T-3915-76
In re Immigration Act and in re Immigration
Applications for Permanent Residence of Johnnie
Dale McDonald, Martha McDonald and Mark
McDonald and in re Special Inquiry Proceeding
respecting Johnnie Dale McDonald
Trial Division, Walsh J.—Vancouver, October 18
and 21, 1976.
Immigration—Application for writ of mandamus for
adjudication of application for permanent resident status—
Application for injunction prohibiting special inquiry under s.
18 of Immigration Act—Whether decision of Special Inquiry
Officer must be made while applicant a prison "inmate"—
Whether inquiry can continue before application for permanent
resident status dealt with Immigration Act, R.S.C. 1970, c.
I-2, as amended, s. 18 Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, as amended, ss. 11 and 15.
The applicant Johnnie Dale McDonald sought a writ of
mandamus ordering the Minister of Manpower and Immigra
tion to process and adjudicate on his application for permanent
residence and that of his wife on behalf of herself and their son.
He further sought an order enjoining and restraining the
Minister from proceeding with the conduct of a special inquiry
initiated against him by a section 18 report dated July 12,
1976. The applicant had been ordered deported at a special
inquiry in 1972 initiated by virtue of a section 22 report, but
this order was invalidated by the Immigration Appeal Board in
December 1974. In July 1974, he had been convicted of making
false statements in connection with his application for admis
sion to Canada and the conviction was sustained by the British
Columbia Court of Appeal in March 1976, and he was sen
tenced to six months' imprisonment. Thus, on the date of the
section 18 report he was a prison inmate, but he is no longer so
confined. Counsel for the Minister argues that it may not be
possible for a deportation order to be made on the basis of
section 18(1)(e)(iii) unless the special inquiry is completed by
October 22, 1976, when the six-month sentence imposed on
McDonald expires. Counsel for the applicant argues that it is a
matter of natural justice that the application for permanent
residence be dealt with first since the position of a landed
immigrant with respect to an appeal from a deportation order is
different from that of a non-resident under sections 11(1)(a)
and 15 of the Immigration Appeal Board Act. He further
claims that the applicant has suffered prejudice by the delay in
processing his application and that he prefers to proceed on his
original application, even with its allegedly false statements and
preserve his rights of appeal rather than file a revised applica
tion and lose those rights.
Held, both applications are granted. The writ of mandamus
was granted from the bench unopposed by counsel for the
Minister. The application for an injunction was granted on
several grounds. Firstly, there does not appear to be any
authority for the proposition that the decision of the Special
Inquiry Officer must be made while the party is still imprisoned
and even if that is the case, McDonald is probably no longer an
"inmate" and the period of imprisonment would have expired
before the inquiry was concluded. Secondly it is a matter of
considerable importance to the applicant to become a perma
nent resident if possible before the section 18 inquiry is con
cluded in view of the effect this would have on his rights of
appeal. Thirdly it is the applicant's undoubted right to have his
original application for permanent residence processed, what
ever its defects, forthwith. Finally, deprival of a right of appeal
is a crucial consideration and since it was not the fault of the
applicant or his counsel that his and his wife and son's applica
tions for permanent residence have not been considered he
should not be deprived of that right.
Leiba v. M.M.&I. [1972] S.C.R. 660, applied. Smogor v.
M.M.&I. [1973] F.C. 350 and Pereira v. M.M.&I.
(Supreme Court of Ontario, not reported), distinguished.
APPLICATION for writ of mandamus and
injunction.
COUNSEL:
D. J. Rosenbloom for applicants.
G. O. Eggertson for respondent.
SOLICITORS:
Rosenbloom, Germaine & Jackson, Vancou-
ver, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: This application sought a writ of
mandamus ordering the Minister of Manpower
and Immigration of Canada to process and adjudi
cate upon the applicant Johnnie Dale McDonald's
application for permanent residence filed with the
Department on July 14, 1972 and to process and
adjudicate upon the applicants Martha McDonald
and Mark McDonald's immigration application
for permanent residence filed on October 10, 1972.
