A-936-77
Leslie Anthony Pierre (Applicant)
v.
Minister of Manpower and Immigration and Spe
cial Inquiry Officer J. R. Pickwell (Respondents)
Court of Appeal, Jackett C.J., Collier J. and Kelly
D.J.—Vancouver, March 22, 23; Ottawa, April
21, 1978.
Judicial review — Immigration — Special Inquiry — Spe
cial Inquiry Officer refusing to adjourn peremptory inquiry,
precipitating withdrawal of applicant's counsel — Deportation
order made — Whether or not deportation order should be set
aside because of alleged denial of natural justice due to
refusal to adjourn to permit applicant to retain counsel —
Whether or not Special Inquiry Officer without jurisdiction
because condition precedent, (application to be landed as an
immigrant not being yet disposed of), not met — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigra
tion Act, R.S.C. 1970, c. I-2, ss. 18, 25, 34.
This is a section 28 application to set aside a deportation
order made against the applicant as a result of proceedings
instituted by way of a report under section 18 of the Immigra
tion Act. Applicant advances two grounds for reviewing the
order. The first ground is that the Special Inquiry Officer acted
beyond his jurisdiction and failed to observe the principles of
natural justice by denying applicant his right to have counsel
present during the special inquiry proceedings. The deportation
order was made by the Special Inquiry Officer at a peremptory
inquiry that he refused to adjourn, precipitating applicant's
counsel to withdraw. The second ground is that the Special
Inquiry Officer was without jurisdiction to make a deportation
order because a condition precedent to holding a section 25
inquiry, that the person subject to the inquiry should have his
application to be landed as an immigrant previously disposed
of, had not been met. It is submitted that the Special Inquiry
Officer erred in law in holding a "check-out" letter disposed of
applicant's application to be landed as an immigrant.
Held, (Collier J. dissenting in part) the application is
dismissed.
Per Jackett C.J.: No fault can be found either with the fixing
of a peremptory time or with the subsequent refusal to grant a
further adjournment having regard (a) to the duration of the
inquiry, (b) to the fact that the opportunity had been given for
submissions on legal questions (and full advantage taken of
such opportunity) and (c) in the absence of any indication on
behalf of the applicant to the Special Inquiry Officer that there
was arguably relevant evidence to be adduced, and that it could
not be reasonably adduced at the time peremptorily fixed. As to
whether the fact that there was an outstanding appeal from a
dismissal of an application for prohibition made the exercise of
the discretion in question a wrong exercise of discretion, the
Court cannot say that the Special Inquiry Officer did not reach
conclusions that were reasonable in the circumstances as they
were revealed to him. The Court does not follow the logical
force of the applicant's second ground of appeal. The Court
agrees with Mahoney J. in dismissing the prohibition applica
tion that "The Leiba decision is not authority for the proposi
tion that a decision communicated by a `check-out' letter has
not been made or communicated", and that, even if the applica
tion for landing had been undisposed of, the Court cannot
understand the reasoning whereby that works an exception to
the plain words of section 18.
Also, per Kelly D.J.: Applicant was well aware of his right to
counsel and his obligation with respect to producing counsel,
had ample opportunity to produce before the Court competent
counsel to represent him and failed to do so—accordingly, the
Special Inquiry Officer's proceeding in applicant's presence
without counsel, after counsel had withdrawn his representa
tion, did not constitute any violation of the principles of natural
justice.
Collier J. (dissenting in part): The refusal to adjourn the
inquiry proceedings to a later date was, in the circumstances,
an exercise of discretion tainted with unfairness, or a denial of
natural justice. The applicant was deprived of a reasonable
opportunity to meet the matters asserted against him. That
opportunity included the calling of witnesses or giving evidence
himself (both with the assistance of counsel familiar with the
whole case). It included as well the right to have counsel make,
on his behalf, submissions as to what the decision of the Special
Inquiry Officer should be. All that amounted to a denial of
natural justice.
APPLICATION for judicial review.
COUNSEL:
H. A. D. Oliver and Don Rosenbloom for
applicant.
Alan Louie for respondents.
SOLICITORS:
Oliver, Waldock & Richardson, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a deportation order made against the
applicant as a result of proceedings instituted by
way of a report under section 18 of the Immigra
tion Act, R.S.C. 1970, c. I-2.
The matter was heard at Vancouver on Wednes-
day, March 22, and Thursday, March 23, last,
when judgment was reserved.
Two grounds were advanced on behalf of the
applicant.
The first ground was that the deportation order
had been made after the Special Inquiry Officer
had refused to grant an adjournment sought by
counsel for the applicant, in circumstances herein-
after set out.
With reference to this ground, I should say, at
the outset, that while the record is such as to
require considerable exposition to explain my con
clusion, I do not regard the matter as being at all
doubtful.
In considering a complaint that a tribunal has
refused to grant an adjournment, it must be
remembered that, in the absence of some specific
rule governing the manner in which the particular
tribunal should exercise its discretion to grant an
adjournment, the question as to whether an
adjournment should be granted is a discretionary
matter for the tribunal itself and that a supervisory
tribunal has no jurisdiction to review the tribunal's
decision to refuse an adjournment unless the refus
al results in the decision made by the tribunal at
the termination of the hearing being voidable as
having been made without complying with the
requirements of natural justice.
In my view therefore, the question that this
Court must answer in considering this first ground
is whether, by reason of the refusal of an adjourn
ment, the deportation order under attack was
made without giving the applicant a reasonable
opportunity of answering what was alleged against
him. This is a question that must be decided by
this Court on the facts of this particular case.
Before reviewing the facts that are more or less
pertinent to the question raised by the first ground,
as there was a period of many months that expired
Compare section 9 of the Immigration Inquiries Regula
tions, SOR/67-621, which reads:
9. The presiding officer may, from time to time, adjourn
the inquiry
(a) at the request of the person in respect of whom the
inquiry is being held, or his counsel; or
(b) for any other reason the presiding officer deems
sufficient.
between the day when the applicant came into
Canada and the day when the proceedings giving
rise to the deportation order under attack were
launched, I deem it not irrelevant to mention some
of the things that happened during that time
according to the record, viz:
[The learned Chief Justice reviewed the facts
relevant to the `adjournment" question and then
continued]
The Special Inquiry Officer then made the
deportation order that is the subject of this section
28 application. That completes my review of the
facts, as shown by the record, in so far as they
seem to me to be relevant to the "adjournment"
question.
