T-2643-93
Louise Martin, André Martin and Michel Martin minors by their litigation Guardian, Louise Martin (Plaintiffs)
v.
Her Majesty the Queen, in Right of Canada, by Her Minister of Employment and Immigration (Defendant)
Indexed as: Martinv. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Gibson J."London, Ontario, January 18, 19, 20, 21, 22, 25, 26, 27, 28 and February 1; Ottawa, April 12, 1999.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Plaintiff sexually assaulted by landed immigrant with criminal record — Immigrant ordered deported following parole after serving time for previous offences — Deportation stayed by IRB, AD — Plaintiff suing MEI for negligence in failing to execute removal order in timely manner, to detain immigrant pending removal — Whether all reasonable steps taken by MEI, public servants to ensure deportation order executed —as soon as reasonably practicable— under Immigration Act, s. 48 — Class of —neighbours— to which victim belonged not sufficient to create relationship of proximity — No private law duty owed by MEI to plaintiff.
Crown — Torts — Plaintiff physically, sexually assaulted by landed immigrant subject to deportation order — Suing MEI for negligence in failing to execute responsibilities under Immigration Act in timely manner, to detain convict pending removal — Crown liability vicarious, not direct under Crown Liability and Proceedings Act, ss. 3, 10 — To establish private law duty of care, foreseeability of risk must coexist with special relationship of proximity — Plaintiff only known as member of broad class of young, single women frequenting London, Ontario bars — Class not sufficient to create relationship of proximity — Government officials subject to resource constraints, Minister's priorities — No private law duty of care owed by MEI to plaintiff.
Damages — Compensatory — Plaintiff claiming general, special damages for defendant's negligence in failing to detain, deport in timely manner immigrant having record of violent, sexual offences against women — Breach of duty of care, if found to exist, —causing— damage to plaintiff — Case law on non-pecuniary damages reviewed — Considering principles of general damages assessment, impact upon sexual assault victims Court would have awarded $140,000 for general damages plus amounts for lost wages, special damages — Children would have been awarded damages for loss of care, guidance, companionship of mother under Family Law Act.
This was an action for damages based on the alleged negligence of the defendant in the context of the Immigration Act. On the night of May 14, 1993, while sitting and chatting in a London after-hours bar, the adult plaintiff met a man by the name of Michael Philip who, after leaving the bar, forced her into a van, threatened to cut her into pieces, and physically and sexually assaulted her over a period of hours. Her assailant was an immigrant from Trinidad subject to a deportation order and whose deportation had been stayed by the Appeal Division of the Immigration and Refugee Board. Philip's record of convictions included the sexual assault of a bar entertainer and a heinous and disgusting sexual assault causing bodily harm to a university co-ed. After being released on parole he was ordered deported by the Immigration Appeal Board. However, the deportation order was stayed by the Appeal Divison on certain conditions, namely that he would report for removal from Canada when directed to do so by an immigration officer. There was unequivocal evidence that Philip had breached the reporting condition attached to the stay of the order of deportation. In claiming general and special damages, plaintiff alleged negligence on the part of the defendant in failing to execute the removal order long outstanding against Philip in a timely manner and in failing to detain him pending his removal. The main issues were: (1) whether there was a private law duty owed by the defendant to the plaintiff and, if so, whether there has been a breach of that duty and whether such breach caused any damages to the plaintiff; (2) the assessment of the damages to the adult and infant plaintiffs.
Held, the action should be dismissed.
(1) Under sections 3 and 10 of the Crown Liability and Proceedings Act, Crown liability is vicarious, not direct. The duty of care owed to a plaintiff by the Crown is the same as that which would be owed by a private party. The law requires that individuals must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour. In order for a duty of care to exist, there must be proximity between the plaintiff's loss and the negligent conduct of the defendant, as well as a reasonable foreseeability that the plaintiff will suffer harm as a result of the acts or omissions of the defendant. The actions and omissions of officials of the Minister of Employment and Immigration that were complained of were acts or omissions of public servants performed within the scope of their employment. It was urged on behalf of the plaintiff that there was both proximity between the loss she had suffered and the allegedly negligent conduct of the Minister and that the attack on her was reasonably foreseeable. It was also alleged that the plaintiff was a member of a particular class within the concept of "neighbours" that the Minister should have had in contemplation based upon the pattern of Philip's criminal activities. The only definable class of "neighbours" to which the plaintiff might have been said to belong was the very broad class of young, single women living in the London region who frequented bars. It is not a class sufficient to create a relationship of proximity. No private law duty of care was owed by the Minister to the plaintiff. Had such duty existed, there were, on the evidence, no considerations which would limit or negative the scope of that duty. There was no basis on which to conclude that, if there was a private law duty of care owed by the Minister to the plaintiff, it was breached. Officials took the responsibility of seeking a deportation order against a landed immigrant or permanent resident of Canada very seriously. They also took seriously the responsibility of moving before the Appeal Division of the Immigration and Refugee Board to revoke the stay of the deportation order. In respect of both of these actions against Philip, officials had proceeded deliberately and with caution. They acted within resource constraints, with knowledge of the full range of demands on the resources available to them and taking into account the Minister's priorities. There was no breach of any private law duty of care that might have been owed by the Minister to the plaintiff. Had there been a breach of a private law duty of care, it would have to be concluded, upon the evidence adduced at trial, that such breach "caused" damage to the plaintiff.
(2) In the event of an appeal, damages should be assessed in favour of the plaintiffs. The treatment to which the female plaintiff was subjected on the night of May 14, 1993 was not different from torture as she suffered loss of dignity and severe violation of her physical and psychological integrity as well as physical and psychological suffering both that night and afterwards. If the plaintiff were to be successful on the question of liability, she should be entitled to judgment for lost wages in the amount of $6,000. In relation to special damages, counsel were in agreement on an award of $152.44. As to an award for general damages, an amount in the range of $50,000 to $60,000, as suggested by defence counsel, would not be appropriate if liability were found on appeal. Bearing in mind the general principles regarding assessment of general damages and the impact upon sexual assault victims, an amount of $140,000 should be awarded. Under the terms of the Ontario Family Law Act, the Court would have awarded the plaintiff André Martin $10,000 and the plaintiff Michel Martin $6,000. All amounts awarded would bear pre-judgment interest from May 14, 1993 at the rate of five percent per annum.
| statutes and regulations judicially considered |
| 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], s. 7. |
| Courts of Justice Act, R.S.O. 1990, c. C.43. |
| Criminal Code, R.S.C., 1985, c. C-46, ss. 145(2)(b), 253(1)(b). |
| Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 3, 10, 31 (as am. idem, s. 31). |
| Family Law Act, R.S.O. 1990, c. F.3, ss. 61, 62, 63. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(g), 27(1),(3), 48, 49(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 16; S.C. 1990, c. 8, s. 52), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65), (5) (as enacted by S.C. 1995, c. 15, s. 13), 103(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94). |
| Immigration Act, 1976, S.C. 1976-77, c. 52, s. 51(1). |
| Immigration Appeal Division Rules, SOR/90-738, s. 36(1). |
| cases judicially considered |
| applied: |
| Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1997] 1 F.C. 131; (1996), 30 C.L.R. (2d) 102; 117 F.T.R. 31 (T.D.); Donoghue v. Stevenson, [1932] A.C. 562 (H.L.); Andrews et al. v. Grand & Toy Alberta Ltd. et al., [1978] 2 S.C.R. 229; (1978), 8 A.R. 182; 83 D.L.R. (3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225; 19 N.R. 50. |
| considered: |
| Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R. (2d) 225; 72 D.L.R. (4th) 580; 5 C.C.L.T. (2d) 77; 50 C.P.C. (2d) 92; 1 C.R.R. (2d) 211; 40 O.A.C. 161 (Div. Ct.); Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487; 160 D.L.R. (4th) 697; 126 C.C.C. (3d) 12; 60 O.T.C. 321 (Gen. Div.); S. (J.) v. Clement (1995), 22 O.R. (3d) 495 (abridged); 122 D.L.R. (4th) 449 (Gen. Div.); Gauthier v. Beaumont, [1998] 2 S.C.R. 3; (1998), 162 D.L.R. (4th) 1; 228 N.R. 5; Lord v. Downer (1998), 66 O.T.C. 39 (Ont. Gen. Div.). |
| referred to: |
| Just v. British Columbia, [1989] 2 S.C.R. 1228; (1989), 64 D.L.R. (4th) 689; [1990] 1 W.W.R. 385; 41 B.C.L.R. (2d) 350; 41 Admin. L.R. 161; 1 C.C.L.T. (2d) 1; 18 M.V.R. (2d) 1; 103 N.R. 1; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; (1992), 91 D.L.R. (4th) 289; 11 C.C.L.T. (2d) 1; 137 N.R. 241; Ryan v. Victoria (City) (1999), 168 D.L.R. (4th) 513; 117 B.C.A.C. 103 (S.C.C.); Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; (1994), 85 F.T.R. 99 (T.D.); Lindal v. Lindal, [1981] 2 S.C.R. 629; (1981), 129 D.L.R. (3d) 263; [1982] 1 W.W.R. 433; 34 B.C.L.R. 273; 39 N.R. 361; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.). |
ACTION for damages based on the negligence of the Minister of Employment and Immigration failing to detain pending removal and to remove in a timely manner an immigrant having a record of violent sexual offences against women. Action dismissed.
