T-3890-77
Delivrance Immacula Laneau (Applicant)
v.
L. G. Rivard (Respondent)
and
Minister of Immigration (Mis -en-cause)
Trial Division, Decary J.—Montreal, November
14; Ottawa, December 21, 1977.
Prerogative writs — Immigration — Application for prohi
bition to prevent Special Inquiry Officer from proceeding with
inquiry re deportation — Application to Minister for permit in
accordance with section 8 discretionary power before inquiry
initiated — Whether Special Inquiry Officer has jurisdiction
to proceed with inquiry — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 2, 28 — Immigration Act, R.S.C. 1970,
c. I-2, ss. 8, 11, 18, 27.
Applicant, a non-immigrant liable for deportation, applies in
prohibition to prevent the Special Inquiry Officer from pro
ceeding with an inquiry on the ground that she had requested
the Minister, before the inquiry was ever begun, to issue a
permit in accordance with the discretion conferred on him
under section 8 of the Immigration Act. The issue is whether to
allow or dismiss this application.
Held, the application is allowed. The Minister's powers
under section 8 have priority over those given the Special
Inquiry Officer under sections 11 and 27, where both are
responsible for decisions in the same case. The power of the
Minister to issue or to refuse to issue a permit is within his
exclusive jurisdiction. Legal theory and the maxim "delegatus
non potest delegare", in the absence of statutory authorization,
prohibit respondent from taking any action which could later
prevent the Minister from rendering a decision favourable to
the applicant under section 8. This would happen if the Special
Inquiry Officer were to hold the inquiry and decide to issue a
deportation order, for applicant would then come under a
category of persons to whom the Minister may not issue a
permit.
Attorney General of Canada v. Cylien [1973] F.C. 1166,
applied. British Columbia Packers Limited v. Canada
Labour Relations Board [1973] F.C. 1194, applied.
Ramawad v. Minister of Manpower and Immigration
[1978] 2 S.C.R. 375, applied.
APPLICATION for judicial review.
COUNSEL:
Michel Coulanges for applicant.
Suzanne Marcoux-Paquette for respondent
and mis -en-cause.
SOLICITORS:
Michel Coulanges, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for order rendered by
DECARY J.: The issue is whether to allow or
dismiss an application in prohibition to prevent the
Special Immigration Inquiry Officer from pro
ceeding with an inquiry, on the ground that appli
cant had requested the Minister, before the inquiry
was ever begun, to rule on her case in accordance
with the discretion conferred on him under section
8 of the Act.
A fairly detailed explanation of the facts is
called for. Applicant arrived in Canada on August
21, 1974 as a non-immigrant. She worked as a
domestic, and met all the requirements of the Act
until the day she quit work because of complica
tions in her pregnancy. Her fiancé, Joseph Lucien
Paul, a Canadian citizen by whom applicant was
pregnant, took her to live with his parents. Know
ing that she might be deported from the country
since she had to give up her job, her fiancé then
did not show up for their wedding. Applicant's
child, Jean Jacky Laneau, was born in Montreal
on April 30, 1976. Applicant filed a paternity suit
against Joseph Lucien Paul, and since she feared
that deportation would make it impossible for her
to protect her son's rights to maintenance, she
applied to the Minister of Immigration on April
14, 1977 for a permit to be issued in accordance
with the discretion conferred on him by section 8
of the Immigration Act. It is important to note
that this application was made before the immi
gration authorities summoned or even com
municated with applicant. The office of the Minis
ter of Immigration acknowledged receipt of the
said application in a letter dated April 28 and
promised a reply within a few weeks. Before
receiving an answer from the Minister, however,
applicant was summoned to the. Canada Immigra
tion Centre in Montreal for a special inquiry. As a
preliminary exception at the very beginning of the
inquiry, counsel for the applicant challenged the
jurisdiction of the Special Inquiry Officer to hold
an inquiry before applicant had received an answer
from the Minister concerning her application for a
permit, arguing that no provision of the Immigra
tion Act or Regulations gave him the power to
hold an inquiry under the circumstances. Respond
ent, the Special Inquiry Officer, refused to post
pone the inquiry, arguing that it was within his
jurisdiction to hold the inquiry and that he had the
power to decide on his own jurisdiction, even when
it was not expressly stated in the Act.
