A-1161-88
Gurjinder Kaur (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: KAUR V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Heald, Mahoney and Desjardins
JJ.A.—Toronto, August 25; Ottawa, December 4,
1989.
Immigration — Applicant found to be member of inadmiss
ible class upon withdrawal of refugee claim — Exclusion
order issued — Immigration Act, s. 35 permitting reopening of
inquiry to hear additional evidence and amendment of any
decision previously given by adjudicator — Uncontradicted
affidavit evidence withdrawal of refugee claim made due to
fear of violence at hands of ex-husband — Whether evidence
of duress constituting "additional evidence" under s. 35 —
Meaning of "decision" in s. 35(1) — Whether Adjudicator
authorized to reopen inquiry to correct error in natural justice
under Constitution Act, 1982, s. 52(1) — Adjudicator's refusal
to reopen inquiry set aside.
Constitutional law — Charter of Rights — Life, liberty and
security — Application to reopen inquiry under Immigration
Act to adduce evidence of duress under which claim to refugee
status withdrawn, resulting in finding applicant member of
inadmissible class and exclusion order — Ex-husband sub
jecting applicant to emotional and physical abuse — Threat
ening death if abuse disclosed — Withdrawal of claim due to
desire to escape immediate danger — Applicant effectively
deprived of rights to counsel and to make informed and
independent decision — Exclusion order unfair and breach of
Charter, s. 7.
Constitutional law — Charter of Rights — Enforcement —
Withdrawal, under duress, of refugee claim — Adjudicator
correctly refusing to reopen inquiry under Immigration Act, s.
35 — Withdrawal, under duress, of refugee claim — Duty
under Constitution Act, 1982, s. 52 to reopen as Charter, s. 7
rights contravened — Duty not to apply limitations in Immi
gration Act, 1976, ss. 35(10) and 45(1) to extent legislation
contravening Charter s. 7 rights — Proper case for "exemp-
tion" or "reading out" — Legislation remaining in force, but
not applied to individual whose Charter rights infringed.
This was an application to review and set aside the Adjudica
tor's refusal to reopen an inquiry under the Immigration Act,
1976. The applicant had obtained a divorce on the ground of
physical and emotional abuse. Fearing persecution for his
political activities, her ex-husband fled India and came to
Canada, where he claimed refugee status. The applicant began
experiencing difficulties with the Indian authorities. She came
to Canada, indicating at the port of entry that she intended to
claim refugee status. She went to live with her ex-husband and
his girl friend at a Sikh farm. She was frequently and severely
beaten by him and allowed neither to telephone nor to leave the
farm. The night before the inquiry, her ex-husband told her
that she was free to return to India but he threatened to kill her
if she revealed that he had mistreated her. Her son attended the
inquiry as a spy for her ex-husband. The applicant expressed a
wish to return to India and the hearing was adjourned. Upon
resumption of the inquiry, the applicant indicated that she did
not want to claim refugee status and reiterated her desire to
return to India. The Adjudicator found her to be a member of
an inadmissible class and pronounced an exclusion order. The
applicant eventually escaped from the farm and found refuge in
a women's shelter. In her affidavit in support of the request to
reopen the inquiry, she explained that her desire to return to
India had been motivated by the need to escape the more
immediate danger posed by her ex-husband, and that her son's
presence at the inquiry, together with her fear of her ex-hus
band, had placed her under duress. She had been confused
about the immigration process and was without legal represen
tation. Section 35 of the Immigration Act, 1976 permits reo
pening an inquiry to hear additional evidence, and the confir
mation, amendment or reversal of any decision previously given
by an adjudicator. The Adjudicator refused to reopen on the
ground that the information sought to be introduced did not
constitute "additional evidence or testimony". He also held that
he did not have authority to reopen the inquiry to correct an
error in natural justice.
Held, the application should be allowed.
Per Heald J.A. (Mahoney J.A. concurring): The Adjudicator
did not err in refusing to reopen the inquiry under section 35 of
the Act. The "decision" in subsection 35(1) is not the order
that was made at the conclusion of the inquiry, but the
determination that a person is or is not either described in
subsection 14(1) or admissible or described in section 27. The
decision under attack was the Adjudicator's refusal to reopen
the inquiry. The purpose of reopening was to adduce evidence
to prove a denial of natural justice which was not apparent on
the face of the record. If subsections 35(1) and (2) are read
together and in context, the parameters of subsection 35(1) are
restricted to new evidence which may warrant a change or
reversal of the earlier decision. The proposed new evidence was
directed at the illegality of the deportation order, rather than at
the validity of the decision which led to the deportation order.
This was, however, a case for relief in view of a contravention
of section 7 of the Charter. Due to the duress exerted upon the
applicant by her former husband during the inquiry, she was
effectively deprived of her right to be represented by independ
ent counsel and of the ability to make a free, informed and
independent decision respecting a claim to refugee status. The
exclusion order was, in the circumstances, manifestly unfair
and contrary to Charter section 7.
The Adjudicator had jurisdiction to reopen the inquiry pur
suant to subsection 52(1) of the Constitution Act, 1982 and a
duty not to apply the limitations inherent in subsections 35(1)
and 45(1) of the Immigration Act, 1976, to the extent that this
legislation contravened the applicant's section 7 rights. Subsec
tion 52(1) of the Constitution Act, 1982 provides that any law
that is inconsistent with the Constitution is of no force or effect
to the extent of the inconsistency.
This was a clear case for an "exemption" whereby the
legislation remains in force, but is not applied to a person whose
Charter rights have been infringed through the application of
the legislative provisions to her situation.