Before considering whether the Special Inquiry
Officer wrongly exercised his discretionary powers
in such a way as to require that the deportation
order under attack be set aside, I should say that,
in my view, in deciding whether to grant an
adjournment of an inquiry at a request made on
behalf of a person who is the subject of a section
18 report, the Special Inquiry Officer must keep in
mind
(a) that the subject of the section 18 report
must be given a reasonable opportunity to
answer what is alleged against him, and
(b) that he (the Special Inquiry Officer) has a
statutory duty to carry out the inquiry and reach
a conclusion on the matter, subject, of course, to
the requirement that such reasonable opportu
nity must be given to the person who is the
subject of the section 18 report.
Moreover, having regard to the lengthy
representations made by counsel and the many
statements made to the Special Inquiry Officer in
the course thereof, it is important to emphasize
that it is no part of this Court's function to pass
any judgment on the propriety or accuracy there-
of—even where statements were made concerning
the nature and course of proceedings in this Court.
No allegations were made with regard thereto and
counsel were not put in the position of answering
any such allegations. The sole question concerning
which this Court has to concern itself is whether
the Special Inquiry Officer—by an erroneous exer
cise of discretion in fixing times for the inquiry, no
matter how he may have been led into such an
error—made the deportation order under attack
without giving the applicant a reasonable opportu
nity of answering what was alleged against him. 2
In reaching the conclusion that I have reached on
the matter, I have kept this distinction constantly
in mind.
When the whole course of proceedings in this
inquiry is considered, as it seems to me, there can
be no question that, from January 21, 1976, when
the direction was given for the inquiry, until
November, 1977, the Special Inquiry Officer
acceded to all requests for adjournments made on
behalf of the applicant with the result that there
was a protracted, incomplete inquiry of an unusu
ally long duration. (I refrain from expressing any
opinion as to whether, in the result, the inquiry
was, as of November, 1977, protracted more than
was justified by the circumstances.)
In my view, the specific questions to which this
Court must address its attention on this aspect of
the matter are:
(a) Was it a wrong exercise of discretion when
the Special Inquiry Officer, on December 7,
1977, fixed December 19, 1977, as a "perempto-
ry date"? and
(b) Was it a wrong exercise of discretion when,
on December 19, 1977, the Special Inquiry Offi
cer refused an adjournment from the perempto
ry date so fixed?
In considering these questions, it is not irrele
vant, in my view, to consider what was required as
of November, 1977, to finish the inquiry. In the
first place, there were the questions of fact raised
by the section 18 report itself, namely, whether the
applicant
2 In saying this, I do not wish to be understood as saying that,
when a party is represented by counsel, what is said by counsel
must not be regarded as having been said on behalf of the
party. The presiding officer is, of course, entitled to base his
conclusions on the representations and conduct of the matter on
behalf of the party; and is, in my view, entitled—and bound—
to take a firm position where he is satisfied that such represen
tations and conduct constitute deliberate attempts at delay—a
situation that I do not suggest that the Special Inquiry Officer
found to exist in this matter although the net result would seem
to have appeared to him to be an attempt to obtain unnecessary
and unjustified delay.
(a) was a Canadian citizen,
(b) was a person with Canadian domicile,
(c) had been convicted of a Criminal Code
offence, and
(d) had become an inmate of a prison.
From a reading of the transcript, however, it
would appear that, in the course of all that was
said on his behalf, neither the applicant nor any of
his counsel had indicated that any of these facts
were in issue, or that there was any evidence that
could be led on behalf of the applicant to throw
any doubt on the facts as they appeared on the
record as of November, 1977, although over 19
months had passed since the beginning of the
inquiry, during all of which time the applicant had
been represented by experienced professional
counsel. It is, of course, possible that there was an
undisclosed possibility of such evidence but, in the
circumstances, I should have thought that an
application for adjournment for an opportunity to
adduce it should have been supported by some
indication of its nature. In the second place, there
were legal objections to a deportation order based
on the second section 18 report concerning which
many long submissions had been made by counsel
prior to November, 1977.
Leaving aside, for the moment, the question of
the appeal proceedings and the readiness of coun
sel, in my view,
(a) having regard to the duration of the inquiry,
(b) having regard to the fact that full opportu
nity had been given for the submissions on legal
questions (and the full advantage taken of such
opportunity), and
(c) in the absence of any indication on behalf of
the applicant to the Special Inquiry Officer that
there was arguably relevant evidence to be
adduced and that such evidence could not rea
sonably be adduced at the time peremptorily
fixed,
no fault can be found either with the fixing of such
peremptory time or with the subsequent refusal to
grant a further adjournment.
As to whether the fact that there was an out
standing appeal from a dismissal of an application
for prohibition made the exercise of discretion in
question a wrong exercise of discretion, it should
be emphasized,
(a) that the launching of proceedings for a
prohibition against an inquiry does not consti
tute a legal barrier to the holding of an inquiry
or the making of a deportation order, and
(b) that, depending on the circumstances, a tri
bunal should take such delaying action as is
available to it and as, in its view, is reasonable in
the circumstances, to avoid frustrating any court
process that may result from proceedings in a
superior court that are not patently frivolous.
In this case, I am not prepared to say that the
Special Inquiry Officer did not take such delaying
action on account of the appeal proceedings as
appeared to him as a responsible officer to be
reasonable in the circumstances. It may be that,
with my experience as a judge of the Court con
cerned, I would in the first instance, when the
question arose, have proposed an adjournment
based on terms that would terminate the adjourn
ment as soon as it appeared that the appeal pro
ceedings had not been disposed of as quickly as the
applicant's legal representatives could, by reason
able efforts, have brought about such disposition.
However, putting myself in the position of the
Special Inquiry Officer in this case, I cannot say
that he did not reach conclusions, having regard to
the appeal factor, that were reasonable in the
circumstances as they were revealed to him.
With reference to the question of counsel being
ready to proceed, it must be recognized that every
tribunal considering a request for an adjournment,
whether faced with objections from parties oppos
ing the adjournment or subject to a statutory duty
to proceed with due expedition, must recognize the
fact that submissions of counsel based on their not
being ready to proceed or not being available to
proceed must be weighed with care. It is, for
example, not unknown for a party who does not
desire to proceed to change counsel to obtain
delay. Having regard to the course of events in this
inquiry, particularly the fixing of a peremptory
date after innumerable adjournments and attempts
to agree on a date when counsel would agree to
proceed, I am not prepared to say that the exercise
of discretion under consideration was a wrong
exercise of discretion. 3
In reaching this conclusion, I am somewhat
relieved of the concern for the applicant that might
otherwise disturb me by
(a) the fact that the applicant's legal repre
sentatives were given full opportunity to make
their legal submissions,
(b) the fact that there was no suggestion on
behalf of the applicant that there was any evi
dence that would affect the conclusions of fact
necessary to support the deportation order, and
(c) the fact that the only apparent impediments
on which the applicant's legal representatives
had given any indication of intending to rely
were legal matters that were open to the appli
cant on the argument of this section 28
application.
