[1993] 1 F.C. 187
T-682-92
Minister of Employment and Immigration of Canada (Applicant)
v.
John Frederick Lundgren (Respondent)
index as: canada (minister of employment and immigration) v. lundgren (t.d)
Trial Division, Dubé J.—Montréal, September 25; Ottawa, September 25, 1992.
Immigration — Practice — Application for judicial review of adjudicator’s decision to adjourn inquiry under Immigration Act — Minister argued adjudicator’s decision abuse of discretion as made in response to irrelevant factor, that respondent subject of prosecution under Immigration Act, s. 95 — Respondent, already deported from Canada five times, returned contravening Act, s. 55 — While inquiry in progress pursuant to s. 27(2)(h), criminal charge laid against respondent — Adjudicator granted adjournment of inquiry after deciding latter illogical duplication of criminal prosecution and accused’s right to remain silent must be protected — Application allowed — Adjudicator did not exercise discretion judiciously as criminal prosecution under s. 95 did not affect inquiry he was to conduct — Purpose of criminal prosecution to punish those who abuse system; that of inquiry to determine whether someone should be deported — Consequences different and burden of proof not same — No general principle in Canada existence of civil and criminal proceedings in court at same time involving same persons and same facts automatically valid reason justifying adjournment of civil proceedings — Accused’s right to remain silent protected by Charter, s. 11(c) and testimony in civil proceedings not to be used in evidence against him in criminal proceedings.
Criminal justice — Evidence — Inquiry under Immigration Act adjourned for reason respondent subject of prosecution under Act, s. 95 — Criminal prosecution not affecting inquiry by adjudicator — Purpose of prosecution punishment of system abusers; that of inquiry to determine whether subject should be deported — Burden of proof, consequences different — Right to remain silent protected by Charter, s. 11(c) — No principle civil proceedings automatically adjourned where concurrent criminal prosecution.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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], s. 11(c).
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(2)(h), 95.
Immigration Regulations, 1978, SOR/78-172, s. 35(1) (as am. by SOR/89-38, s. 13).
CASES JUDICIALLY CONSIDERED
APPLIED:
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Potash Corp. of Sask. Mining Ltd. v. Todd, [1986] 6 W.W.R. 646; (1986), 52 Sask. R. 231 (Q.B.).
AUTHORS CITED
Wydrzynski, Christopher J. Canadian Immigration Law and Procedure, Aurora: Canada Law Book Limited, 1983.
APPLICATION FOR JUDICIAL REVIEW of the decision of an adjudicator who was holding an inquiry pursuant to the Immigration Act to adjourn the inquiry on the ground that the respondent was the subject of a criminal prosecution under section 95 of the Act. Application allowed.
COUNSEL:
Claude Provencher for the applicant.
Marc C. Lague for the respondent.
SOLICITORS:
Attorney General of Canada for the applicant.
Bertrand, Deslauriers, Montréal, for the respondent.
The following is the English version of the reasons for order rendered by
Dubé J.: This is an originating motion by the applicant (the “Minister”) seeking judicial review of the decision made by the adjudicator Claude Perron on December 2, 1991, adjourning the inquiry he was holding pursuant to the Immigration Act [R.S.C., 1985, c. I-2].
The basis of the motion is that the adjudicator’s decision to adjourn the inquiry was an abuse of discretion as it was made in response to irrelevant factors, namely that the respondent was the subject of prosecution pursuant to section 95 of the Immigration Act.
It is worth noting that the respondent (“Mr. Lundgren”), a U.S. citizen, has already been deported from Canada five times since 1978 and that he again returned to Canada on August 14, 1991, thereby contravening section 55 of the Act. That provision prohibits anyone against whom a deportation order is made from returning to Canada without the written consent of the Minister. Accordingly, on October 21, 1991, the Canadian Immigration authorities prepared a report pursuant to paragraph 27(2)(h) of the Act and on October 28, 1991, initiated an inquiry which was continued on November 5 and 13 and December 2, 1991, at all times before the adjudicator Claude Perron.
