A-169-78
Patrick Vincent McCarthy (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie, Ryan and Le Dain JJ.—
Vancouver, May 2 and 4, 1978.
Judicial review — Immigration — Inquiry resulting in
deportation order — Counsel unable to attend on date
peremptorily set — Applicant unrepresented by counsel
because of inability to retain and instruct other counsel in the
time allowed and in the conditions in which he was detained —
Whether or not the deportation order should be set aside —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Immigration Act, R.S.C. 1970, c. I-2, ss. 18(1)(e)(vi), 26(2).
This is a section 28 application to review and set aside a
deportation order on the ground that the applicant was
deprived of his right to be represented by counsel and denied a
fair opportunity to meet the case against him. A Special
Inquiry Officer insisted on continuing an inquiry that resulted
in a deportation order issuing against the applicant. Applicant's
counsel had requested that the inquiry be adjourned to a date
when he would be able to attend. Applicant, in the time allowed
him and in the conditions in which he was detained, did not
have an opportunity to retain and instruct other counsel.
Held, the application is allowed. By insisting that the inquiry
proceed, in spite of the fact that the applicant had been unable
to retain counsel to replace his lawyer who was not available at
that particular time, the Special Inquiry Officer effectively
deprived the applicant of the right to be represented by counsel,
which is expressly provided by section 26(2) of the Immigration
Act, and thereby of a fair opportunity to meet the case against
him. Applicant did not have a reasonable opportunity, in the
time allowed him and in the conditions in which he was
detained, to retain and instruct other counsel.
Pierre v. Minister of Manpower and Immigration [1978] 2
F.C. 849, distinguished.
APPLICATION.
COUNSEL:
J. R. Taylor for applicant.
G. C. Carruthers for respondent.
SOLICITORS:
John R. Taylor and Associates, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is a section 28 application to
review and set aside a deportation order made on
March 30, 1978.
The ground of attack is that the applicant was
deprived of his right to be represented by counsel
and denied a fair opportunity to meet the case
against him.
The issue before the Special Inquiry Officer was
whether the applicant was a person who fell within
the terms of section 18(1)(e)(vi) of the Immigra
tion Act, R.S.C. 1970, c. I-2,—"any person, other
than a Canadian citizen or a person with Canadian
domicile, who entered Canada as a non-immigrant
and remains therein after ceasing to be ... in the
particular class in which he was admitted as a
non-immigrant". The section 18 report and the
section 25 direction to hold the inquiry appear to
have been based on the opinion that the applicant
had engaged in employment without authorization
and had thereby ceased to be a visitor. Mr. Glenn
Bailey, the immigration officer who examined the
applicant, filed a declaration in which he stated in
part:
He also admitted to me that he has been working at the Barn
Cabaret on Granville Street from December 1977 until two
weeks ago. He has been helping refurbish the building, paint
ing, and designing the kitchen. For this work he received free
board and room, some spending money and some money to be
reimbursed after the club opens and starts making money. Mr.
McCarthy admits he does not have the authorization of an
Immigration Officer to accept employment.
The inquiry opened before Mr. J. R. Pickwell,
Special Inquiry Officer, on Tuesday, March 28,
1978. Mr. John R. Taylor, barrister and solicitor,
appeared as counsel for the applicant. Mr. Taylor
was granted an adjournment of some three hours
to familiarize himself with the case. The inquiry
proceeded for some two hours on Tuesday after
noon in the course of which the applicant denied
that he was engaged in employment with the Barn
Cabaret and Mr. Taylor indicated that he wished
to cross-examine Mr. Bailey and to call the owner
of the Barn Cabaret to testify concerning the
question of employment. He put his submission on
this point as follows: "But I think when the issue
turns on the matter of employment that we, that
you should permit the officers to testify and you
should permit the subject of the Inquiry to call
anyone who owns the premises". Mr. Bailey was
called by the Special Inquiry Officer and was
cross-examined at length by Mr. Taylor. Shortly
after 4 p.m. on Tuesday the Special Inquiry Offi
cer indicated that he intended to adjourn the
inquiry until 1:30 p.m. on the following day,
Wednesday, March 29th. Mr. Taylor stated that
he had a prior out-of-town commitment on that
date. He requested an adjournment to Monday,
April 3rd. The Special Inquiry Officer replied as
follows:
By Special Inquiry Officer:
Mr. Taylor, I am not prepared to put this matter off until
Monday afternoon, and I am, I must advise you that one
o'clock 29th of March, 1978, is a peremptory date, and should
you not be able to attend that you appoint some other counsel
from your office, or ....