The other ground relied upon by the applicant in
support of this section 28 application is set out in a
memorandum filed in this Court as follows:
It is submitted that special inquiry officer Pickwell was
without jurisdiction to make a deportation order inasmuch as it
is a condition precedent to the holding of a Section 25 inquiry
that a person who is the subject of such an inquiry, shall have
had his application to be landed as an immigrant previously
disposed of.
It is respectfully submitted that special inquiry officer J. R.
Pickwell erred in law in holding that the "check-out" letter of
May 7, 1971, disposed of the Appellant's application to be
landed as an immigrant.
This is, according to the reasons for judgment
given by Mahoney J. in dismissing the prohibition
application the only serious ground on which that
application was based. I need not, as I understand
the matter, set out the applicant's submissions in
detail. (I am afraid that I did not follow the logical
force of the argument.) All that I can say is that I
agree with Mahoney J. [[1978] 1 F.C. 192 at page
196] that "The Leiba decision is not au
thority for the proposition that a decision com
municated by a `check-out' letter has not been
made or communicated" 4 and that, even if the
application for landing had been undisposed of, I
cannot understand the reasoning whereby that
works an exception to the plain words of
section 18.
3 See Appendix A.
4 See Appendix B.
I have not overlooked the fact that it would
appear that, in so deciding, I have reached a
decision on what would seem to be the only basis
for the appeal from the Trial Division judgment
that has not yet been brought on for hearing in this
Court. (It was not suggested that that was any
reason for not dealing with this matter at this
time.) The same ground may, however, well be the
basis for an application for prohibition or a section
28 application or certiorari. Compare Bell v. The
Ontario Human Rights Commission. 5 In my view,
the Court has a duty to deal with such a ground on
the first of such proceedings that reaches it. In this
connection, one should keep in mind section 28(5)
of the Federal Court Act, which reads:
28... .
(5) An application or reference to the Court of Appeal made
under this section shall be heard and determined without delay
and in a summary way.
In my view, for the above reasons, the section 28
application should be dismissed.
APPENDIX "A"
Much was made in argument of a problem that
arises where counsel employed in an administra
tive proceeding have other commitments. It was
suggested that an administrative tribunal must so
arrange its hearings as to enable counsel who have
retainers to appear for other clients in "higher
courts" to do what is necessary to serve such other
clients on a priority basis and still do what is
necessary to serve the client who has retained them
to appear before the administrative tribunal. I am
of opinion that there is no principle that requires
an administrative tribunal to follow such a course.
This is not to say that an administrative tribunal,
like all other tribunals, should riot give all reason
able consideration to counsel's problems where
that is feasible consistent with the interests of
other parties and its public duty. The old principle
that convenience of counsel is not a factor must be
subject to modification in the light of modern
conditions in Canada. Wh zre counsel has prepared
for long and complicated matters before different
tribunals, it would obviously be unfair to the par
ticular party if all reasonable steps were not taken
to arrange hearings so that he would not be faced
with a hearing represented by counsel who would
5 [1971] S.C.R. 756.
have to re-do the work done by another counsel or
who has not sufficient time to prepare at all. On
the other hand, where very little preparation is
involved and new counsel can be substituted with
little or no additional expense, the necessity of
substituting counsel does not weigh in the balance
to anything like the same extent. In this case, as I
appreciate what was involved in November, 1977,
I am not persuaded that the Special Inquiry Offi
cer erred in the exercise of his discretion in decid
ing that the question of substituting counsel did
not outweigh the other factors that made it impor
tant that this inquiry be proceeded with and
brought to a conclusion without further delays of
an indefinite character.
APPENDIX "E"
The applicant entered Canada at Toronto as a
visitor on September 16, 1970, and the section 18
report on which the deportation order now under
attack is based was made on January 21, 1976. No
coherent story is spelled out on the record of the
surrounding history. However, there is material on
the record from which some idea can be gleaned
thereof.
It appears clear that while the applicant and his
wife informed the immigration officer when they
arrived at Toronto that they were coming as visi
tors to Canada and were admitted as visitors for a
period ending October 13, 1970, they had decided
to leave their native country of Grenada and had
come to Canada with all their possessions intend
ing to stay permanently.
After their arrival on September 16, 1970, what
is known, or can be deduced, about the applicant
from the section 28 record is as follows:
1970
1. In September the applicant's first child was born in
Toronto.
2. On October 5, he applied for landing as an immigrant in
Canada under the regulation that then permitted such an
application.
1971
1. - On January 1, he committed a Criminal Code offence of
"possession" to which he subsequently pleaded guilty.
2. On February 11, he was interviewed re his application for
landing.
3. On May 7, a letter was written to him at a Toronto
address rejecting his application for landing, requesting him
to leave Canada by May 21 and requiring him, if he did not
leave by that time to call at the Immigration Office so that
arrangements might be made for an Inquiry which might
lead to his deportation.
4. On May 19, he was convicted for the January 1st offence
and sentenced to $100 or 30 days.
5. On July 12, his second child was born in Toronto.
6. On August 26, a section 22 report was made against the
applicant.
1972
1. - On February 5, the applicant committed offences of theft,
possession of housebreaking tools and breaking and entering.
2. On May 16, the applicant was indicted for such offences.
3. On June 5, a warrant was issued for his arrest.
4. On July 10, a letter was written to the applicant at a
Toronto address inviting him to call at an immigration office
for a review of his file "to determine whether there is any
positive action which can be taken".
5. Without reporting to the Immigration Offices, to avoid
the warrant for his arrest in July 1972, the applicant moved
to British Columbia.
1973
1. On October 25, the applicant presented himself to an
Immigration Office in Toronto.
2. On November 8, 1973, the applicant was convicted in
Toronto for breaking and entering and theft and for failing
to appear and was sentenced to six months plus one month—
his discharge date being March 31, 1974.
1974
1. - On February 4, 1974, a letter was sent by a Special
Inquiry Officer to the appellant at Guelph Correctional
Centre in Ontario convening an inquiry for February 11 at
that institution.
2. On February 11, the inquiry was commenced.
3. On March 11, the inquiry was reconvened and completed
and a deportation order was made against the applicant,
from which the applicant filed a notice of appeal to the
Immigration Appeal Board.
4. In July, that Board set the deportation order aside on
"procedural and technical grounds".