| appearances: |
| David G. Waites, Lou-Anne F. Farrell and Stephanie L. Tiffin for plaintiffs. |
| S. Wayne Morris and Douglas O. Smith for defendant. |
| solicitors of record: |
| Lerner & Associates, London, Ontario, for plaintiffs. |
| Dutton, Brock, MacIntyre & Collier, Toronto, for defendant. |
The following are the reasons for judgment rendered in English by
Gibson J.:
| (1) INTRODUCTION |
[1]Following work on May 14, 1993, Louise Martin (Ms. Martin), together with a friend, went out for "a few drinks" and something to eat at a bar close to where they worked, in or near London, Ontario. It was a place that they had been to together a number of times. After eating, they went on to a karaoke bar where they stayed until closing at about 1:00 o'clock in the morning. Ms. Martin's co-worker suggested that they might then move on to an after-hours bar and Ms. Martin agreed. They took a taxi to the after-hours bar, arriving about 1:30. Ms. Martin described the atmosphere at the after-hours bar as "noisy, a bar atmosphere". There was music and dancing. Ms. Martin encountered Michael Philip (Philip) and, she testified, had a brief and general conversation with him. She had never met Philip before. Somewhere between 2:00 and 4:00 a.m., about one-half hour after encountering Philip, Ms. Martin, having discovered that her companion had left her, decided to leave alone for home. She went in search of a taxi at a nearby convenience store.
[2]Ms. Martin discovered that Philip was following her out of the bar. Philip offered her a drive home. She politely declined and started to cross the parking lot of the after-hours bar. Philip continued to follow her and "edged her" in a direction of his choice, obstructing the path she wished to follow. He continued to press her to allow him to drive her home. She continued to decline his offer. Ms. Martin discovered that Philip had "edged her" to a white van. Philip took her by the hair and shoved her into the van while she screamed in protest. Philip restrained her, got into the van himself and drove to a park. In the park, she briefly escaped. He overtook her and hit her on the head with sufficient force to knock her down. He threatened that if she did not voluntarily go back to the van with him, he would cut her up into pieces and take the pieces back to the van.
[3]Ms. Martin, restrained by Philip, returned with him to the van where he physically and sexually assaulted her over a period of hours.
[4]Well after daybreak, Philip fell asleep, naked, in the van. Ms. Martin made good her escape. She went to a nearby home where she was taken in and the police were called. She was taken to hospital. Philip was arrested, still asleep in the van.
[5]Philip was subsequently convicted of sexual assault, kidnapping and assault and received concurrent sentences of ten (10) years on each charge, subsequently reduced on appeal to six (6) years concurrent on the sexual assault and kidnapping charges and two (2) years concurrent on the assault charge.
[6]On the night the offences took place, Philip, a landed immigrant or permanent resident of Canada, was subject to a deportation order. His deportation had been stayed for a period of three (3) years by order of the Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated November 20, 1989. The stay had been revoked by further order of the Appeal Division dated August 18, 1992. A subsequent stay arising out of appeal proceedings in the Federal Court of Canada had expired on April 27, 1993.
[7]In reasons for its order dated August 18, 1992, the reasons being dated January 7, 1993, the Appeal Division wrote:
In the opinion of the Appeal Division, having regard to all of the circumstances of the case, the appellant [Philip] has remained an undesirable person who poses a threat to the safety and good order of Canadian society and therefore should be removed from Canada. [Emphasis added.]
| (2) RELIEF SOUGHT |
[8]In a second amended statement of claim filed on October 28, 1996, by reason of the alleged negligence of the defendant in:
" failing to execute the removal order long outstanding against Philip in a timely manner or "as soon as reasonably practicable";1
" failing to take Philip into detention pending his removal;2 and
" failing to take any or adequate steps to protect Ms. Martin from the risk of harm that Philip might cause if allowed to remain at large in Canada pending his removal;
Ms. Martin claims general damages in the amount of $1,000,000, special damages in the amount of $50,000, and pre-judgment and post-judgment interest on the sums found due and owing, together with costs on a solicitor and client basis. The co-plaintiffs, André Martin and Michel Martin, both minors and the children of Ms. Martin, claim damages for loss of care, guidance and companionship from their mother pursuant to the provisions of Part V of the Family Law Act3 of Ontario and in particular section 61 of that Act.
| (3) ISSUES |
[9]Counsel for the parties submitted the following summary of the issues arising in this action:
(1) Is there a private law duty of care owed by the defendant to Ms. Martin, in the circumstances of this case?
(2) If such a private law duty of care exists, are there any considerations applicable in these circumstances which would limit or negative the scope of that duty?
(3) If there is in fact a private law duty of care owed by the defendant to Ms. Martin, has there in fact been a breach of that duty?
(4) Assuming that there has been a breach of a duty owed, did such breach "cause" any damages to Ms. Martin?
(5) Assuming that there has been a breach of a duty owed and that that breach caused damages to Ms. Martin, what is the assessment of the damages to Ms. Martin and of any damages to the infant plaintiffs?
| (4) CHRONOLOGY OF SIGNIFICANT EVENTS |
[10]This chronology is drawn from the parties' joint chronology of events submitted at the commencement of trial, from documents submitted as exhibits at trial and identified and confirmed, directly or indirectly, in testimony, and from testimony at the trial.
[11]Michael Philip was born in Trinidad on July 15, 1956. He lived there until he was sixteen or seventeen years of age. His parents were not married at the time of his birth and apparently never lived together after his birth. Philip did not live with either of his parents until after he left Trinidad. He was raised by his grandmother on his father's side. While he apparently has brothers and sisters still living in Trinidad, in his testimony before the Appeal Division on November 20, 1989, he indicated that he didn't really know them.
[12]When Philip left Trinidad at the age of sixteen or seventeen, he went to the United States to reside with his father. Apparently that experience was not very successful.
[13]In 1975, when he would have been eighteen or nineteen, he entered Canada at the Detroit/Windsor area, apparently to go to London, Ontario where he had acquaintances whom he had met in the United States. At the time, he apparently had some form of resident status in the United States.
[14]A deportation order was issued against Philip on November 6, 1975. The deportation order cites the fact that he was not a Canadian citizen, that he was not a person having Canadian domicile and that he entered Canada as a non-immigrant and remained here after ceasing to be a non-immigrant. He was deported, apparently without objection on his part, to the United States.
[15]Very shortly after being deported, Philip re-entered Canada, once again at a Detroit/Windsor crossing point. A second deportation order was issued against him on January 9, 1976. He was deported three days later, again to the United States and again apparently without objection.
[16]At some stage in this time period, Philip married a Canadian citizen or permanent resident of Canada. His wife sponsored his third entry into Canada. On May 5, 1977 the Minister of Employment and Immigration (the Minister) or her or his predecessor consented to Philip's admission to Canada. Philip once again returned to Canada through the Detroit/Windsor area and acquired permanent resident or landed immigrant status on December 14, 1977. In this process, he apparently lost whatever status he had had in the United States.
[17]Philip and his first wife had two children. They separated and, apparently, divorced.
[18]On October 19, 1985, Philip married a Canadian citizen, Ms. Susan LeBeau.
[19]On March 18, 1986, Philip was charged with sexual assault and assault of Ms. Sonya Racine, an entertainer at a restaurant or bar, who had agreed to go with him to a club where he was a member, following her work at the restaurant or bar. The charges arising out of the "Racine incident" were not proceeded with and thus Philip was never found guilty or convicted of an offence against Ms. Racine. It was not contested that Ms. Racine was French speaking, the significance of which will appear later in these reasons.
[20]On July 30, 1986, Philip was arrested and charged with the sexual assault, causing bodily harm, of Ms. Monique Schwartz, a student at the University of Western Ontario. On the 12th of December of the same year he pled guilty and was convicted. An additional charge of sexual assault with a weapon was withdrawn. On January 13, 1987, Philip was sentenced to two years less one day and thereafter to a period of probation of three years. In sentencing Philip, the sentencing judge stated:
To keep this girl under a reign of terror performing all of these acts for a period of two hours, it's hard to imagine a situation that's worse, this physical violence and proof of physical violence, seen in the photographs of this young lady. She ends up with psychological disorders. She's not doing well in school. She's not being able to perform her employment completely. She's still under counselling. Her whole being has been changed substantially, and here we are in January"this occurred in July"and it's ongoing.
Later, the sentencing judge continued:
. . . you have been convicted of a crime that is the most disgusting, most heinous and most disreputable, when it comes to actions against women.
[21]On November 29, 1986, Terry Boss, an investigator in the London, Ontario office of the Minister's department of government (the Ministry) was assigned to investigate the immigration aspects of the Philip case.
[22]On or about April 8, 1987, Mr. Boss reached a point in his investigation at which he submitted a draft narrative report pursuant to subsection 27(1) of the Immigration Act4 to his superior in London. Under date of July 22, 1987, more than three months after the draft was completed, a revised and expanded subsection 27(1) narrative report was finalized, apparently signed by Mr. Boss and his manager or supervisor, and apparently submitted to another officer in the Ministry who was the delegate of the Deputy Minister for the purposes of subsection 27(1).