Per Desjardins J.A. (concurring in the result): The pressures
on the applicant were such that she was not free to speak about
her situation and was unable to retain counsel to assist her in
her choices. Duress vitiates consent in ordinary contractual
situations. Likewise, the option expressed by the applicant at
the hearing could not stand. Her affidavit constituted "addi-
tional evidence" within subsection 35(1). Once it was brought
to the Adjudicator's attention, he had jurisdiction under that
section to reopen the inquiry. He had no choice but to annul the
applicant's earlier option and to place the parties where they
stood at the beginning. Once the state of mind of the applicant
was expressed freely, the Adjudicator had only the powers of
subsection 35(1), i.e. to "confirm, amend or reverse any deci
sion previously given" by him. The word "decision" has the
meaning given to it by this Court in Gray v. Fortier (a
determination that the applicant is or is not a member of an
inadmissible class). The Adjudicator's determination that the
applicant was in violation of paragraph 19(2)(d) will probably
be confirmed since, even with this additional evidence, the
applicant remains a member of an inadmissible class. The
Adjudicator, pursuant to subsection 45(1), will have a duty to
adjourn the inquiry because of her refugee claim. He will not
have jurisdiction to quash the exclusion order because of the
limited jurisdiction he has under subsection 35(2). It is only
when he amends or reverses a decision under subsection 35(1)
that he may quash an order. Gray v. Fortier should be distin
guished in part. There, the aim was to quash the deportation
order, which could only be accomplished under subsection
35(2) if the evidence warranted a change or reversal of the
decision. If the words of Pratte J.A., that a reopening can only
be granted when additional evidence may warrant a change or
reversal of a decision previously given, set one rule for all cases,
the word "confirm" in subsection 35(1) could seldom apply.
More often than not, a reopening for a confirmation could
become an exercise in futility. This was not so here. The
evidence contains information of a fundamental nature which
could nullify a large part of the earlier evidence, which because
of subsection 45(1) might change the course of the inquiry.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 7.
Constitution Act, 1982, Schedule B, Canada Act, 1982,
1982, c. 11 (U.K.), s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 14(3),
19(2)(d), 20, 32, 35, 40(1), 45(1), 70(1), 104(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Gray v. Fortier, [1985] 2 F.C. 525; (1985), 21 D.L.R.
(4th) 14; 61 N.R. 197 (C.A.); Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1; Hunter et al. v. Southam Inc.,
[1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R.
(4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193;
27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41
C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241;
Mattia v. Canada (Minister of Employment and Immi
gration), [1987] 3 F.C. 492; (1987), 10 F.T.R. 170
(T.D.); Bains v. Canada (Minister of Employment and
Immigration), [1989] 3 F.C. 487 (C.A.); R. v. Big M
Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60
A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37
Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC
14,023; 13 C.R.R. 64; 58 N.R. 81; Re Shewchuck and
Ricard; Attorney-General of British Columbia et al.,
Intervenors (1986), 28 D.L.R. (4th) 429; [1986] 4
W.W.R. 289; 2 B.C.L.R. (2d) 324; 1 R.F.L. (3d) 337;
(B.C.C.A.); Zwarich v. Canada (Attorney General),
[1987] 3 F.C. 253; (1987), 26 Admin. L.R. 295; 87
CLLC 14,053; 31 C.R.R. 244; 82 N.R. 341 (C.A.);
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Seaboyer
and The Queen; Re Gayme and the Queen (1987), 37
C.C.C. (3d) 53 (Ont. C.A.).
DISTINGUISHED:
Minister of Employment and Immigration v. Hudnik,
[1980] 1 F.C. 180; (1979), 103 D.L.R. (3d) 308 (C.A.).
AUTHORS CITED
Gibson, Dale The Law of the Charter: General Princi
ples, Toronto: Carswell Co. Ltd., 1986.
COUNSEL:
Barbara L. Jackman and Maureen Silcoff for
applicant.
Chris Parke for respondent.
SOLICITORS:
Maureen N. Silcoff, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is a section 28 application to
review and set aside the decision of Michael Burns,
an Adjudicator, under the Immigration Act, 1976
[S.C. 1976-77, c. 52], (the Act), wherein he decid
ed not to reopen the applicant's inquiry under that
Act. The applicant's request to reopen was based
on two grounds:
(a) that such a reopening was allowed pursuant
to the provisions of section 35 of the Immigra
tion Act, 1976, S.C. 1976-77, c. 52;' and
(b) that the rules of natural justice were not
followed during the inquiry and, pursuant to
section 7 of the Charter [Canadian Charter of
Rights and Freedoms being Part I of the Con
stitution Act, 1982, Schedule B, Canada Act
1982, 1982 c. 11 (U.K.) [R.S.C., 1985, Appen
dix II, No. 44]], the Adjudicator had jurisdic
tion to reopen the inquiry quite apart from the
provisions of section 35.
1 35. (1) Subject to the regulations, an inquiry by an
adjudicator may be reopened at any time by that adjudicator or
by any other adjudicator for the hearing and receiving of any
additional evidence or testimony and the adjudicator who hears
and receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
(2) Where an adjudicator amends or reverses a decision
pursuant to subsection (1), he may quash any order or notice
that may have been made or issued and where he quashes any
such order or notice, he shall thereupon take the appropriate
action pursuant to section 32.
(3) Where an order or notice is quashed pursuant to subsec
tion (2), that order or notice shall be deemed never to have
been made or issued.
Adjudicator Burns refused the request to reopen
because, in his view, the information sought to be
introduced did not constitute "additional evidence
or testimony" as contemplated by section 35 of the
Act. In so far as the second ground was concerned,
it was his view that he did not have authority to
reopen the inquiry to correct an error in natural
justice.
My colleague, Madame Justice Desjardins, has
reviewed the relevant facts accurately in her rea
sons for judgment. At this juncture, therefore, it
will not be necessary to supplement her compre
hensive recitation. My colleague states that the
uncontradicted affidavit of the applicant sworn on
November 1, 1988 gives the reasons for the appli
cant's change of heart between the time when she
arrived in Canada at which time she expressed her
desire to claim refugee status and the time of her
inquiry when she advised the Adjudicator that she
wished to return to India. I agree that the appli
cant was under great pressure to advise the
Adjudicator that she wished to return to India and
that her decision to so advise the Adjudicator was
not freely given. On the basis of this evidence,
Desjardins J.A. concluded that since duress viti
ates consent, the option expressed by the applicant
at the inquiry was void. From this circumstance,
she concluded [at page 22] that:
Her affidavit of November 1, 1988 constitutes "additional
evidence or testimony" within the provision of subsection 35(1)!
of the Act. Once it is brought to the attention of the Adjudica
tor, he has jurisdiction under that section to reopen the inquiry.