5. On October 23, a section 18 report was made against the
applicant based on his Criminal Code convictions.
6. On November 22, a letter was sent to the applicant at a
Vancouver address convening an inquiry for December 3,
1974.
7. The inquiry commenced on December 3, 1974, and was
adjourned.
1975
1. The inquiry that started in December, 1974, was recon
vened and adjourned on March 13, April 3, October 15,
respectively.
2. On November 25, the applicant committed a Criminal
Code offence of "possession" in British Columbia.
3. On November 27, he was indicted for that offence.
4. On December 22, he was convicted for that offence and
sentenced to 6 months in the Lower Mainland Regional
Correctional Centre at South Burnaby.
5. On December 22, the Immigration Inquiry was recon
vened and adjourned sine die.
The section 18 report giving rise to the deporta
tion order now under attack was made on January
21, 1976, while the applicant was serving the
sentence in South Burnaby, and the inquiry with
regard thereto was launched in that institution.
The decision in Leiba v. The Minister of Man
power and Immigration [1972] S.C.R. 660, is
summarized in the headnote as follows:
The appellant, an Israeli citizen, first entered Canada with
his wife on September 28, 1967, under a non-immigrant visa as
a visitor for a period ending January 2, 1968. On October 4,
1967, he applied for permanent residence for himself and his
wife. He was assessed by an immigration officer according to
the prescribed norms of assessment, but his rating was below
the required standard. He was not then represented by counsel,
nor did he have fluency in either English or French. The
interpreter who was provided did not have any facility in the
languages spoken by the appellant.
By letter of January 19, 1968, the appellant was advised that
his application was refused for failure to meet the required level
of assessment, and he was requested to leave Canada by
February 2, 1968, on pain of the initiation of an inquiry which
might lead to deportation. This so-called "check-out" letter was
an administrative practice, nowhere expressly authorized by
either the Immigration Act or the Immigration Regulations.
The appellant and his wife left Canada on January 23, 1968,
but they were readmitted on February 2, 1968, under bond, for
a temporary period ending March 2, 1968. An application for
permanent residence was lodged on September 25, 1968. No
fresh assessment was made of the applicant. His application
was refused under s. 34(3)(d) of the Regulations on the ground
that it had not been made before the expiry of the authorized
period of his temporary stay, namely, the period ending March
2, 1968. This was reported to a Special Inquiry Officer in
accordance with s. 23 of the Act, and an inquiry was directed
and held on January 14, 1969.
The result of the inquiry was an order of deportation on the
ground of non-compliance with s. 34(3)(d) of the Regulations.
On appeal to the Immigration Appeal Board, the appellant's
appeal was dismissed. The Board grounded the dismissal on
non-compliance with s. 34(3)(d) of the Regulations. The depor
tation order against the appellant's wife was quashed because,
contrary to s. 11(1) of the Immigration Inquiries Regulations,
she had not been given an opportunity of establishing that she
should not be included in the deportation order against her
husband.
A motion for the reopening and reconsideration of the appel
lant's appeal by the Board was dismissed. With leave, the
appellant appealed to this Court.
Held: The appeal should be allowed, the deportation order
quashed and the Board directed to refer the appellant's applica
tion back to a Special Inquiry Officer for reassessment.
The Board should have set aside the deportation order and
the proceedings which led to it so as to leave the appellant free
to have the proceedings on his first application properly con
cluded, or it should have directed the Special Inquiry Officer
who made the deportation order to reopen the hearing and treat
it as flowing from the first application or should have itself
acted on that view, with the result that the appellant could
properly claim to be reassessed for permanent admission. In
taking none of these courses of action, it left unredressed two
errors of law which prejudiced the appellant, namely, the
failure of the immigration officer to make a report to a Special
Inquiry Officer, contrary to s. 23 of the Act, and the failure to
provide a competent interpreter, contrary to s. 2(g) of the
Canadian Bill of Rights.
The following are the reasons for judgment
rendered in English by
COLLIER J. (dissenting in part): This is a sec
tion 28 application to review and set aside a depor
tation order.
A report, pursuant to section 18 of the Immi
gration Act, 6 concerning the applicant had been
sent to the Director. It asserted he was a person
other than a Canadian citizen, who had been
convicted of certain offences under the Criminal
Code and had become an inmate of a prison. An
inquiry was ordered. The respondent Pickwell was
the Special Inquiry Officer. The proceedings com
menced before him on March 24, 1976. The
impugned deportation order was made as a result
of that inquiry.
6 R.S.C. 1970, c. I-2 and amendments.
The grounds advanced by the applicant for
reviewing the order are as follows:
1. That Special Inquiry Officer J. R. Pickwell acted beyond his
jurisdiction and failed to observe the principles of natural
justice by denying the Applicant his right to have counsel
present during the Special Inquiry proceedings conducted on
the 19th day of December, 1977.
2. That Special Inquiry Officer J. R. Pickwell acted ultra vires
by proceeding by way of a Section 18 report dated the 21st day
of January, 1976, when in fact the Applicant's application for
permanent residence dated February, 1971, had not been pro
cessed to completion.
It is necessary to set out, at some length, the
history of these, and other, immigration proceed
ings.
The applicant and his wife came to Canada
from Grenada, West Indies, on September 16,
1970. They had visitors' status. They were entitled
to remain in the country until October 30, 1970.'
On October 5, 1970, Pierre applied, in Toronto,
for permanent residence. On May 7, 1971, his
application was refused. He was sent a so-called
"check-out" letter. That letter requested he and
his wife leave Canada by May 21; otherwise an
inquiry would be held.
Coincidentally at that time Pierre was convict
ed, in Toronto, of a criminal offence and fined
$100, or thirty days in jail (May 19, 1971).
The applicant and his wife did not leave
Canada.
A report, pursuant to section 22 of the Immi
gration Act was filed. It was dated August 26,
1971. For some reason an inquiry was not immedi
ately directed or held.
In June of 1972 the applicant and his family
went to the Vancouver area. It seems this was done
to avoid arrest in respect of certain matters in
Toronto. By a letter dated July 10, 1972,
addressed to the applicant and his wife in Toronto,
they were invited to appear before the Immigra
tion Division for the purpose of a review of their
"case". The record is silent as to what followed
that letter.
7 The correct date may be October 13, 1970. There is some
confusion in the present record. The precise date is, in any
event, not material.
In November 1973 the applicant was, in
Toronto, convicted of another criminal offence. He
was sentenced to six months in prison. He served it
at the Guelph Correctional Centre in Guelph,
Ontario. Apparently the Department became
aware of this. On February 4, 1974, a letter was
written to him at the institution. It referred to the
section 22 report and stated an inquiry would be
held at the institution on February 11, 1974. At
that inquiry the applicant was represented by M.
