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T-33-75
Charles Pascal Edwards (Appellant) v.
Minister of Manpower and Immigration (Respondent)
Trial Division, Walsh J.—Montreal, January 13; Ottawa, January 22, 1975.
Jurisdiction—Immigration—Deportation order—Condition- al release refused by Special Inquiry Officer—Application to Court of Appeal to set aside order Application to Trial Division for conditional release—No jurisdiction in Trial Divi- sion—Immigration Act, R.S.C. 1970, c. 1-2, ss. 17, 46 Criminal Code, R.S.C. 1970, c. C-30, ss. 58, 361—Federal Court Act, s. 28.
The petitioner (erroneously designated as "appellant") was detained under order authorized by the respondent, and then charged in the Court of Sessions, Montreal, with remaining illegally in Canada contrary to section 46(b) of the Immigra tion Act; impersonating a dead person for the purpose of obtaining a Canadian passport, contrary to section 361 of the Criminal Code; and, making a false statement for the purpose of obtaining a passport, contrary to section 58(2) of the Code. Denied bail by the courts because of the detention order, he was committed for trial on the second and third charges. After inquiry, a Special Inquiry Officer ordered the deportation of the petitioner. The Officer refused to exercise his discretion to grant a conditional release. The petitioner made an application to the Court of Appeal, under section 28(1) of the Federal Court Act to set aside the orders, and, by the present petition, sought conditional release.
Held, dismissing , the petition, the Court of Appeal would decide whether or not the Special Inquiry Officer's order for deportation could properly be set aside. The Trial Division had no authority over the matter. Section 17(1) of the Immigration Act left the conditional release to the discretion of the Special Inquiry Officer, "subject to any order or direction by the Minister." There was no provision in the law or in the Federal Court Rules for the Trial Division to entertain an application for conditional release.
Mahaffey v. Nykyforuk and Unemployment Insurance Commission [1974] 2 F.C. 801, applied.
PETITION. COUNSEL:
P. Fine for petitioner.
J. Letellier for respondent.
SOLICITORS:
Bernstein & Feifer, Montreal, for petitioner.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
WALSH J.: This is a petition for conditional release filed on behalf of petitioner (erroneously designated as "appellant") resulting from his detention for deportation following an inquiry on December 23, 1974 by a Special Inquiry Officer from which decision an application has been made to the Court of Appeal under section 28(1) of the Federal Court Act to review and set aside same. The allegations of the petitioner are supported by affidavit and set out that he has been detained since December 4, 1974 by virtue of an order of detention issued at the instance of respondent and that on December 5, 1974 he was charged in the Court of Sessions for the District of Montreal of having, on December 4, 1974, illegally remained in Canada contrary to section 46(b) of the Immigra tion Act, of having on or about April 26, 1974 impersonated a dead person for the purpose of obtaining a Canadian passport contrary to section 361 of the Criminal Code, and of having, on the same date, made a false statement for the purpose of obtaining a Canadian passport contrary to sec tion 58(2) of the Criminal Code. =Bail was denied to him on these charges, which would otherwise be bailable offences, because of the existence of the said order of detention and the denial of this bail was upheld by a judgment of the Court of Queen's Bench, Crown Side. On December 20, 1974, peti tioner was committed to stand trial on the charges under sections 361 and 58(2) of the Criminal Code, the charge under 46(b) of the Immigration Act being withdrawn by the prosecution. It is further alleged that following the special inquiry on December 23, 1974, which ordered petitioner's deportation, the Special Inquiry Officer refused to exercise his discretion under section 17(1) of the Immigration Act to order the conditional release of petitioner despite the fact that he had fulfilled all the conditions of a previous conditional release granted on May 23, 1974. It is further alleged that he cannot obtain release on bail on the criminal
charges against him which come up for trial on March 7, 1975, because of his detention as a result of the deportation order, that he is married to a Canadian citizen, and that when he was arrested on December 4, 1974 this was because he had come temporarily to Canada to visit his said wife after having submitted voluntarily to a previous deportation order on or about September 20, 1974. On or about October 20, 1974 his wife made an application that permission be granted to petition er to reside in Canada, which application is still pending.
It was argued that petitioner is in a sense caught between two fires in that he was refused bail which would otherwise have been granted on the criminal charges laid against him as a result of the fact that he was detained by virtue of an order issued at the instance of respondent, and, on the other hand, that the Special Inquiry Officer allegedly refused to exercise his discretion to order conditional release because he indicated this would be ineffec tive as petitioner was in any event being held without bail as a result of the criminal charges.
Without going into the propriety of either refus al to grant bail, about which some doubt might exist, as it might appear that either jurisdiction could have granted bail with respect to the deten tion resulting from the proceedings before it, on the understanding that this would not result in the release of petitioner from detention unless and until bail was similarly granted by the other Court or officer having jurisdiction, I have nevertheless reached the conclusion that the petition for condi tional release is one which cannot be entertained by this Court. Section 17(1) of the Immigration Act' reads as follows:
17. (1) Subject to any order or direction to the contrary by the Minister, a person taken into custody or detained may be released under such conditions, respecting the time and place at which he will report for examination, inquiry or deportation, payment of a security deposit or other conditions, as may be satisfactory to a Special Inquiry Officer.
R.S.C. 1970, c. I-2.
and apparently leaves the release entirely to the discretion of the Special Inquiry Officer "subject to any order or direction to the contrary by the Minister". The deportation order itself, as well as the detention, is at present awaiting review by the Court of Appeal under section 28 (1) of the Feder al Court Act and such proceedings can be brought to hearing at an early date. The fact of petitioner's marriage to a Canadian citizen and that her application that permission be granted to him to remain in Canada is still pending, was no doubt before the Special Inquiry Officer when he made his decision on December 23, 1974. Despite this, he apparently felt that this did not change the situation which had resulted in the previous depor tation order on May 23, 1974. Whether his deci sion was one which can properly be set aside under section 28(1) of the Federal Court Act is a matter for the Court of Appeal to decide. The Trial Division therefore has no jurisdiction (see judg ment of Heald J. in Mahaffey v. Nykyforuk and the Unemployment Insurance Commission [ 1974] 2 F.C. 801.) The Court of Appeal has itself, in other cases, decided that a refusal of a Special Inquiry Officer to grant bail cannot be reviewed and set aside on a section 28 application even when the applicant had already filed an application to set aside a deportation order (see Lombardo v. Minister of Manpower and Immigration, Court No. A-403-74).
It is my view that the Trial Division has no authority to overrule the decision of the Special Inquiry Officer not to apply section 17(1) of the Immigration Act so as to release petitioner from detention pending his appeal from the deportation order and, furthermore that there is no provision in the law or in the Rules of this Court for the Trial Division to entertain a petition for conditional release, whatever may be the facts of petitioner's detention.
The petition is therefore dismissed with costs.
ORDER
Petitioner's petition is dismissed, with costs.
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