My problem with this conclusion by my colleague
is that I perceive it to be contrary to the reasons
for judgment of the majority in the case in this
Court of Gray v. Fortier. 2 In that case, a deporta
tion hearing was adjourned to dispose of the appli
cant's claim to Convention refugee status. The
Minister rejected the claim and the Immigration
Appeal Board likewise dismissed his application
for redetermination of that claim. The applicant
applied under section 28 to set aside that decision
of the Board. The Adjudicator resumed the depor
tation hearing and made a deportation order.
2 [1985] 2 F.C. 525; (1985), 21 D.L.R. (4th) 14; 61 N.R.
197 (C.A.).
Subsequently this Court set aside the Board's deci
sion. The applicant then applied to the Adjudica
tor to reopen the inquiry. The Adjudicator refused
this request on the basis that he had no power to
reopen for the purpose of receiving evidence rela
tive to this Court's decision setting aside the deci
sion of the Board. The applicant then applied
under section 28 to set aside the Adjudicator's
refusal. A majority of the panel hearing the section
28 application dismissed it. Mr. Justice Pratte
wrote the majority reasons. I quote hereunder .a
portion of those reasons (pages 528-529 F.C.):
Section 35 of the Act does not give adjudicators an unquali
fied power to review their decisions and reopen inquiries. The
powers conferred by that section are more limited.
Subsection 35(1) gives adjudicators the power to reopen
inquiries for the sole purpose of receiving new evidence which
may warrant a change or reversal of a decision previously
given. An adjudicator, therefore, may not reopen an inquiry for
the sole purpose of changing a decision (without receiving new
evidence) or for receiving evidence which could not lead to a
change or reversal of a previous decision. This conclusion is not
without importance because subsection 35(2) makes clear that
the word "decision", in subsection 35(1), must be given a very
precise and narrow meaning.
Under subsection 35(2), when an adjudicator, after having
reopened an inquiry and received new evidence, amends or
reverses a decision pursuant to subsection (1), he may quash
any order or notice that may have been made and when he
quashes any such order or notice, he shall therefore take the
appropriate action pursuant to section 32. In order to under
stand that provision, it is necessary to refer to section 32 which
clearly indicates that, at the conclusion of an inquiry, an
adjudicator must first make certain decisions and must also,
after those decisions are made, issue orders or notices. In the
case of an inquiry held following a section 20 report, the
adjudicator must first decide whether the subject of the inquiry
is a person described in subsection 14(1) and, if he is not,
whether he is admissible in the country; in the case of an
inquiry held following a section 27 report, the adjudicator must
first decide whether the subject of the inquiry is a person
described in section 27. Once one of these decisions has been
arrived at, the adjudicator must take the action prescribed by
section 32 and, in certain circumstances, must make a deporta
tion order or an exclusion order or issue a departure notice.
Those are the orders and notices which, according to subsection
35(2), may be quashed when an adjudicator has amended or
reversed a decision pursuant to subsection 35(1). The decision
that may be changed or reversed under subsection 35(1) is not
the order or notice that was made or issued at the conclusion of
the inquiry. The word "decision" in that subsection clearly
refers to the determination made by an adjudicator that a
person is or is not either described in subsection 14(1) or
admissible or described in section 27. Section 35, therefore,
does not authorize the reopening of an inquiry for the purpose
of receiving evidence related only to the order made at the
conclusion of the inquiry. It follows that this section 28 applica
tion must be dismissed since the applicant requested a reopen
ing of the inquiry for the purpose of adducing evidence which
would show the illegality of the deportation order but which
would not affect in any way the validity of the decision on
which that order was based.
In my view, the rationale of that case as set out
by Pratte J.A. supra, applies to the circumstances
in the case at bar. The decision under attack in
these proceedings is the Adjudicator's refusal to
reopen the inquiry. The purpose of reopening was
to adduce evidence to prove a denial of natural
justice which was not apparent on the face of the
record. While the evidence might establish the
illegality of the deportation order, it would not in
any way affect the validity of the decision on
which the deportation order was based. Reading
subsection 35(1) and subsection 35(2) together
and in context, I agree with Pratte J.A. that the
parameters of subsection 35(1) are restricted to
new evidence which may warrant a change or
reversal of the earlier decision. In this case the
proposed evidence is in the same category as that
in Gray v. Fortier, i.e., it was evidence directed at
the illegality of the deportation order rather than
at the validity of the decision which led to the
deportation order. It follows, in my view, that the
Adjudicator did not err in refusing to reopen the
inquiry under the authority of section 35 of the
Act, absent any possible application of the
Charter.
I come now to the second ground on which the
applicant asked for reopening. This is in essence a
submission that the applicant's rights under sec
tion 7 of the Charter have been infringed' and
that, in such circumstances, the Adjudicator has
jurisdiction to consider the application to reopen.
The starting point for a discussion of this issue
would logically seem to be the decision of the
Supreme Court of Canada in Singh et al. v. Min-
' Section 7 reads:
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
ister of Employment and Immigration. 4 In Singh,
the reasons of Madame Justice Wilson speaking
for herself, the Chief Justice and Mr. Justice
Lamer established, firstly, that refugee claimants
under the provisions of the Immigration Act, 1976,
are entitled to the protection of section 7 of the
Charter, and secondly, that the procedure for
determining refugee status claims under the Act at
that time did not afford fundamental justice to
refugee claimants and was thus incompatible with
section 7 of the Charter. My approach to this issue
is also conditioned by the statement of Dickson J.