[23]On September 11, 1987, Philip was released on parole from Millbrook Correctional Centre where he had been serving his sentence for the offence against Ms. Schwartz.
[24]On or about April 14, 1988, almost nine months after the subsection 27(1) report was finalized, a direction for inquiry was issued pursuant to subsection 27(3) of the Immigration Act.5 Shortly thereafter, an inquiry was scheduled for May 25, 1988 and Philip was advised to appear on that date. At the inquiry on the 25th of May, Philip was ordered deported and was released into the community on three terms and conditions, namely that he would immediately advise the Ministry of any change in his address, that he would report to the office of the Ministry at London, Ontario once every three months commencing on August 25, 1988 and that he would report for removal from Canada when directed to do so by an immigration officer or for any other purpose as directed by an immigration officer. That same day, Philip filed an appeal against the deportation order to the Immigration Appeal Board.6 In the result, a statutory stay of deportation arose.7
[25]In September 1989, Philip was charged with driving "over eighty" contrary to paragraph 253(1)(b ) of the Criminal Code of Canada.8 Following an appearance on the 11th of October, his trial on the charge was put over to March 1, 1990.
[26]The hearing of Philip's appeal regarding the deportation order issued against him took place on November 20, 1989. Philip testified at length. His second wife, Susan LeBeau-Philip, with whom he then had two children, one of which was very young, also testified. The Appeal Division ordered that deportation of Philip be stayed for three years. It imposed four conditions as follows: first, that he abstain from consumption of alcohol; second, that, if possible, given the state of his health, he seek and maintain suitable employment; third, that he report to the Ministry every five months (rather than every three months as earlier required); and lastly that he report any change of address as he had earlier been required to do. The qualification regarding employment related to a medically documented back injury that Philip had apparently suffered in 1979, allegedly in the course of employment. At the close of the hearing, the chairman of the Appeal Division panel stated:
You have a relatively stable relationship with your wife, and the two children from this marriage, and that factor carries great weight with us today in staying the execution of the deportation order. So you can be grateful for the fact that you do have a fine and caring wife, and you should cooperate with her, and assist her, and if you assist her you'll try to get a job, and you'll stay out of trouble, and you'll refrain from alcohol.
[27]On March 1, 1990, Philip failed to appear in Court on the driving "over eighty" charge that was laid against him in September 1989. A bench warrant was issued for his arrest. Shortly thereafter, in two memoranda, Mr. Boss described the failure to appear as "Good news" and expressed amazement at the decision of the Appeal Division to stay the deportation order, in his words, "considering the violence towards women."
[28]On May 15, 1990, Philip was convicted of failure to attend Court contrary to paragraph 145(2)(b) and driving with more than eighty milligrams of alcohol in his blood contrary to paragraph 253(1)(b), in each case of the Criminal Code of Canada. For the failure to attend conviction, he was fined $100. For the drinking and driving offence, he was fined $400.
[29]On November 18, 1990, following Philip's return home late at night and his wife's rejection of his sexual advances, Philip assaulted her. Three (3) days later, Ms. LeBeau-Philip reported the assault to police who charged Philip and elected to proceed summarily against him.
[30]On November 22, 1990, on application on behalf of Ms. LeBeau-Philip made without notice to Philip, the Ontario Court, General Division, by interim order, gave exclusive possession of the matrimonial home to Ms. LeBeau-Philip, gave exclusive custody of the children of the marriage to her and issued a restraining order against Philip, all with effect to December 4, 1990. No satisfactory evidence was adduced before me as to whether the interim order was later extended. On the evidence before me, particularly the testimony of Ms. LeBeau-Philip herself, I am satisfied that Philip had, by this time, irreparably damaged his relationship with her.
[31]On February 22, 1991, Philip pled guilty to the assault on his wife and was convicted. He was later sentenced to thirty days incarceration with a recommendation for a temporary absence program to allow him to pursue education.
[32]Documentation filed, supported by the evidence of Mr. Boss, indicated that, on or about February 25, 1991, substantially after the failure to appear on March 1, 1990, and the convictions on May 15, 1990, the Ministry commenced to accumulate information and documentation to support an application to the Appeal Division seeking revocation of the three year stay.9
[33]The Ministry had earlier had unequivocal evidence that Philip had breached the reporting condition attached to the stay of the order of deportation. There was some vague evidence that Philip had also breached the drinking condition. Evidence, I conclude, was clearly available for the asking that Philip's employment record had been poor though this was arguably attributable, at least in part, to his back injury. Philip had been convicted of a drinking and driving offence, albeit that the event giving rise to his conviction had occurred prior to the granting of the stay and the Appeal Division had been aware of the event at the time it granted the stay. Finally, Philip had also been convicted of failure to appear. Apparently, and this was the evidence of officials of the Ministry who appeared before me, none of these realities or, indeed, not all of them taken together, was or were, in the opinion of responsible officials, sufficient to warrant an earlier application to revoke the stay.
[34]On April 26, 1991, Ms. LeBeau-Philip filed for divorce.
[35]It would appear that all documentation and information that would form the ultimate basis of an application to revoke the stay of deportation was in the hands of Ministry officials as early as June 17, 1991 and apparently no later than July 4, 1991. The application to revoke the stay and dismiss Philip's appeal against the deportation order made against him was filed October 10, 1991. A hearing before the Appeal Division was scheduled for December 11, 1991. On that date, the Appeal Division never reached the Philip matter on its agenda. It adjourned the Philip hearing to a date to be fixed. In mid-January 1992, the hearing was rescheduled for the 4th of March.
[36]On February 14, 1992, Mrs. LeBeau-Philip obtained a decree of divorce. Three days later, the revocation hearing scheduled before the Appeal Division for March 4, 1992 was again adjourned to April 23, 1992. Once again, the hearing was adjourned to a date to be fixed, subsequently fixed for July 29, 1992. On that day, while the hearing itself was concluded, written submissions were requested. Philip's counsel filed written submissions on August 10, 1992. On August 18, 1992, the Appeal Division revoked the stay and ordered execution of the deportation order as soon as reasonably practicable. Notice of the decision of the Appeal Division, addressed to the Ministry and to Philip, was signed on August 28, 1992.
[37]A very brief statutory stay, if requested, pursuant to paragraph 49(1)(b) [as am. by S.C. 1990, c. 8, s. 52] of the Immigration Act, followed the decision of the Appeal Division. There was no evidence that it was requested. On the evidence before me, from the 18th of August, a brief "window of opportunity" opened in which Philip could have been deported. By virtue of paragraph 49(1)(d ) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 16] of the Immigration Act, that window closed again on September 14, 1992 when an application for leave to appeal against the decision of the Appeal Division was filed in the Federal Court of Appeal on behalf of Philip.10 While it might conceivably have been urged that Philip was, at the relevant time, a person described in paragraph 19(1)(g) and that therefore the stay provided by paragraph 49(1)(d) did not apply, no such argument was made before me.11 Officials from the Ministry who testified before me indicated that, given the international travel aspects of a deportation, the deportation order could not have been executed between the 18th of August and the 14th of September even with full co-operation from Philip.
[38]On September 30, 1992, Philip was admitted to hospital in London, Ontario for surgery, apparently in respect of his back injury. Complications ensued. He remained in hospital to October 27, 1992.
[39]Following a brief extension of time granted to counsel for the Minister to file material on the application for leave to appeal the decision of the Appeal Division, the application for leave was dismissed on April 27, 1993. Thus, the statutory stay arising by reason of paragraph 49(1)(d) of the Immigration Act was lifted. The Court certificate confirming the dismissal of the application for leave is dated May 4, 1993. The next day, counsel for the defendant was advised of the dismissal. On May 14, 1993, counsel for the defendant received a copy of the certificate confirming the dismissal of the application for leave.
[40]Against the foregoing chronology, counsel for the plaintiffs urged that the Minister failed in a duty to Ms. Martin to execute her responsibilities under the Immigration Act in a timely manner. Counsel urged that once the Minister became aware of Philip's propensity for violence, she failed to respond diligently in the interest of protection of Canadians generally and, more particularly, in the interest of protection of Ms. Martin. Counsel emphasized delay in the following particular periods:
" First, a draft report under subsection 27(1) of the Immigration Act was completed on April 8, 1987. The report was not finalized and submitted to an officer authorized to deal with it until July 22, 1987;
" thereafter, the subsection 27(1) report did not result in a direction for inquiry until April 14, 1988;
" third, it was urged that the Ministry became aware as early as March 1, 1990, that Philip was in further difficulty with the law and was failing to comply with at least one condition of the stay of his deportation, that being the condition that he report on a regular basis to the Ministry. Despite this, the Ministry did not apply to revoke the stay of deportation until November 18, 1992; and
" finally, the Ministry failed to execute the deportation order or detain Philip following the revocation of the Appeal Division stay on August 18, 1992 before a second statutory stay came into place on September 14, 1992, failed to utilize the period of the second statutory stay to prepare for early deportation in the event, that transpired, of the expiry of that stay, and again failed to detain or execute the deportation order between the time that stay expired on April 27, 1993 and the time of the attack on Ms. Martin.
[41]At this point, I turn back in time to follow the chronology of events that brought Ms. Martin into proximity with Philip on the night of May 14, 1993.
