T-272-87
John Mattia (Applicant)
v.
Minister of Employment and Immigration of
Canada and Michael Sloan (Respondents)
INDEXED AS: MATTIA V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Trial Division, McNair J.—Halifax, February 10,
11 and 12; Ottawa, March 16, 1987.
Immigration — Refugee status — Deportation order
Motion to order Minister to consider claim to refugee status or
to reopen inquiry under s. 35 — Applicant mentally ill —
Unable to appreciate importance of exercising right to counsel
or of asserting claim to refugee status during inquiry —
Adjudicator's refusal to reopen inquiry, s. 45 limitation to
effect claim to be made during course of inquiry only and
deportation order issued manifestly unfair — Motion allowed
— Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2,
19(1)(a)(ii), 27(2)(a),(e), 32(6), 35, 104(2) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. /8, 28.
Constitutional law — Charter of Rights — Life, liberty and
security — Immigration inquiry — Deportation order —
Applicant's mental illness impairing ability to appreciate
consequences of failure to satisfy s. 45(/) prescription that
claim to refugee status be made during inquiry only — Refus
al by Adjudicator to reopen inquiry under s. 35, s. 45(1)
prescription and deportation order violating s. 7 Charter rights
— Singh et al. v. Minister of Employment and Immigration,
/1985] 1 S.C.R. 177 applied — Charter s. l not justifying s. 7
violation — Likelihood of threat to applicant's life if forced to
return to country of origin — Motion ordering Minister to
consider claim to refugee status allowed — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1,
7, 24(1) — Canadian Bill of Rights, R.S.C. 1970, Appendix
s. 2(e).
A deportation order was made against the applicant follow
ing an inquiry to determine whether he was a member of an
inadmissible class within the meaning of subparagraph
19(1)(a)(ii) of the Immigration Act, 1976 which prohibits
admission of persons suffering from health impairment which
could cause excessive demands on health or social services. The
applicant was not represented by counsel at the inquiry and did
not assert a claim to refugee status.
The applicant was treated for mental illness during his stay
in Canada. He maintains that he was mentally ill during the
inquiry. The applicant seeks a writ of mandamus ordering the
Minister to consider his claim to refugee status before execu
tion of the deportation order or, alternatively, to have the
inquiry reopened under section 35 of the Act so that a claim to
refugee status can be made. He further moves for an order
prohibiting the execution of the deportation order. The issue is
whether, in light of the Supreme Court of Canada decision in
Singh, the applicant was denied the rights guaranteed under
section 7 of the Charter.
Held, the motion for mandamus and prohibition should be
allowed.
The weight of evidence, on balance of probability, demon
strates that the applicant was mentally ill to such an extent that
he could not properly appreciate the importance of exercising
his right to counsel or the consequences of waiving that right.
Neither could he realize the importance of asserting his claim
to refugee status during the inquiry, given the wording of
subsection 45(1) ("at any time during an inquiry") and the
meaning attributed thereto by the courts. The refusal of the
Adjudicator to reopen the inquiry under section 35 of the Act
to receive additional evidence in support of the claim for
refugee status, the limitation of subsection 45(1) to the effect
that such claim can be made only during the course of an
inquiry, and the deportation order issued, were manifestly
unfair in the circumstances and in violation of the applicant's
rights under section 7 of the Charter. In the result, the statu
tory prescriptions militating against his assertion of a claim to
refugee status and the proper determination thereof pursuant to
the statutory regime of the Act are rendered inoperable.
The rationale of Singh is that the Immigration Act, 1976,
does accord Convention refugees certain rights not provided to
others including, inter alia, the right not to be forcibly returned
to a country where life or freedom or security of the person are
likely to be threatened or put at risk. Section 1 of the Charter
cannot justify the section 7 violation in this case having regard
to the very real likelihood of threat to the applicant's life,
liberty or security if he is forced to return to his country of
origin.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; (1985), 58 N.R. I; 12
Admin.L.R. 137.