At the opening of the hearing counsel for the
Minister stated that while he was not consenting to
the issue of the said writ of mandamus he would
not oppose same, and the representations made
during the hearing having satisfied me that it
should be granted it was accordingly granted from
the bench.
The second part of the application seeks an
order enjoining and restraining the Minister of
Manpower and Immigration and Special Inquiry
Officer Smith from proceeding with the conduct of
a special inquiry initiated against the applicant
Johnnie Dale McDonald by way of a section 18
report dated July 12, 1976. Counsel for the Minis
ter opposed this.
In order to understand the situation it is neces
sary to outline the course of events even though the
question of processing the applications for perma
nent residence status is no longer an issue. Johnnie
Dale McDonald was interviewed in connection
with his application for permanent residence status
of July 14, 1972 and in due course was ordered
deported at a special inquiry on November 17,
1972, initiated by virtue of a section 22 report, as a
member of the prohibited class described in para
graph 5(p) of the Immigration Act'. This was
appealed to the Immigration Appeal Board which
by judgment dated December 18, 1974 allowed the
appeal and invalidated the deportation order.
Since that date efforts to have the Department
conclude the processing of his application have
been futile. In due course charges were laid
against him for having made false statements in
connection with his application for admission to
Canada and he was convicted on July 10, 1974.
This conviction was sustained on five counts by the
British Columbia Court of Appeal on March 31,
1976 and he was sentenced to six months imprison
ment. Leave to appeal to the Supreme Court of
Canada was refused, and it is common ground that
on the date of a section 18 report dated July 12,
1976 he was an inmate of a prison, but that he is
no longer in confinement.
The reason given by the Department for not
processing his application for permanent residence
status earlier was that they were awaiting the
outcome of his appeal, which, had it been favour
able to him, would indicate that his alleged false
statements were not material to his application.
Subsequently, as appears from a letter of Septem-
ber 24, 1976 the reason given was that an applica
tion for landing cannot be processed at the same
time that an inquiry as to his deportation is in
progress, which inquiry had commenced at that
time.
' R.S.C. 1970, c. I-2.
With respect to the application of his wife
Martha McDonald on behalf of herself and their
son Mark McDonald, the position taken was that
the Department was not prepared to deal with this
application while the husband had an outstanding
appeal before the British Columbia courts. This
appears from a letter written on October 19, 1975.
On February 19, 1976 the Department invited
Johnnie Dale McDonald to file an updated form
on the basis that they were taking steps to com
plete his application for landed immigrant status,
but this indication that the processing would be
completed was later withdrawn; in any event he
did not complete the new application. As a result
of the section 18 report of July 12, 1976 the
special inquiry seeking his deportation commenced
on July 19, 1976, and several subsequent sessions
have been held, but the inquiry has not yet been
completed.
Counsel for the Minister takes the position that
there may be some danger that a deportation order
could not be made by the Special Inquiry Officer
on the basis of section 18(1)(e)(iii) of the Act
which was the section invoked in the report of the
immigration officer which initiated the inquiry
unless it is completed by October 22, 1976, refer
ring to the case of Smogor v. M.M.&I. 2 While it is
not clear from the record, this is apparently the
date on which the 6-month sentence imposed on
Johnnie Dale McDonald would expire. Section
18(1)(e)(iii) of the Act reads as follows:
18. (1) Where he has knowledge thereof, the clerk or secre
tary of a municipality in Canada in which a person hereinafter
described resides or may be, an immigration officer or a
constable or other peace officer shall send a written report to
the Director, with full particulars, concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(iii) has become an inmate of a penitentiary, gaol, refor
matory or prison or of an asylum or hospital for mental
diseases,
That judgment of the Court of Appeal clearly
decided that the report (i.e. the report of the
immigration officer) must be made while the party
is still an inmate, but I doubt whether it is author
2 [1973] F.C. 350.