Applicant's application for a permit reads as
follows (Exhibit R-2):
[TRANSLATION] c/o 4115 St Denis
Montreal, Quebec
H2W 2M7
April 14, 1977
Mr. Bud Cullen
Minister of Immigration
Ottawa, Canada
Dear Sir:
I am writing to you today in a last desperate attempt to
obtain authorization to remain in Canada long enough to see
that my rights and those of my son, Jean Jacky Laneau, are not
lost forever. I have had more than my fair share of hardships
and humiliation during my stay here for me to have to give up
at the last moment my chance of obtaining even the smallest
amount of compensation for the damage which I have suffered
and my son may suffer.
I arrived in Canada on August 21, 1974 with a valid permit
to work as a domestic.
I met one Joseph Lucien Paul who persuaded me, after
endless promises of happiness in staying in Canada and marry
ing him, to enjoy with him that amorous relationship which all
women are happy to know. To prove his good intentions, Joseph
Lucien Paul took me to meet his family, and from that time my
relations with him, which were already marked by mutual
admiration and affection, increased rapidly.
I became pregnant by my fiancé and because of complica
tions in my pregnancy, I was unable to continue to perform
satisfactorily for my employers and had to give up my job. My
fiancé took me to live with those who were to become my
parents-in-law while awaiting preparations for our marriage.
All was arranged, but on the day set for our wedding, my fiancé
did not show up.
Under the circumstances, I was forced to make up my mind,
and finally left my fiancé's parents' home.
On November 30, 1976 I gave birth to a child, whom I
named Jean Jacky Laneau.
Because I believe, sir, that my son has a right to food and a
reasonably decent education, I had to file a paternity suit in the
courts of the province of Quebec to protect my son and ensure
that he would never become a burden to the Canadian govern
ment, or to any government. The proceedings in this paternity
suit have not yet been concluded and my counsel bas advised
me that the rights of Jean Jacky could be seriously compro
mised if I am not present to testify at the hearing of the case.
Sir, to prevent my deportation before the judgment in this
case, which could facilitate the perpetration of an abominable
injustice against Jean Jacky and myself, we would be forever
grateful to you if you could allow us to remain in Canada until
the judgment, and instruct the Canada Immigration Centre in
Montreal to issue a one-year work permit, renewable until the
end of the aforementioned proceedings.
Please find enclosed a copy of Jean Jacky's birth certificate
as well as a letter from the Church proving this abominable
deceit of which we were the victims.
In the hope, sir, that your answer will enable us to live with
dignity, respect and independence, I thank you in advance.
Yours truly,
Delivrance Immacula Laneau
This letter clearly requests authorization to
remain in Canada [TRANSLATION] "long enough
to see that my rights and those of my son, Jean
Jacky Laneau, are not lost forever", and that she
be granted "a one-year work permit".
Two weeks later, applicant received the follow
ing letter from the Department of Immigration:
[TRANSLATION] April 28, 1977
Mrs. Délivrance Immacula Laneau
c/o 4115 St Denis
Montreal, Quebec
H2W 2M7
Dear Madam:
The Minister's office has asked us to follow up on your
recent request for information concerning your situation.
Since we believe that the subject would be dealt with more
effectively and quickly by our field officers, we have referred
your request to our Montreal, Quebec office (Atwater).
You should receive an answer within the next few weeks.
Yours truly,
(sgd) G. Desormeaux for J. St-Onge
Acting Director General
Facilitation, Enforcement and Control
Even regarding this letter as no more than an
acknowledgment of receipt, one can rightly wonder
at the reference to applicant's letter as a request
for information. This answer shows a lack of atten
tion on the part of the Department.
On September 21, 1977 applicant was sum
moned for a special inquiry, as indicated in the
form letter below:
[TRANSLATION]
Our file
2496-1-710
September 21, 1977
Miss Immacula Délivrance LANEAU
6545 Boyer St.
Montreal, Quebec
Dear Madam:
Pursuant to subsection 18(1) of the Immigration Act, a
report concerning you has been sent to the Director of Immi
gration, who in accordance with section 25 of the said Act has
issued an order of inquiry. Please find enclosed:
the order of inquiry, the report and the supporting
documents.