CONSIDERED:
Minister of Employment and Immigration v. Hudnik,
[1980] 1 F.C. 180; (1979), 103 D.L.R. (3d) 308 (C.A.);
Mensinger v. Canada (Minister of Employment and
Immigration), [1987] 1 F.C. 59; (1986), 5 F.T.R. 64
(T.D.); Ramnarain v. Minister of Employment and
Immigration (1985), 55 N.R. 67 (F.C.A.); Saprai v.
Minister of Employment and Immigration (1986), 3
F.T.R. 215 (F.C.T.D.); Ragunauth v. Minister of
Employment and Immigration, judgment dated June 28,
1985, Federal Court, Trial Division, T-1295-85, not
reported.
COUNSEL:
Vincent Calderhead for applicant.
Martin Ward for respondents.
SOLICITORS:
Metro Community Law Clinic, Halifax, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order deliv
ered orally in English by
MCNAIR J.: This is the originating motion of
the applicant under section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] for the
following relief, that is, for an order:
i) in the nature of Mandamus, ordering the Minister of
Employment and Immigration to receive and consider the
Applicant's claim for refugee status;
ii) in the nature of Mandamus ordering the 'Respondent
Michael Sloan, or another adjudicator, to re-open the inquiry
held pursuant to S. 29 of the Immigration Act so that the
Applicant's claim for refugee status can be made;
iii) in the nature of prohibition, prohibiting the Respondent or
his delegates from executing the deportation order dated Octo-
ber 24, 1986 until the Applicant's claim for Convention refugee
status can be considered.
iv) Such other relief available under S. 24(1) of the Charter of
Rights as may be required to achieve the objectives of the
Application.
The applicant, who is a graduate student from
Sierra Leone, gained entry into Canada under a
student visa on August 21, 1985. He enrolled in a
course of study at the University of Toronto. His
studies were interrupted in mid-term by mental
illness. He was released from the hospital in
Toronto in the spring of 1986 and resumed classes
at the University. He decided to enroll in graduate
studies at Dalhousie University in September
1986.
In July the applicant applied to the immigration
authorities in Toronto for an extension of his visa,
which was refused. The Department did a report
on him under paragraph 27(2)(a) of the Act
[Immigration Act, 1976, S.C. 1976-77, c. 52] and
directed an inquiry to determine whether the
applicant was a person described in paragraph
27(2)(a) of the Act as being a member of an
inadmissible class within the meaning of subpara-
graph 19(1)(a)(ii) of the Act. That subparagraph
prohibits the admission of persons suffering from
disease or health impairment which might reason
ably be expected to cause excessive demands on
health or social services. The applicant's visa was
due to expire on August 31, 1986.
In mid-August of that year the applicant trav
elled to Halifax to take up his studies at Dalhousie
University. He endeavoured to get his visa extend
ed but was unsuccessful. The applicant again
became mentally ill. He was arrested at his home
on October 22, 1986 and incarcerated in the Hali-
fax County Correctional Centre pursuant to sub
section 104(2) of the Act.
On October 24, 1986 the inquiry was conducted.
The applicant was present in person but unrepre-
sented by counsel. The inquiry added another
ground for removal under paragraph 27(2)(e),
namely, that the applicant had entered Canada as
a visitor and was remaining therein after he had
ceased to be a visitor. The inquiry determined that
the applicant should be deported pursuant to sub
section 32(6).
The applicant maintains that he was ill at the
time of his arrest and incarceration and during the
course of the inquiry. "Ill" must be taken to mean
mentally ill because of the affidavit evidence
touching on the applicant's medical history,
including the diagnosis of schizophrenia on July
17, 1986 by two medical officers of the Depart
ment and, more particularly, the affiant's own
statements to that effect in paragraphs 30, 31 and
32 of his supporting affidavit. This is also borne
out by the fact that the applicant was transferred
during the third week of November from the Cor
rectional Centre to the Nova Scotia Hospital for
the mentally ill. He remained there until mid-
January 1987 when his attending physician certi
fied by letter that the applicant was sufficiently
recovered and that he no longer required hospital
treatment. The letter also requested his release
from hospital custody.