(as he then was) in Hunter et al. v. Southam Inc.: 5
The Canadian Charter of Rights and Freedoms is a purposive
document. Its purpose is to guarantee and to protect, within the
limits of reason, the enjoyment of the rights and freedoms it
enshrines. It is intended to constrain governmental action
inconsistent with those rights and freedoms; it is not in itself an
authorization for governmental action.
In dealing with the situation at bar from the
perspective of these two landmark decisions of the
Supreme Court of Canada, it is necessary to focus
on certain aspects of the factual situation. The
applicant was divorced from her husband in 1972
in India due to physical and emotional abuse on
his part. Her former husband fled India in 1985
because of fear of persecution. He claimed refugee
status in Canada. In India he had been accused of
involvement with the uprising following the raid on
the Golden Temple. In 1986 the applicant was
interrogated and detained by military and police
officials on three different occasions because of her
husband's activities. As a consequence she decided
to leave India. She arrived in Canada in July of
1987. She told the immigration official at the
airport on her arrival that she wished to claim
refugee status. She was the subject of a section 20
report based on being a member of an inadmissible
class of persons described in the Immigration Act,
1976. She was released on a bond furnished by her
former husband. She went to live with her former
4 [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12
Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1, at p. 216 S.C.R.
per Wilson J.
[1984] 2 S.C.R. 145, at p. 156 S.C.R.; (1984), 55 A.R. 291;
11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d)
193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) I; 41
C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241.
husband and his girlfriend on a farm. She was
frequently beaten and abused by her former hus
band. She was a virtual prisoner on this farm. She
received no medical attention after the beatings.
She attended for her inquiry on December 22,
1987. She was still under the influence of her
former husband. At that inquiry she said she did
not wish to be represented by counsel. She
returned to the inquiry on March 15, 1988, at
which time she advised the Adjudicator she did not
wish to claim refugee status. The Adjudicator
proceeded with the inquiry and found her to be a
member of an inadmissible class of persons. He
then pronounced an exclusion order against her.
On April 9, 1988, the applicant escaped from the
farm and took refuge in a women's shelter. Only
after escaping from the compulsion, duress, threats
and physical abuse of her former husband was she
in a position to state in detail her circumstances
and her true wishes relating to her claim for
refugee status, as well as her informed decision
with respect to counsel. This detailed account of
the many unpleasant incidents experienced by her
is contained in her uncontradicted affidavit of
November 1, 1988. It is these circumstances which
she wishes to bring to the attention of the
Adjudicator to explain her conduct at the proceed
ings before him.
In my view, this is clearly a case for intervention
pursuant to section 7 of the Charter. It is apparent
from the record that due to the duress exerted
upon her by her former husband during the inqui
ry, she was effectively deprived of her right to be
represented by independent counsel. She was also
effectively deprived of the ability to make a free,
informed and independent decision respecting a
claim to refugee status. Accordingly I conclude
that the exclusion order issued herein is manifestly
unfair in the circumstances of this case and con
trary to the provisions of section 7 of the Charter.
There is jurisprudence in both Divisions of this
Court which supports this view of the matter. I
refer, firstly, to the decision of Mr. Justice
McNair in the,Trial Division in the case of Mattia
v. Canada (Minister of Employment and
Immigration). 6 The facts in Mattia have some
similarities to the facts in this case. In Mattia the
applicant came to Canada on a student visa. While
in Canada he suffered from mental illness and was
hospitalized. Following release from hospital he
applied for an extension of his visa. This applica
tion was refused. While studying at University,
there was a reoccurrence of his mental problems.
He was incarcerated pursuant to subsection 104(2)
of the Immigration Act, 1976. At a subsequent
inquiry, he was ordered deported pursuant to sub
section 32(6) of the Act. Mr. Justice McNair, on
an application for prerogative relief, pursuant to
section 18, held that the refusal by the Adjudicator
to reopen the inquiry under section 35 of the Act,
the limitation under subsection 45(1) of the Act
requiring that a claim to refugee status be made
during the inquiry and the issuance of the deporta
tion order were manifestly unfair and violated the
applicant's rights guaranteed by section 7 of the
Charter. At page 501 F.C., he stated:
The weight of evidence, on balance of probability, supports
the conclusion that the applicant was mentally ill to such extent
that he could not properly appreciate the importance of exercis
ing 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 .... In my judgment the refus
al 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 limitation 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 circumstances and in violation
of the applicant's rights under section 7 of the Charter.
I would also refer to the decisions of this Court
in Bains v. Minister of Employment and Immi
gration and James v. Minister of Employment and
Immigration which were delivered on July 14,
1989 [and indexed as: [Bains v. Canada (Minister
6 [1987] 3 F.C. 492; (1987), 10 F.T.R. 170 (T.D.).
of Employment and Immigration)], [1989] 3 F.C.
487]. In those cases, the applicants' claims for
Convention refugee status had been refused by the
Minister. They then applied to the former Immi
gration Appeal Board for an extension of time
within which to file an application for redetermi-
nation of their claims to refugee status under
subsection 70(1) of the Immigration Act, 1976.
The Board dismissed those applications on the
basis that it was without jurisdiction to entertain
them having regard to subsection 40(1) of the
Immigration Regulations, 1978 [SOR/78-172 (as
am. by SOR/80-601, s. 4)]. After observing the
powers of the Board were "not adequate to permit
it to extend a time limit fixed by the Governor in
Council pursuant to the regulation-making power
conferred on him by the Act" Hugessen J.A.,
speaking for the Court, said [at page 490 F.C.]:
It is now well settled that a claim to refugee status may put in
play rights which enjoy Charter-protection.
