. 189; [1992] 1 W.W.R. 289; 84 Alta. L.R. (2d) 1; 68 C.C.C. (3d) 308; 9 C.R. (4th) 1; 8 C.R.R. (2d) 274; 131 N.R. 118; 8 W.A.C. 189; R. v. Wise, [1992] 1 S.C.R. 527; (1992), 70 C.C.C. (3d) 193; 11 C.R. (4th) 253; 8 C.R.R. (2d) 53; 133 N.R. 161; 51 O.A.C. 351; R. v. Mellenthin, [1992] 3 S.C.R. 615; [1993] 1 W.W.R. 193; (1992), 5 Alta. L.R. (3d) 232; 144 N.R. 50; R. v. S. (R.J.) (1993), 12 O.R. (3d) 774 (C.A.); Saccomanno v. Berube (1987), 75 A.R. 393; (1987), 34 D.L.R. (4th) 462; [1987] 2 W.W.R. 754; 49 Alta. L.R. (2d) 327 (Q.B.); Perreault c. Thivierge (24 February 1992), Quebec 200-10-000139-910, J.E. 92-443 (C.A.); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Stalony v. Minister of Employment and Immigration (1980), 36 N.R. 609 (F.C.A.).

SECTION 28 APPLICATION to review, essentially, the Adjudicator’s refusal to adjourn the applicant’s Convention refugee claim hearing pending the determination of criminal charges laid against him after his arrival in Canada. Application dismissed.

COUNSEL:

Gordon H. Maynard for applicant.

Dan Kiselbach for respondent.

SOLICITORS:

McCrea & Associates, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Décary J.A.: This application for judicial review raises the issue of the right of a Convention refugee claimant to seek an adjournment of his Convention refugee claim hearing pending the determination of criminal charges which have been laid against him after his arrival in Canada.

The facts

The applicant, a citizen of India, entered Canada on March 16, 1989 as a visitor. He was authorized to remain in Canada as a visitor until September 15, 1989. He remained in Canada after September 15, 1989 without authorization and has ceased to be a visitor.

On February 18, 1991, the applicant was charged in the province of British Columbia with one count of conspiracy to import a narcotic (heroin), one count of conspiracy to traffic in heroin, and two counts of trafficking in heroin, being indictable offences under subsection 4(1) of the Narcotic Control Act [R.S.C., 1985, c. N-1] and paragraph 465(1)(c) of the Criminal Code [R.S.C., 1985, c. C-46]. The offences are alleged to have occurred between March 1, 1990 and August 28, 1990. The preliminary inquiry with respect to these charges was completed in early 1992. No dates were set for the trial. The applicant was set free on bail and was under order from the court to remain in the province of British Columbia.

On September 10, 1990, a report was made by an immigration officer pursuant to paragraph 27(2)(e) of the Immigration Act[1] (the Act) to the effect that the applicant was a person who entered Canada as a visitor and remained therein after ceasing to be a visitor. Pursuant to subsection 27(3), a direction for inquiry was prepared and signed on behalf of the Deputy Minister of Employment and Immigration. That inquiry started on April 23, 1991.

On May 13, 1991, during the course of the inquiry, and prior to any substantive evidence having been given, the applicant availed himself of the opportunity, provided by subsection 43(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the Act, to make a Convention refugee claim. Relying on subsection 35(1) of the Immigration Regulations, 1978 [SOR/78-172 (as am. by SOR/89-38, s. 13)][2]

(the Regulations) he immediately sought adjournment of the credible basis proceedings pending completion of his criminal trial. It was his submission that the provisions of the Act and Regulations compelled him to give both oral and documentary evidence respecting his personal history and circumstances relevant to his refugee claim and that such disclosure constituted a breach of his section 7 rights under 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.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter), in violation of fundamental justice, in that he would be required to forego his right to silence in the face of criminal proceedings. The hearing was then adjourned to September 6, 1991.

