T-947-85
Haia Kravets (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Strayer J.—Winnipeg, May 7 and
8, 1985.
Immigration — Practice — Application for mandamus and
certiorari concerning inquiry into whether applicant allowed to
remain in Canada — Respondent seeking adjournment —
Applicant not opposed provided not prejudiced thereby —
Prohibition ordered to prevent Adjudicator from making re
moval order or issuing departure notice until present applica
tion disposed of — Necessary to preserve status quo so ss. 7,
12 and 15 Charter rights may be given effect — Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 19, 37(2).
Constitutional law — Charter of Rights — Application for
mandamus and certiorari concerning inquiry into whether
applicant allowed to remain in Canada — Applicant not
opposed to adjournment provided not prejudiced thereby —
Prohibition ordered to prevent Adjudicator from making re
moval order or issuing departure notice until present applica
tion disposed of — Necessary to preserve status quo so that
alleged Charter rights may be given effect — Issuance of
removal order or departure notice possibly rendering subject-
matters of application for mandamus irrelevant and exclusion
of applicant possible before decision could be reviewed in
Federal Court — Effective denial of constitutional rights
beyond jurisdiction of Minister and Adjudicator — S. 24(1) of
Charter, applying to "Anyone whose rights have been infringed
or denied", relevant — Application alleging in part past denial
of rights — To extent application alleging apprehended denial
by Adjudicator exercising in future inquiry, powers contrary to
Charter, s. 24(1) interpreted implicitly to cover situation — If
Court competent to give remedies in anticipation of violation
of other rights, by means of injunctions or writs of prohibition,
then able to protect Charter rights before, as well as provide
redress after infringement — Adjudicator not precluded from
proceeding with inquiry as inquiry per se not changing possible
Charter rights — Prohibition only preventing making of deci
sion until application disposed of — Style of cause amended
adding Adjudicator as party so order of prohibition can issue
against him or her — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 12, 15, 24(1) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Nat. Citizen's Coalition Inc. Coalition Nat. Des Citoyens
Inc. v. A.G. Can. (1984), 32 Alta. L.R. (2d) 249 (Q.B.).
COUNSEL:
Kenneth Zaifman for applicant.
Brian H. Hay for respondent.
SOLICITORS:
Margolis Kaufman Cassidy Zaifman Swartz,
Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.: The applicant seeks various orders
for mandamus and certiorari concerning decisions
or actions of the Minister and her officers, and
concerning an impending inquiry by an adjudica
tor as to whether the applicant should be allowed
to remain in Canada. The respondent asks for an
adjournment to permit adequate preparations to
deal with the issues to be raised, which include the
possible application of sections 7, 12, and 15 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.)]. The appli
cant does not oppose the request for an adjourn
ment but does not wish to be prejudiced by it: in
particular, she does not want the inquiry to pro
ceed to the point of a possible decision by the
adjudicator to issue a deportation order or a depar
ture notice, before this Court can deal with her
application here.
I agree that there should be an adjournment to
enable the parties to prepare evidence and argu
ment. Some very important and novel issues are
involved, particularly the possible effect of section
15 of the Charter on section 19 of the Immigration
Act, 1976 [S.C. 1976-77, c. 52]. I also agree with
the respondent that if the inquiry goes forward in
the meantime there is a possibility of prejudice to
the applicant if matters should proceed as far as
the issuance of a deportation order or departure
notice prior to the Trial Division being able to deal
with the present application. Once such a decision
is taken by the adjudicator, the jurisdiction of the
Trial Division with respect to it would be in ques
tion. With respect to matters involved in the
present application other than the inquiry, argu
ably those could be rendered irrelevant by the
making of such an order: for example, a Minister's
permit would thereby be precluded (see subsection
37(2) of the Immigration Act, 1976). Further,
once such an order is issued there would be a
serious question as to whether any Court could
prevent its execution, even if it were subject to
review under section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 101.
I am therefore issuing an order in the nature of
prohibition to prevent the adjudicator from
making a removal order or issuing a departure
notice until the present application has been dis
posed of by the Trial Division. I have concluded
that subsection 24(1) of the Charter empowers me
to do so. This is a "court of competent jurisdic
tion" to grant prohibition in respect of such an
adjudicator exercising power under an Act of Par
liament. I have concluded that it is necessary to
issue prohibition here in order to preserve the
status quo so that alleged Charter rights, if they
can be established, may be given effect by the
Court. In the absence of such an order there would
be a strong possibility of such rights being ren
dered meaningless by the issuance of a removal
order or departure notice: such a decision could
render irrelevant the subject-matters of the
application for mandamus and could, as far as I
can ascertain, make possible the exclusion of the
applicant from Canada before the decision to
exclude her could be reviewed in either Division of
the Federal Court. This could have the effect of
denying the applicant's constitutional rights which
it is beyond the jurisdiction of the Minister and the
adjudicator to do. Therefore prohibition is an
appropriate remedy. It should also be noted that
while subsection 24(1) of the Charter applies to
"Anyone whose rights ... have been infringed or
denied [underlining added]" I have concluded that
it is relevant here. In part, this application alleges
a past denial of rights. To the extent that it alleges
an apprehended denial through the adjudicator
exercising, in a future inquiry, powers which are
contrary to the Charter, subsection 24(1) should
be interpreted implicitly to cover the situation. If
the Court in question is competent to give reme
dies in anticipation of the violation of other rights,
as this Court is by means of injunctions or writs of
prohibition, then it can similarly protect Charter
rights before, as well as provide redress after, their
infringement. See generally Nat. Citizen's Coali
tion Inc. Coalition Nat. Des Citoyens Inc. v. A.G.
Can. (1984), 32 Alta. L.R. (2d) 249 (Q.B.) at
page 253; Tarnopolsky and Beaudoin (eds.), The
Canadian Charter of Rights and Freedoms: Com
mentary (1982), at pages 498-502.
This order will not preclude the adjudicator
from proceeding with the inquiry as that will not
per se have the effect of changing any possible
Charter rights. It will only prevent him from
making a decision until this application is disposed
of.
Counsel argued that the style of cause should be
amended, and I so order, so as to make the
adjudicator a party to these proceedings in order
for the order of prohibition to issue against him or
her. While counsel for the Minister apparently
accepted that he could agree to this amendment,
he insisted that the prohibition order could not be
made against the Minister so far as the inquiry is
concerned, as the adjudicator is not subject to the
direction of the Minister as to how such inquiries
are conducted. The order will also be subject to
further direction of the Court. If this present
application does not proceed to determination in a
timely fashion, it will be open to the parties to seek
a modification of my order.
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.