ity for the proposition that the decision of the
Special Inquiry Officer must also be made within
this time period. In rendering the judgment of the
Court Jackett C.J. stated at pages 353-4:
The view of the meaning of section 19(1)(e)(iii) 3 that I have
adopted is also supported, in my opinion, by a consideration of
the context. Section 19(1)(b),(d) and (e)(ii) spell out the
classes of convictions for offences that render a person liable to
be deported. Where a person has been convicted of such an
offence, there is no need to have recourse to section
19(1)(e)(iii). Similarly section 19(1)(e)(v) read with section
5(s) makes it clear that, while certain mental abnormalities will
be sufficient to prevent a person from being admitted to
Canada, the acquisition of such abnormalities after admission
does not, of itself, make a person subject to be deported. What
section 19(1)(e)(iii) is dealing with, therefore, is the class of
persons who, for no matter what reason, are inmates of penal or
mental institutions. As a matter of policy, as I conceive it, the
statute says, if you are such an inmate, even though for a
condition that would not make you subject to deportation if you
were not such an inmate, you are subject to deportation.
Even if this were the case, there is very serious
doubt as to whether McDonald can be considered
as an "inmate" at the present time despite the fact
that he is now admittedly at liberty. It is conceded
in this case, unlike the Smogor case, that he was
an inmate when the report was made. It may well
be that his sentence has not yet expired, but if he is
no longer an inmate (whether as a result of parole
or otherwise was not disclosed), it would be
extending the meaning of the word "inmate"
beyond all reason unless there is statutory author
ity for doing so, and I was given no such reference,
to deem him still to be an inmate within the
meaning of section 18(1)(e)(iii) merely because
his sentence still has a few days to run before
expiring. If the Minister's argument is valid, there
fore, that the special inquiry must be concluded
while he is still an inmate, it would appear that
that period has already expired.
Finally, this question may well be academic in
any event. At the last adjourned hearing of the
special inquiry the Inquiry Officer gave applicant's
counsel assurance that he would not insist on
proceeding with the inquiry in his absence, and
applicant's counsel indicated at the hearing of this
motion on October 18, 1976 that he would be
engaged in Provincial Court and elsewhere for the
balance of the week on matters taking precedence
3 This is now section 18(1)(e)(iii).
over a hearing before a Special Inquiry Officer.
Quite aside from the provisions of section 26(2) of
the Act giving the person concerned the right to
obtain and to be represented by counsel at his
hearing, to insist on proceeding in the absence of
his counsel might well constitute a denial of natu
ral justice. While I would have some doubt as to
whether counsel could indefinitely delay an inquiry
as a result of other commitments, and especially if
it had to be completed by a certain date to have
legal effect, I have already indicated that I serious
ly doubt that this is the case.
What I consider to be the more serious question,
however, is not whether the inquiry must be con
tinued and completed before October 22, 1976, but
whether it can be continued at all until applicant's
application for permanent residence status which
will now be dealt with by virtue of the mandamus
order has been definitely dealt with and all appeals
therefrom exhausted.
Counsel for applicant argues that the position of
a landed immigrant with respect to appeals from
deportation orders is quite different from that of a
non-resident, and that therefore it is a matter of
natural justice for applicant's application for per
manent residence status to be dealt with first.
Moreover it would be futile for applicant to be
granted landed immigrant status, if in fact he
should eventually succeed with his application, if
he had already been ordered deported, and poss
ibly deported as a result of the special inquiry now
in progress.
The law relating to appeals was amended in
1973 by S.C. 1973-74, c. 27 assented to on July
27, 1973. Prior to that date, by section 11 of the
Immigration Appeal Board Act, R.S.C. 1970, c.
I-3, a person against whom an order of deportation
had been made could appeal to the Immigration
Appeal Board on any ground of law or mixed fact
and law. This section 11 was replaced by the
amendment which now makes such an appeal pos
sible only if he is inter alia "a permanent resident"
(section 11(1)(a)).
Moreover section 15 of the Immigration Appeal
Board Act makes a distinction between a person
who is a permanent resident and one who is not.