Pursuant to this order, an immigration inquiry will be held.
We therefore ask that you report to the Canada Immigration
Centre, Alexis Nihon Plaza, 11th Floor, 1500 Atwater Ave,
Montreal, Quebec at 8:30 a.m. on September 21, 1977.
The purpose of this inquiry is to determine whether you may
remain in Canada. If it is determined that you do not meet the
requirements of the Immigration Act and Regulations to
remain in Canada, a deportation order will be issued against
you.
Pursuant to subsection 26(2) of the Immigration Act, you
have the right to be represented by counsel at this hearing, at
your own expense. Enclosed is a notice to this effect.
Please bring this letter, the enclosed notice and your passport
when you appear before the Special Inquiry Officer.
Yours truly,
(sgd) G. Savard
Supervisor, Inquiries
Canada Immigration Centre
c.c. Mr. M. Coulanges, 4115 St. Denis St., Montreal, Quebec,
Suite 6
With respect to the jurisdiction of the Special
Inquiry Officer, it should be noted from the outset
that he is a "person ... having, exercising or
purporting to exercisejurisdiction or powers con
ferred by or under an Act of the Parliament of
Canada", and therefore comes under the "federal
board, commission or other tribunal" category as
defined in section 2 of the Federal Court Act.
The nature of the decision of the Special Inquiry
Officer to refuse the request for postponement
made at the beginning of the inquiry must be
determined. This decision by the Special Inquiry
Officer was not taken in the exercise of his deci-
sion-making powers, since his powers regarding
the conduct of an inquiry are defined in sections
11, 18 and 27 of the Immigration Act.
The powers of the Special Inquiry Officer are
defined in section 11 of the Act:
11. (1) Immigration officers in charge are Special Inquiry
Officers and the Minister may nominate such other immigra
tion officers as he deems necessary to act as Special Inquiry
Officers.
(2) A Special Inquiry Officer has authority to inquire into
and determine whether any person shall be allowed to come
into Canada or to remain in Canada or shall be deported.
(3) A Special Inquiry Officer has all the powers and au
thority of a commissioner appointed under Part I of the In
quiries Act and, without restricting the generality of the forego
ing, may, for the purposes of an inquiry,
(a) issue a summons to any person requiring him to appear
at the time and place mentioned therein, to testify to all
matters within his knowledge relative to the subject-matter
of the inquiry, and to bring with him and produce any
document, book or paper that he has in his possession or
under his control relative to the subject-matter of the inquiry;
(b) administer oaths and examine any person upon oath,
affirmation or otherwise;
(c) issue commissions or requests to take evidence in
Canada;
(d) engage the services of such counsel, technicians, clerks,
stenographers or other persons as he may deem necessary for
a full and proper inquiry; and
(e) do all other things necessary to provide a full and proper
inquiry.
Section 18 of the Act deals with cases where,
inter alia, the Special Inquiry Officer must hold
an inquiry and make a report:
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
(a) any person, other than a Canadian citizen, who engages
in, advocates or is a member of or associated with any
organization, group or body of any kind that engages in or
advocates subversion by force or other means of democratic
government, institutions or processes, as they are understood
in Canada;
(b) any person, other than a Canadian citizen, who, if in
Canada, has, by a court of competent jurisdiction, been
convicted of any offence involving disaffection or disloyalty
to Her Majesty;
(c) any person, other than a Canadian citizen, who, if out
side Canada, engages in espionage, sabotage or any activity
detrimental to the security of Canada;
(d) any person, other than a Canadian citizen, who is con
victed of an offence under section 3, 4, 5 or 6 of the Narcotic
Control Act;
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(i) practises, assists in the practice of or shares in the
avails of prostitution or homosexualism,
(ii) has been convicted of an offence under the Criminal
Code,
(iii) has become an inmate of a penitentiary, gaol, refor
matory or prison or of an asylum or hospital for mental
diseases,
(iv) was a member of a prohibited class at the time of his
admission to Canada,
(v) has, since his admission to Canada, become a person
who, if he were applying for admission to Canada, would
be refused admission by reason of his being a member of a
prohibited class other than the prohibited classes described
in paragraphs 5(a),(b),(c) and (s),
(vi) entered Canada as a non-immigrant and remains
therein after ceasing to be a non-immigrant or to be in the
particular class in which he was admitted as a
non-immigrant,
(vii) came into Canada at any place other than a port of
entry or eluded examination or inquiry under this Act or
escaped from lawful custody or detention under this Act,
(viii) came into Canada or remains therein with a false or
improperly issued passport, visa, medical certificate or
other document pertaining to his admission or by reason of
any false or misleading information, force, stealth or other
fraudulent or improper means, whether exercised or given
by himself or by any other person,
(ix) returns to or remains in Canada contrary to this Act
after a deportation order has been made against him or
otherwise, or
(x) came into Canada as a member of a crew and, without
the approval of an immigration officer or beyond the
period approved by such officer, remains in Canada after
the departure of the vehicle on which he came into
Canada.
