A-213-74
Joseph Fritz Edouarzin (Applicant)
v.
Department of Manpower and Immigration
(Respondent)
Court of Appeal, Pratte J., Hyde and St-Ger-
main D.JJ.—Montreal, October 29 and 30,
1974.
Judicial review and appeal combined—Immigration—
Deportation order—Applicant not deemed "bona fide non-
immigrant"—Marriage of applicant after deportation
ordered—Refusal of Immigration Appeal Board to give spe
cial relief—Exclusion of evidence—Error in law—Reference
back to Board for re-hearing—Immigration Appeal Board
Act, ss. 15(1) and 23—Federal Court Act, s. 28.
Appeal combined with an application for judicial review
from the decision of the Immigration Appeal Board dismiss
ing an appeal from a deportation order and refusing to
exercise its powers to give special relief under section 15(1)
of the Immigration Appeal Board Act on compassionate and
humanitarian grounds.
The applicant based his application on the ground that the
Immigration Appeal Board refused to allow the applicant's
wife to give evidence concerning a consultation which took
place between the applicant and his wife and the immigra
tion officer about the couple's then pending marriage, at
which meeting, it was alleged, the immigration officer told
them they could get married without causing a problem.
Held, the deportation order is quashed and the matter is
referred back to the Board for re-hearing. The Immigration
Appeal Board erred in law in refusing to allow the evidence
which was not hearsay but admissible. If such error had not
been made, it is possible that the Board's decision might
have been different in granting special relief on humani
tarian or compassionate grounds under section 15(1) of the
Immigration Appeal Board Act.
APPLICATION.
COUNSEL:
C. Hargreaves for applicant.
Georges R. Léger for respondent.
SOLICITORS:
Hargreaves, Monette, Trudel & Leduc,
Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: On July 24, 1974 the Immigration
Appeal Board affirmed a deportation order
made against applicant by a Special Inquiry
Officer in accordance with the Immigration Act,
and ordered that this order should be carried out
as soon as possible. Applicant challenges that
decision in two ways: first, in the manner pro
vided by section 28 of the Federal Court Act,
and second, by appealing under section 23 of
the Immigration Appeal Board Act. By an order
of the Chief Justice made on September 17,
1974, the two actions were combined.
Applicant is of Haitian nationality. He arrived
at Dorval on February 21, 1973 and applied for
admission to Canada as a visitor. The immigra
tion officer who interviewed him was of the
opinion that he could not be admitted to Canada
and advised a Special Inquiry Officer of this in
accordance with section 22 of the Immigration
Act. On February 23, 1973 the Special Inquiry
Officer held an inquiry, at the conclusion of
which he ordered applicant deported on the
ground that he was not a "bona fide non-immi
grant". That same day applicant filed a notice of
appeal to the Immigration Appeal Board.
The case was heard by the Board on July 12,
1974. At the hearing it was established that on
May 28, 1973, after the making of the deporta
tion order, applicant married a fellow Haitian, a
"landed" immigrant living in Montreal, and that
a child of this marriage was born in Montreal in
May 1974.
Applicant did not dispute the validity of the
deportation order before the Board. He simply
referred to the fact of his marriage and the birth
of his child and asked that the Board exercise in
his favour the extraordinary powers conferred
on it by section 15(1) of the Immigration Appeal
Board Act. Under section 15(1) the Board,
where it dismisses an appeal against an order of
deportation, may nevertheless quash the order
or suspend the execution thereof, on account of
"the existence of compassionate or humani
tarian grounds that in the opinion of the Board
warrant the granting of special relief". The
Board refused to grant special relief to appli
cant, and in the reasons for its decision said the
following in this regard:
On May 28, 1973, or three months after his arrival,
appellant married a Haitian citizen, a landed immigrant, at a
time when a deportation order had been issued against him.
There was no question at the special inquiry of the appel
lant's being acquainted with a compatriot living in Montreal,
or of his being able to provide an address, and even less of
his planning to be married.
His wife stated at the hearing of the appeal (p. 10 of the
transcript) that she knew a deportation orrl ,-r had been made
against her husband:
CHAIRMAN
You knew a deportation order had been made against him
when you married him? Yes or no?
1. F. EDOUARZIN
Yes.
Having deliberately broken the law, they then ask the
Court to take pity on their actions. When two adult persons,
in full knowledge of the situation, commit an act which
affects their future, they must be ready to take the conse
quences. Immigrants must obey and observe the laws and
regulations of the country they wish to enter: immigrant
status is a privilege, not a right.
The Court has previously used its discretionary powers in
favour of a spouse, but in the instant case, it would not be
justified in so doing; similarly in the cases of Tsemanakis
(1970 (III) - IAC p. 133) and Bastas (30-10-70, unpublished,
file No 69-1832), in which the Court declined to grant
special relief, particularly as the Immigration Act and Immi
gration Regulations already provide a method of resolving
the situation.
Mrs. Edouarzin is able to provide for her child, since she
was already employed before her marriage, and the govern
ment makes a grant to mothers for day-care costs.
For these reasons the Court orders that the deportation
order be carried out, in accordance with the provisions of s.
15(1) of the Immigration Appeal Board Act.
The reasons for the decision of the Board do
not mention the fact that, in her testimony, the
wife of applicant stated that, before getting mar
ried, she and her husband went to see the immi
gration officer who had ordered applicant
deported, and that officer told them they could
get married without causing a problem.
The Board appears not to have mentioned this
part of the testimony of applicant's wife in the
reasons for its décision because it felt such
evidence was inadmissible. This may be seen
from the following observations made during
the testimony of Mrs. Edouarzin before the
Board:
CHAIRMAN
So, it was as a result of discussions with Mr. Meilleur'
that you decided to marry this gentleman, in spite of the
deportation order, is that right?
S. EDOUARZIN
He said we would have no problem, we could get married.
That's what he told me.
CHAIRMAN
It seems rather strange that ...
Y.LEMAY 2
Madam Chairman, it seems very strange for such an
answer to have been given. In view of the statement I think
the best course, in order to make certain what was said,
would be to have Mr. Meilleur here and ascertain what he
did say. '
CHAIRMAN
That is hearsay. I cannot admit that as evidence of what
you suggest. I have absolutely nothing. Mr. Meilleur is not
here.
As counsel for the respondent conceded, the
statement of applicant's wife did not constitute
hearsay, and therefore was admissible in evi
dence. Consequently, the Board was incorrect
in law in finding to the contrary. If such an error
had not been made it is possible that the Board's
decision would have been different. For this
reason, I feel the Board's decision ordering the
immediate execution of the deportation order
should be quashed, and the case referred back
to the Board for it to decide, after a re-hearing if
it considers that advisable, whether grounds
exist for granting applicant special relief under
section 15(1) of the Immigration Appeal Board
Act. I would order that the Board assume, in
arriving at that decision, that the portion of the
I Mr. Meilleur was the immigration officer who ordered
applicant deported.
2 Mr. Lemay represented respondent.
testimony of applicant's wife to which I have
referred constitutes admissible evidence.
* * *
HYDE D.J. concurred.
* * *
ST -GERMAIN D.J. concurred.
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.