Special Inquiry Officer to Person Concerned:
Q. ... Mr. McCarthy, I suggest to you that you obtain
some other counsel to represent yourself. Peremptory
date means that the Inquiry will proceed to a possible
conclusion at that time.
The inquiry resumed on Wednesday, March
29th at 1:30 p.m. Mr. Taylor appeared shortly
after 2 p.m. and stated that he was not prepared to
proceed. He said that he was obliged to leave for
New York that evening. He said that he thought
the inquiry had been adjourned to Friday. After a
long discussion with Mr. Taylor, the Special Inqui
ry Officer made the following statement:
... I am setting this Inquiry to proceed at 9:00 a.m., tomorrow
morning, which is 30 March, 1978, and that is a peremptory
date. This means that if Mr. Taylor is not available to attend as
your counsel that you should equip yourself with a counsel who
would act on your behalf.
The inquiry was adjourned at 2:27 p.m.
The inquiry resumed at 9:35 a.m. on Thursday,
March 30th. At the outset the Special Inquiry
Officer made the following statement:
Q. Mr. McCarthy, I note that you appear today without
your counsel Mr. Taylor, and because I have received a
letter this morning delivered by hand which I will
introduce into the proceedings later on, I would like to
make a statement. This letter is from Mr. Taylor's office.
This Inquiry was commenced at 9:15 a.m. on the 28th of
March 1978, and it was immediately recessed to permit
the attendance of your counsel. Your counsel appeared at
this office and the Inquiry was continued at 11:20 a.m.
Counsel requested an adjournment for four hours to
familiarize himself with your case, and you were offered
release on a thousand dollar cash bond. The Inquiry was
reconvened at 2:10 p.m. the same day, 28 March 1978,
and evidence was taken from you and Immigration Offi
cer Glenn Bailey. At 4:15 p.m. the Inquiry was adjourned
and was set to continue on a peremptory basis at 1:30
p.m. on the 29th of March, 1978. You were again offered
release on a thousand dollar cash bond. Earlier in the
same day your counsel, Mr. Taylor, filed with the Courts
an application for a Writ of Habeas Corpus. At 1:30
p.m., on the 29th of March counsel failed to appear when
the Inquiry was opened and after a phone call by you he
appeared claiming that he understood the Inquiry was to
continue on Friday. I informed him that he was in error
and instructed him to continue with this case and he
refused to do so and gave me no valid reason for not
going ahead. He requested the matter be put over until 3
April 1978 as he was leaving town on a previous business
arrangement. I made the decision at that time to adjourn
the Inquiry until this morning indicating to you that this
would be a peremptory date for the Inquiry to proceed
and you were advised that if your counsel did not appear
that you should arrange to have alternate counsel. I also
made the decision, because I had received new evidence
in the form of a photofax picture from Ottawa identifying
you as a person wanted on charges in Ireland, that I was
not prepared to release you from custody pending com
pletion of this Inquiry. At eight o'clock this morning I
received a letter dated 29 March 1978 from your counsel,
John Taylor and Associates, and this is addressed to me
at this office and reads as follows:
At this point the Special Inquiry Officer read
the letter which is as follows:
The writer is leaving to night on C.P. Airlines for Hartford
Connecticut for a special event honouring Mr. Gordon Howe.
The writer is travelling with Mr. Taylor Senior and the trip has
been arranged for sometime. The special ceremony is to take
place in Hartford on Thursday and Friday March 30th and
31st, 1978.
I will also be attending to other business in the New York area
on Friday March 31st. Mr. Dale Vick is also out of the City
and country and is meeting me in New York on Friday the 31st
March, 1978. Mr. Isman of our office is also engaged in a three
day trial in the Criminal Courts. Mr. Whiteside of our office is
not familiar with immigration matters and is engaged
tomorrow.
In view of the fact that I was committed to be out of the city on
Thursday and Friday of this week I would greatly appreciate
your adjourning the inquiry to continue on Tuesday afternoon
next the 4th of April, 1978.
My client has no other counsel to assist him at this time and it
would be most unfair and unjust to expect that other counsel
could be appointed at such late date to assist him in connection
with a matter which might result in his deportation from
Canada.
We have also taken proceedings in the Federal Court of
Canada to prohibit the continuation of the inquiry because we
are of the opinion that there was no proper jurisdiction to hold
or continue with the inquiry. We are delivering a copy of the
Notice of Motion to the Federal Court to you along with this
letter. We would ask that you give consideration to the Notice
of Motion to the Federal Court and that you adjourn the
Inquiry pending the outcome of the matter in this Court.