(2) Every person who is found upon an inquiry duly held by
a Special Inquiry Officer to be a person described in subsection
(1) is subject to deportation.
Subsection (2) of section 18 provides that every
person who comes under one of these headings is
subject to deportation. Applicant allegedly comes
under 18(1)(e)(vi).
The choice and conditions of the Special Inquiry
Officer's decision are provided for under section 27
of the Act:
27. (1) At the conclusion of the hearing of an inquiry, the
Special Inquiry Officer shall render his decision as soon as
possible and shall render it in the presence of the person
concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the
person concerned is a person who
(a) may come into or remain in Canada as of right;
(b) in the case of a person seeking admission to Canada, is
not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved to
be a person described in paragraph 18(1)(a),(b),(c),(d) or
(e),
he shall, upon rendering his decision, admit or let such person
come into Canada or remain therein, as the case may be.
(3) In the case of a person other than a person referred to in
subsection (2), the Special Inquiry Officer shall, upon render
ing his decision, make an order for the deportation of such
person.
(4) No decision rendered under this section prevents the
holding of a future inquiry if required by reason of a subse
quent report under section 18 or pursuant to section 24.
The Special Inquiry Officer may render deci
sions within the meaning of section 28(1) of the
Federal Court Act within the framework of his
powers under the above sections, but outside this
framework as in the case at bar, his decisions are
simple conclusions, as is borne out by a consistent
line of authority.
Thus, in The Attorney General of Canada v.
Cylien', the Chief Justice of the Court distin
guished between the two main categories of deci
sions which a board may render: decisions which it
may render in the exercise of its jurisdiction or of
its powers to decide, which have legal effect, and
decisions which it makes as to the nature of the
powers upon which it intends to act, which have no
legal effect. Jackett C.J. stated, at pages 1175 and
1176, ibid.:
'[1973] F.C. 1166.
That being so, the question to be decided on this application,
in my view, is whether such a refusal to perform a duty or such
an assertion of jurisdiction can, in the circumstances of this
case, be regarded as a "decision" within the meaning of that
word in section 28.
In considering whether what has been put forward here as a
decision is a "decision" within the meaning of that word in
section 28(1), it is to be remembered that the Immigration
Appeal Board is a federal board, commission or other tribunal
because it is a body having, exercising or purporting to exercise
"jurisdiction or powers" conferred by an Act of the Parliament
of Canada (see section 2(g) of the Federal Court Act). A
decision that may be set aside under section 28(1), must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute expressly
gives such a tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the purported exercise
of the specific "jurisdiction or powers" conferred by the statute
is equally clearly within the ambit of section 28(1). Such a
decision has the legal effect of settling the matter or it purports
to have such legal effect. Once the tribunal has exercised its
"jurisdiction or powers" in a particular case by a "decision" the
matter is decided even against the tribunal itself.
What we are concerned with here is something different. The
Board has "jurisdiction or powers" under section 11(3) to
decide at a preliminary stage whether the respondent's appeal is
to be allowed to proceed or not. It has not, however, made that
decision as yet. The problem that has arisen, and in respect of
which the Board has taken a position, is whether section 11,
properly interpreted, requires the Board to make its section
11(3) decision after considering the section 11(2) declaration,
and nothing else, or whether the statute requires or permits the
Board to consider other material before it makes that decision.