[42]Louise Martin was born in Saint-Basile, outside Edmunston, New Brunswick on June 14, 1962. She was the oldest of three children. French was the language of her home. Her father was steadily and well employed. Her mother was a "stay-at-home mom" while the children were pre-school age and later took employment as a health care aid.
[43]Ms. Martin completed grade 12 in Saint-Basile and, shortly thereafter, moved to the National Capital Region where some of her friends were attending university. From 1982 to 1984 or 1985 she was in a relationship in the National Capital Region and her son André was born of that relationship in 1983. The relationship broke down and Ms. Martin moved back to New Brunswick with her son. A custody battle ensued and André was briefly abducted back to the National Capital Region by his father. Ms. Martin acted decisively to recover custody of her son.
[44]While back in New Brunswick, Ms. Martin qualified as a health care aid and obtained employment in that field. She entered into a new relationship and, together with her new partner and André, moved to St. Thomas, Ontario in 1988 where her partner had obtained employment. Ms. Martin also obtained employment in the St. Thomas area, once again in the health care field. Her second relationship terminated in or about 1989.
[45]Ms. Martin's second son Michel, referred to throughout the testimony as "Mikey", was born in 1991. Neither André nor Mikey know their fathers.
[46]While Ms. Martin was resident in St. Thomas, she attended Fanshawe College and successfully completed office skills courses, particularly in accounting and computer skills, skills that she was satisfied she would need to pursue her ambition of becoming self-employed.
[47]In 1992, Ms. Martin and her sons moved to London, Ontario where Ms. Martin had secured employment in sales and supervisory work in the janitorial field. At the beginning of May 1993, Ms. Martin was working approximately twenty hours per week at an hourly wage of $7.50. She had secured a promotion to the management level, effective the end of May, which would have provided her with full-time employment and significantly increased income.
[48]In her testimony, Ms. Martin defined her life at the beginning of May 1993, by the following principal feature: she was a single mother, raising her two sons, then ten and almost two. She described her relationship with her children in the following terms:
I lived for my children. My children were my life. I was a single mother. I had no shame in that. I was proud of the fact that I could support my family and my children gave me great joy and my purpose was to make sure my children were happy and healthy.12
She testified that she had "lots of friends", had a good social life, was happy with her life and enjoyed her job, that she was "going in the right direction" and that she was looking forward to her promotion. She testified:
Life was basically simple and sane. You know, I was happy with myself and happy with my life.13
and:
I had set goals for myself. I wanted to become self-employed.14
[49]Two women who were friends of Ms. Martin at the beginning of May 1993 and for some time prior to that time, essentially confirmed her description of her life.
| (5) OTHER EVIDENCE |
| (a) Relating to Liability |
[50]Counsel for the plaintiffs called three witnesses on the issue of liability, the first of whom was Ms. LeBeau-Philip on whose testimony I have earlier briefly commented. Ms. LeBeau-Philip's testimony evidenced the fact that she went from being a resolute advocate of Philip's remaining in Canada, notwithstanding the alleged assault on Ms. Racine and his conviction and imprisonment with respect to the assault on Ms. Schwartz, to an equally resolute, however reluctant, advocate of his removal from Canada following his assault on herself.
[51]The plaintiffs' second witness on liability was Ms. LeBeau-Philip's solicitor who acted on her behalf in family law matters following Philip's assault on her and who firmly supported Ms. LeBeau-Philip in advocating a revocation of the stay of execution of the deportation order against Philip.
[52]Following an objection by counsel for the defendant, and after considering submissions by counsel, I allowed counsel for the plaintiffs to reopen the plaintiffs' case on liability to adduce evidence of Ms. Martin on the very limited issue of the language capabilities of Ms. Schwartz. Ms. Martin testified that, during the trial of Philip for his attack on her, Ms. Martin had occasion to talk with Ms. Schwartz. Ms. Martin testified that their discussion was entirely in the French language and that, although Ms. Schwartz was certainly fluent in English, she was also comfortable in the French language. This became relevant when counsel for the plaintiffs argued that Ms. Martin was not simply a member of the general public against whom Philip represented a threat, but rather a member of, at least in the context of London, Ontario, a very limited class, that being French-speaking women, a class which included Ms. Racine and Ms. Schwartz, as well as Ms. Martin.
[53]The plaintiffs' case on liability was completed by read-ins from the transcript of examination for discovery of Mohamed Bhabha, a retired senior official in the Ontario Region of the Ministry.
[54]Three witnesses testified on behalf of the defendant on the question of liability. They were Terry Boss, earlier referred to as the investigator in the London, Ontario Region of the Ministry assigned to investigate the Philip case, Allan Wilson, a senior officer in the Ontario Region of the Ministry and Mohamed Bhabha, just referred to.
[55]Terry Boss testified at some length and by reference to very extensive documentation as to the investigation conducted in the London Region of the offences, misdeeds and disinterest of Philip as a person in Canada, admitted for a third time following two deportations, with the express consent of the Minister. Mr. Boss testified as to the pressures on the limited personnel assigned by the Ministry to the London Region with the resultant effect that matters often could not be pursued with the diligence that individual officers, such as himself, would have liked to see. He testified as to the high threshold of proof required by more senior officers in the Ontario Region to support an application for a deportation order against a landed immigrant or permanent resident of Canada and, where a deportation order was obtained and stayed by reason of a decision of the Appeal Division of the Immigration and Refugee Board, for an application to the Appeal Division requesting that it reconsider its earlier decision, revoke the stay and support the deportation. He testified as to his real frustration with the total process in which he regarded himself as a small cog in a very large wheel.
[56]Both Mr. Wilson and Mr. Bhabha, each with broad experience in the Ontario Region of the Ministry and, in the result, a broader perspective than that of Mr. Boss on the range of responsibilities of the Minister and the hard decisions that she and officials on her behalf were called upon to make in the allocation of resources against those responsibilities, testified as to the process that would be followed in the Ontario Region on receipt of a subsection 27(1) of the Immigration Act report, such as that provided by the London Region in respect of Philip, and as to the process and Ministry requirements before an application to the Appeal Division to revoke a stay that it had ordered would be proceeded with.
[57]No explanation other than workload was provided with regard to the time taken to finalize and process a subsection 27(1) of the Immigration Act report such as that here delivered by the London Region on or about July 22, 1987 that did not result in a direction for inquiry until April 14, 1988.
| (b) Relating to Damages"The Early Morning of May 15, 1993; Its Impact and Aftermath |
[58]In the introduction to these reasons, I briefly outlined the events in the life of Ms. Martin on the night of May 14 and 15, 1993. Ms. Martin testified at some length as to those events. I do not propose to further describe them here. Suffice it to say that I am satisfied on the basis of the testimony before me that the acts, the terror, the pain and the degradation to which Ms. Martin was subjected that night should not, and would not in a world more perfect than ours, be inflicted on anyone. I will turn to the impact of that terrible night.
[59]The principal plaintiff testified:
. . . it shattered my life. To this day, five years after the assault I still feel that I'm picking up some of those pieces. I still don't feel that I'm the same person that I was.15
She continued:
I couldn't leave my house. I had barricaded myself in the house. The windows were shut, the doors were locked and this is in May. I mean Ontario in May, June, July is usually hot, summer month[s] and you think the rational person living on the second storey [of a] building would have her windows open, but I couldn't. I couldn't even have my windows open. I wasn't able to go anywhere by myself without this fear, this gut wrenching fear of somebody pushing me in a vehicle again.16
[60]Ms. Martin was unable to return to work. She cut herself off from her friends. She spoke of anger and of "lashing out" in circumstances where, because of her other reactions, her barricading or siege mentality, the victim of her lashing out was her older son, André. She testified:
I would scream and yell and slap him and just a complete loss of control on my part over little things, things that shouldn't have had any type of response. He was just a little boy, he was ten years old, and I was a normal person to him all his life, a caring mother. There was never any spanking or abuse, verbal abuse of any kind . . . Now, all of a sudden following the assault, if the child dropped a glass of pop on the floor he would get a slap behind the head. There was a lot of verbal abuse. I would scream, and the things I did to him that were really, really wrong.17
She testified that her home had been open to André's friends prior to the assault. Following the assault, it was a closed fortress. Further, André was not allowed to go anywhere.
[61]On a night in August of 1993, when Ms. Martin did go out of her home to play "bingo", André, after the babysitter left, following a telephone call from his mother and while he was left alone with his younger brother who was asleep, dialled "911". In the result, the Children's Aid Society intervened and the two children were taken into custody, first in a group home and later in a foster home. Assessment and counselling followed. Mikey was returned to his mother around the end of October. André, by his own choice, did not return to his mother until some time in December 1993.
[62]Ms. Martin returned to work at the end of October or the beginning of November 1993 at which time she assumed the management responsibilities that she had been anticipating taking on at the end of May. She experienced difficulties in her relationships with other employees and potential employees which she testified she had never had before.
[63]By June of 1994, while still suffering many difficulties, Ms. Martin nonetheless realized her ambition of establishing her own business in the janitorial services field. She developed a strong and confident working relationship with one of her employees, Robert Campbell. During the autumn of 1994, the working relationship matured into a personal relationship. Later in the autumn of the same year, Mr. Campbell and Ms. Martin began to live together. They continued to live together at the time of the trial. Mr. Campbell is the father of Ms. Martin's third son, Jonathan.