We would appreciate you letting our office know the outcome
of our application and the writer will be informed while out of
the city.
The transcript of the inquiry continues as
follows:
I MARK THIS LETTER FOR IDENTIFICATION EXHIBIT `I' AND
ENTER INTO THESE PROCEEDINGS.
Also enclosed with this letter was a six-page Notice of Motion
filed with the Federal Court of Canada on the 29 March 1978
wherein a request is made to the Court for a Writ of Prohibi
tion and a Writ of Mandamus.
I NOW MARK THIS DOCUMENT FOR IDENTIFICATION EXHIBIT
`J' AND ENTER IT INTO THESE PROCEEDINGS.
Mr. McCarthy, it is apparent to me that your counsel has
devoted considerable time to applying to the Federal Court of
Canada 'and applying for a Writ of Habeas Corpus. He has no
time to appear before this jurisdiction and present your case. It
is therefore, in view of this, it is therefore my decision to
proceed with this matter particularly when you were told on
two occasions ; that this matter would proceed on a peremptory
basis to a= conclusion. The applications to the Courts for writs
do not prevent-this Inquiry from continuing. Since your counsel
has not appeared and you do not appear to have arranged for
other counsel to represent you, I will now ask you whether or
not you have any evidence to submit or any statement to make
before I make a decision in your case.
A. Yes Sir, I wish to be represented by counsel before these
proceedings continue. I have had no time to consult any
other attorney because I was allowed no phone calls in
gaol. I was allowed no visitors. I am allowed visiting
hours between two and four, and that's it. I was not
allowed to see nobody and therefore I can make no
arrangements. I am locked up in gaol. I have no use of
the phone, I can't call nobody. I wish to be present with
counsel at all times while I am sitting in this room, in the
interest of justice.
Q. Now, you have made a statement concerning counsel. Do
you wish to make any statement concerning the allega
tions of the Immigration Officer which were given to you
in detail at the commencement of this Inquiry, namely,
that you were not a Canadian citizen, that you are a
person who does not have Canadian domicile, and that
you are a person who entered Canada as a non-immigrant
and failed to remain in the—correction—and you ceased
to be in the particular class in which you were admitted
as a non-immigrant.
A. Sir, I have nothing to say until counsel is present.
After a short recess to consider the evidence the
Special Inquiry Officer decided that the applicant
was a person who fell within the terms of section
18(1)(e)(vi) of the Act and ordered him to be
deported.
Upon consideration of the particular circum
stances of this case, it is my opinion that by
insisting that the inquiry proceed on the morning
of March 30, 1978, in spite of the fact that the
applicant had been unable to retain counsel to
replace Mr. Taylor, the Special Inquiry Officer
effectively deprived the applicant of the right to be
represented by counsel, which is expressly provided
by section 26(2) of the Immigration Act and
thereby of a fair opportunity to meet the case
against him. There was an issue of fact on which
the applicant desired, with the assistance of coun
sel, to adduce further evidence, and there were
submissions of law that might be made as to
whether the facts constituted employment within
the meaning of the Regulations and as to the effect
of such employment, if it was employment, on the
applicant's status as a visitor. The applicant did
not have a reasonable opportunity, in the time
allowed him and in the conditions in which he was
detained, to retain and instruct other counsel.
I have considered the decision of this Court in
the case of Pierre v. Minister of Manpower and
Immigration', but the circumstances of the two
cases are quite different. In the Pierre case there
had been many adjournments over a long period of
time. The person concerned was advised on
December 7, 1977 that he would be required to
proceed with other counsel, if necessary, on
December 19, 1977. In the present case there had
been several recesses while the Special Inquiry
Officer waited for Mr. Taylor to appear and an
adjournment of a few hours to permit him to
familiarize himself with the case, but the request
for an adjournment of some two working days
because of Mr. Taylor's out-of-town commitment.
was the first request of that kind that had been
made. Mr. Taylor had not yet been able to exam
ine the person who was alleged to have employed
the applicant. His testimony was crucial to the
issue before the Special Inquiry Officer. Even
1 [1978] 2 F.C. 849.
assuming that the refusal of the adjournment
requested by Mr. Taylor was in these circum
stances a reasonable exercise of discretion, which I
think is highly questionable, the delay afforded to
the applicant to retain and instruct other counsel
was in the circumstances unreasonably short.
For these reasons I would allow the section 28
application, set aside the deportation order and
refer the matter back to the immigration authori
ties for a new inquiry.
URIE J. concurred.
RYAN J. concurred.
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.