This is a question of law that the Board has no "jurisdiction or
powers" to decide. It must, of course, form an opinion on that
question but that opinion has no statutory effect.
There is a clear difference between a "decision" by the Board
of something that it has "jurisdiction or powers" to decide and
a decision by it as to the view as to the nature of its own powers
upon which it is going to act. Once the Board decides some
thing that it has "jurisdiction or powers" to decide in a
particular case, that decision has legal effect and the Board's
powers with regard to that case are spent. When, however, the
Board takes a position with regard to the nature of its powers
upon which it intends to act, that "decision" has no legal effect.
In such a case, nothing has been decided as a matter of law.
The Board itself, whether differently constituted or not, in the
very case in which the position was taken, can change its view
before it deals with the case and, in fact, proceed on the basis of
the changed view.
Thus respondent's decision, made before the
Minister hearing the case had rendered his deci
sion, was simply an assigning of jurisdiction, since
he was in fact ruling on the nature of his own
powers. The Appeal Division of the Court was
quite clear on this question in British Columbia
Packers Limited v. Canada Labour Relations
Board. 2 My brother Thurlow J., as he then was,
speaking for himself and for Jackett C.J. and
Sheppard D.J., clearly indicated at page 1196 that:
In our opinion the ruling made or position taken by the
Board as to its jurisdiction is not a "decision" within the
meaning of section 28 of the Federal Court Act and is not
reviewable by this Court under that section. It is not within the
competence of the Board to decide the limits of its own
jurisdiction so as to bind anyone. What the Board can decide is
whether or not to certify a union and when it does so its
decision will be reviewable under section 28. There may of
course be matters arising in the course of proceedings before it,
which will be reviewable under section 28, such as, for example,
orders to parties to do something which it is within the jurisdic
tion of the Board to order them to do. But the ruling here in
question is not of that nature and as we view it is of a kind
which the Court in Attorney General of Canada v. Cylien held
to be not subject to review under section 28.
The motion at bar is therefore well founded in
law, as Jackett C.J. moreover implied in The
Attorney General of Canada v. Cylien, when he
stated with regard to jurisdiction at pages 1174
and 1175:
Assuming the correctness of the Minister's view as to the
Board's duty under section 11(3), in my view what the Board
did, by the reasons delivered on October 16, properly regarded,
constituted either
(a) a refusal to perform its duty under section 11(3), which
was to consider the respondent's "declaration" forthwith
after its receipt and to make a decision, based only on that
consideration, as to whether the appeal should be allowed to
proceed or not, or
(b) an assertion of a jurisdiction, which it does not have, to
take into account the evidence and representations heard by
the Special Inquiry Officer and further evidence and
representations that it will itself receive before performing its
duty under section 11(3),
or it is both such a refusal to perform its duty and such a
wrongful assertion of jurisdiction; and it is clearly a case where
mandamus or prohibition or both would lie to determine the
exact nature of the Board's duty in the circumstances unless
such remedy is taken away by section 28(3).
2 [1973] F.C. 1194.
The discretionary power conferred on the Minis
ter is that provided for in section 8 of the Act,
which reads as follows:
8. (1) The Minister may issue a written permit authorizing
any person to enter Canada or, being in Canada, to remair
therein, other than
(a) a person under order of deportation who was not issued
such a written permit before the 13th day of November 1967,
or
(b) a person in respect of whom an appeal under section 17
of the Immigration Appeal Board Act has been taken that
has not been successful.
(2) A permit shall be expressed to be in force for a specified
period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or
cancel a permit.
(4) The Minister may, upon the cancellation or expiration of
a permit, make a deportation order respecting the person
concerned.
(5) The Minister shall submit to Parliament within thirty
days of the commencement of the first session of Parliament in
each year a report showing all permits, with particulars thereof,
issued during the preceding calendar year.
In my opinion, these powers have priority over
those given the Special Inquiry Officer under sec
tions 11 and 27 of the same Act, where both are
responsible for decisions in the same case. The
provisions of section 8(1) clearly state that the
Minister may issue a written permit authorizing
any person in Canada to remain therein, other
than in two categories, and it is apparent that
neither of them applies to applicant.