[64]In January of 1995, Ms. Martin's business failed. She briefly returned to employment with her former employer in janitorial services. Later, she and Robert Campbell established their own janitorial services business together, a business that continued to operate at the time of trial. The business operates out of their home and they are the sole employees.
[65]Both Robert Campbell and André testified, Robert Campbell as to the limitations of his relationship with Ms. Martin by reason, in his observation, of the continuing aftermath of the assault, and André as to the continuing detrimental impact on his family life. In summary, André's testimony was to the effect that his mother continues not to be the mother that he once knew and is not the mother that he dreams of once again having.
[66]A number of expert reports were filed on behalf of the plaintiffs. Two of the persons who prepared reports testified at the trial. The first expert witness was Anne B. Finnigan, Program Coordinator for the Regional Sexual Assault Treatment Centre at St. Joseph's Health Centre in London, Ontario. Ms. Finnigan has also been a Forensic Clinical Nurse Specialist/Nurse Practitioner since 1995 and in that role has provided assessment and documentation of injuries following sexual assaults. Ms. Finnigan testified that Ms. Martin, in the autumn following the assault upon her, felt unsafe in her own community resulting in difficulty for her in participating in the daily activities of living, found travelling in the evening by public transit a threatening experience, was experiencing stresses that impacted on her relationship with her children, was worried about her own resources of energy with consequent impact on her social, working and family life, and was experiencing trouble sleeping and eating a balanced diet. Ms. Finnigan testified more generally, that the sexual assault had impacted on all areas of Ms. Martin's life. Ms. Finnigan had done no follow-up with Ms. Martin following the autumn of 1993.
[67]The second expert witness of behalf of the plaintiffs was Dr. Gail A. Golden, a psychologist in private practice since 1980 and on staff with the Victoria Family Medical Centre in London since 1984. In addition, Dr. Golden teaches in the departments of psychology and family medicine at the University of Western Ontario. Dr. Golden met with Ms. Martin on three occasions in January and February of 1995. She described the following symptoms as consequences of the sexual assault: chronic anger; difficulties in parenting; fearfulness; social isolation; difficulties in work life; weight gain; increased smoking; sleep disorder; sexual problems; shame; and depression. In general terms, Dr. Golden described the assault on Ms. Martin as having had "devastating psychological effect".
[68]Mr. T. Edward Bober filed an expert report and appeared as an expert witness on behalf of the defendant. Mr. Bober has an independent practice in individual and couple therapy, post-traumatic therapy for adults, crisis and traumatic stress management for organizations and training for public and private sector organizations. He has extensive traumatic services experience and is director, social work and crisis services, at the Peel Memorial Hospital. Mr. Bober interviewed Ms. Martin on January 9, 1998 and, prior to that meeting, reviewed the reports of Ms. Finnigan and Dr. Golden as well as other reports. In his report, he described several issues that continue to distress Ms. Martin. These include the lack of closure on the event by reason of the on-going impact on her life, her continued feelings of anger and fearfulness, and her weight gain and increased smoking.
| (c) Assessment of the Testimony |
[69]In general terms, I found the testimony of the witnesses before me to be delivered in a forthright, open and sincere manner and the witnesses to be highly credible. The foregoing applies particularly to the testimony of Ms. Martin who was clearly under a good deal of stress in the witness box. In more specific terms, I have comments with respect to the testimony of only three witnesses and those follow.
[70]André Martin testified without visible or audible emotion and without visible facial expression. For a young man such as he is, testifying as he did, I found that a matter of concern.
[71]Robert Campbell presented a significantly different perspective on his relationship with Louise Martin and on their household then did Ms. Martin herself. I find that, too, to be a matter of concern. The testimony of the three taken together left me with the impression that the depth of communication within the family unit leaves something to be desired.
[72]Finally, I note that Dr. Gail Golden attached a degree of optimism in her prognosis for Ms. Martin to the fact that Ms. Martin and Mr. Campbell were now in business for themselves, thus realizing an ambition held by Ms. Martin before the tragic events of the 14th and 15th of May. In her testimony, Dr. Golden did not appear to be aware of the much more ambitious effort by Ms. Martin to commence her own business in June of 1994 and of the failure of that attempt early in 1995. Whether this would have coloured Ms. Golden's prognosis for Ms. Martin is left to speculation.
| (6) LIABILITY |
| (a) General Principles |
| (i) Liability of the Crown |
[73]Although the Crown was initially considered immune from liability""the King or Queen can do no wrong""an increase in "government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens."18 These incidents led to the enactment of legislation imposing liability on the Crown for its acts as though it were a person. The relevant portion of section 3 of the Crown Liability and Proceedings Act19 reads as follows:
3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable
| (a) in respect of a tort committed by a servant of the Crown; or |
The liability arising under paragraph 3(a) is qualified by section 10 of the Act, which provides:
10. No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative.
Thus, Crown liability is vicarious, not direct. In order for liability to fall upon the Crown, a plaintiff must show that a Crown servant or servants, acting within the scope of employment, breached a duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff injury of a sort that would attract personal liability against a private person.20
| (ii) The Duty of Care |
[74]The duty of care owed to a plaintiff by the Crown is the same as that which would be owed to the same plaintiff by a private party. The well-established principle of when a duty of care will be found was enunciated in 1932 by Lord Atkin in Donoghue v. Stevenson.21 Lord Atkin stated that the law requires that individuals "must take reasonable care to avoid acts or omissions which [they] can reasonably foresee would be likely to injure [their] neighbour." He went on to define "neighbour" as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."22
[75]Mr. Justice Moldaver, as he then was, summarized the "neighbour" principle when he noted in Doe v. Metropolitan Toronto (Municipality) Commissioners of Police :23
Foreseeability of risk alone is not sufficient to impose a private law duty of care: . . . .
To establish a private law duty of care, foreseeability of risk must coexist with a special relationship of proximity. [Citations omitted.]
[76]In Olympia Janitorial Supplies v. Canada (Minister of Public Works),24 Mr. Justice Wetston reviewed the discussion of a relationship of proximity in the Supreme Court of Canada decision Canadian National Railway Co. v. Norsk Pacific Steamship Co.25 Although both Olympia and Canadian National dealt with liability for pure economic loss, I am satisfied that the principles regarding proximity there enunciated apply here. Justice Wetston wrote at paragraph 14, page 141:
. . . proximity may consist of various forms of closeness, including physical, circumstantial, causal or assumed . . . . [I]n order for a duty of care to exist, there must be proximity between the plaintiff's loss and the negligent conduct of the defendant, as well as a reasonable foreseeability that the plaintiff will suffer harm as a result of the acts or omissions of the defendant.
[77]Recent authority from the Supreme Court of Canada affirms the foregoing general principles.26
| (iii) Similar Cases |
[78]Two recent cases have dealt with instances of sexual assault with resultant litigation brought by the victim against a public body: Doe v. Metropolitan Toronto (Municipality) Commissioners of Police,27 and S. (J). v. Clement.28 Neither case is directly comparable to the instant case, but the identification of "neighbours" and the "special relationship" in each is worthy of note.
[79]In Jane Doe No. 3, the plaintiff was sexually assaulted in her second floor apartment by a serial rapist. The attacker was later charged and convicted. The plaintiff sued the Metropolitan Toronto Police Force and its Board of Commissioners alleging, inter alia, that the defendants breached the duty of care that they owed to her by not warning her, and other women like her, that she and they were likely targets of a serial rapist. The evidence showed that Ms. Doe shared physical and residential characteristics in common with the rapist's previous victims. Specifically, the victims were all single white women with dark hair, who lived alone in second or third floor apartments, with balconies, in the Church/Wellesley area in downtown Toronto. The evidence further established that the defendants were aware of this "target group" but decided not to warn women within it for fear of jeopardizing the investigation and having the perpetrator flee the area.29
[80]Based on the foregoing, Madam Justice MacFarland determined that the plaintiff had established a private law duty of care as she had established that the harm was foreseeable and a special relationship of proximity existed.30 In determining thus, Justice MacFarland adopted the reasoning of Mr. Justice Moldaver in Jane Doe No. 2.
[81]In Clement,31 the plaintiff, Mrs. S., was sexually assaulted by Clement, a known violent sexual offender, who had walked away from a federal minimum security correctional institution earlier on the day of the assault.
[82]In her suit against the Correctional Service of Canada (CSC) and Clement, Mrs. S. alleged that CSC had been negligent in failing to conduct an immediate search for Clement at 8:30 a.m. when it first suspected that he was missing, and in failing to notify the Ontario Provincial Police in a timely manner of his probable escape when a head count failed to locate him. In fact, the Ontario Provincial Police were first informed of the walk-away more than an hour after the head count and found and apprehended Clement shortly thereafter. Madam Justice Lang determined that both a special relationship of proximity and reasonable foreseeability of harm existed.
[83]In finding that CSC owed and had breached a duty of care to Mrs. S., Justice Lang defined the group of "neighbours" differently than in Jane Doe No. 3, although she was careful to say that her definition was case specific. Justice Lang wrote at page 494 [122 D.L.R. (4th)]:
It is unnecessary, and would be inappropriate, to define the precise class of people to whom the C.S.C. owed a duty of care in the circumstances of this walk-away. In my view, it is sufficient that it was reasonably foreseeable in the circumstances that a known violent sexual offender, in the course of his escape, posed a significant risk of violence to any woman he met in the vicinity of the institution. A woman living about two miles from the facility, near the major highway that the escapee might use to facilitate his escape, is a person in proximity of relationship, and the risk to her was foreseeable.
