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.
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.