Concurrently with this inquiry, a criminal charge was laid against Mr. Lundgren pursuant to section 95 of the Immigration Act, the section which provides that anyone returning to Canada after deportation commits an offence and incurs a fine or imprisonment not exceeding two years. When this charge was laid the adjudicator, at Mr. Lundgren’s request, adjourned his inquiry on November 13 and December 2, 1991.
The language used by the adjudicator to explain his adjournment is somewhat less than precise, but I quote the following extract from the transcript for November 13 and December 2, 1991, that is the last two days of the inquiry before the adjournment now at issue:
So the same organization is prosecuting you at two different places for the same, if I may say, accusation. But what is different is the procedure. … So what I want to say is that it’s a duplicate. It’s a … if I would force this inquiry to proceed, whatever is happening at criminal court, it would be a duplicate of what’s going on at the court. … And it’s really based on the fact that for me it’s a kind of not being too logical that the same person is, when I say person, the same organization at the same time is prosecuting a person for the same accusation at two different places and forcing one place more than the other. … And it’s a principle of natural justice also, that in court, if in court the system, the judiciary system is that you can remain silent over there, why should I deprive you of this right by forcing the inquiry to proceed and order you deported from Canada. You won’t have the right to have your day in court by doing so.
…
I would, to answer your representations, Madame Lagacé, I would only repeat what I had previously said at the last hearing. For me, it’s still a duplicate and I’m not ready to go with this inquiry.
I conclude from this that the adjudicator decided to adjourn the inquiry held pursuant to paragraph 27(2)(h) of the Act on the ground that it was an illogical duplication of the criminal proceedings against the respondent under section 95 of the Act. A subsidiary reason for the adjournment was apparently to protect the accused’s right to remain silent.
The adjudicator’s power to adjourn the inquiry is mentioned in subsection 35(1) of the Immigration Regulations, 1978 [SOR/78-172] which now reads as follows since the amendment which came into effect on January 1, 1989:[1]
35. (1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time if the adjournment will not impede or unreasonably delay the proceedings. [My emphasis.]
In my view, this amendment limits the adjudicator’s discretion: under the original subsection, the adjudicator only had to ensure that the inquiry was a full and proper one, whereas now he must not unduly delay it. The original subsection read as follows:
35. (1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry.
The key decision in the case at bar is the judgment of the Supreme Court of Canada in Prassad v. Canada (Minister of Employment and Immigration)[2] (dealing with facts which took place when the original subsection 35(1) was still in effect). In that case Sopinka J. considered at length the criteria relating to the adjournment of an inquiry by an adjudicator. He concluded as follows (at page 578):
I conclude that an adjudicator acting pursuant to s. 27(3) of the Act is neither bound to accede to a request for an adjournment to enable an application under s. 37 to be brought, nor is he or she required to refuse it. Rather the adjudicator has a discretion. In some circumstances, an adjournment may well be granted to enable such an application; in other circumstances, it may properly be refused. While the adjudicator must be cognizant that a “full and proper inquiry” be held, the adjudicator must also ensure that the statutory duty to hold an inquiry is fulfilled. As Wydrzynski, op. cit., notes at p. 266:
Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay the inquiry.
The adjudicator might consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought in exercising his or her discretion to adjourn.
In the case at bar, therefore, the question is whether the adjudicator properly exercised his discretionary power or adjourned the inquiry for irrelevant reasons. In his text Canadian Immigration Law and Procedure[3], Prof. Christopher J. Wydrzynski examines in chapter 10 the procedural rules relating to the inquiry, and in particular, at Part 7, he deals with adjournments. The following passages are worth quoting (at pages 266 and 267):
Thus, while a person may not assert any right to an adjournment, where the adjudicator acted arbitrarily or without due regard to the principles of fairness necessary to ensure a full and proper inquiry, the refusal of an adjournment would provide a ground for judicial review. As well, whether an adjournment will be granted is subject to all the circumstances of the case, and factors such as the number of adjournments already granted and the length of time for which the adjournment is sought, are appropriate considerations. Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay the inquiry.