The powers of the Special Inquiry Officer are
those described in section 11 of the Act (cited
above), and his duties are outlined in section 27,
under which he is required to render his decision
on whether a person shall be allowed to come into
Canada or remain in Canada, or whether a depor
tation order should be issued.
Section 8 states the focus of the Minister's
discretion as well as his right to exercise his discre
tion with respect to issuing permits, extending or
cancelling them, and issuing deportation orders.
The Minister's only obligation when issuing a
permit is that mentioned in section 8(5), that is
that he must submit a report to Parliament show
ing all permits issued during the preceding calen
dar year, with particulars thereof.
The Minister and the Special Inquiry Officer
can both be responsible for ruling on the same
case, involving the same person and having the
same purpose, that of remaining in Canada. This is
in fact the situation in which applicant found
herself, having applied to the Minister for a permit
as she was entitled to do, and then having been
summoned to a special inquiry to determine
whether she could remain in Canada. It is impor
tant to note that nowhere in the summons to the
inquiry was any reference made to the application
for a permit from the Minister.
The power of the Minister to issue or refuse to
issue a permit is within his exclusive jurisdiction,
and the powers which the Minister may delegate
to his representatives are strictly-limited to those
authorized by Parliament. No provision of the Act
or Regulations authorizes the Minister either
directly or indirectly to delegate his powers under
section 8 to a Special Inquiry Officer. Because no
such legislative authorization has been given, legal
theory and the maxim "delegatus non potest dele-
gare" prohibit respondent from taking any action
which, for all practical purposes, could later pre
vent the Minister from rendering a decision
favourable to applicant concerning her application
under section 8. This is precisely what would
happen if the Special Inquiry Officer held the
inquiry and decided to issue a deportation order
against applicant, since in such a case applicant
would come under the category of persons in sec
tion 8(1)(b) to whom the Minister may not issue a
permit. Applicant would in such a case suffer
irreparable damage, since the Special Inquiry
Officer would have, for all practical purposes,
prevented the Minister from exercising his exclu
sive jurisdiction provided for under section 8 of the
Act.
A distinction should be made between the
nature of the powers conferred on the Minister
under section 8 and those delegated to the Special
Inquiry Officer under sections 11 and 27. In the
first case, it is a purely administrative function,
whereas in the second, it is a quasi-judicial func
tion, subject to the supervisory power and control
of the courts.
The refusal of respondent to adjourn the inquiry
may ruin applicant's chances of a favourable deci-
sion concerning her application under section 8,
since the right or privilege of being able to make
an application always implies that of receiving a
decision on the application for a privilege. This
interpretation is moreover borne out by the second
last paragraph of the April 28, 1977 letter to
applicant, where a reply is promised within the
next few weeks.
It seems clear that by section 8 the legislator
foresaw that, in certain cases, technicalities which
were too inflexible might prevent the Act from
attaining its objectives, and thus gave the Minister
complete discretion to avoid unfair situations, a
discretion existing in all but two cases: where a
deportation order has been issued, and where an
appeal has been dismissed by the Appeal Board.
Such discretion is surely "unfettered"*, since it is
almost without limit.
It is true that if the Special Inquiry Officer
concluded that applicant could be admitted, the
Minister would not have to exercise his discretion.
In the case at bar, however, an application was
made to the Minister under section 8, and the only
answer received, other than a vague acknowledg
ment of receipt implying that applicant's letter was
a request for information, was a summons to
appear before a Special Inquiry Officer; and now
the Minister may not be able to exercise his discre
tion. The Special Inquiry Officer certainly does
not have the power to act in such a manner as to
deprive the Minister of an exclusive right con
ferred on him by the Act.
An analogy can easily be made between the case
at bar and another very recent case in the Supreme
Court, a unanimous decision dated November 23,
1977 and written by Pratte J.: Ramawad v. Minis
ter of Manpower and Immigration [ 1978] 2
S.C.R. 375.
The question was whether the Special Inquiry
Officer had the right to disregard the discretion
conferred on the Minister under section 3G(d) of
the Immigration Regulations to rule as to the
"existence of special circumstances", and conse
quently, whether the deportation order issued was
* In English in original—TR.
valid. It was unanimously held that the deporta
tion order was invalid.