On September 6, 1991, the applicant’s criminal counsel gave evidence that he had received the narrative particulars provided by Crown counsel respecting the criminal proceedings and that he had reviewed the Personal Information Form and narrative that was required to be submitted in the course of the credible basis proceedings. It was counsel’s evidence that RCMP investigators had an interest in the claimant’s history, that they were interested in his activities prior to 1990 and prior to his arrival in Canada and, in particular, were interested in his addresses of prior residence and travels outside India. It was also counsel’s opinion that the information provided in the credible basis proceedings would assist criminal investigators in inquiries and the obtaining of evidence to be used against the applicant in the course of the criminal trial.

On November 28, 1991 the Adjudicator determined that there should be no adjournment of the proceedings. An application was brought to the Trial Division of the Federal Court of Canada, seeking leave to commence an application pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] as it then read, to quash the adjudicator’s decision respecting adjournment. The application for leave was denied on January 16, 1992.

Inquiry proceedings resumed on the 28th of January, 1992. The adjudicator denied a further request for an adjournment and went on to conclude that the applicant had ceased to be a visitor. He then asked a member of the Refugee Division to join him in order to examine whether the applicant’s Convention refugee claim had a credible basis. The applicant maintained his right to silence and refused to tender either the Personal Information Form or oral evidence in respect of the credible basis of his claim. The tribunal found that the applicant had not met the burden of establishing his claim and the adjudicator ordered that the applicant be deported from Canada. The adjudicator was of the view that the circumstances prevented him from issuing a departure notice rather than a deportation order as no date for completion of the criminal trial could be ascertained.

An application for leave to commence a proceeding under section 28 [as am. by S.C. 1990, c. 8, s. 8] of the Federal Court Act was allowed on March 31, 1992 with respect to the decision of the tribunal that the applicant did not have a credible basis for his claim and with respect to the deportation order issued by the adjudicator. It is common ground, as regards the decision of the tribunal, that it can only be set aside if this Court holds the view that an adjournment should have been ordered by the adjudicator. As regards the deportation order, should the decision of the tribunal on the credible basis be maintained, the applicant submits that the adjudicator erred in determining that a departure notice was not available in the circumstances.

While various forms of relief were discussed in the course of argument before the adjudicator, counsel for the applicant held the view throughout that the relief he was seeking was the adjournment of the credible basis proceedings until the completion of the criminal proceedings[3] and that none of the other suggested remedies—protection of the testimonial evidence under section 5 of the Canada Evidence Act [R.S.C., 1985, c. C-5] and section 13 of the Charter, an order given to the RCMP not to use the information disclosed, a written undertaking by the Minister of Employment and Immigration and his officials not to reveal the information disclosed—was a proper remedy or one within the jurisdiction of the adjudicator.[4] Both decisions of the adjudicator, on November 28, 1991[5] and on January 28, 1992[6] were made with respect to a request for adjournment. I shall therefore consider that the relief sought by the applicant was the adjournment of the proceedings and nothing else, “an all or nothing proposition”, to use counsel’s words.[7]

The adjournment

The applicant submits that he is entitled to protection at the credible basis proceedings against violation of his alleged section 7 Charter rights and that he is entitled to maintain his right to silence until such protection is provided, in this case by an adjournment of the proceedings. In his view, the tribunal’s finding that he did not have a credible basis for his claim is a consequence of the tribunal’s failure to recognize that the proceedings were in breach of fundamental justice.

It is agreed that paragraph 11(c) of the Charter which provides that:

11. Any person charged with an offence has the right

…

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

is not relevant at this stage. That protection is afforded in the proceedings in respect of the charge and not in proceedings, such as the credible basis proceedings, which are not in respect of the criminal charges laid against the accused. On the other hand the protection against self-incrimination afforded by section 13 of the Charter:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

and by subsection 5(2) of the Canada Evidence Act:[8]

5.…

(2) … the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence.

does not protect a witness against testimonial compulsion and does not prevent the introduction at a subsequent criminal trial of evidence discovered as a result of such testimony.[9]

The applicant’s case, therefore, rests on section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

That section, as it relates to the right to silence, was examined at length by the Supreme Court of Canada in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission).[10] Even though the five members of the panel could not agree on a precise definition of the protection afforded, that decision, as refined by the Supreme Court in later pronouncements,[11] may fairly be considered as authority for the propositions:

1)         that “the specific enumerations in ss. 11(c) and 13 of the Charter are not necessarily exhaustive of the protection afforded by s. 7, and do not prevent residual content being given to s. 7.” (Lamer J. [as he then was], at page 442 agreeing with his four colleagues on this point);

2)         that such “residual content” may include some form of protection against some documentary or derivative evidence[12] that was brought forward together with, or traced as a result of the oral testimony;

3)         that the existence and nature of that protection are largely a question of context and of balancing the interest of the state in the disclosure and of the individual in his non-self-incrimination;

and, more generally,

4)         that there is no absolute rule against compelling an accused or a would-be accused to testify and offer evidence in another civil, administrative or criminal proceeding.

The applicant relies principally on Thomson Newspapers to allege, notwithstanding propositions 3 and 4 above, an absolute right to silence until completion of his criminal trial. He would like this Court to import into a case where an accused person is “compelled”[13] to testify in a civil or administrative proceeding principles and solutions developed in cases where an accused person was compelled to testify in a criminal trial parallel or related to his own or at an investigatory stage of his own criminal trial.

I need not concern myself here with the extent of the protection given to an accused person where that person is compelled to testify in a criminal proceeding related directly or indirectly to the charge laid against him. Suffice it to say that even in such a case his right to silence protected by section 7 of the Charter is far from being absolute.

With respect to the protection given to an accused person where that person is compelled to testify or to file evidence in a civil or administrative procedure, I cannot describe it in better terms than those used by Macfarlane J.A. in Haywood Securities[14] and by my brothers Stone J.A. in Tyler v. M.N.R.[15] and Pinard J. in Meade v. Canada.[16]

In Haywood Securities, the plaintiff had applied for an order compelling B, an officer of the defendant corporation, to answer certain questions on an examination in aid of execution. B and the defendant were, at the same time, being investigated by the superintendent of brokers and the RCMP regarding possible violations of the Criminal Code [R.S.C. 1970, c. C-34]. B was ordered to testify. The principal question in issue on appeal was whether the order constituted a violation of the witness’ right to liberty and security of the person, guaranteed by section 7 of the Charter, in that it violated a fundamental right against self-incrimination. Speaking for the majority, Macfarlane J.A. expressed himself as follows [at pages 748-751]:

I agree that if the sole aim and purpose of the proceeding was to obtain evidence to support a charge or to assist the criminal prosecution of the witness, it might be arguable that the witness ought not to be compelled to divulge information which might lead to his conviction. But, in my view, such a result would follow only if the proceedings, in which such evidence was given, were so devoid of any legitimate public purpose, and so deliberately designed to assist the prosecution of the witness that to allow them to continue would constitute an injustice. In such circumstances, the continuance of the proceedings could be said to constitute a violation of the principles of fundamental justice.

…

The appellants submit that ss. 11(c) and 13 do not exhaust the protection of rights in this area, which are fundamental to our system of justice, and they resort to s. 7. I agree that there may be cases and circumstances where the legislation or the procedure is so designed and the results are so unjust that to compel a person to testify might offend the basic sense of fairness which underlies the principles of fundamental justice, and violate s. 7. Such situations may involve testimonial compulsion and self-incrimination but it does not follow that s. 7 contains an unwritten rule against all testimonial compulsion and all cases involving self-incrimination.

In considering whether particular proceedings constitute a violation of a right, it is well to remember that a right under the Charter is not absolute. The right to liberty and security of the person is not absolute: … The right of one person is to be balanced against the right of others and the needs of society generally. An examination in aid of execution of a judgment is a right to be respected and protected—a right of the individual, and one which also serves the public interest. The proper administration of civil justice requires full disclosure, the right to discovery of parties, and of relevant documents. Fundamental justice requires a balancing of the right of a witness against the freedom of others to pursue their lawful remedies.

It has not been a principle of fundamental justice in Canada that a civil remedy is suspended until criminal proceedings arising out of the same facts have been concluded. Section 10 of the Criminal Code provides:

10. No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

The section was necessary to abrogate a common law rule that a plaintiff could not proceed with an action in tort until he had prosecuted the defendant for a felony arising out of the same facts.