He relied on the Singh case supra, in support of
this opinion. It was argued by the applicants in
Bains and James that a rigid and inflexible time
limit within which to apply for redetermination
with no possibility of extension no matter what the
circumstances, was not in accordance with the
principles of fundamental justice and could lead to
a deprivation of life, liberty or security of the
person, contrary to section 7 of the Charter. In
those cases, the Court found this argument to be
"unanswerable" and went on to state [at page 491 ]
that the Board was in error in simply refusing to
entertain , the applications for extension of time;
that it was required to "look at the particular
circumstances of each case to determine whether
the applicant stands to be deprived of a Charter-
protected right if not permitted to apply for rede-
termination, and, if so, whether fundamental jus
tice requires that he be granted such permission."
I think the reasoning employed in these two
cases applies by analogy to the situation at bar.
The Adjudicator, here, concluded that he did not
have authority to reopen the inquiry to correct an
error in natural justice. I disagree. In my view, the
Adjudicator had jurisdiction to determine whether,
in the circumstances of this case fundamental jus
tice would allow this applicant to claim refugee
status outside the time frame set out in the Immi
gration Act, 1976. He derives this jurisdiction by
virtue of the provisions of the Constitution Act,
1982 [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] subsection 52(1). That subsection reads:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
Support for this view is to be found in the dictum
of Chief Justice Dickson in R. v. Big M Drug Mart
Ltd. et al.: '
If a court or tribunal finds any statute to be inconsistent with
the Constitution, the overriding effect of the Constitution Act,
1982, s. 52(1) is to give the Court not only the power, but the
duty, to regard the inconsistent statute, to the extent of the
inconsistency, as being no longer "of force or effect."
In the case of Re Shewchuck and Ricard; Attor-
ney-General of British Columbia et al.,
Intervenors,' the British Columbia Court of
Appeal adopted a similar approach. Macfarlane
J.A. said:
It is clear that the power to make general declarations that
enactments of Parliament or of the Legislature are invalid is a
high constitutional power which flows from the inherent juris
diction of the superior courts.
But it is equally clear that if a person is before a court upon a
charge, complaint, or other proceeding properly within the
jurisdiction of that court then the court is competent to decide
that the law upon which the charge, complaint or proceeding is
based is of no force and effect by reason of the provisions of the
Canadian Charter of Rights and Freedoms, and to dismiss the
charge, complaint or proceeding. The making of a declaration
that the law in question is of no force and effect, in that
context, is nothing more than a decision of a legal question
properly before the court. It does not trench upon the exclusive
right of the superior courts to grant prerogative relief, including
general declarations.
[1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th)
321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C.
(3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81 at p. 353
S.C.R.
8 (1986), 28 D.L.R. (4th) 429; [1986] 4 W.W.R. 289; 2
B.C.L.R. (2d) 324; 1 R.F.L. (3d) 337, at pp. 439 and 440
D.L.R.
The Shewchuck decision was approved by this
Court's decision in Zwarich v. Canada (Attorney
General). 9 In Zwarich, Mr. Justice Pratte, speak
ing for the Court, said:
It is clear that neither a board of referees nor an umpire have
the right to pronounce declarations as to the constitutional
validity of statutes and regulations. That is a privilege reserved
to the superior courts. However, like all tribunals, an umpire
and a board of referees must apply the law. They must,
therefore, determine what the law is. And this implies that they
must not only construe the relevant statutes and regulations but
also find whether they have been validly enacted. If they reach
the conclusion that a relevant statutory provision violates the
Charter, they must decide the case that is before them as if that
provision had never been enacted.
It is also instructive to note that Professor Dale
Gibson in The Law of the Charter: General Prin
ciples (Toronto: Carswell Co. Ltd., 1986), pages
185 and 186 expressed the opinion that the Courts
are taking "a generous view of the meaning of
'law' under section 52(1)." He goes on to say: "A
dictum of Justice Dickson in the Operation Dis
mantle case indicates that section 52 may even
reach beyond the laws themselves to conduct based
upon them". The dictum referred to reads as
follows: 1 °
... nothing in these reasons should be taken as the adoption of
the view that the reference to "laws" in s. 52 of the Charter is
confined to statutes, regulations and the common law. It may
well be that if the supremacy of the Constitution expressed in s.
52 is to be meaningful, then all acts taken pursuant to powers
granted by law fall within s. 52.
Based on the jurisprudence discussed supra, I
have no difficulty in concluding that the Adjudica
tor had jurisdiction to reopen this inquiry pursuant
to subsection 52(1) of the Constitution Act, 1982
and a duty not to apply the limitations inherent in
subsection 35(1) and in subsection 45(1) to the
extent that this legislation contravened the appli
cant's section 7 rights.
9 [1987] 3 F.C. 253; (1987), 26 Admin. L.R. 295; 87 CLLC
14,053; 31 C.R.R. 244; 82 N.R. 341 (C.A.), at p. 225 F.C.
1° Operation Dismantle Inc. et al. v. The Queen et al., [1985]
1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16;
13 C.R.R. 287; 59 N.R. 1, at p. 459 S.C.R.
This conclusion brings me to a consideration of
the proper remedy in all of the circumstances of
this case. It is my conclusion that this is a clear
case for an "exemption" or "reading out". As I
read the Mattia decision and the decisions in Bains
and James supra, this is the remedy provided in
those cases, in effect, although not explicitly so
stated. With exemptions, the legislation remains in
force but is not applied to a person such as this
applicant whose Charter rights have been
infringed through the application of the legislative
provisions to his situation. The "exemption"
approach is the one adopted by the majority of the
Ontario Court of Appeal in the case of Seaboyer
and The Queen and Re Gayme and the Queen."
That decision was concerned with the constitution
al validity of section 246.6 of the Criminal Code
[R.S.C. 1970, c. C-34 (as enacted by S.C. 1980-
81-82-83, c. 125, s. 19)]. After commenting that
the section was not unconstitutional, Grange J.A.
observed that there might be instances where the
section would operate to deprive an accused of a
fair trial and in such an event, the provision would
breach section 7 of the Charter. After stating that
those occasions would be rare and would depend
upon the circumstances of the case, he said:
I see no reason why it cannot be held that in those circum
stances the section will be inoperative.
