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.
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.