In Ramawad, a deportation order had been
issued; in Laneau, a deportation order may be
issued. In Ramawad, the discretion as to whether
special circumstances existed was conferred by the
Regulations; in Laneau, the discretion is the power
conferred by section 8 of the Act. In Ramawad,
the order prevented the Minister from exercising
his discretion under section 8; in Laneau, the
Special Inquiry Officer, in spite of the application
for a permit pursuant to the Minister's discretion
under section 8, could prevent the Minister from
exercising this discretion by issuing a deportation
order. In Ramawad, the deportation order was
invalidated; in Laneau, the inquiry could be
adjourned. These points will explain the long
extracts from the judgment in Ramawad.
At page 377, the following remarks are made
concerning the inquiry:
The Special Inquiry Officer held an inquiry under s. 23(2) of
the Act. At the conclusion of the hearing on October 8, 1975,
the Special Inquiry Officer determined that the appellant could
not be allowed to stay in Canada; in the course of his decision,
he stated that the appellant could not be issued an employment
visa because he had violated within the previous two years one
of the conditions of the visa issued to him on July 27, 1974,
when he had changed employer without the authorization of an
immigration officer.
I cite this extract to stress the fact that the case
involved nothing more than an unauthorized
change of employment.
With respect to the authority and discretion
under the Immigration Act, Pratte J. states at
pages 381 and 382:
In the Immigration Act, Parliament has recognized the
existence of different levels of authority, namely, the Governor
in Council, the Minister, the Director, the Immigration Officer
in charge, the Special Inquiry Officer and the Immigration
Officer. The authority granted by Parliament to each of such
levels is clearly specified in the Act. In some cases, the Act
allows for a sharing of authority as between some of these
levels. For instance, under s. 12, a peace officer is obligated to
carry out any warrant issued under the Act for the arrest,
detention or deportation of any person if "so directed by the
Minister, Director, Special Inquiry Officer or an Immigration
Officer". Also, s. 36(2) authorizes "the Minister, Director, a
Special Inquiry Officer or an Immigration Officer" to give
certain instructions with respect to the deportation of a person
against whom a deportation order has been made.
Similarly, the regulations issued under the Act make a clear
distinction between the authority conferred on the Minister on
the one hand and on his officials on the other hand.
Indeed, in the Act and in the Regulations, the most impor
tant functions have been reserved for the Minister's discretion
while authority in other areas have been delegated directly to
specified officials.
The general framework of the Act and of the Regulations is
clear evidence of the intent of Parliament and of the Governor
in Council that the discretionary power entrusted to the Minis
ter be exercised by him rather than by his officials acting under
the authority of an implied delegation, subject of course to any
statutory provision to the contrary. To put it differently, the
legislation here in question, because of the way it is framed and
also possibly because of its subject matter, makes it impossible
to say, as was the situation in Harrison*, that the power of the
Minister to delegate is implicit; quite the contrary.
I am reinforced in my opinion on this point by s. 67 of the
Act which reads as follows:
"The Minister may authorize the Deputy Minister or the
Director to perform and exercise any of the duties, powers
and functions that may be or are required to be performed or
exercised by the Minister under this Act or the regulations
and any such duty, power or function performed or exercised
by the Deputy Minister or the Director under the au
thority of the Minister shall be deemed to have been per
formed or exercised by the Minister."
The effect of this section is, by necessary implication, to deny
the Minister the right to delegate powers vested in him to
persons not mentioned therein.
I therefore come to the conclusion that the discretion en
trusted to the Minister under para. 3G(d) of the Regulations
must be exercised by him or, if properly authorized to do so
under s. 67, by one of the persons therein mentioned which do
not include the Special Inquiry Officer who issued the deporta
tion order here in question.
It follows that the decision made by the Special Inquiry
Officer in this case to the effect that "there are no special
circumstances in existence at the present time in order to apply
para. 3G(d) of the Immigration Regulations as requested by
counsel" is not and cannot be considered as a decision of the
Minister; it is therefore invalid.
In the case at bar no deportation order has been
issued, but it may be, and this risk exists at a time
when an application has been made to the Minister
for a permit. An officer should not begin a special
inquiry if there has been recourse to the Minister's
discretion before the special inquiry was begun,
because the results of this inquiry could nullify the
exercise of the Minister's discretion.
