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Roosevelt Douglas (Appellant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and Cameron D.J.—Ottawa, August 4, 1972.
Judicial review—Prohibition—Immigration—Immigrant convicted of crime—Special inquiry ordered under Immigra tion Act—Prohibition to stop inquiry refused—Immigration Act, R.S.C. 1970, c. I-2, sections 18, 25.
Appellant, a landed immigrant, was convicted of an offence under the Criminal Code and appealed. Pending judgment of the Appeal Court a special inquiry based on his conviction was ordered under section 25 of the Immigration Act. Appellant applied for a writ of prohibition to stop the inquiry pending final disposition of his appeal.
Held, even if, as argued, a conviction for an offence under the Criminal Code is not, pending an appeal, a ground for deportation (upon which the Court expresses no opin ion), it does not lead to the issuance of a writ of prohibition to stop an inquiry under section 25 of the Immigration Act.
APPEAL from judgment of Gibson J.
The facts are as follows.
On April 30, 1971, appellant was convicted in the Court of Queen's Bench in Quebec on a charge of mischief under the Criminal Code with respect to the destruction of the Sir George Williams University Computer Centre in Montreal. He was sentenced to two years' imprisonment and a fine of $5,000. He appealed from the conviction and on May 5, 1971, was granted leave to appeal by the Quebec Court of Appeal and released on his own recognizance.
The appeal was argued and decision was reserved by the Court. A special inquiry was then directed to be held under the Immigration Act based upon his conviction under the Criminal Code. Appellant applied to the Trial Division of this Court for a writ of prohibition to stop the inquiry pending disposition of his appeal. On June 12, 1972, Gibson J. dismissed his application with costs upon counsel for the respondent filing an undertaking to delay execution of any deportation order that might be made.
Appellant appealed from the decision of Gibson J. on the following grounds:
1. It is admitted that the special inquiry in this matter was commenced in the ordinary way and that aside from the fact that an appeal is pending before the Court of Appeal for Quebec, the Special Inquiry Officer had jurisdiction to commence and proceed with the special inquiry concerning Roosevelt Douglas.
2. It is submitted that the Canadian Bill of Rights and the requirements of natural justice demand that the Appellant should have the right to question his conviction in the ordinary and normal way before the courts of Canada, and should not be required by the intervention of the Special Inquiry Officer to forfeit those rights, or to breach the terms of his recognizance.
3. In this connection, it is instructive to look at the powers given to the Court of Appeal by the Criminal Code. Criminal Code, s. 613(2).
4. It is submitted that the undertaking included in the order appealed from to the effect that the deportation order would not be executed is, first of all, unlawful and secondly, is virtually an admission that in law the proceeding which it is sought to prohibit would have the effect of interfering with the due administration of the criminal law in the Province of Quebec. It is submitted that since it is not "otherwise provided" in the Immigration Act, the order must in law be executed as soon as practicable. Immigration Act, s. 34(1) and s. 34(2).
5. It is submitted that should the special inquiry proceed to a deportation order, the Appellant would have no abso lute right to return to Canada to serve his sentence; if the conviction should be quashed by the Court of Appeal, the Appellant could not, without undertaking an expensive and lengthy appeal to the Immigration Appeal Board, preserve what he now has—an absolute right to return to Canada. The Minister of Manpower and Immigration might not grant a permit and could not be compelled to do so. Immigration Act, s. 18(e)(ix) and s. 39.
6. It is submitted that it would be contrary to the Canadi- an Bill of Rights, s. 2(e), to require a person to become an appellant at a time when he does not know whether or not his appeal is well-founded because the conviction on which it is based has not been determined finally. It is further submitted that the expense of launching and prosecuting such an appeal constitutes the imposition of unusual treat ment or punishment, contrary to the Canadian Bill of Rights. Canadian Bill of Rights, s. 2(b) and s. 2(e); Immigra tion Act, s. 35.
7. It is submitted that the launching of an appeal and entering into of a recognizance before the Appeal Court operates as a stay of proceedings for the enforcement of any consequences in the nature of a penalty such as liability to deportation. Simington v. Colbourne, 4 C.C.C. 367; Steen v. Lebansky [1923] 1 W.W.R. 72; Cf. Reg. v. Kotyk, 2 C.R. (N.S.) 181.
8. It is submitted that for the purpose of section 18(1)(e)(ii) [of the Immigration Act] the phrase "has been convicted" of an offence under the Criminal Code means "finally convicted, and all appeals being exhausted". It is submitted that an inference can be drawn as to the course which ought to be followed by the fact that in the sections dealing with domicile and the loss thereof, Parliament addressed its mind to the question as to what should stop the acquiring of domicile and included being an inmate of a jail but did not include merely being convicted, and still less, did not include being convicted while the appeal is pending. Immigration Act, s. 4(2)(a), s. 4 and s. 5.
C. C. Ruby for appellant.
N. A. Chalmers, Q.C. for respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—We need not hear from you Mr. Chalmers.
The submissions that have been put in sup port of the appeal all lead to the conclusion that a conviction for an offence under the Criminal Code is not, pending an appeal, a ground for deportation.
We are all agreed that, even if that is a correct conclusion, a matter on which we express no opinion, it does not lead to the issuance of a Writ of Prohibition that would stop the proposed inquiry under section 25 of the Immigration Act.
Section 25 provides for an inquiry concerning a person respecting whom a report has been made under section 18. In this case there is a report under section 18 and no ground has been put forward why the inquiry should not proceed.
In accordance with the procedure established by the Immigration Act and the Immigration Appeal Board Act, providing a matter is com menced before a special inquiry officer in accordance with the Act, the proper procedure is to put such arguments as were made this morning before such officer and, if necessary, proceed by way of appeal from his decision, if it is adverse.
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