But the civil courts have, despite that section, retained the power to control their own proceedings by exercising a discretion to stay an action in the face of criminal proceedings in extraordinary or exceptional cases: …

The effect of those cases is that there is no absolute right to have civil proceedings stayed in the face of criminal proceedings, but there is a protection, available on a discretionary basis, in extraordinary or exceptional circumstances. To elevate that limited protection to the status of a fundamental right is not justified. In cases where protection is clearly required, the discretion will be exercised on the basis that a fair trial of the accused and a just determination of criminal charges cannot be made unless proceedings are stayed.

Haywood Securities was applied in Saccomanno v. Berube;[17] in Hongkong Bank of Canada v. Legion Credit Union;[18] in British Columbia Securities Commission v. Branch[19] and in Cheung v. British Columbia (Attorney General).[20]

In Tyler, a taxpayer had been charged in July 1987 with a series of narcotics-related criminal offences, which induced Revenue Canada in September 1987 to investigate the possibility that the taxpayer had failed to report income. In order to obtain more information, Revenue Canada perused documents seized by the RCMP and served upon the taxpayer a set of “requirements” for information. The taxpayer, not wanting to furnish information which might be used against him in criminal proceedings, applied to the Federal Court for a writ prohibiting the Minister from demanding information. The Federal Court of Appeal made an order, at pages 86-87:

… prohibiting the respondent from communicating to the Royal Canadian Mounted Police or to any other person the signed statements of the appellant demanded by the respondent … or of any of the contents thereof, at any time while the charges against the appellant … remain outstanding in the courts.

In his reasons for judgment of the Court, Stone J.A. wrote the following, at pages 78-79, 81-82, 85-86:

The learned Trial Judge found that the “requirements” are for a purpose related to the administration or enforcement of the Income Tax Act, and it was quite within his province to so view the matter. Nowhere in the record is there the slightest suggestion that the respondent was not acting solely for a purpose related to the administration or enforcement of the statute.

…

Section 7

It becomes necessary to examine the appellant’s ultimate Charter right contention, namely, that section 7 protects him against making the signed statements to the respondent or the communication of the same to the police in the circumstances of this case.

…

It seems clear, however, that section 7 may provide in certain contexts a residual protection over and above that contained in sections 8 to 14 of the Charter. I would refer here to what was said, for example, by La Forest J. in Thomson Newspapers, at page 537:

Like my colleagues, I am prepared to agree that s. 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11(c) and 13.

In my opinion the compulsion of these statements by the respondent pursuant to paragraph 231.2(1)(a) would result in a deprivation of the appellant’s liberty and security of the person under section 7. This approach would seem to accord with the analysis contained in Thomson Newspapers, per Wilson J., at pages 459-461; per La Forest J., at page 536; per L’Heureux-Dubé J., at pages 572-573.

I agree, however, that in the context of the tax audit the deprivation does not amount to a breach of the principles of fundamental justice. In the tax audit per se there is no suspect and no accused. The procedure is entirely administrative in nature. See e.g. R. v. McKinlay, supra, per La Forest J., at page 650.

It remains to be decided whether the deprivation of liberty and security of the person would accord with the principles of fundamental justice given the fact that concurrent criminal charges laid under other federal enactments are pending in the courts. In my view, any communication of the signed statements to the police in these circumstances would amount to “conscripting” the appellant against himself in the existing criminal proceedings in a way that would not accord with the principles of fundamental justice in that it would deprive him, as an accused person, of his right to silence.

That an accused has the right to remain silent has been accepted as a basic tenet of our legal system and, as such, a principle of fundamental justice. I take guidance from what has been said in several of the decided cases.…

…

While the Supreme Court of Canada has yet to render a definitive judgment, it seems to me from what has been said in that Court so far that an anticipated infringement of a Charter right may be made the subject of a subsection 24(1) remedy in limited circumstances….

In my view, unless a remedy is available in the circumstances, the appellant’s right to remain silent will be infringed by the communication of the signed statements or any of their contents to the police while the criminal charges remain outstanding in the courts. The power to prevent such fundamental unfairness occurring in our criminal justice system is, I think provided for in subsection 24(1).