The relevant portions read:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursuant
to paragraph 14(c), it shall direct that the order be executed as
soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident at
the time of the making of the order of deportation, having
regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent resident
at the time of the making of the order of deportation, having
regard to
(ii) the existence of compassionate or humanitarian con
siderations that in the opinion of the Board warrant the
granting of special relief,
direct that the execution of the order of deportation be stayed,
or quash the order or quash the order and direct the grant or
entry or landing to the person against whom the order was
made.
It is therefore a matter of considerable impor
tance for applicant to become a permanent resi
dent, if that is possible, before the section 18
inquiry seeking his deportation is concluded. His
counsel will argue at a hearing on the application
for permanent residence that while applicant's
convictions under section 46 of the Act for giving
false information may reduce the points allowed
for personal assessment, they do not per se prevent
his admission, not being convictions for offences
under the Criminal Code. The section 18 report
now the subject of the special inquiry makes no
reference to false statements as such but is based
on applicant having become an inmate (although
this conviction resulted from the false statements).
While counsel for the Minister takes the posi
tion that great consideration was shown to appli
cant in withholding any decision on his application
for permanent residence status until his rights to
appeal the section 46 convictions had been
exhausted, and further in inviting him to submit a
new application which would presumably not con
tain the false statements which led to his convic
tion, applicant's counsel disputes this, stating
applicant has suffered grave prejudice by the delay
in processing his application, and that he prefers to
proceed on the original application, even with its
allegedly false statements and preserve his rights
of appeal, rather than file a revised application
subsequent to 1973 as requested and lose these
rights. I find no justification for concluding, as
applicant's counsel does that the Department does
not have clean hands, but it is applicant's undoubt
ed right to have the original application, with its
defects, processed forthwith if this is what he
desires, and this is what must now be done by
virtue of the mandamus.
The issue before me must be decided on the
basis of the law without imputing motives to the
parties. Reference was made to jurisprudence by
both parties: cases dealing with premature depor
tation orders while awaiting a decision on another
section of the Act include Jafri v. M.M.&I. (Court
of Appeal No. A-229-74, Oct. 7, 1975), Shahzad
v. M.M.&I. [1975] F.C. 317, Anwar v. M.M.&I.
(Court of Appeal No. A-422-75, Sept. 17, 1975),
Tsiafakis v. M.M.&I. [1976] 2 F.C. 407, Tsakiris
v. M.M.&I. (T-1007-76, unreported) and Okolak-
pa v. M.M.&I. [1977] 1 F.C. 437 and Sudagar
Singh Bring (1975) 8 I.A.C. 409. Of especial
interest is the case of Leiba v. M.M.&I. [1972]
S.C.R. 660 in which an application for permanent
residence was assessed and refused and by letter he
was invited to leave Canada on pain of a special
inquiry which might lead to deportation. He left,
was readmitted, and filed a new application for
permanent residence which was refused as having
been made after the expiry of the authorized
period of temporary residence for which he had
been admitted. A report to this effect led to a
special inquiry which ordered his deportation and
the Immigration Appeal Board upheld this. In the
Supreme Court the appeal was allowed. It was
held [see headnote] :
The Board should have set aside the deportation order and
the proceedings which led to it so as to leave the appellant free
to have the proceedings on his first application properly con
cluded, or it should have directed the Special Inquiry Officer
who made the deportation order to reopen the hearing and treat
it as flowing from the first application or should have itself
acted on that view, with the result that the appellant could
properly claim to be reassessed for permanent admission.
In rendering judgment Chief Justice Laskin
stated at page 663:
Indeed, s. 23 of the Act provides that where an immigration
officer is of opinion after examining an applicant (as in this
case) for admission for permanent residence, that it would be
contrary to the Act or Regulations to admit him, he may cause
such person to be detained and shall report him to a Special
Inquiry Officer. (The italicizing is mine.) This, obviously, was
not done by the immigration officer in this case.
and again at page 667:
Leiba, however, was never in a position to appeal in respect of
his first application on October 4, 1967, because the examining
immigration officer did not carry out his statutory duty under
s. 23 of the Act to report Leiba to a Special Inquiry Officer.
