Dipchand v. Canada ( Minister of Employment and Immigration )
A-619-91
MacGuigan J.A.
10/2/93
6 pp.
Application to set aside exclusion order-At credible basis inquiry in December 1990, applicant, refugee claimant from Trinidad, giving notice intended to argue Immigration Act, ss. 23(4), 34, 46 inoperative because of failure to provide hearing within reasonable time contrary to Charter-To provide factual foundation for Charter challenge, as required by Supreme Court in MacKay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, applicant seeking either (1) adjournment until after February 4, 1991 when three senior immigration officials to testify in another case in which same issue raised as to reasons for delays, or (2) issuance of subpoena to require one of those officials to testify to same effect in this case-Adjudicator rejecting both requests out-of-hand, declaring "We're not going to wait to February 4" and "I am not going to consider subpoenaing witnesses for you to argue your case"-Immigration Act, s. 112 giving adjudicator power to issue summons requiring person to testify with respect to matters relative to inquiry-Application allowed-Failure to request subpoena when matter before adjudicator for first time not forfeiture of right to do so-Still appropriate to seek subpoena at hearing at which Tribunal first constituted-Since issuance of summons to appear specified power of adjudicator under s. 112, in absence of specifying rules, should not be granted automatically-Issuance of subpoenas matter of discretion-In criminal cases issuance of subpoena requiring exercise of discretion that person required to testify likely to give material evidence in proceeding-S. 112 requiring similar exercise of discretion by adjudicator-Criteria to be considered by adjudicator in exercising discretion not determined because adjudicator failed to consider any criteria-So overemphasized requirement of proceeding expeditiously as to be unable to consider other factors-In failing to exercise discretion as to issuance of subpoena, where Charter issue required building of factual foundation to which evidence of witness might be relevant, adjudicator denied applicant fair hearing-Immigration Act, R.S.C., 1985, c. I-2, s. 112-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11-Federal Court Act, R.S.C. 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8)-Convention Refugee Determination Division Rules, SOR/89-103, s. 24(2)-Immigration Appeal Division Rules, SOR/90-738, s. 31(2).