Tyler was applied in Cheung.[21]

In Meade, an application was made to prohibit a board of inquiry constituted pursuant to section 45 of the National Defence Act [R.S.C., 1985, c. N-5 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60)] to investigate purchasing activities and personnel management at a military base, from compelling members of the armed forces to appear. The thrust of the applicants’ motion was that they were suspects in a criminal investigation by military police and that being ordered to appear before the board, they would be required to give evidence which may be incriminating or evidence which may provide incriminating derivative evidence which could be used against them. Pinard J. dismissed the application in the following terms, at pages 372-373:

It is clear, however, from that judgment and the rest of the relevant jurisprudence, that absent a genuine criminal context, the right to remain silent provided by section 7 of the Charter cannot be infringed or violated.

Applying this rule to the present case, keeping also in mind that a critical balance between the applicant’s rights and the state’s interests must be achieved, I conclude that the plaintiffs’ motion ought to be dismissed for the following reasons taken together:

(a) Under the Board’s terms of reference, it is not constituted to make any final determinations affecting any member. Specifically, it does not make any determinations on any liability, criminal or otherwise, against any member of the Canadian Forces and cannot impose any penal sanctions. Any statements made at the Board of Inquiry by Meade and Booth cannot be used at any court martial or summary trial except where the charge concerns perjury referred to in subsection 40(2) of the Military Rules of Evidence.

(b) The testimony of Booth and Meade appears to be essential to the work of the Board of Inquiry in fulfilling its mandate. Meade’s testimony is certainly necessary to elaborate upon the serious allegations touching upon historic and widespread fraud and corruption said to involve Canadian Forces personnel at every level and rank.

(c) Should Meade and Booth not testify at the Board of Inquiry, missing public property may not be found and other public property may continue to go missing in the future.

(d) The use of compelled testimony from Meade and Booth is protected in subsequent criminal proceedings….

(e) The judge in any subsequent criminal proceedings could exclude derivative evidence where appropriate….

(f) No criminal charge has been laid against the plaintiffs and none may be laid.

Reference can also be made to Canada (Minister of Employment and Immigration) v. Lundgren,[22] where Dubé J. held that the fact that the claimant was the subject of criminal prosecution pursuant to section 95 of the Immigration Act (anyone returning to Canada after removal without Minister’s consent) was not a factor that could be considered by an adjudicator in deciding whether or not to adjourn the inquiry. Even though section 7 was not argued, these observations by Dubé J., at pages 192-193, are relevant to the case at bar:

In my opinion, the adjudicator Perron did not exercise his discretion judiciously as the criminal proceedings under section 95 of the Act did not in any way affect the inquiry he was to hold himself. The criminal proceeding, used quite rarely in immigration matters, has the function of punishing those who abuse the system: it must be recalled that, after being deported, Mr. Lundgren returned to Canada five times without consent. Additionally, the purpose of the inquiry before the adjudicator was to determine whether Mr. Lundgren should be deported. It is not illogical for these two remedies to proceed concurrently as not only are the consequences different but the burden of proof is not the same in a criminal as in a civil proceeding.

I appreciate that the facts and legal arguments in each of these cases were not on all fours with those in the case at bar, but in my view the underlying philosophy is the same. Various avenues other than a stay of proceedings can and should generally be used to ensure that the deprivation of a person’s liberty and security under section 7 does not amount to a breach of the principles of natural justice. I have not been persuaded for the following reasons that the Adjudicator erred in finding that the applicant’s section 7 rights did not entitle him to an adjournment of the credible basis proceedings until completion of his criminal trial:

1)         An immigration inquiry is not a trial, either criminal or civil (see Re Cheung and Minister of Employment and Immigration).[23] There is no suspect and no accused; the procedure is entirely administrative in nature; it does not make any determination on any liability, criminal or otherwise, against a claimant; its sole function, in the case at bar, is to determine the credible basis of the Convention refugee claim made by the claimant; it has no relationship whatsoever with the criminal trial that is to take place or with those that are involved in the criminal investigation or in the pursuit of that trial. The purpose of the inquiry is to find out whether the claimant has a well-founded fear of persecution with respect to his country of nationality, India, not to find out whether he has infringed Canadian criminal laws;