He later supported this solution by observing that
it "seems also to be contemplated by s. 52 of the
Constitution Act, 1982". He reached this conclu
sion on the basis that the language employed
therein makes any law that is inconsistent with the
provisions of the Constitution, of no force or effect,
to the extent of the inconsistency.
Counsel for the respondent did not address the
possible applicability of section 1 of the Charter. In
any event, there is nothing on this record to poss
ibly justify the application of section 1. Further
more, and apart from this specific record, I can
find no basis for invoking the provisions of section
1.
In conclusion, and for the above reasons, I
would allow the section 28 application and set
aside the decision of the Adjudicator dated
" (1987), 37 C.C.C. (3d) 53, at pp. 67 and 68.
November 22, 1988. I would refer the matter back
to an Adjudicator for reconsideration on the basis
that he has jurisdiction to reopen the inquiry in the
circumstances of this case.
MAHONEY J.A.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: This section 28 application is
directed against a decision of an Adjudicator who,
on November 22, 1988, refused to reopen an inqui
ry. The request addressed to him was based on two
grounds, namely on account of his powers to act in
view of the wording of section 35 of the Immigra
tion Act, 1976, S.C. 1976-77, c. 52 12 (the "Act")
and on account of the fact that there would be a
breach of natural justice contrary to section 7 of
the Canadian Charter of Rights and Freedoms if
the reopening was not permitted. The reasons
given by him in his refusal are as follows:
I feel the information you wish to present does not constitute
"additional evidence or testimony" as contemplated by Section
35 of the Act.
As to your second reason for reopening I do not feel that I have
authority to reopen an inquiry to correct what you may feel is
an error in "Natural Justice".
The Adjudicator, in my view, erred in law with
regard to his first reason. I, therefore, need not
deal with his second reason.
The applicant was born in India on November
15, 1939. She married Santokh Singh Bagga in
1962. They had three children, Gurpreet, Gursev
and Harkirat. During her marriage, she suffered
12 35. (1) Subject to the regulations, an inquiry by an
adjudicator may be reopened at any time by that adjudicator or
by any other adjudicator for the hearing and receiving of any
additional evidence or testimony and the adjudicator who hears
and receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
(2) Where an ajudicator amends or reverses a decision pur
suant to subsection (1), he may quash any order or notice that
may have been made or issued and where he quashes any such
order or notice, he shall thereupon take the appropriate action
pursuant to section 32.
(3) Where an order or notice is quashed pursuant to subsec
tion (2), that order or notice shall be deemed never to have
been made or issued.
both physical and emotional abuse at the hands of
her husband. As a result, she obtained a divorce in
April 1972 through the civil court system in India.
Her ex-husband, Mr. Singh, became politically
active in the Khalistan movement in India and
wrote several books about Indian nationalism. He
was accused of being an instigator of the uprising
after the raid on the Golden Temple. Two of their
sons, Gurpreet and Gursev followed their father's
political activities. Mr. Singh fled India in 1985
accompanied by his son Gursev. He found his way
to the United States and then to Canada. Gurpreet
remained in India.
The applicant began experiencing difficulties
with the military and the police after her ex-hus
band left the country. On three occasions, in Octo-
ber, November and December 1986, they attended
at her house and detained her for questioning
about her son Gurpreet and her ex-husband. She
feared she would soon be detained if she provided
no information to assist the authorities in their
investigations. Mr. Singh and the two sons by then
had been charged with offences.
She decided to leave India with her son Harkirat
who was living with her. She found out through
her son Harkirat, who was in touch with his father,
that her ex-husband was in Canada. From Sin-
gapore, Harkirat contacted his father and request
ed money for plane tickets to Canada. Mr. Singh
sent a letter to the visa office in Singapore stating
that he wished the applicant and his son join him
in Canada and claim refugee status as their lives
were in danger. She feels the reason he claimed
her as his wife in the letter was because he wanted
his son to reach safety in Canada. She also feels he
wanted her to come to Canada to stay with him as
he had not told people he was divorced and there
were rumors spreading in the Sikh community in
Toronto that he had a "mistress" with whom he
was living.
Upon arriving at Pearson International Airport,
the applicant told the examining officer she
wanted to claim refugee status. She had destroyed
her passport and travelling documents en route to
Canada. She was detained by the authorities until
Mr. Singh arrived and signed a bond for her.
She went to live with Mr. Singh and with Mr.
Singh's girlfriend at the Sikh farm in Princeton,
Ontario. Mr. Singh was the only person she knew
in Canada and she had nowhere else to go. She
was frequently beaten and abused by Mr. Singh.
She could not telephone nor leave the farm. She
would receive no medical attention after the
beatings.
On December 5, 1987, she managed to escape
and found her way to a Sikh temple. Mr. Singh
was informed as to her whereabouts and sent
someone to pick her up. She returned to the farm
on the promise that he would not beat her again.
She was however severely beaten on many occa
sions to the point, sometimes, where her clothes
were drenched in blood.
On December 22, 1987, she presented herself to
the Immigration authorities for her inquiry. The
night before, Mr. Singh told her that if she wanted
to return to India, she was free to go. He however
threatened to kill her if she were to reveal that he
had mistreated her. Her son Gursev would be at
the inquiry to keep an eye on her at all times.
During the inquiry, held under section 23 of the
Act, she said she did not wish to be represented by
counsel. She identified Gursev as her son. When
asked if the gentleman had her permission to
watch the inquiry, she answered:
"He brought me over, sir."
The Adjudicator then said:
"Yah, but you have to give his, your permission so he can see
what's going on here. For him to be in the room, you have to
give your permission."
She then answered:
"Yes."