Accordingly, I find that C.S.C. owed a duty of care to Mrs. S. on the facts of this case.
| (b) On the Evidence in this Matter |
[84]A minister of the Federal Crown has a generalized duty to the people of Canada to exercise the powers and discretions and to perform the duties conferred through legislation on executive government and entrusted to her or his administration. Each minister, of course, must rely on public servants, as the Minister did here, in fulfilling that duty. Generally speaking, public servants are accountable to their minister and the minister, in turn, is accountable to her or his colleagues in cabinet, to Parliament and, ultimately, to the people of Canada at election time. Canada's immigration program, as reflected in the Immigration Act and regulations made thereunder, as well as in other instruments and policies, is a remarkably complex program with broad implications touching individuals, family units, communities and Canadians as a whole. Its implications are economic, social and demographic. Thus, the responsibility of the Minister who is charged with the administration of the immigration program is a heavy one.
[85]The Minister and her officials must be conscious of the risks posed to law-abiding Canadians by persons, such as Philip, who come to Canada on the invitation of Canadians, or at least with permission on behalf of Canadians, and abuse the privilege of being here. The Minister and her officials must also be cognizant of the reality that some of these people, like Philip, while in Canada, undertake family obligations including obligations to Canadians by birth or by naturalization and to the children of the resulting relationships who are themselves Canadian citizens by birth. Often, as in the case of Philip, those family members and indeed others, once again as in the case of Philip, are advocates for the view that Philip or his equivalents should be given "one more chance" to stay in Canada, to meet their obligations to those who are economically and/or emotionally dependent on them and to become contributing members, in a broader sense, of Canadian society. Thus, the responsibility of the Minister and of her officials is not an easy one to fulfill and, regrettably, can most likely never be fulfilled to the satisfaction of all Canadians.
[86]Against this general background, I turn to the question of the duty, if any, owed by the Minister, not to Canadians generally, but to Ms. Martin.
[87]There can be no question that the actions and omissions of officials of the Ministry that are complained of were acts or omissions of public servants performed within the scope of their employment. Those acts or omissions are summarized in paragraph 40 of these reasons and are repeated here for convenience. It was urged on behalf of Ms. Martin that once the Minister became aware of Philip's propensity for violence, she, through her public servants, failed to respond diligently in the interest of protection of Canadians generally and, more particularly, in the interest of protection of Ms. Martin and persons like her who, it was urged, could be reasonably foreseen to be at particular risk as members of a particular group of "neighbours" of Philip.
[88]It was urged on behalf of Ms. Martin that there was delay on behalf of the Minister in fulfilling her responsibilities, in particular between April 8, 1987 and the 22nd of July of that year, and thereafter in the period until April 14, 1988. It was further urged that, following the imposition of a stay of deportation by the Appeal Division, for which, it was acknowledged, the Minister could not be seen to be responsible, the Minister and her public servants could have moved much more expeditiously to seek a revocation of the stay. Further, once the stay was revoked in August of 1992, it was urged that the Minister and her public servants did not take all reasonable steps to ensure that the deportation order outstanding against Philip was executed, in the terms of section 48 of the Immigration Act, "as soon as reasonably practicable". Finally, it was urged that, at least in the period from April 27, 1993 when the last stay of deportation in Philip's favour expired until the time when he could be deported, the Minister and her officials should have ensured that Philip was arrested and held in detention as provided for in subsection 103(2) of the Immigration Act .
[89]I will summarize my conclusions against the issues, as defined by the parties and reflected in paragraph 9 of this reasons. I cannot find a private law duty of care owed by the Minister to Ms. Martin on the evidence before me. If there were such a duty, I find no considerations applicable on the evidence before me that would limit or negative the scope of that duty. Once again, if I were to find such a duty, I am not satisfied that the duty was breached. If I were to find a breach of duty, I am satisfied that that breach would have "caused" damage to Ms. Martin.
[90]Counsel for the applicants urged that there was both proximity between Ms. Martin's loss and the allegedly negligent conduct of the Minister and that the attack on Ms. Martin was reasonably foreseeable. Counsel urged that Ms. Martin was a member of a particular class within the concept of "neighbours" that the Minister should have had in contemplation based upon the pattern of Philip's criminal activities. Counsel defined the characteristics of the class in the following terms: both Ms. Racine and Ms. Schwartz were in the vicinity of London, Ontario; they were both relatively young, apparently single, women. They both spoke French; they both frequented bars, Ms. Racine in the course of her employment and Ms. Schwartz, apparently like Ms. Martin, for pleasure and socialization.
[91]Philip never went to trial for the alleged assault on Ms. Racine. The Minister's officials had no basis on which to conclude that Philip was guilty of any assault against Ms. Racine. He remained innocent until proved guilty. There was not sufficient evidence before me that the Minister's officials were aware or should have been aware at any time prior to the assault on Ms. Martin, that Ms. Schwartz spoke French. Thus, the principal defining characteristic that she and Ms. Schwartz might have had in common with Ms. Racine, particularly defining in a community like London, Ontario, was unknown and reasonably so to the Minister. Given that the linguistic characteristic was unknown, and given the lack of a conviction in respect of the alleged assault on Ms. Racine, the only definable class of "neighbours" to which Ms. Martin might have been said to belong was the very broad class of young, single women living in the London, Ontario Region who frequented bars. Such a class is very substantially broader than the class defined in Jane Doe No. 3 and in Clement. It is not a class sufficient to create a relationship of proximity.
[92]It is on the basis of the foregoing brief analysis that I conclude that no private law duty of care was owed by the Minister to Ms. Martin.
[93]If I am wrong regarding the existence of a private law duty, as indicated earlier, I can find no considerations on the evidence before me that would limit or negative the scope of any private law duty of care owed by the Minister to Ms. Martin.
[94]While, in hindsight, on the basis of the testimony of those who appeared before me on behalf of the Minister and testified as to the processes and pressures in the Ministry, it is fair to say that all would have wished that the various processes leading to the deportation of Philip would have moved more expeditiously, I can find no basis on which to conclude that, if there was a private law duty of care owed by the Minister to Ms. Martin, it was breached. Officials testified that they took the responsibility of seeking a deportation order against a landed immigrant or permanent resident of Canada very seriously. Equally, they took the responsibility of moving before the Appeal Division of the Immigration and Refugee Board to revoke a stay of deportation very seriously. In respect of both of these actions against Philip, officials proceeded deliberately and with caution. They acted within resource constraints and with knowledge of the full range of demands on the resources available to them. They were conscious of the Minister's priorities. Equally, they were conscious of the serious implications of taking a landed immigrant or permanent resident into custody, pending deportation.32 On the totality of the evidence before me, I can find no breach of any private law duty of care that might have been owed by the Minister to Ms. Martin.
[95]If it were determined that a breach of a private law duty of care owed by the Minister to Ms. Martin took place, once again on the totality of the evidence before me, I would conclude that such breach of duty "caused" damage to Ms. Martin.
| (7) DAMAGES |
| (a) Non-Pecuniary Damages"General Principles and Selected Precedents |
[96]In the event of an appeal in this matter and a reversal of my judgment on liability, I will turn briefly to the question of appropriate reliefs in favour of the plaintiffs.
[97]In Andrews et al. v. Grand & Toy Alberta Ltd. et al.,33 Mr. Justice Dickson, as he then was, adopted the "functional" approach to assessment of non-pecuniary damages. At pages 261-262, he wrote:
The . . . "functional" approach, accepts the personal premise [valuation of the injury in terms of the loss of human happiness by the particular victim] . . . , but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person "with reasonable solace for his misfortune." "Solace" in this sense is taken to mean physical arrangements which can make his life more endurable rather than "solace" in the sense of sympathy.
He continued on page 262:
If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities.
At page 264, he continued:
It is customary to set only one figure for all non-pecuniary loss, including such factors as pain and suffering, loss of amenities and loss of expectation of life. This is a sound practice. Although these elements are analytically distinct, they overlap and merge at the edges and in practice. To suffer pain is surely to lose an amenity of a happy life at that time.
[98]While the Supreme Court in Andrews urged moderation in non-pecuniary damage awards and suggested an upper limit of $100,000 in cases such as the one before it where the plaintiff was a young adult quadriplegic, subsequent cases have reaffirmed the statement in Andrews that upper limits must be viewed flexibly in recognition of "changing economic conditions" and other factors.34
[99]More recently, in Gauthier v. Beaumont,35 Mr. Justice Gonthier, for the majority, wrote at page 64:
Adding to this the humiliation he suffered in the course of the torture, the loss of dignity, the severe violation of his physical and psychological integrity, and his physical and psychological suffering during the night of March 1 to 2, 1982 and afterwards, it is reasonable and fair to award $200,000 dollars in non-pecuniary damages.
While the facts of that matter were clearly distinguishable from the facts of this matter, I am satisfied that the treatment to which Ms. Martin was subjected on the night May 14 and 15, 1993 was not different from torture and she certainly suffered loss of dignity and severe violation of her physical and psychological integrity as well as physical and psychological suffering both that night and afterwards, indeed, to the days of the trial before me.