2)         The documentary evidence to be filed by the applicant is essential to the work of the tribunal in fulfilling its mandate; in its absence, the tribunal cannot but dismiss the claim;

3)         The use of compelled testimony by the applicant, should he elect to testify, is protected in subsequent criminal proceedings by section 13 of the Charter;

4)         The judge in the criminal trial could exclude any documentary and derivative evidence if he reached the conclusion that such evidence would not have been discovered without the compelled testimony of the applicant at his Convention refugee hearing;[24]

5)         There is a compelling public interest, in Canada, in having refugee status determined as soon as is practically possible after a claim is made. Parliament has made it clear that there is a need to proceed expeditiously and that the adjudicator must ensure that the statutory duty to hold an inquiry is fulfilled within a reasonable time;[25]

6)         In the instant case, and most importantly, the use in the upcoming criminal trial of any evidence obtained at or through the inquiry is highly speculative and conjectural. Absent a genuine and unmistakable prejudice to the accused, criminal charges against an individual should not, per se, prevent the State from pursuing legitimate administrative inquiries unrelated to these charges.

Altogether, I have reached the conclusion that the adjudicator did not commit any reviewable error in the exercise of his discretion when he decided not to grant the adjournment. To paraphrase the words of Macfarlane J.A. in Haywood Securities,[26] the credible basis inquiry in which the applicant’s oral and documentary evidence would have been given was not so devoid of any legitimate public purpose and so deliberately designed to assist the prosecution of the witness that to allow it to take place would constitute an injustice and might offend the basic sense of fairness which underlies the principles of fundamental justice, and violate section 7 of the Charter. On the contrary, I am of the view that it would require exceptional circumstances to stay the proceedings of an administrative tribunal, whose functions, powers and decisions have absolutely nothing to do with the criminal liability of the person compelled to testify and offer evidence before it, for the reason that that person, because he was criminally charged, has claimed the right to silence. There are no exceptional circumstances in this case. The State is merely engaging itself in the most legitimate process, which is by law to be expeditious, of determining the status of a person who seeks the right to remain in Canada.

A last comment on this issue. The jurisdiction of the adjudicator to grant an adjournment on the basis of a violation of Charter rights has not been discussed before us. It had been before the adjudicator, who, it seems to me, implicitly and correctly in my view decided, on the basis of the decisions of this Court in Armadale Communications Ltd. v. Adjudicator (Immigration Act)[27] and Kaur v. Canada (Minister of Employment and Immigration)[28] that he had jurisdiction to determine whether, in the circumstances of this case, fundamental justice required that an adjournment be granted.

The deportation order

The remaining question is whether the adjudicator erred in law in deciding to make a deportation order rather than to issue a departure notice, having regard to subsection 32(7) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] of the Act, which reads as follows:

32.…

(7) … the adjudicator shall … issue to that person a departure notice specifying the date on or before which that person is required to leave Canada, if the adjudicator is satisfied that

(a) having regard to all the circumstances of the case, a deportation order ought not to be made against that person; and

(b) that person will leave Canada on or before the date specified in the notice.

The adjudicator was satisfied with respect to condition (a), but he was of the view that he could not be satisfied with respect to condition (b) for the simple reason that he could not establish a date of departure with some degree of certainty, no date having yet been set for the trial and nobody knowing at that juncture how long the trial would take.

The applicant argues that the adjudicator erred in interpreting section 32(7) “in a manner inconsistent with all the circumstances of the applicant.” I take him as suggesting that conditions (a) and (b) have to be read as if they were not mutually exclusive. That argument has already been rejected by this Court in Murray v. Minister of Employment and Immigration[29] in the following terms:

… it seems clear to me that the decision not to issue a departure notice was based, largely if not entirely, on the fact that the Adjudicator was not satisfied that the applicant would leave Canada. This was a condition precedent to issuing a departure notice by virtue of section 32(6)(b) and the requirement of “having regard to all the circumstances of the case” that is found in section 32(6)(a) has no application thereto. [Jackett C.J. at page 522]

I find no reviewable error in the adjudicator’s decision.

Disposition

In the result, the section 28 application should be dismissed.

Hugessen J.A.: I agree.

MacGuigan J.A.: I agree.

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