A-501-82
Antonios Solomos Ioannidis (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte, Urie JJ. and Verchere
D.J.—Vancouver, October 4 and 6, 1982.
Judicial review — Applications to review — Immigration
Deportation order made against applicant on grounds he was
person described in s. 27(2)(d) of Act; person convicted of
criminal offence — Applicant contending that Adjudicator
erred in law by stating at outset of inquiry that, in view of his
refusal to respond to questioning by case presenting officer,
applicant would not be allowed to testify on own behalf —
Nothing in record indicating applicant's counsel sought to have
him testify — Applicant further contending that under s. 11(c)
of Canadian Charter of Rights and Freedoms he had right to
refuse to testify, consequently Adjudicator erred by drawing
adverse inference from refusal — Application dismissed —
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(2)(d)
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 11(c).
COUNSEL:
P. R. Cantillon for applicant.
M. Humphries for respondent.
SOLICITORS:
Evans, Cantillon & Goldstein, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a deportation order made by an
Adjudicator against the applicant on the ground
that he was a person described in paragraph
27(2)(d) of the Immigration Act, 1976, S.C. 1976-
77, c. 52, who had been convicted of a criminal
offence.
The applicant is a citizen of Greece. The evi
dence before the Adjudicator clearly showed that,
while in Greece, he had been convicted of some
criminal offence. The nature of that offence was
not known. The evidence also disclosed that the
applicant had, more recently in Canada, been con
victed of causing bodily harm with intent to wound
and sentenced to imprisonment for two years less
one day.
As was indicated at the hearing, only two of the
attacks made by counsel for the applicant on the
deportation order deserve consideration.
The first one of those attacks is that the
Adjudicator erred in law when he stated at the
beginning of the inquiry that, in view of the appli
cant's refusal to answer the questions of the case
presenting officer, the applicant would not be
allowed to testify on his own behalf. This ruling
was, in my view, clearly wrong. However, it did
not vitiate either the inquiry or the deportation
order. The transcript of the proceedings before the
Adjudicator discloses that counsel did not at any
time during the inquiry seek to have his client
testify; it cannot be inferred from the record that
the applicant would have testified had it not been
for the ruling made by the Adjudicator. True,
counsel for the applicant asserted before us that it
was his intention to have his client testify at the
second stage of the inquiry when the Adjudicator,
after having determined that the applicant was, in
fact, a person described in paragraph 27(2)(d) of
the Immigration Act, 1976 inquired whether the
circumstances warranted the issuance of a depar
ture notice rather than a deportation order. I am
not certain that, in disposing of this application,
we can take into consideration an assertion by
counsel which is not supported by the material
forming part of the case. In any event, even if we
could, the applicant's first attack should neverthe
less be rejected on the ground that, when read in
its context, the ruling made by the Adjudicator
applied, in all likelihood, to the first stage of the
inquiry and did not, it seems to me, exclude the
possibility that the applicant could testify at the
second stage of the inquiry.
Counsel for the applicant also argued that the
Adjudicator had erred in law in inferring, from the
applicant's refusal to testify, that the applicant
had "something to hide" and that there might be
in his "background some serious criminal convic-
tion". Counsel said, as I understood him, that the
applicant had the right, under paragraph 11(c) of
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.),
not to testify at this inquiry and that, as a conse
quence, no inference adverse to him could be
drawn from his refusal to testify. Counsel added
that the inference drawn by the Adjudicator was,
in any event, unwarranted. The short answer to
these arguments is, in my view, that the reasons
given by the Adjudicator show that he did not base
his decision on any inference drawn from the
applicant's refusal to testify but on the uncontested
evidence that the applicant had been convicted,
first, of some unknown criminal offence in Greece
and, second, of a very serious criminal offence in
Canada. Moreover, I cannot find anything in the
Canadian Charter of Rights and Freedoms pre
venting an adjudicator presiding over an inquiry
under the Immigration Act, 1976 from drawing
legitimate inferences from the fact that the subject
of the inquiry has refused to testify.
For these reasons, I would dismiss the
application.
URIE J.: I agree.
VERCHERE D.J.: I agree.
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.