In the present case not only has no section 23
report been made but the examination has never
taken place. Moreover in the present case no
deportation order has been made and applicant is
merely seeking to prevent this until his application
for permanent residence status has been dealt
with.
Counsel for the Minister relies heavily on the
case of Pereira v. M.M.&I., an habeas corpus
application in the Supreme Court of Ontario in
which Krever J. rendered judgment on July 16,
1976. In that case applicant had applied to be an
immigrant, having reported as required by section
7(3) to an immigration officer that he was remain
ing in Canada pending appraisal of his application
for permanent residence. Krever J. noted at page
42:
However, status as an immigrant does not preclude proceed
ings under any other subsection of s. 18. In particular, s.
18(1)(d) provides that a report may be made against "any
person other than a Canadian citizen who is convicted of an
offence under sections 3, 4, 5 or 6 of the Narcotic Control Act",
and s. 18(1)(e)(ii) provides that a report may be made against
"any person other than a Canadian citizen or a person with
Canadian domicile who has been convicted of an offence under
the Criminal Code". The statute, therefore, contemplates that
a deportation order can be made against a person found by an
inquiry to be within s. 18(1)(d) or s. 18(1)(e)(ii), as in the
present case, although the person subject to the deportation
order is within s. 7(3).
He considers that the Leiba case and the Pringle
case to which he also refers are concerned with the
failure of immigration authorities to carry out a
statutory duty, which is of course so, but which
also seems to be the case here. He quotes from the
case of Regina v. Pringle, Ex parte Mills [1968] 2
O.R. 129 in which Laskin J.A. as he then was, said
[at page 133]:
In my opinion, it [to be given an examination] was the right
of the appellant. Whether he would have been found admissible
for permanent residence is not the point. That is what the
examination is designed to determine.
That appears to be the situation here.
At page 44 the Pereira judgment states:
The real point at issue is whether, where the immigration
authorities have two avenues to pursue with respect to obtain
ing the deportation of a person, they must pursue the avenue
which affords the applicant his fullest possible rights as to
hearings and appeals, in circumstances where the availability of
the avenue less favourable to the applicant is owing to a delay
that is in large measure attributable to the applicant.
He also states on the same page:
in my opinion, Laskin, J.'s reference in Leiba to the
inability of the applicant to appeal in respect of his first
application was not a crucial consideration.
With great respect, I cannot agree that deprival
of a right of appeal is not a crucial consideration,
or was not an important consideration in the Leiba
judgment.
The learned justice distinguishes the Leiba and
Pringle cases on the ground that in neither case
did applicant have a fair hearing on the merits of
his status as an immigrant in Canada, whereas
Pereira did before a Special Inquiry Officer, and
secondly because the authorities had not followed
proper statutory procedures which was no fault of
the applicant, whereas in the Pereira case the
applicant himself was largely responsible for the
failure of the immigration authorities to pursue a
route more favourable to him. In the case before
me it is certainly not McDonald's fault that he did
not have earlier consideration of his application for
landed immigrant status (unless it is argued that it
is his fault for having made false statements which
led to the section 46 charges). There was no lack
of diligence on his part or that of his counsel in
seeking consideration of his application or of that
of his wife on her behalf and on behalf of their son.
I conclude therefore that the Pereira case can be
distinguished.
I conclude that the special inquiry of Special
Inquiry Officer Smith initiated by the section 18
report dated July 12, 1976 should not proceed
until a final determination has been made with
respect to Johnnie Dale McDonald's application
for permanent residence filed on July 14, 1972.
ORDER
The Minister of Manpower and Immigration of
Canada and Special Inquiry Officer Smith are
enjoined and restrained from proceeding with the
conduct of a special inquiry initiated against John-
nie Dale McDonald by way of a section 18 report
dated July 12, 1976 until final determination has
been made with respect to his application for
permanent residence filed on July 14, 1972; with
costs.
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.