J. Bjarnason, an immigration consultant in
Toronto. On March 11, 1974, a Special Inquiry
Officer made a deportation order.
The applicant immediately appealed to the
Immigration Appeal Board. On July 30, 1974, the
Board declared the deportation order invalid,
chiefly on the grounds the section 22 report and
the inquiry were badly out of time.
The next step in this long history was the filing
of a report, pursuant to section 18 of the Act,
dated October 23, 1974. It recited, as does the
section 18 report now under attack, the convictions
and incarceration in Guelph. 8 On November 14,
1974, an inquiry was directed. It was to commence
before the respondent Pickwell on December 3,
1974. That inquiry was never formally convened.
Several dates were set (January 1, 1975, April 13,
1975, October 15, 1975 and November 12, 1975).
It never did, in fact, proceed although the section
18 report remained outstanding.
A lawyer, Mr. K. G. Young, had been, about
September 9, 1975, engaged by the applicant. Mr.
Young had been retained not only in respect of the
proposed inquiry but in respect of another criminal
charge against the applicant at New Westminster,
B.C. Pierre was convicted on that matter on
November 22, 1975 and sentenced to six months in
prison. (See footnote 8.)
8 The present section 18 report merely adds a conviction at
New Westminster, B.C. on November 12, 1975 (when the
applicant was sentenced to six months) and the resulting con
finement to prison.
It seems obvious this last incarceration was the
real reason the November 14, 1974 inquiry never
commenced.
The present section 18 report was issued Janu-
ary 21, 1976. On the same day an inquiry was
ordered.
It opened on March 24, 1976. Mr. Young
appeared with the applicant. Counsel submitted
the Department was required to elect as to which
section 18 report it proposed to proceed with. The
Special Inquiry Officer indicated he was proceed
ing with the report of January 21, 1976. Certain
documents, recording the convictions and impris
onment, were introduced into evidence by the Spe
cial Inquiry Officer. Counsel objected to that
being done. Counsel then applied, on a number of
grounds, for an adjournment of the proceedings.
At that particular time the applicant was in cus
tody. He had escaped from the institution to which
he had been confined in November 1975. He was
apprehended. Appropriate charges were laid. He
was waiting trial on those charges. The Special
Inquiry Officer granted an adjournment on the
ground that Mr. Young was still awaiting Mr.
Bjarnason's files on the applicant.
The inquiry resumed on August 12, 1976. The
applicant and his wife were present. Mr. Young
appeared for them both. The Special Inquiry Offi
cer completed his questioning of the applicant.
During it, lengthy and technical legal objections
were taken by Mr. Young in respect of the intro
duction into evidence of the Toronto convictions. It
was said those could not be gone into because of
the inquiry at Guelph and the setting aside of that
deportation order. The Special Inquiry Officer
began his questioning of Mrs. Pierre. Time limita
tions intervened. The inquiry was set to resume on
September 20, 1976.
In the interim, differences arose between the
applicant and Mr. Young. Mr. Young ceased to
act both in respect of the inquiry and some still
pending criminal charges. The Special Inquiry
Officer was advised of this on September 20, 1976.
He was also told the applicant had engaged Mr. D.
J. Rosenbloom as legal counsel. The latter had
other commitments. The inquiry was put over to
October 4, 1976, really so a date convenient to
everyone could then be fixed.
On October 4, 1976 the inquiry was scheduled
to resume on October 26. For some reason that
date was changed to November 24. On November
24, 1976 Mr. Rosenbloom was on business in
Ottawa. An articled student appeared for him. The
proceedings were then adjourned. The Special
Inquiry Officer expressed to the applicant his con
cern over the delay in the matter (p. A-40):
Mr. Pierre, as your Counsel is not present it is necessary for me
to adjourn this Inquiry. However, before adjourning the Inqui
ry I have to state, for the record, that since the Inquiry has
been going since the 24th March, 1976, I am quite anxious to
complete this matter and I cannot continue to delay it because
of the absence of Counsel, and suggesting to you that if
Counsel, again, is not available on the dates that we have set,
you make arrangements for some other Counsel to represent
you. Do you understand, in accordance with your Bond—Cash
Bond of conditional release—you are required to report for the
continuation of this Inquiry at 9 a.m. on the 10th December,
1976?
On December 10, 1976 Mr. Rosenbloom
appeared. At the outset he indicated he proposed
to make certain arguments attacking the respon
dent Pickwell's jurisdiction. Mr. Rosenbloom sug
gested the questioning of Mrs. Pierre be completed
before he made his submissions. That was done.
Counsel then repeated his predecessor's position
there had to be an election made between the two
outstanding section 18 reports. Initially the sub
mission was brief (see p. A-52). A more lengthy
discussion and exchange on this point followed. It
seemed to have been precipitated by some remarks
made by Mr. Pickwell (see lines 1-17 at page
A-53). Towards the end of the hearing on that
day, Mr. Rosenbloom adopted, in a brief state
ment, Mr. Young's position in respect of the
Toronto convictions. He conceded the conviction in
New Westminster could be gone into. He had a
new lengthy point to raise. It was necessary to
adjourn the hearing to December 15, 1976.
The hearing on that date was taken up with the
last jurisdictional argument. It was asserted the
Special Inquiry Officer could not proceed until
Mr. Pierre's October 5, 1970 application for per
manent residence had been properly processed or
dealt with. This submission was essentially the
same as that set out in paragraph 2 of the present
originating motion and as argued at this hearing. I
shall refer to it as the Leiba 9 submission. It is not
necessary, at the moment, to outline it in detail.
The Special Inquiry Officer ruled against the
applicant on this point. At that stage time had
again run out. The inquiry was adjourned sine die.
A date in January 1977 was to be agreed on.
At this juncture I make two comments. First,
the atmosphere and relations between Mr. Pick-
well and Mr. Rosenbloom had been, up to this
stage and so far as I can infer from the printed
pages, harmonious. Second, it was quite clear that
Mr. Rosenbloom proposed to call evidence through
Mr. Pierre. I refer to page A-60:
Now at this early juncture in this particular hearing, Mr.
Pickwell, there are a number of gaps in the evidence which I
trust will be later established in evidence in the examination of
Mr. Pierre by myself, that being if you, Mr. Pickwell turn down
this particular motion on the preliminary objection.
and again at page A-75 where the Special Inquiry
Officer asked:
Is it your decision at this time that you will be drawing some
evidence from Mr. Pierre before proceeding further in this
matter?
