T-33-75
Charles Pascal Edwards (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Walsh J.—Montreal, January 13;
Ottawa, January 22, 1975.
Jurisdiction—Immigration—Deportation order—Condition-
al release refused by Special Inquiry Officer—Application to
Court of Appeal to set aside order Application to Trial
Division for conditional release—No jurisdiction in Trial Divi-
sion—Immigration Act, R.S.C. 1970, c. 1-2, ss. 17, 46
Criminal Code, R.S.C. 1970, c. C-30, ss. 58, 361—Federal
Court Act, s. 28.
The petitioner (erroneously designated as "appellant") was
detained under order authorized by the respondent, and then
charged in the Court of Sessions, Montreal, with remaining
illegally in Canada contrary to section 46(b) of the Immigra
tion Act; impersonating a dead person for the purpose of
obtaining a Canadian passport, contrary to section 361 of the
Criminal Code; and, making a false statement for the purpose
of obtaining a passport, contrary to section 58(2) of the Code.
Denied bail by the courts because of the detention order, he
was committed for trial on the second and third charges. After
inquiry, a Special Inquiry Officer ordered the deportation of
the petitioner. The Officer refused to exercise his discretion to
grant a conditional release. The petitioner made an application
to the Court of Appeal, under section 28(1) of the Federal
Court Act to set aside the orders, and, by the present petition,
sought conditional release.
Held, dismissing , the petition, the Court of Appeal would
decide whether or not the Special Inquiry Officer's order for
deportation could properly be set aside. The Trial Division had
no authority over the matter. Section 17(1) of the Immigration
Act left the conditional release to the discretion of the Special
Inquiry Officer, "subject to any order or direction by the
Minister." There was no provision in the law or in the Federal
Court Rules for the Trial Division to entertain an application
for conditional release.
Mahaffey v. Nykyforuk and Unemployment Insurance
Commission [1974] 2 F.C. 801, applied.
PETITION.
COUNSEL:
P. Fine for petitioner.
J. Letellier for respondent.
SOLICITORS:
Bernstein & Feifer, Montreal, for petitioner.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for conditional
release filed on behalf of petitioner (erroneously
designated as "appellant") resulting from his
detention for deportation following an inquiry on
December 23, 1974 by a Special Inquiry Officer
from which decision an application has been made
to the Court of Appeal under section 28(1) of the
Federal Court Act to review and set aside same.
The allegations of the petitioner are supported by
affidavit and set out that he has been detained
since December 4, 1974 by virtue of an order of
detention issued at the instance of respondent and
that on December 5, 1974 he was charged in the
Court of Sessions for the District of Montreal of
having, on December 4, 1974, illegally remained in
Canada contrary to section 46(b) of the Immigra
tion Act, of having on or about April 26, 1974
impersonated a dead person for the purpose of
obtaining a Canadian passport contrary to section
361 of the Criminal Code, and of having, on the
same date, made a false statement for the purpose
of obtaining a Canadian passport contrary to sec
tion 58(2) of the Criminal Code. =Bail was denied
to him on these charges, which would otherwise be
bailable offences, because of the existence of the
said order of detention and the denial of this bail
was upheld by a judgment of the Court of Queen's
Bench, Crown Side. On December 20, 1974, peti
tioner was committed to stand trial on the charges
under sections 361 and 58(2) of the Criminal
Code, the charge under 46(b) of the Immigration
Act being withdrawn by the prosecution. It is
further alleged that following the special inquiry
on December 23, 1974, which ordered petitioner's
deportation, the Special Inquiry Officer refused to
exercise his discretion under section 17(1) of the
Immigration Act to order the conditional release
of petitioner despite the fact that he had fulfilled
all the conditions of a previous conditional release
granted on May 23, 1974. It is further alleged that
he cannot obtain release on bail on the criminal
charges against him which come up for trial on
March 7, 1975, because of his detention as a result
of the deportation order, that he is married to a
Canadian citizen, and that when he was arrested
on December 4, 1974 this was because he had
come temporarily to Canada to visit his said wife
after having submitted voluntarily to a previous
deportation order on or about September 20, 1974.
On or about October 20, 1974 his wife made an
application that permission be granted to petition
er to reside in Canada, which application is still
pending.
It was argued that petitioner is in a sense caught
between two fires in that he was refused bail which
would otherwise have been granted on the criminal
charges laid against him as a result of the fact that
he was detained by virtue of an order issued at the
instance of respondent, and, on the other hand,
that the Special Inquiry Officer allegedly refused
to exercise his discretion to order conditional
release because he indicated this would be ineffec
tive as petitioner was in any event being held
without bail as a result of the criminal charges.
Without going into the propriety of either refus
al to grant bail, about which some doubt might
exist, as it might appear that either jurisdiction
could have granted bail with respect to the deten
tion resulting from the proceedings before it, on
the understanding that this would not result in the
release of petitioner from detention unless and
until bail was similarly granted by the other Court
or officer having jurisdiction, I have nevertheless
reached the conclusion that the petition for condi
tional release is one which cannot be entertained
by this Court. Section 17(1) of the Immigration
Act' reads as follows:
17. (1) Subject to any order or direction to the contrary by
the Minister, a person taken into custody or detained may be
released under such conditions, respecting the time and place at
which he will report for examination, inquiry or deportation,
payment of a security deposit or other conditions, as may be
satisfactory to a Special Inquiry Officer.
R.S.C. 1970, c. I-2.
and apparently leaves the release entirely to the
discretion of the Special Inquiry Officer "subject
to any order or direction to the contrary by the
Minister". The deportation order itself, as well as
the detention, is at present awaiting review by the
Court of Appeal under section 28 (1) of the Feder
al Court Act and such proceedings can be brought
to hearing at an early date. The fact of petitioner's
marriage to a Canadian citizen and that her
application that permission be granted to him to
remain in Canada is still pending, was no doubt
before the Special Inquiry Officer when he made
his decision on December 23, 1974. Despite this,
he apparently felt that this did not change the
situation which had resulted in the previous depor
tation order on May 23, 1974. Whether his deci
sion was one which can properly be set aside under
section 28(1) of the Federal Court Act is a matter
for the Court of Appeal to decide. The Trial
Division therefore has no jurisdiction (see judg
ment of Heald J. in Mahaffey v. Nykyforuk and
the Unemployment Insurance Commission [ 1974]
2 F.C. 801.) The Court of Appeal has itself, in
other cases, decided that a refusal of a Special
Inquiry Officer to grant bail cannot be reviewed
and set aside on a section 28 application even when
the applicant had already filed an application to
set aside a deportation order (see Lombardo v.
Minister of Manpower and Immigration, Court
No. A-403-74).
It is my view that the Trial Division has no
authority to overrule the decision of the Special
Inquiry Officer not to apply section 17(1) of the
Immigration Act so as to release petitioner from
detention pending his appeal from the deportation
order and, furthermore that there is no provision in
the law or in the Rules of this Court for the Trial
Division to entertain a petition for conditional
release, whatever may be the facts of petitioner's
detention.
The petition is therefore dismissed with costs.
ORDER
Petitioner's petition is dismissed, with costs.
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.