* The Queen v. Harrison [1977] 1 S.C.R. 238.
With respect to the right to have recourse to the
Minister, the following appears at pages 382 and
383:
But is the deportation order vitiated by the invalidity of the
decision of the Special Inquiry Officer under para. 3G(d) of the
Regulations? I think so.
Under para. 3G(d), the appellant was entitled to have the
Minister rule as to the "existence 'of special circumstances";
this was a substantive right of the appellant which flowed to
him directly from the Regulations and which the Special
Inquiry Officer had no authority to abrogate whether directly
or indirectly.
In purporting to exercise the Minister's authority under para.
3G(d) of the Regulations and in proceeding immediately there
after to issue a deportation order against the appellant, the
Special Inquiry Officer effectively denied the appellant his
right to have the Minister decide whether the special circum
stances envisaged in para. 3G(d) existed. Indeed, once a depor
tation order had been issued, the Minister was by law precluded
from exercising any discretion in the matter because of s. 8 of
the Act which reads in part as follows:
"The Minister may issue a written permit authorizing any
person to enter Canada or, being in Canada, to remain
therein, other than
(a) a person under order of deportation who was not issued
such a written permit before the 13th day of November
1967, ..."
In other words, when the deportation order had been issued,
it was no longer possible for the Minister to prevent the
appellant from being deported even if he felt that, "because of
the existence of special circumstances", the application of para.
3D(2)(b) to the appellant should be waived; it must be noted
that, had such a waiver been given prior to the deportation
order being issued, the appellant would have qualified for an
employment visa since the application of para. 3D(2)(b) was
the only bar to the issue of such visa. This shows quite clearly
that we are dealing here with matters of substance rather than
of procedure.
In the case at bar, applicant has the right to the
Minister's exercise of his discretion, as in Rama-
wad. If the Special Inquiry Officer issues a depor
tation order, as in Ramawad, applicant's right
with respect to the Minister's exercise of his dis
cretion will have been denied, and the order may
be quashed.
With respect to the effect of the invalidity of the
decision of the Special Inquiry Officer, the follow
ing is stated at pages 383 and 384:
To hold that the invalidity of the decision of the Special
Inquiry Officer as to the existence of special circumstances
under para. 3G(d) has no effect on the validity of the deporta
tion order would lead one to the untenable conclusion that a
Special Inquiry Officer could, through an improper exercise of
the Minister's authority under para. 3G(d), nullify the right of
a non-immigrant under said paragraph by preventing the Min
ister from exercising the discretion with which he was
entrusted.
In my opinion, the following comments can also
be applied to the case at bar, without any distinc
tion being necessary (page 384):
In my view, the making of an application seeking the opinion
of the Minister pursuant to para. 3G(d) has the effect of
suspending the authority of the Special Inquiry Officer to issue
a deportation order, and the only possible course of action for
the Special Inquiry Officer under such circumstances is to
adjourn making his decision until such time as the Minister has
disposed of the application.
In the case at bar, an application for a permit
was made, and although the Minister has not yet
exercised his discretion under section 8 of the Act,
a special inquiry was begun. If an application
because of special circumstances filed pursuant to
the Regulations can suspend the authority of the
Special Inquiry Officer as long as the Minister's
discretion has not been exercised, this should apply
with even greater force in the case of an applica
tion pursuant to the Act for a permit to be issued
at the Minister's discretion.
In my opinion, the Act cannot be interpreted in
the present circumstances other than as in Rama-
wad. If different action is taken, the Special Inqui
ry Officer could still prevent the Minister's discre
tion from being exercised.
If discretion has been conferred on the Minister,
it is so that he can exercise it, so that a non-immi
grant may apply for a permit and the Minister
may issue it in accordance with his discretion
under section 8 of the Act. It would be exceptional
for a Special Inquiry Officer to be able to deny
this discretionary right to the Minister and to the
non-immigrant.
Respondent is hereby prohibited from continu
ing the inquiry regarding applicant until the Min
ister has exercised his discretion, the whole with
costs against respondent and the mis -en-cause.
ORDER
Respondent is prohibited from continuing the
inquiry regarding applicant until the Minister has
exercised his discretion, the whole with costs
against respondent and the mis -en-cause.
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.