A. Yes, indeed.
On January 24, 1977 the inquiry resumed.
Before beginning to question Mr. Pierre, Mr.
Rosenbloom raised a point in connection with lack
of a transcript of some of the earlier hearings. This
developed into a confrontation of sorts between
counsel and the Special Inquiry Officer. It led to a
repetition by counsel of the Leiba submission. I
think it fair to say that some of counsel's remarks
were unnecessarily acrimonious. He persisted in
questioning the decision of the respondent Pickwell
that the Leiba decision was not applicable.
Mr. Pickwell suggested an application could be
made to this Court to have the point decided:
9 Leiba v. Minister of Manpower and Immigration [1972]
S.C.R. 660.
You would call an adjournment at this time to receive their
judgement (sic) in the matter.
By Counsel:
I call for an adjournment at this time to receive judgement
from them on that matter (page A-83).
I set out the following portions of the transcript
to illustrate the tenseness between Mr. Pickwell
and Mr. Rosenbloom (pages A-87-88):
By Special Inquiry Officer:
Mr. Rosenbloom, I do not believe any further useful purpose
would be served for you to continue to repeat and repeat and
repeat what you have already said.
By Counsel:
I am attempting, Mr. Pickwell, to draw out of you the
reasons why you have ignored the Leiba decision in the
Supreme Court of Canada. That is all I am requesting of
you. Just because a case is not on all fours ....
By Special Inquiry Officer:
The purpose of this hearing is to make a decision whether or
not Mr. Pierre is a person described in subparagraphs
18(1)(e)(ii) and (iii) of the Immigration Act, whether he is a
Canadian citizen, or whether he has Canadian domicile. It is
clear to me that this issue from the evidence so far has been
clearly settled.
By Counsel:
You have made up your mind, have you?
By Special Inquiry Officer:
From the evidence in the Inquiry so far I have definitely
made up my mind that he is a person described under the
sections of the Act.
By Counsel:
It seems there might not be any use in calling any other
evidence in light of your statement.
By Special Inquiry Officer:
Mr. Rosenbloom, you would be remiss in your duty in not
calling the evidence.
By Counsel:
You have made up your mind, you have indicated to us.
By Special Inquiry Officer:
I said on the evidence at this Inquiry. Now, if you will, it is
customary at this time to call for an adjournment. I will
declare the Inquiry recessed for a period of fifteen minutes at
the conclusion of which I would expect you to decide whether
it is your decision to call evidence from Mr. Pierre or allow
me to proceed to a decision or alternatively, as has been
suggested previously, seek the decision of a higher....
By Special Inquiry Officer: (Cont'd)
... jurisdiction than mine as to the interpretation of the law in
respect to whether or not I have jurisdiction to proceed.
Ultimately, the inquiry was stood over to March
10, 1977 in order for counsel to review the situa
tion and decide whether or not appropriate pro
ceedings would be taken in this Court.
On March 9 a motion, returnable on April 18,
was filed in the Trial Division. It sought to prohib
it the Special Inquiry Officer from proceeding
further and to compel the appropriate officials to
"process" the applicant's application for perma
nent residence.
On the resumption of the inquiry on March 10,
Mr. Pickwell, at the request of Pierre personally,
adjourned the inquiry sine die. He did so for two
reasons: to await the decision on the prohibition
motion and to permit the applicant to appear on a
criminal charge of some kind set for July 19, 1977.
The Trial Division, on May 11, 1977, dismissed
the applicant's motion.
On May 26 the inquiry reconvened. Mr. Rosen-
bloom stated he had been instructed to appeal the
Court ruling and proposed to file the notice of
appeal in a few days. The following decision of the
Special Inquiry Officer, without any request or
submission by counsel, is, I think, significant.
(A-94):
Mr. Rosenbloom, even though I am not at this present time
prohibited from proceeding with this Inquiry, I'm prepared to
adjourn these proceedings to permit you to take your matter
before the Appeal Division of the Federal Court, to hear their
decision. In view of this, and in view of the fact that at this time
we do not know precisely how long it would take for the
Federal Court to give you a decision in this matter, I will
adjourn this Inquiry sine die.
At that date, the applicant was clearly led to
understand the proceedings against him would not
continue until the appeal had been heard and
decided.
There was some delay in the preparation of the
case book for the Appeal Court hearing. It was not
received by Mr. Rosenbloom until early August.
He was on holiday and business until
September 13. In the following four weeks he was
intermittently on legal affairs in the Yukon Terri
tory, Alaska and other places outside Vancouver.
It is clear, and admitted, there was delay on the
part of applicant's counsel in filing the memoran
dum required by Rule 1403.
It appears the Special Inquiry Officer became
aware the appeal had not been heard. On Novem-
ber 16, 1977 he reconvened the inquiry. At the
outset he pointed out to Mr. Rosenbloom there
was a right to submit evidence, call witnesses and
make a submission, before a decision was made as
to whether or not the applicant should be deported.
As I understand it the Inquiry Officer felt those
matters were the only remaining ones. Mr. Rosen-
bloom indicated he was not prepared to go ahead.
He requested the proceedings be adjourned until
after the pending appeal had been heard and
decided. A lengthy discussion took place. 10 Mr.
Rosenbloom gave his explanation for the delay in
preparing the appeal memorandum. He pointed
out that up until November 16, 1977 there had
always seemed to be a gentlemen's agreement the
inquiry would not proceed until after the Court of
Appeal decision.
Towards the end, the Special Inquiry Officer
said (page A-100):
Now, having listened to your further request for an adjourn
ment in order that you may file this, and heard you state to me
that you have this underway, I'm prepared, once again, to
adjourn these proceedings to permit Mr. Pierre to receive the
decision from the Court.
The reference to "file this" is to Mr. Rosen-
bloom's appeal memorandum which had just been
prepared. The Special Inquiry Officer did indicate
he preferred to have whatever evidence the appli
cant proposed to call heard, along with submis
sions, before the Appeal Court hearing. He pro
posed, however, not to render his own decision
until after the Court ruling. Counsel for the appli
cant strenuously objected to that procedure.
The inquiry was then adjourned to December 1,
1977, at which time the Special Inquiry Officer
proposed to "... review the matter again."
10I think it fair to comment that some of counsel's remarks
at page A-87 were provocative. I refer particularly to the use of
the word "intimidation".
On December 1, 1977 another lengthy dis
course, as to whether the inquiry should go ahead,
took place. The Special Inquiry Officer proposed
to conclude the matter without further delay. It
was known at that time the Federal Court of
Appeal would be sitting in Vancouver in January
of 1978. A number of dates for continuation of the
inquiry were exchanged between Mr. Rosenbloom
and the Special Inquiry Officer. At one stage the
dates of January 16 and 17 were agreed to. But
Mr. Pickwell discovered some other matter might
conflict. January 16 and 17 were then ruled out.