On January 14, 1987 the applicant's solicitor
filed a notice under section 28 of the Federal
Court Act for the review and setting aside of the
Adjudicator's deportation order. The applicant's
solicitor was under the impression that the Depart
ment would withhold execution of the deportation
order, pending the outcome of the section 28
application to the Federal Court of Appeal. On
February 6, 1987 he was advised that the Depart
ment was going to proceed with the execution of
the deportation order. On February 9, 1987 the
applicant received a hand delivered letter from
W. J. Woods, Senior Immigration Officer, the
body of which reads as follows:
Dear Mr. Mattia:
This refers to the Deportation Order issued against you on
October 24, 1986.
As you are aware, the execution of this Order was postponed as
a result of the filing of an Application to the Federal Court,
pursuant to Section 28 of the Federal Court of Appeals.
This is to advise you that, after consultation with our legal
advisors, we have decided to execute the Deportation Order,
notwithstanding the Section 28 Application to the Federal
Court. This decision was based on Federal Court decisions on
similar cases (e.g., Robert Leslie Mensinger and the Minister
of Employment & Immigration; Court °T1093-86).
You are therefore directed to present yourself in person to
Immigration officials at 5151 Terminal Road, Halifax, Nova
Scotia, on Friday, February 13, 1987 at 3:30 p.m. The Depor
tation Order against you will be executed on that date.
Yours very truly,
(Sgd) "W. J. Woods"
W. J. WOODS
Senior Immigration Officer
Counsel for the applicant places much reliance
on the recent Supreme Court of Canada decision
in Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; (1985), 58
N.R. 1; 12 Admin.L.R. 137 and contends that the
earlier authorities on immigration procedures and
the execution of deportation orders consequent
thereon must give way to the broad and sweeping
rationale of the Singh case, where there has been a
violation of fundamental justice in respect of the
rights guaranteed by section 7 of the Charter
[Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] or granted
by paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]. Proceeding on this
premise, counsel for the applicant contends that
there are three issues in the case at bar, which are
posed by the following questions:
1) Should the Applicant be granted an Order that the Depart
ment receive and consider his application for Convention
refugee status prior to executing the Deportation Order?
2) If the answer to Issue One is "yes", should the Order be to
re-open the Inquiry pursuant to S. 35 of the Act or by some
other method?
3) Alternatively, should the Deportation Order be stayed pend
ing the disposition of the S. 28 application?
He also derives comfort from the broad definition
of "Convention refugee" in section 2 of the Immi
gration Act, 1976.
It is well settled that the Charter must be given
a broad and purposive interpretation and that
matters of strict procedure and administrative con
venience or necessity must yield inevitably to the
substantive dictates of the Charter when it can be
demonstrated on a balance of probability that a
right guaranteed by the Charter has been violated.
It is not a case of the courts rewriting the law of
the land, but rather one of striking down or declar
ing inoperative those laws that contravene in their
strict application and effect rights guaranteed by
the Charter.
The applicant looks to the paramountcy of sec
tion 7 of the Charter and paragraph 2(e) of the
Canadian Bill of Rights and relies on the underly
ing rationale of the Singh decision in asserting his
remedy under section 18. He seeks to have his
claim to refugee status fully determined before
execution of the deportation order or, alternative
ly, to have the inquiry reopened under section 35
to receive additional evidence or testimony in sup
port of the assertion of such claim.
Counsel for the respondents submits that the
claim to refugee status is nothing more than a
last-ditch effort to forestall the execution of the
deportation order. He questions its bona fides
from the fact that nowhere throughout the whole
course of these proceedings was the matter of
refugee status mentioned until just now. He fur
ther contends that it was incumbent on the appli
cant to come forward with some independent
medical evidence of his inability or incapacity to
fully understand and appreciate the nature of the
inquiry, and the importance of the right to counsel.