[100]The following extracts from Jane Doe No. 336 are worthy of note. At page 532, Madam Justice MacFarland wrote:
Rape is unlike any other sort of injury incurred by accident or neglect. Survivors of rape must bear social stigmatization which accident victims do not. Rape is not about sex; it is about anger, it is about power and it is about control. It is, in the words of Dr. Peter Jaffe "an overwhelming life event". It is a form of violence intended to create terror, to dominate, to control and to humiliate. It is an act of hostility and aggression. Forced sexual intercourse is inherently violent and profoundly degrading.
As Mr.Justice Cory stated in R. v. Osolin [[1993] 4 S.C.R. 595], at p. 669:
| It cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women. [Citation omitted.] |
I endorse the foregoing and adopt it as an expression of my own views.
[101]Madam Justice MacFarland continued at page 533:
In my view, damage awards in the $ 40,000-50,000 range are reflective of neither the horrific nature of the violation nor of the overwhelming and all-encompassing consequences of it.
In my view, an appropriate general damage award for Ms. Doe in all the circumstances of this case is $175,000.
[102]In Clement,37 Madam Justice Lang wrote at pages 519 and 520 [122 D.L.R. (4th)]:
In determining an appropriate amount for general damages, I bear in mind that the purpose of an award is to compensate, as far as money can do, for the pain and suffering and loss of enjoyment of life that J.S. suffered as a result of the assault. The amount of damages should be moderate and not so much as to provide her with a virtual windfall. Nor should the amount of general damages include a component which would have the effect of punishing the defendants.
It is also critical to my determination that the damage suffered by Mrs. S. is different in kind from similar injuries that may be suffered by the victim in the usual general damages claim arising from a motor vehicle accident. Any attempt to compare the two situations is misleading. While both a motor vehicle accident and a sexual assault may result in physical or psychological injuries that are similar from a medical standpoint, they are vastly different in critical aspects.
As was pointed out by the expert evidence, the injuries of the sexual assault victim are compounded by the manner of their infliction. The deliberate, hateful imposition of power and force by one human being against another in violation of one's being is something that cannot be rationalized by the victim, nor by society. A sexual assault, then, is no mere accident with physical and psychological consequences. By definition, a sexual assault deprives the victim of her dignity, her self-respect, her sense of self-confidence and leaves her fearful of places where she had previously found safety and solace. When that sexual assault is aggravated by acts of degradation, such as those inflicted upon Mrs. S., and where they are accompanied by a brutal beating inflicted in the sanctuary of one's home, the effect is devastating. The result is a victim who fears for the safety of her family and for her own health. . . .
In this case, not only was Mrs. S.'s body harmed but her trust in humanity has been jeopardized. In addition, the very fabric of her family has been threatened, a family that was the centre of Mrs. S.'s life. All the aggravating factors surrounding the nature of the deliberate assault must be considered, and damages must not be limited to those that would be awarded to the victim of a merely negligent defendant, because such a victim does not suffer the psychological damage experienced by a sexual assault victim. Further, while victims of sexual assault ought to feel no shame or responsibility for the conduct of their assailants, this is a common reaction in our society. The victim must also be compensated for this emotional damage that she must bear.
Once again, I am satisfied that the foregoing applies on the totality of the evidence before me. Madam Justice Lang continued at page 521 [122 D.L.R. (4th)]:
In fixing a quantum of general damages, counsel referred me to the numerous cases that have dealt with the issue. Many deal with situations where a person in trust has repeatedly sexually assaulted the victim over a lengthy period of time: . . . Where there had been a single act of rape, damages varied: $10,000 In Myers (Wiebe) v. Haroldson (1989), 48 C.C.L.T. 93 . . . ; $25,000 in G. (E.D.) v. D. (S) (1993), 101 D.L.R. (4th) 101, . . . ; $40,000 in C. (M.). v. M. (F.) (1990), 74 D.L.R. (4th) 129, . . . ; $40,000 in Q v. Minto Management Ltd. (1985), 15 D.L.R. (4th) 581, . . . ; and $65,000 in W. (B.) v. M.(P.M.) (1994), 50 A.C.W.S. (3d) 1019, . . . . [Some citations omitted.]
Madam Justice Lang concluded with regard to general damages in the following terms at page 522 [122 D.L.R. (4th)]:
After considering all the circumstances of Mrs. S.'s injuries, including the aggravating factors of its infliction, her stage of life and family situation, her suffering of the past two years, the likelihood of successful treatment, and the fact that she will have recurring flashbacks to the assault, I assess her damages for non-pecuniary lost [sic] in the amount of $90,000.
| (b) Under Part V of The Family Law Act38 |
[103]Section 61 of the Ontario Family Law Act reads in part as follows:
61."(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
(2) The damages recoverable in a claim under subsection (1) may include,
. . .
| (e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. |
In Lord v. Downer39 Mr. Justice Granger, in the context of a claim where the principal victim had been murdered, wrote at paragraph 7:
. . . pursuant to s. 61 the family is not entitled to receive compensation for the emotional suffering or anguish they have endured related to the death or injuries sustained by their relative. . . . The damages recoverable for the future loss of care, guidance and companionship of a relative are based upon being deprived of the opportunity of enjoying an ongoing relationship with this relative and the various benefits which are associated with this relationship. [Citation omitted.]
I am satisfied that the same can be said where the family members are not deprived of an ongoing relationship but rather where the quality of that ongoing relationship is severely negatively impacted.
[104]In Clement,40 Madam Justice Lang found CSC liable for the Family Law Act claims of the children of the principal victim. She awarded damages to each of the children ranging from $4,500 to $15,000. She rejected the amount of $20,000 sought on behalf of each child, noting that:
These are very high claims given the awards traditionally made by our courts.
With respect to the younger children, Madam Justice Lang wrote at page 534 [122 D.L.R. (4th)]:
Bearing in mind that compensation is restricted to the loss of care, guidance and companionship, the younger children, in the end, will have suffered the least. They were quite young at the time of the assault, and with their mother's continued presence in the home, their loss has been somewhat limited in nature when compared to the loss of the older children.
With respect to another child described as K.(1), Madam Justice Lang wrote, again at page 534 [122 D.L.R. (4th)] and continuing on page 535:
K.(1) has suffered a more significant loss of his mother's care. As he has entered his teenage years, he would, but for the assault, have received significant assistance from her at a very crucial time in his development. As his deprivation has been more significant than that of the other children, this should be recognized by a F.L.A. award of $7,500.
| (c) On the Evidence and on the Relief Sought in this Matter |
[105]Once again, in the event that my decision herein is appealed and I may be found to have erred on the issue of liability, I turn to an assessment of damages in this matter.
[106]Counsel for the plaintiffs submits that Ms. Martin should be entitled to judgment for lost wages in the amount of $11,642.50. Before me, it was acknowledged that this figure should be adjusted downwards to allow for the fact that Ms. Martin would not have assumed the duties related to her promotion until the end of May 1993. Counsel for the defendant noted that Ms. Martin's remuneration, once she assumed her new responsibilities, would be made up of salary and commission and that any amount in respect of commission would be pure speculation since no evidence was adduced as to what Ms. Martin's actual commission earnings were after she returned to work and assumed the increased responsibilities at the end of October or beginning of November 1993. Counsel for the defendant suggested that an award in the range of $4,000 to $10,000 for lost wages would be appropriate. The submissions of counsel for the defendant are well taken. If Ms. Martin were to be successful in this matter on the question of liability, I would award $6,000 in respect of lost income.
[107]In relation to special damages, counsel were in agreement on an award in the amount $152.44.
[108]The more difficult area is that of general damages. Counsel for the plaintiffs emphasized the awards in Clement and Jane Doe No. 3. Counsel for the defendant, by reference to extracts from the Clement decision appearing earlier in these reasons, urged a general damages award in the range of $50,000 to $60,000.
[109]I am not satisfied that an award of general damages in the $50,000 to $60,000 range would be appropriate if liability were found on the facts of this matter. I share the views expressed in Clement and Jane Doe No. 3, quoted above, regarding the nature and impact of sexual assault. In particular, the impact on the life of Ms. Martin has been nothing less than dramatic and, on the basis of the expert evidence before the Court, there is simply no assurance that her life will ever return to what she regarded as "normal" before the night of May 14 and 15, 1993. Bearing in mind the general principles regarding assessment of general damages referred to earlier in these reasons, if liability were found, I would award an amount of $140,000. That amount is higher than was awarded in Clement . Ms. Martin was younger at the time of the assault against her than was the principal plaintiff in Clement. Her lifestyle was urban and more broadly based than was the lifestyle of the principal plaintiff in Clement. By contrast, the award that I would propose is lower than that in Jane Doe No. 3. I am not satisfied that the totality of the evidence in this matter demonstrates as broad and deep an impact as that disclosed by the evidence in respect of Jane Doe.