Mr. Pickwell endeavoured to fix another date
before the start of the Christmas season. Mr.
Rosenbloom pointed out he had prior commit
ments, in that particular period, in respect of a
number of matters, including a Royal Commission
inquiry.
The matter concluded, on December 1, as
follows:
By Special Inquiry Officer to Counsel:
Mr. Rosenbloom, in view of the dialogue during the recess, in
which it has not been possible for us to resolve the problem of
setting a definite date for this matter to proceed, I am going
to set several dates for this matter to proceed, and on each
occasion I will then review whether I will proceed or not. I
am going to set the matter to reconvene at 9:00 a.m. on the
7th of December, with a view to proceeding at 9:00 a.m. on
the 14th, if a date cannot be set in the interim—in between
those dates; and, perhaps, in the meanwhile, some date will
appear open before the end of the year, or for that matter,
before the 16th of January, in which you become available to
appear. So, we will stand adjourned.
A. I would like that re-read; I didn't understand that. PRECED
ING READ BY STENOGRAPHER. I want to understand this
fully. Do you mean on the 7th we are going to appear to
work out what might be a convenient date for reconvening. Is
that what it means?
By Special Inquiry Officer to Counsel:
When you are prepared to proceed you may have a date
which may become available in the interim; maybe some of
your cases may have been cancelled over the Christmas
holidays, or at Christmas time.
Therefore, this Inquiry stands adjourned to reconvene at 9:00
a.m. on Wednesday, 7th December 1977.
On December 7 the Special Inquiry Officer
stated he was ready to continue. Mr. Rosenbloom
advised he could not go ahead. He referred again
to his other prior commitments in December. He
iterated his objection to continuing until the
appeal had been determined. He mentioned that
had been the arrangement from as far back as
May 26, 1977. He indicated he was prepared to set
aside dates in January to complete the inquiry. At
one point he stated he was considering calling a
witness from Toronto.
Mr. Pickwell then ruled:
Special Inquiry Officer to Person Concerned:
Q. Mr. Pierre, I am prepared to go ahead with this matter at
any time during the next two weeks, and since I am unable
to agree with your present counsel on a date, I am now
setting this matter to proceed at nine o'clock on Monday, 19
December 1977, and this will be a peremptory date. This
means that you are now being instructed to appear with your
counsel and be prepared to present any evidence or call any
witnesses you wish to call, and I am setting aside on my
calendar the date following that, that is the 20 December,
should there be any need for that date also, and I am even
prepared to set aside the 21st of December 1977, should that
also be necessary.
By Special Inquiry Officer:
This Inquiry stands adjourned.
The applicant then told the Special Inquiry
Officer he wanted to try and obtain new counsel.
He pointed out he might not have the funds to do
so. Mr. Rosenbloom added he could not proceed
on December 19; that Pierre wished him to contin
ue as counsel, but in the circumstances he was
unable to.
Mr. H. A. D. Oliver was then retained as coun
sel. His office informed the Special Inquiry Offi
cer, in writing, he could not proceed on December
19 because of other engagements and because he
had not had time to become familiar with the
inquiry proceedings.
Mr. Oliver appeared on December 19. He asked
for an adjournment. It was refused. Mr. Oliver
withdrew.
Mr. Pickwell continued with the inquiry. That
part of the proceeding was very short. He pointed
out to Pierre the allegation made in the section 18
report. He stated the applicant had an opportunity
to present evidence, call witnesses, and make a
submission. The applicant replied he had nothing
to say because he did not have counsel and wanted
one.
Mr. Pickwell then delivered his decision that the
applicant had no right to remain in Canada and
ordered him to be deported.
I turn now to the applicant's first ground of
attack as earlier set out: that the failure to adjourn
the inquiry proceedings in order that he could have
the services of counsel was a denial of the princi
ples of natural justice, warranting interference by
this Court.
The decision to grant or deny a request for an
adjournment, whether by a civil or criminal court,
a quasi-judicial body, or an administrative one, is
always a matter in the discretion of the particular
tribunal. That does not mean that a supervisory
body cannot, in an appropriate case, intervene. It
may do so where that discretion has not been
exercised fairly," or to put it in the legal
phraseology, not in accordance with the principles
of natural justice. The law on this subject has been
summarized in a number of cases. 12
I appreciate that supervisory intervention, in
respect of the exercise of a discretion by the
tribunal attacked, should only occur, where a
denial of natural justice is asserted, in clear cases.
Nor should there be merely a substitution of opin
ion for that of the lower tribunal. The court from
which relief is sought should not, as well, be
affected by considerations that the refusal to grant
the request was perhaps unwise, or that the court,
if it had been sitting in first instance, might have
made a different ruling.
I have nevertheless concluded, not without hesi
tation, the refusal, on December 19, 1977, to
adjourn the inquiry proceedings to a later date
was, in the circumstances, an exercise of discretion
tainted with unfairness, or denial of natural jus
tice. When I use those words I use them in the
strict legal sense. I am not for a moment suggest
" See, for the requirement of "fairness" even in respect of
purely administrative powers, Minister of Manpower and
Immigration v. Hardayal [1978] 1 S.C.R. 470 at 478-479.
12 Barette v. The Queen [1977] 2 S.C.R. 121, per Pigeon J. at
125-126; R. v. Botting (1966) 56 D.L.R. (2d) 25 per Laskin
J.A. (now C.J.C.) at 41-42 (Ont. C.A.); R. v. Johnson (1973)
11 C.C.C. (2d) 101 at 105-6 and 111-113 (B.C.C.A.) and Re
Gasparetto and City of Sault Ste. Marie (1973) 35 D.L.R.
(3d) 507 at 510 (Ont. Div. Court).
ing the Special Inquiry Officer was, in the lay-
man's parlance, unfair.
This particular inquiry had been going on for a
long time. There was a sorry history of delay
which undoubtedly led to frustration on the part of
the Special Inquiry Officer and the government
department concerned. A good deal of that delay
was primarily attributable to the various counsel
representing the applicant. Some of it must lie
with the Minister of Manpower and Immigration's
legal advisers. They could have taken appropriate
action, through the Rules of Court, to have the
appeal brought on expeditiously, or quashed.
Mr. Oliver, before us, argued, that accepting all
that, the applicant himself was blameless; he
should not be penalized for the actions of his
representatives. I do not agree that the applicant
himself is free from blemish. The record here
indicates a history of engagement and discharging
of advisers and counsel. I refer particularly to Mr.