Without such supporting medical evidence, the
Adjudicator's refusal to reopen the inquiry was
reasonable in that he
... was satisfied that Mr. Mattia appreciated the nature of the
proceedings based on my overall observation of his behaviour
and responses on that day. [See Exhibit G]
Counsel for the respondents relies, as did the
Adjudicator, on Minister of Employment and
Immigration v. Hudnik, [1980] 1 F.C. 180;
(1979), 103 D.L.R. (3d) 308 (C.A.) and other
earlier authorities that support the proposition that
there is nothing in the Immigration Act, 1976
imposing any duty to consider and determine a
claim to refugee status made outside of an inquiry.
Counsel for the respondents also submits that the
mandatory relief sought in the case at bar is a
classic violation of the long-standing principle that
mandamus does not lie to compel the exercise of
an administrative discretion in a particular
manner. He cited a fairly substantial body of
authority to support his submission. Suffice it to
comment briefly on some of these authorities.
Time does not permit me to canvass them in detail.
In Mensinger v. Canada (Minister of Employ
ment and Immigration), [ 1987] 1 F.C. 59; (1986),
5 F.T.R. 64 (T.D.), no Charter argument seems to
have been advanced or addressed. Ramnarain v.
Minister of Employment and Immigration was a
pre-Charter case. In this case Walsh J. [Federal
Court, Trial Division, T-4914-81, order dated
October 27, 1981, unreported] held that the words
"at any time during an inquiry", in subsection
45(1), implied that an application for refugee
status could be made only prior to the conclusion
of the inquiry. The Federal Court of Appeal
[(1985), 55 N.R. 67] held that the Adjudicator
committed no error in law in refusing the appli
cant's request to reopen the inquiry to allow him to
claim Convention refugee status, made a year after
the inquiry had terminated. In Saprai v. Minister
of Employment and Immigration (1986), 3 F.T.R.
215 (F.C.T.D.), the claim to refugee status was
made after ;the inquiry and no facts or grounds
were put forward to support it. Moreover, there
were aspects of criminality. The learned Judge
held that these circumstances did not seem to
justify "engaging the judgments in the Singh
case". In Ragunauth v. Minister of Employment
and Immigration [judgment dated June 28, 1985,
Federal Court, Trial Division, T-1295-85, not
reported] the applicant has spurned three previous
opportunities to attend the inquiry where she could
have asserted her claim to refugee status. More
over, it must be noted that in Minister of Employ
ment and Immigration v. Hudnik, supra, there
was no evidence to support any claim to refugee
status other than the mere assertion that it was a
"claim for refugee status pursuant to the United
Nations Convention on Refugee Status". The
Court held that the United Nations Convention
was not part of the law of Canada and that it
clearly did not . impose any duty on the Minister.
Furthermore, Hudnik was decided before the
advent of the Charter and can only be taken, as it
seems to me, to state the law prior to April 17,
1982.
The applicant places much reliance on section 7
of the Charter and paragraph 2(e) of the Canadi-
an Bill of Rights in advancing his claim for redress
and I turn now to the issue of whether section 7 of
the Charter and the underlying rationale of Singh
mandate that the claim to Convention refugee
status be entertained in the face of any duty on the
Minister to proceed with the execution of the
deportation order. I will endeavour to state what I
perceive to be the principle of the Singh case with
particular emphasis on the Charter issue, and what
I take to be the underlying rationale of that
decision.