[110]With regard to the Family Law Act claims, while counsel for the plaintiffs advocated no particular awards, she urged that awards higher than the $4,500 and $7,500 in Clement referred to earlier were appropriate. Counsel for the defendant urged that the Clement awards should apply here. I favour the position of counsel for the plaintiffs. In Clement, the reasons disclose no evidence that the principal plaintiff, the mother of those who received the Family Law Act awards, "lashed out" in physical violence against her children. While she withdrew in relation to her children, the children never suffered the impact of a period of complete separation from their mother as André and Michel did here. In light of the foregoing, once again if liability were found on the part of the defendant, I would provide Family Law Act awards in favour of Michel in the amount of $6,000 and in favour of André in the amount of $10,000.
(8) PRE-JUDGMENT INTEREST
[111]Counsel for the parties were in agreement that, once again if liability were found on the part of the defendant, in accordance with section 31 [as am. by S.C. 1990, c. 8, s. 31] of the Crown Liability and Proceedings Act41 and the Ontario Courts of Justice Act,42 pre-judgment interest at the rate of five percent per annum from May 14, 1993 should be awarded. I would adopt this recommendation of counsel.
(9) SUMMARY OF CONCLUSIONS
[112]In the result, this action will be dismissed. In the event that my decision herein is appealed and I am found to have erred on the issue of liability, I would have ordered damages against the defendant and in favour of Louise Martin in the amount of $140,000 general damages, $6,000 for lost wages and $152.44 for special damages for a total award of $146,152.44. Under the terms of the Family Law Act, I would have awarded the plaintiff André Martin $10,000 and the plaintiff Michel Martin $6,000. All amounts awarded would bear pre-judgment interest from May 14, 1993 at the rate of five percent per annum.
(10) COSTS
[113]Counsel for the plaintiffs urged that this was an appropriate matter in which to exercise my discretion not to grant costs. Counsel for the defendant urged that costs should follow the event, on the ordinary scale, if demanded. I favour the position of counsel for the plaintiffs. While the legal and factual issues raised before me were not entirely novel, they were certainly novel in an immigration context. Further, while I have found that delays on the part of the defendant were not such as to give rise to liability, there were nonetheless delays that quite reasonably gave rise to concerns on the part of Ms. Martin. There will be no order as to costs.
(11) POSTSCRIPT
[114]While it is likely to be of little if any consolation to the plaintiffs herein, it may be of some interest to any readers of these reasons who are not fully familiar with Canada's immigration system, that Parliament amended the Immigration Act in 1995 in a manner at least in part responsive to fact situations of the nature dealt with in these reasons. A new subsection 70(5)43 was added to the Immigration Act in the following terms:
70. . . .
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
| (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
| (b) a person described in paragraph 27(1)(a.1); or |
| (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
[115]Philip was a person described in subsection 70(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65], that is to say, at all relevant times, he was a permanent resident of Canada. A deportation order was made against him on May 25, 1988. The deportation order, made by an adjudicator, recites the facts that Philip was a person determined by the adjudicator to be described in paragraph 27(1)(d) of the Immigration Act who had been convicted of an offence under the Criminal Code of Canada for which a term of imprisonment of more than six (6) months had been imposed. In fact, it was an offence under the Criminal Code for which a term of imprisonment of ten (10) years or more could have been imposed. Thus, after the coming into force of subsection 70(5) in 1995, Philip would have fallen within its terms.
[116]To make subsection 70(5) operative, a delegate of the Minister would have had to issue an opinion that Philip was a person who constituted a danger to the public in Canada. The process for issuing such an opinion is reasonably summary.44 The result of such an opinion would have been that Philip would have had no appeal to the Appeal Division from the deportation order issued against him.
[117]As recorded above, on the day the deportation order was issued against Philip, he filed an appeal to the Appeal Division. That appeal was heard more than a year later on November 20, 1989. It resulted in a three-year stay. During the currency of the stay, among other things, Philip assaulted his wife, pled guilty to the assault and was convicted. The stay of his deportation was not lifted until August 18, 1992.
[118]If subsection 70(5) of the Immigration Act had been in place in the time frame with which this action is concerned, and if the Minister had chosen to rely on it, as she could have, it is fair to assume that Philip would have been deported substantially before the date of the assault on Ms. Martin. I believe this would have been the case even if Philip had exercised every right available to him in the current regime to seek judicial review in this Court of the deportation order and of the issuance of the danger opinion and even if he had sought, from this Court, a judicial stay of his removal pending determination of his application or applications for judicial review.
[119]This portion of these reasons, as earlier indicated, is for information only. Also as indicated earlier, I assume that it will be of little if any consolation to the plaintiffs.
1 See s. 48 of the Immigration Act (the Immigration Act), R.S.C., 1985, c. I-2 as amended to the relevant time.
2 See s. 103(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94] of the Immigration Act.
3 R.S.O. 1990, c. F.3 (as amended).
4 The relevant portions of s. 27(1) of the Immigration Act read as follows:
27. (1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who
. . .
| (d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of |
| (i) more than six months has been imposed, or |
. . .
the immigration officer or peace officer shall forward a written report to the Deputy Minister setting out the details of such information.
5 S. 27(3) of the Immigration Act reads as follows:
27. . . .
(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where the Deputy Minister considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.
6 The predecessor of the Immigration and Refugee Board.
7 In 1988, the relevant portions of s. 51(1) of the Immigration Act, 1976 [S.C. 1976-77, c. 52] read as follows:
51. (1) Except in the case of a person residing or sojourning in the United States or St. Pierre and Miquelon against whom a removal order is made as a result of a report made pursuant to paragraph 20(1), the execution of a removal order is stayed
. . .
| (b) in any case where an appeal from such order has been filed with the Board, until the appeal has been heard and disposed of or has been declared by the Board to be abandoned; |
8 R.S.C., 1985, c. C-46, as amended.
9 S. 36 of the Immigration Appeal Division Rules, SOR/90-738, at the relevant time, read in part as follows:
36. (1) Where the Appeal Division disposes of an appeal pursuant to paragraph 73(1)(c) or (d) of the Act, a party to that appeal may, at any time during the period of the stay of execution, apply in writing to the Appeal Division to
. . .
| (b) cancel its direction staying the execution of the order and |
| (i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or |
10 The relevant portions of s. 49(1) of the Immigration Act read as follows:
49. (1) Except in the case of a person residing or sojourning in the United States or St. Pierre and Miquelon against whom a removal order is made as a result of a report made pursuant to paragraph 20(1)(a), the execution of a removal order is stayed
. . .
| (b) in any case where the person against whom the order was made has a right to file an application for leave to commence an application for judicial review under the Federal Court Act in respect of the order, at the request of that person until seventy-two hours have elapsed from the time and when the order was pronounced. |
. . .
| (d) in any case where the person, being other than a person described in paragraph 19(1)(g), files an application for leave to appeal or signifies in writing to an immigration officer an intention to file an application for leave to appeal a decision of the Appeal Division or a decision of the Refugee Division under subsection 69.3(4) to the Federal Court of Appeal, until the application for leave to appeal has been heard and disposed of or the time normally limited for filing an application for leave to appeal has elapsed and, where leave to appeal is granted, until the appeal has been heard and disposed of or the time normally limited for filing the appeal has elapsed, as the case may be; and |
11 S. 19(1)(g) reads as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
| (g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence; |
12 Transcript, January 26 and 27, 1999, at p. 12.
13 Ibid., at p. 8.
14 Ibid., at p. 9.
15 Ibid., at p. 26.
16 Ibid., at p. 27.
17 Ibid., at pp. 27-28.
18 ;Just v. British Columbia, [1989] 2 S.C.R. 1228, at p. 1239.
19 R.S.C., 1985, c. C-50, as am. by S.C. 1990, c. 8, s. 21.
20 ;Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1997] 1 F.C. 131 (T.D.).
21 [1932] A.C. 562 (H.L.).
22 Ibid., at p. 580.
23 (1990), 74 O.R. (2d) 225 (Div. Ct.) (hereinafter Jane Doe No. 2), at p. 230.
24 Supra, note 20.
25 [1992] 1 S.C.R. 1021.
26 See: Ryan v. Victoria (City) (1999), 168 D.L.R. (4th) 513 (S.C.C.) (not cited before me).
27 (1998), 39 O.R. (3d) 487 (Gen. Div.) (hereinafter Jane Doe No. 3).
28 (1995), 20 O.R. (3d) 495 (abridged); 122 D.L.R. (4th) 449 (Gen. Div.). Notice of appeal filed March 6, 1995 by the Attorney General of Canada (hereinafter Clement).
29 Jane Doe No. 3, supra, note 27, at pp. 523-524.
30 Ibid., at p. 524.
31 Supra, note 28.
32 See Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.); wherein Mr. Justice Rothstein writes of the interrelationship between immigration custody and s. 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.) [R.S.C., 1985, Appendix II, No. 44]].
33 [1978] 2 S.C.R. 229 (not cited before me).
34 See Lindal v. Lindal, [1981] 2 S.C.R. 629, at pp. 640-641 (not cited before me).
35 [1998] 2 S.C.R. 3 (not cited before me).
36 Supra, note 27.
37 Supra, note 28.
38 Supra, note 3.
39 (1998), 66 O.T.C. 39 (Ont. Gen. Div.) (not cited before me).
40 Supra, note 28.
41 Supra, note 19.
42 R.S.O. 1990, c. C.43, as amended.
43 S.C. 1995, c. 15, s. 13.
44 See Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) (not cited before me).