The case presenting officer mentioned to the
Adjudicator that from a conversation he had with
the applicant before the inquiry opened, she was
not sure she would be proceeding at any point that
day. The Adjudicator reacted by saying that if she
was not ready to go ahead that day, he would have
wished she had said so, because he would have
granted her an adjournment to give her time to
reflect. He commented that although she did not
wish to be represented by counsel, it was obvious
her son was acting as her counsel. The applicant
replied that her son was not her counsel. She
expressed the wish to return to India although she
expected she would be detained there. She said she
did not want to claim refugee status. The hearing
was adjourned till February 9, 1988 in order to
give her time to obtain a passport.
On January 5, 7, and 8, 1988, the Immigration
authorities contacted Mr. Singh so as to find out
the intentions of the applicant. On January 8,
1988, Mr. Singh said the applicant wished to make
a claim for refugee status. On February 8, 1988,
Mr. Singh called to say that the applicant could
not make up her mind.
The sitting of February 9, 1988 was adjourned
till March 15, 1988 because the applicant was
involved in a car accident and could not attend.
On March 15, 1988, the applicant, again accom
panied by her son Gursev, told the Adjudicator she
did not wish to claim refugee status. She had no
passport, having not felt well enough to obtain one.
She declined the offer to be given more time to
obtain one. She reiterated her wish to go back to
India and asked the Adjudicator to provide her
with the necessary documentation for her return
there. The Adjudicator found her to be a person
described in paragraph 19(2)(d) of the Act. He
declined granting her temporary entry to Canada
as a visitor pursuant to subsection 14(3) of the
Act. An exclusion order was pronounced.
On April 9, 1988, the applicant successfully ran
away from the farm and took refuge in Toronto.
She later moved to a women's shelter.
In her affidavit of November 1, 1988, in support
of her request for a reopening of her inquiry, she
explains that during the inquiry she said she
wanted to return to India because she was being
tortured by Mr. Singh in Canada. She felt she
would be in danger if she returned to Iiidia but she
wanted to escape from the more immediate
danger. She was unable to disclose any informa
tion to the Adjudicator about the way Mr. Singh
treated her, as her son Gursev would have reported
it to Mr. Singh. She says she was under great
duress during the time of her inquiry and her
ultimate decision not to pursue her claim for
refugee status was dictated by the fact that she
could not tolerate anymore the abuses of Mr.
Singh. She said that Mr. Singh had told her
sometime in January 1988 that Immigration had
called but he never mentioned that Immigration
was calling to say she should decide whether she
wanted to claim refugee status. She told Mr.
Singh, at the time, she wanted to talk to the people
from Immigration but he refused to let her com
municate with them. He never discussed options
with her and suggested she return to India. She
says she was confused about what she wanted to
do at the time of the inquiry. She had no counsel,
although offered that right by the Adjudicator,
because Mr. Singh would not have allowed her to
have a lawyer representing her interests. She never
took any steps to obtain a passport because she
thought she was in the refugee stream, through her
husband's application. She did not understand she
was supposed to obtain a passport. She was not
allowed to leave the farm to get a passport applica
tion. In brief, she was confused about what she
was doing and about the immigration process.
This uncontradicted affidavit contains evidence
as to the reasons of the applicant's changes of
heart between the moment she reached the port of
entry where she expressed her intention to claim
refugee status and the time of her inquiry when
she told the Adjudicator she wished to return to
India. There are indications that the pressure on
her was such that she was not free to speak about
the situation she was in and unable to retain
counsel to assist her in her choices. Duress vitiates
consent in ordinary contractual situations. Like
wise, the option she expressed at the hearing of
March 15, 1988 cannot stand. Her affidavit of
November 1, 1988 constitutes "additional evidence
or testimony" within the provision of subsection
35(1) of the Act. Once it is brought to the atten
tion of the Adjudicator, he has jurisdiction under
that section to reopen the inquiry. He has no other
choice except to annul the applicant's earlier
option and to place the parties where they stood at
the beginning. Once the state of mind of the
applicant is expressed freely, the Adjudicator has
only the powers of subsection 35(1) of the Act, i.e.
to "confirm, amend or reverse any decision previ
ously given by" him. The word "decision" has the
meaning given to it by this Court in Gray v.
Fortier, [1985] 2 F.C. 525; (1985), 21 D.L.R.
(4th) 14; 61 N.R. 197. It is to be understood in the
limited sense of being a determination, here, that
the applicant is or is not a member of an inadmiss
ible class, the "decision" being distinct from the
order pronounced pursuant to section 32 of the
Act. The Adjudicator's determination that the
applicant is in violation of paragraph 19(2)(d) of
the Act, will most likely be confirmed since, even
with this additional evidence, the applicant
remains a member of an inadmissible class. The
Adjudicator, pursuant to subsection 45(1) of the
Act, will have a duty however to adjourn the
inquiry because of her refugee claim.
The Adjudicator will have no jurisdiction to
quash the exclusion order pronounced on March
15, 1988 because of the even more limited jurisdic
tion he has under subsection 35(2) of the Act. It is
only when he amends or reverses a decision pursu
ant to subsection (1), that he may quash an order.
The exclusion order of March 15, 1988 would
therefore remain, unless attacked in another pro
ceeding, as being premature in light of the eventu
al adjournment of the inquiry.
Gray v. Fortier, which I have referred to and
applied, must however be distinguished in part.