In Singh three members of the Court held that
the procedures prescribed by section 71 of the
Immigration Act, 1976, for the redetermination of
claims to refugee status, under which applicants
had no right to an oral hearing, infringed their
rights under that section. The remaining members
of the Court dealt with the matter instead under
the Canadian Bill of Rights and held the proce-
dures did violate the right to a fair hearing in
accordance with the principles of fundamental jus
tice protected by paragraph 2(e) of the Canadian
Bill of Rights. The members of the Court who
relied on the Charter concluded that the proce
dures prescribed by the Act failed to meet the
standards of procedural fairness demanded by the
principles of fundamental justice in requiring
applicants to estabish that the Minister's initial
decision to deny refugee status was wrong, while
failing to provide them with the means of access to
the reasons for the Minister's decision.
In my view, the rationale of Singh is that the
Immigration Act, 1976 does accord Convention
refugees certain rights not provided to others
including, inter alia, the right not to be forcibly
returned to a country where life or freedom or
security of person are likely to be threatened or
put at risk. In particular, the phrase "security of
person" encompasses freedom from the threat of
punishment or persecution as well as freedom from
the actual physical manifestations thereof.
In the Singh case, Madame Justice Wilson was
of the view [at pages 216 S.C.R.; 66 N.R.; 192
Admin.L.R.] :
... that the procedures for determination of refugee status
claims as set out in the Immigration Act, 1976 do not accord
refugee claimants fundamental justice in the adjudication of
those claims and are thus incompatible with s. 7 of the Charter.
This opinion was given in the context of whether
the refugee claimant, as a matter of fundamental
justice, was given a fair opportunity under the
present immigration procedures to state his case
and know the case he had to meet in satisfying the
Immigration Appeal Board that the Minister was
wrong in rejecting his claim. In most cases, as in
the case of Singh, this would presuppose an oral
hearing at some stage, but the absence of an oral
hearing in itself would not necessarily be fatal in
every case so long as the opportunity was there to
make out a case and know the case one had to
meet.
For those members of the Court who decided
Singh on the basis of paragraph 2(e) of the
Canadian Bill of Rights, the criterion was a fair
hearing in accordance with the principles of funda
mental justice for the determination of the refugee
claimant's rights and obligations. The threat to life
or liberty by a foreign power would warrant at
least one full oral hearing in the circumstances.
Coming back to the Charter rationale of Singh,
the question is whether the rights afforded by
section 7 of the Charter were denied the applicant
in the circumstances of this particular case. In my
opinion, they were.
The weight of evidence, on balance of probabili
ty, supports the conclusion that the applicant was
mentally ill to such extent that he could not prop
erly appreciate the importance of exercising his
right to counsel or the consequences of waiving
that right. Neither could he realize the importance
of asserting his claim to refugee status during the
actual course of the inquiry, given the wording of
subsection 45(1) and the meaning attributed
thereto by the courts. Counsel for the respondents
submits that there is nothing more than specula
tive inference to support a finding of mental
incapacity and failure to understand. As stated, I
disagree. In my judgment the refusal of the
Adjudicator to reopen the inquiry under section 35
of the Act for receiving additional evidence in
support of the claim for refugee status, the limita
tion of subsection 45 (1) to the effect that such
claim can be made only during the course of an
actual inquiry, and the deportation order issued in
the instant case, are manifestly unfair in the cir
cumstances and in violation of the applicant's
rights under section 7 of the Charter. In the result,
the statutory prescriptions militating against his
assertion of claim to refugee status and the proper
determination thereof pursuant to the statutory
regime of the Act are rendered inoperable.
Counsel for the respondents did not specifically
address the matter of section 1 onus. In any event,
there is nothing before me to demonstrate that the
inhibitory effects of the above mentioned statutory
provisions are reasonably justifiable according to
the accepted precepts of a free and democratic
society. In my opinion, section 1 of the Charter
does not justify the section 7 violations in this case,
having regard as well to the very real likelihood of
threat to the applicant's life, liberty or security of
person if he is forced to return now to his country
of origin. Moreover, subsection 24(1) of the Chart
er affords, in my view, some latitude in fashioning
a remedy appropriate to the right.
Accordingly, an order will go in the terms of the
order separately pronounced herein.
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.