Roosevelt Douglas (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, August 4, 1972.
Judicial review—Prohibition—Immigration—Immigrant
convicted of crime—Special inquiry ordered under Immigra
tion Act—Prohibition to stop inquiry refused—Immigration
Act, R.S.C. 1970, c. I-2, sections 18, 25.
Appellant, a landed immigrant, was convicted of an
offence under the Criminal Code and appealed. Pending
judgment of the Appeal Court a special inquiry based on his
conviction was ordered under section 25 of the Immigration
Act. Appellant applied for a writ of prohibition to stop the
inquiry pending final disposition of his appeal.
Held, even if, as argued, a conviction for an offence
under the Criminal Code is not, pending an appeal, a ground
for deportation (upon which the Court expresses no opin
ion), it does not lead to the issuance of a writ of prohibition
to stop an inquiry under section 25 of the Immigration Act.
APPEAL from judgment of Gibson J.
The facts are as follows.
On April 30, 1971, appellant was convicted in the Court
of Queen's Bench in Quebec on a charge of mischief under
the Criminal Code with respect to the destruction of the Sir
George Williams University Computer Centre in Montreal.
He was sentenced to two years' imprisonment and a fine of
$5,000. He appealed from the conviction and on May 5,
1971, was granted leave to appeal by the Quebec Court of
Appeal and released on his own recognizance.
The appeal was argued and decision was reserved by the
Court. A special inquiry was then directed to be held under
the Immigration Act based upon his conviction under the
Criminal Code. Appellant applied to the Trial Division of
this Court for a writ of prohibition to stop the inquiry
pending disposition of his appeal. On June 12, 1972, Gibson
J. dismissed his application with costs upon counsel for the
respondent filing an undertaking to delay execution of any
deportation order that might be made.
Appellant appealed from the decision of Gibson J. on the
following grounds:
1. It is admitted that the special inquiry in this matter was
commenced in the ordinary way and that aside from the fact
that an appeal is pending before the Court of Appeal for
Quebec, the Special Inquiry Officer had jurisdiction to
commence and proceed with the special inquiry concerning
Roosevelt Douglas.
2. It is submitted that the Canadian Bill of Rights and the
requirements of natural justice demand that the Appellant
should have the right to question his conviction in the
ordinary and normal way before the courts of Canada, and
should not be required by the intervention of the Special
Inquiry Officer to forfeit those rights, or to breach the
terms of his recognizance.
3. In this connection, it is instructive to look at the
powers given to the Court of Appeal by the Criminal Code.
Criminal Code, s. 613(2).
4. It is submitted that the undertaking included in the
order appealed from to the effect that the deportation order
would not be executed is, first of all, unlawful and secondly,
is virtually an admission that in law the proceeding which it
is sought to prohibit would have the effect of interfering
with the due administration of the criminal law in the
Province of Quebec. It is submitted that since it is not
"otherwise provided" in the Immigration Act, the order
must in law be executed as soon as practicable. Immigration
Act, s. 34(1) and s. 34(2).
5. It is submitted that should the special inquiry proceed
to a deportation order, the Appellant would have no abso
lute right to return to Canada to serve his sentence; if the
conviction should be quashed by the Court of Appeal, the
Appellant could not, without undertaking an expensive and
lengthy appeal to the Immigration Appeal Board, preserve
what he now has—an absolute right to return to Canada.
The Minister of Manpower and Immigration might not grant
a permit and could not be compelled to do so. Immigration
Act, s. 18(e)(ix) and s. 39.
6. It is submitted that it would be contrary to the Canadi-
an Bill of Rights, s. 2(e), to require a person to become an
appellant at a time when he does not know whether or not
his appeal is well-founded because the conviction on which
it is based has not been determined finally. It is further
submitted that the expense of launching and prosecuting
such an appeal constitutes the imposition of unusual treat
ment or punishment, contrary to the Canadian Bill of
Rights. Canadian Bill of Rights, s. 2(b) and s. 2(e); Immigra
tion Act, s. 35.
7. It is submitted that the launching of an appeal and
entering into of a recognizance before the Appeal Court
operates as a stay of proceedings for the enforcement of
any consequences in the nature of a penalty such as liability
to deportation. Simington v. Colbourne, 4 C.C.C. 367; Steen
v. Lebansky [1923] 1 W.W.R. 72; Cf. Reg. v. Kotyk, 2 C.R.
(N.S.) 181.
8. It is submitted that for the purpose of section
18(1)(e)(ii) [of the Immigration Act] the phrase "has been
convicted" of an offence under the Criminal Code means
"finally convicted, and all appeals being exhausted". It is
submitted that an inference can be drawn as to the course
which ought to be followed by the fact that in the sections
dealing with domicile and the loss thereof, Parliament
addressed its mind to the question as to what should stop
the acquiring of domicile and included being an inmate of a
jail but did not include merely being convicted, and still
less, did not include being convicted while the appeal is
pending. Immigration Act, s. 4(2)(a), s. 4 and s. 5.
C. C. Ruby for appellant.
N. A. Chalmers, Q.C. for respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—We need not hear
from you Mr. Chalmers.
The submissions that have been put in sup
port of the appeal all lead to the conclusion that
a conviction for an offence under the Criminal
Code is not, pending an appeal, a ground for
deportation.
We are all agreed that, even if that is a
correct conclusion, a matter on which we
express no opinion, it does not lead to the
issuance of a Writ of Prohibition that would
stop the proposed inquiry under section 25 of
the Immigration Act.
Section 25 provides for an inquiry concerning
a person respecting whom a report has been
made under section 18. In this case there is a
report under section 18 and no ground has been
put forward why the inquiry should not
proceed.
In accordance with the procedure established
by the Immigration Act and the Immigration
Appeal Board Act, providing a matter is com
menced before a special inquiry officer in
accordance with the Act, the proper procedure
is to put such arguments as were made this
morning before such officer and, if necessary,
proceed by way of appeal from his decision, if
it is adverse.
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.