A-556-80
Brian James Webb" (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Pratte and Heald JJ. and
Maguire D.J.—Edmonton, May 8; Ottawa, July 6,
1981.
Judicial review — Immigration — Application to review
and set aside deportation order — According to applicant,
deportation order irregular because of being (1) founded on
testimony that applicant was compelled to give against himself
contrary to s. 2(d) of the Canadian Bill of Rights and (2)
founded on violations of the Immigration Act, 1976 that had
taken place before its coming into force — Application dis
missed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, s.
27(2)(a),(b),(f) — Immigration Regulations, 1978, SOR/78-
172, s. 18(1) — Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix II11, s. 2(d).
R. v. Cole [19801 6 W.W.R. 552, distinguished.
APPLICATION for judicial review.
COUNSEL:
J. C. Robb for applicant.
B. Saunders for respondent.
SOLICITORS:
Freeland, Robb, Royal, McCrum & Browne,
Edmonton, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a deportation order made against the
applicant on July 28, 1980. That order was based
on three grounds, namely, that the applicant, who
admittedly was neither a Canadian citizen nor a
permanent resident of Canada, was
1. a person described in paragraph 27(2)(a) of
the Immigration Act, 1976, S.C. 1976-77, c. 52,
in that he was a person who, if he were applying
for entry, would not or might not be granted
entry by reason of being a member of an inad
missible class, since he was a person who had
already been deported from Canada who was
required to obtain the consent of the Minister to
come into Canada;
2. a person described in paragraph 27(2)(b) of
the Act in that he had engaged in employment
in Canada without an employment authoriza
tion, contrary to subsection 18(1) of the Immi
gration Regulations, 1978, SOR/78-172; and
3. a person described in paragraph 27(2)(f) in
that he had come to Canada at a place other
than a port of entry and had failed to report
forthwith to an immigration officer.
Of the many arguments put forward on behalf
of the applicant, only two deserve consideration.
Counsel for the applicant first said that the
deportation order was bad because it was founded
on the testimony that the applicant had been
compelled to give against himself contrary to para
graph 2(d) of the Canadian Bill of Rights, S.C.
1960, c. 44 [R.S.C. 1970, Appendix III] which
provides in part:
2.... no law of Canada shall be construed or applied so as
to
(d) authorize a ... tribunal ... or other authority to compel
a person to give evidence if he is denied counsel, protection
against self crimination or other constitutional safeguards;
Counsel invoked the decision of the Manitoba
County Court in R. v. Cole ([1980] 6 W.W.R.
552) where it was held that, notwithstanding para
graph 95(g) of the Immigration Act, 1976 follow
ing which every person who refuses to answer a
question at an inquiry under the Act is guilty of an
offence, paragraph 2(d) of the Canadian Bill of
Rights authorizes a person to refuse to testify at
an inquiry under the Immigration Act, 1976 if
that inquiry is held in order to determine whether
that person should be allowed to remain in
Canada.
There is, I think, a short answer to that argu
ment. If the case of R. v. Cole was rightly decided,
the applicant could have refused to testify at his
inquiry without committing any offence. However,
the fact is that the applicant did not refuse to
testify; he did not even manifest a reluctance to
testify. In those circumstances, I do not see how
the principle invoked by the applicant can help
him.
The second contention of the applicant is that
the deportation order is irregular in that it was
pronounced under the Immigration Act, 1976 but
was founded on violations of the Act that had
taken place before the coming into force of that
Act. This contention is factually inaccurate in so
far as the first two grounds of deportation are
concerned. The first ground of deportation was
that, at the time of the making of the deportation
order, the applicant was not admissible to Canada;
the second ground of deportation was that the
applicant had been employed in Canada without
authorization not only before but also after the
coming into force of the Immigration Act, 1976.
In those circumstances, it is not necessary to deter
mine the validity of the argument with respect to
the third ground of deportation; indeed, the first
two grounds are sufficient to support the order.
For those reasons, I would dismiss the
application.
* * *
HEALD J.: I agree.
* * *
MAGUIRE D.J.: I concur.
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.