There, an individual had made a claim for refugee
status during an inquiry. As required by subsection
45(1), the inquiry was adjourned pending determi
nation of the refugee claim. When that claim was
rejected by the Minister, the applicant applied to
the Immigration Appeal Board for redetermina-
tion. The Immigration Appeal Board dismissed the
application so the applicant applied to this Court
for review under section 28 of the Federal Court
Act. While these proceedings were pending, the
Adjudicator resumed the inquiry and pronounced
the deportation order. The Federal Court of
Appeal then set aside the decision of the Immigra
tion Appeal Board and referred the matter back to
the Board for the holding of a proper hearing on
the applicant's application for a redetermination of
his claim. Counsel for the applicant wrote to the
Adjudicator asking him to reopen the inquiry so
that the judgment which had set aside the decision
of the Immigration Appeal Board be proved and
the deportation order quashed on the ground that
it had been made without jurisdiction. The
Adjudicator refused to accede to that request
since, in his view, he did not have the power to
reopen the inquiry for the purpose of receiving
evidence showing that he had acted without juris
diction when he had resumed the inquiry and
pronounced the deportation order. A section 28
application was brought before this Court. Pratte
J., for the majority, dismissed the application. He
distinguished the meaning of the word "decision",
to be found in both subsections 35(1) and (2), with
the word "order", in subsection 35(2), with the
result that section 35 could not authorize the
reopening of an inquiry for the purpose of receiv
ing evidence related only to the order. He limited
the jurisdiction of the Adjudicator in subsection
35(1) by stating that such subsection gives
adjudicators "the power to reopen inquiries for the
sole purpose of receiving new evidence which may
warrant a change or reversal of a decision previ
ously given". He specifically said (at pages 528-
529 F.C.):
Section 35 of the Act does not give adjudicators an unquali
fied power to review their decisions and reopen inquiries. The
powers conferred by that section are more limited.
Subsection 35(1) gives adjudicators the power to reopen
inquiries for the sole purpose of receiving new evidence which
may warrant a change or reversal of a decision previously
given. An adjudicator, therefore, may not reopen an inquiry for
the sole purpose of changing a decision (without receiving new
evidence) or for receiving evidence which could not lead to a
change or reversal of a previous decision. This conclusion is not
without importance because subsection 35(2) makes clear that
the word "decision", in subsection 35(1), must be given a very
precise and narrow meaning.
Under subsection 35(2), when an adjudicator, after having
reopened an inquiry and received new evidence, amends or
reverses a decision pursuant to subsection (1), he may quash
any order or notice that may have been made and when he
quashes any such order or notice, he shall therefore take the
appropriate action pursuant to section 32. In order to under
stand that provision, it is necessary to refer to section 32 which
clearly indicates that, at the conclusion of an inquiry, an
adjudicator must first make certain decisions and must also,
after those decisions are made, issue orders or notices. In the
case of an inquiry held following a section 20 report, the
adjudicator must first decide whether the subject of the inquiry
is a person described in subsection 14(1) and, if he is not,
whether he is admissible in the country; in the case of an
inquiry held following a section 27 report, the adjudicator must
first decide whether the subject of the inquiry is a person
described in section 27. Once one of these decisions has been
arrived at, the adjudicator must take the action prescribed by
section 32 and, in certain circumstances, must make a deporta
tion order or an exclusion order or issue a departure notice.
Those are the orders and notices which, according to subsection
35(2), may be quashed when an adjudicator has amended or
reversed a decision pursuant to subsection 35(1). The decision
that may be changed or reversed under subsection 35(1) is not
the order or notice that was made or issued at the conclusion of
the inquiry. The word "decision" in that subsection clearly
refers to the determination made by an adjudicator that a
person is or is not either described in subsection 14(1) or
admissible or described in section 27. Section 35, therefore,
does not authorize the reopening of an inquiry for the purpose
of receiving evidence related only to the order made at the
conclusion of the inquiry.
These words however have to be understood in
context. In Gray v. Fortier, counsel was aiming at
quashing the order. He could not hope to achieve
this purpose unless the evidence presented could
warrant a change or reversal of the decision. If the
words of Pratte J., that a reopening can be granted
only when additional evidence may warrant a
change or reversal of a decision previously given,
were to be understood literally as setting one rule
for all cases, an adjudicator, in the extreme, might
find himself in a situation where he could only
receive additional evidence if he were virtually
certain that a change or reversal of the decision
would ensue. The word "confirm" in subsection
35(1) of the Act could seldom, if ever, receive
application, except in the odd cases where the
evidence would turn out to be weaker than per
ceived originally. Yet, as drafted, section 35 might
receive a broader interpretation. Admittedly, more
often than not, a reopening for a confirmation
could become an exercise in futility. In the case at
bar, however, this is not so. The evidence contains
vital information of a fundamental nature which,
in the extraordinary circumstances in this case,
could have the effect of nullifying a large part of
the earlier evidence which was before the
Adjudicator and which because of subsection
45(1) of the Act, might change the course of the
inquiry the Adjudicator is responsible for, once a
refugee claim is made. Nothing, neither in Gray v.
Fortier, nor in section 35 as drafted, prevents a
reopening of the inquiry in those circumstances,
subsection 35(2) being respected.
Minister of Employment and Immigration v.
Hudnik, [1980] 1 F.C. 180; (1979), 103 D.L.R.
(3d) 308 (C.A.) is distinguished. There, the
respondent, a citizen of Yugoslavia, never claimed
to be a Convention refugee during the course of his
inquiry. Only later, some five months after the
deportation order was pronounced, did he make a
claim for refugee status. Mandamus was denied.
Pratte J., for the Court, said (at page 182):
When the respondent made his application, there was an
outstanding deportation order against him. The duty of the
appellant and of his officials, under section 50 of the Act, was
to execute that order "as soon as reasonably practicable". They
were not relieved of that duty because the respondent had
chosen to seek admission into the country. Furthermore, neither
the appellant nor his officials had the obligation to consider an
application which could not be entertained favourably without
impliedly setting aside the deportation order made against the
respondent.
There was not in Hudnik any indication that the
respondent had new and vital evidence of a funda
mental character to present, such as that he had
not been free to express himself nor to obtain
counsel at the inquiry, nor any indication that
before the inquiry he had been planning to make a
claim at the inquiry.
For the above reasons, I would allow the section
28 application and set aside the decision of the
Adjudicator dated November 22, 1988. I would
refer the matter back to an adjudicator for recon
sideration on the basis that he has jurisdiction to
reopen the inquiry in the circumstances of this
case.
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.