Apart from the ordinary circumstances where they may be appropriate, adjournments of the inquiry have been sought with varying degrees of success for other reasons. The most important instances where individuals have attempted to forestall an inquiry have been to allow for an opportunity for some other decision to be made with respect to their status, which would make inquiry proceedings unnecessary. For example, the subject of the inquiry may wish an adjournment so that his sponsored application for permanent residence or his application for a Minister’s permit may be considered. In other circumstances the person may wish postponement to allow for participation in other judicial proceedings, or even to appeal a conviction which may have been the reason the inquiry was initiated.… It is sufficient to indicate at this point that in general the courts have not looked very favourably on attempts to delay inquiries for reasons of this nature because the adjudicator has a statutory duty to hold an inquiry and such matters are not issues within the adjudicator’s jurisdiction. On the other hand, there is much confusion and conflicting jurisprudence in these areas of the law, and where circumstances are brought before the court which indicate that a failure to grant an adjournment can be characterized as unfair, unreasonable or in breach of the duty to ensure a full and proper inquiry, the courts have intervened.
It should be noted that the case at bar does not involve proceedings initiated by Mr. Lundgren but rather by the Minister, though it is Mr. Lundgren who applied for the adjournment; nor is any refusal by the adjudicator to grant the adjournment involved here. These two distinctions are worth pointing out as the case law on the matter relates in particular to a refusal by the adjudicator to grant an adjournment, when the applicant had himself brought other proceedings, often for the purpose of delaying the inquiry to his advantage. I must nevertheless determine whether the adjudicator Perron exercised his discretion judiciously. In other words, does the parallel holding of two proceedings initiated by the Minister constitute “an illogical duplication”?
In Prassad, Mrs. Prassad had been deported from the country and returned without the Minister’s consent. An inquiry concerning her was adjourned to allow her counsel time for preparation. During that adjournment she applied for a ministerial permit. When the inquiry resumed she asked for a second adjournment to allow the Minister to consider her application. That second adjournment was denied. Mrs. Prassad’s appeals to the Federal Court of Appeal and the Supreme Court of Canada were dismissed. Sopinka J., speaking for the majority, held that the application to the Minister was not an integral part of the proceeding before the adjudicator, but was a separate remedy [at page 576]: “The mere fact that there is an alternative remedy open to the appellant does not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application”.
In my opinion, the adjudicator Perron did not exercise his discretion judiciously as the criminal proceedings under section 95 of the Act did not in any way affect the inquiry he was to hold himself. The criminal proceeding, used quite rarely in immigration matters, has the function of punishing those who abuse the system: it must be recalled that, after being deported, Mr. Lundgren returned to Canada five times without consent. Additionally, the purpose of the inquiry before the adjudicator was to determine whether Mr. Lundgren should be deported. It is not illogical for these two remedies to proceed concurrently as not only are the consequences different but the burden of proof is not the same in a criminal as in a civil proceeding.
I know of no general principle in Canada that the existence of civil and criminal proceedings in court at the same time involving the same persons and the same facts is automatically a valid reason justifying the adjournment of the civil proceedings. The weight of the authorities is rather that only extraordinary circumstances, in which the civil proceedings might cause some damage to the accused’s defence to the criminal charge, would justify adjourning the civil action. The burden of proof is on the party applying for the adjournment to conclusively demonstrate the existence of such harm: a mere allegation will not suffice.[4]
As to the adjudicator Perron’s subsidiary reason, relating to the accused Lundgren’s right to remain silent, it must always be borne in mind that 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.) [R.S.C. 1985, Appendix II, No. 44]] any person charged with an offence has the right not to be compelled to be a witness in proceedings against himself in respect of the (criminal) offence with which he is charged. Further, under section 5 of the Canada Evidence Act [R.S.C., 1985, c. C-5] the answer of a witness which might tend to incriminate him or to establish his liability in a civil proceeding shall not be used in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence. This means that Mr. Lundgren’s right to remain silent is protected.
The application at bar is accordingly allowed, the adjudicator’s decision to adjourn the inquiry is set aside and the Court orders that the adjudicator proceed with the inquiry regarding the respondent.