Bjarnason and Mr. Young. Delay, by potential
deportees, is, in immigration proceedings, a well-
known tactic. One device is changing advisers or
counsel.
But here a good deal of the delay in pursuing
the inquiry was the laudable decision of the Spe
cial Inquiry Officer to defer further hearings until
the legal point raised in the two divisions of this
Court had been finally determined. I have already
outlined the facts on that aspect. The relevant date
goes back to March, 1977. The applicant was
clearly led to believe that decision would probably
remain unchanged. His counsel, I suspect,
arranged his calendar on the same assumption.
For some reason, not clearly apparent on the
record, that discretion was somewhat abruptly
changed. The reason asserted was the failure of
the applicant's counsel to expeditiously pursue the
appeal to this division. One can intelligently specu
late there were other interdepartmental reasons as
well. The Special Inquiry Officer on November 16,
1977 indicated willingness to once more postpone
matters until an Appeal Court decision was deliv
ered. (I have already set out that excerpt from
page A-100.) Dates in January were, at that time,
still being reviewed.
Then came the firm resolution to conclude the
inquiry, regardless of counsel's prior commitments
to others and consequent inability to appear, by
December 20 or 21. What was overlooked, or
disregarded, in this change from a previous gener
ous exercise of discretion to a less kindly exercise,
was the applicant's obvious problem in
(a) raising, on short notice, funds to instruct a fresh lawyer
(b) securing, on equally short notice, a counsel competent
and knowledgeable in special inquiry matters
(c) finding such a lawyer who could, unburdened by or
sacrificing other engagements, step into the breach in a
hurry.
The applicant here had reasonable grounds to
think that Mr. Rosenbloom, counsel of his choice,
would be there to assist him until the conclusion of
the proceedings against him. To my mind, the
refusal of an adjournment to a later date, in the
circumstances I have outlined, deprived the appli
cant of a reasonable opportunity to meet the mat
ters asserted against him. That opportunity includ
ed the calling of witnesses or giving evidence
himself (both with the assistance of counsel famil
iar with the whole case). It included as well the
right to have counsel make, on his behalf, submis
sions as to what the decision of the Special Inquiry
Officer should be. All that amounted to a denial of
natural justice.
In my view the deportation order should be set
aside. The matter should be referred back to the
Special Inquiry Officer with a direction that the
inquiry be reopened, the applicant first being
afforded the opportunity of retaining counsel. A
date convenient to all concerned should then be
fixed at which time the applicant would be pro
vided the opportunity, assisted by counsel, to call
witnesses, give evidence himself, and make
submissions.
I add this. I have considerable sympathy for the
Special Inquiry Officer. I suspect those officers
are, in the eyes of many lawyers, one of the lowest
level of tribunal before which they represent cli
ents. If my suspicion is correct that likely leads to
treating the Special Inquiry Officer and his inqui
ry with some disdain, and the assumption that
counsel's other engagements automatically must
be accorded priority. I cannot subscribe to that
approach.
Since the above was written, I have read the
reasons of the Chief Justice in respect of the
second ground of attack (see page 3 of these
reasons) advanced in this Court: the Leiba submis
sion. I agree with the Chief Justice, for the reasons
given by him, that contention fails.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: In asking the Court to set aside the
deportation order herein, counsel for the applicant,
as his principal ground, alleged that the Special
Inquiry Officer failed to observe a principle of
natural justice when he refused to adjourn the
inquiry on the 19th day of December, 1977 to a
date when the applicant could be represented by
counsel. However, refraining, for the time being,
from expressing any comments on the conduct of
counsel on that and previous occasions, it will be
helpful to an understanding of the applicant's posi
tion to consider what were the requirements of
natural justice under the circumstances, since the
proceedings before the Special Inquiry Officer
cannot be vitiated on that ground unless there was
some infringement of a right to which the appli
cant was entitled.
As I understand the argument advanced on
behalf of the applicant, the refusal of an adjourn
ment was equated to a denial to the applicant of
his right to be represented by the counsel of his
choice.
Despite the influence exerted on Canadian juris
prudence by the Miranda decision, when a per
son's rights may be affected by a decision of an
officer or a tribunal, a failure of the person to be
represented by counsel before that officer or tri
bunal does not, of itself, constitute grounds for
attacking a decision. In considering the right to
counsel, certain fundamentals must be kept in
mind.
Every person personally has the right of audi
ence before the officer or tribunal and must be
given a reasonable opportunity to answer the alle
gations made against him. In lieu of making the
representations personally, the person affected
may present to the Court counsel to make the
representations on his behalf.
In any proceedings, the person concerned, being
aware or having been properly informed of his
right to counsel, chooses to act on his or her own
behalf, he or she cannot later attack the regularity
of the proceedings because he was not represented
by counsel. If his choice is to proceed personally,
and he has rejected the opportunity to secure
counsel, he has not been denied counsel.
What is commonly referred to as the right to
counsel requires only that the person be afforded a
reasonable opportunity to retain, to represent him
before the officer or tribunal, counsel chosen by
him from among those qualified to appear before
the officer or tribunal. In exercising the choice of
counsel, there are certain qualifications which
must circumscribe the manner in which this choice '
is exercised. Where the person has a right to
choose counsel to represent him, a choice must be
from amongst those who are ready and able to
appear on his behalf within the reasonable time
requirements of the officer or tribunal. Thus, a
person cannot select the busiest counsel in the area
and insist on being represented by him when that
counsel, on account of prior commitments, would
not be able to appear before the council without
unduly delaying the course of the proceedings. If
the person has been made aware of his right to
choose counsel, and at the end of a reasonable
time, has refused or failed to retain counsel ready
and able to represent him, according to the exigen
cies of the situation, he also has not been denied
the right to counsel.
In the light of the circumstances, so particularly
set out in the reasons for judgment of the Chief
Justice and Mr. Justice Collier, I am of the opin
ion that the applicant herein was well aware of his
right to counsel and his obligation with respect to
producing counsel; that he had ample opportunity
to produce before the Court competent counsel to
represent him and failed to do so—accordingly,
the action of the Special Inquiry Officer on the
19th day of December in proceeding in the pres
ence of the applicant unrepresented by counsel,
after the counsel had withdrawn his representa
tion, did not constitute any violation of any of the
principles of natural justice.
With respect to the second ground of appeal, i.e.
the Leiba submission, I agree with the conclusion
of my colleagues.
Because of these views, I propose to and so
concur in the reasons for judgment of the Chief
Justice.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.