A-690-79
Azdo Neessan Azdo (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Ryan JJ. and Kelly
D.J. — Toronto, January 30; Ottawa, February 14,
1980.
Judicial review — Immigration — Deportation order
Applicant not 18 years of age at the time of the inquiry
Required to be represented by parent or guardian — Assertion
by applicant's counsel that he is his guardian — No document
conferring legal power — Finding by the Adjudicator that
applicant was represented by a guardian and that there was no
need to adjourn — Whether Adjudicator failed to comply with
the requirements of subs. 29(4) and (5) of the Immigration Act,
1976 — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 29(4),
(5) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28
— Official Languages Act, R.S.C. 1970, c. O-2, s. 8(1),(2)(b).
The present section 28 application is directed against a
deportation order made against the applicant pursuant to the
Immigration Act, 1976. From a report filed under section 27 of
the Act, the Adjudicator learned that the applicant had not yet
reached the age of eighteen. In order to comply with the
requirements of subsections 29(4) and (5) of the Act, the
Adjudicator inquired if the applicant was represented by a
parent or a guardian. The applicant stated that a Mr. Youk-
hana who accompanied him and acted as his counsel, was his
guardian although there was no legal document to that effect.
The Adjudicator held that Mr. Youkhana was a satisfactory
guardian and that there was no need to adjourn the inquiry.
Counsel for the applicant argues that the word "guardian" has,
in law, a very precise meaning and that there was no evidence
to support the Adjudicator's finding. Counsel for the respond
ent contends that the word in subsection 29(5) is used in its
broad and current sense, i.e. "One who guards, protects or
preserves" and that, in that sense, the applicant was represent
ed by a "guardian".
Held, the application is allowed. The applicant's narrow
interpretation of the word "guardian" must prevail. The French
version of subsection 29(5), where the word "tuteur" is used,
indicates that the word "guardian" is used in its narrow legal
sense since the word "tuteur" does not have the broad general
meaning of its English counterpart. Moreover, in order to
determine whether a person is a guardian, the Adjudicator
must make that determination on a balance of probabilities on
the basis of evidence that he considers trustworthy.
R. v. Compagnie Immobilière BCN Ltée [1979] 1 S.C.R.
865, considered.
APPLICATION for judicial review.
COUNSEL:
M. M. Green, Q.C. for applicant.
B. Evernden for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a deportation order made against the
applicant pursuant to the Immigration Act, 1976,
S.C. 1976-77, c. 52.
Only one of the many arguments put forward on
behalf of the applicant deserves consideration.
That argument is that the deportation order here
in question is bad by reason of the Adjudicator's
failure to comply with the requirements of subsec
tions 29(4) and (5) of the Act.'
At the commencement of the inquiry, after the
applicant had stated that he wanted a Mr. Youk-
hana, who accompanied him, to act as his counsel,
the case-presenting officer read and filed the sec
tion 27 report that had been made with respect to
the applicant. The Adjudicator learned from that
report that the applicant had not yet reached the
age of eighteen. The following dialogue then
ensued between the Adjudicator, the applicant and
his counsel:
ADJUDICATOR: I am shown a photocopy of the report under
subsection 27(2), to which is attached a Notice to Appear
for Inquiry.
According to this report, Mr. Azdo, you were born on
the first of April, 1961. Is that correct?
Those provisions read as follows:
29....
(4) Where an inquiry is held with respect to any person
under the age of eighteen years or any person who, in the
opinion of the adjudicator, is unable to appreciate the nature
of the proceedings, such person may, subject to subsection
(5), be represented by a parent or guardian.
(5) Where at an inquiry a person described in subsection
(4) is not represented by a parent or guardian or where, in
the opinion of the adjudicator presiding at the inquiry, the
person is not properly represented by a parent or guardian,
the inquiry shall be adjourned and the adjudicator shall
designate some other person to represent that person at the
expense of the Minister.
MR. AZDO: Yes.
ADJUDICATOR: That means you will turn 18 on the 1st of
April, this year?
MR. AZDO: Yes.
ADJUDICATOR: In that case since the person concerned is
under 18 years of age, the Immigration Act requires that
he be represented by his parent or guardian at this
inquiry. Mr. Azdo, do you have a parent or guardian in
Canada who could represent you at this inquiry?
MR. AZDO: Yes, I do.
ADJUDICATOR: Who is your parent or guardian?
MR. AZDO: This gentleman, here.
ADJUDICATOR: You have a counsel? What's his name? Your
counsel, Mr. Youkhana?
MR. AZDO: Yes, I do; David is my counsel.
ADJUDICATOR: Mr. Youkhana, what is your relationship to
Mr. Azdo?
MR. YOUKHANA: Well, he is related to my wife's side, you
know, actually. He is second cousin or third cousin, I
believe, to my wife. My wife's aunt is his grandmother.
MR. AZDO: That's correct.
ADJUDICATOR: Are you his guardian while he is here in
Canada?
MR. YOUKHANA: Yes, he is living with me since he came to
Canada.
ADJUDICATOR: Do you have any legal power as guardian
over Mr. Azdo?
MR. YOUKHANA: Well, yes, he has to obey me, whatever I
tell him ...
ADJUDICATOR: By what law? Do you have any document?
MR. YOUKHANA: No.
MR. AZDO: I confess that he is my guardian and there is a
letter that's signed by my parents.
MR. YOUKHANA: Can I say something?
ADJUDICATOR: Yes.
MR. YOUKHANA: I think, Mr. Interpreter, you know ... like
he doesn't understood what is going on, his parents, like
not by a letter I am responsible for him, right ... I didn't
sign some document, this what 1 told him for, right ... I
think this young fellow he didn't understand.
ADJUDICATOR: Alright, interpret that please? (Interpreter
complies).
For the purpose of the Immigration Act, I believe that
you can be considered a satisfactory guardian during this
inquiry. In other words you will be fulfilling two roles,
one that of counsel and the other that of guardian since
Mr. Azdo is under the legal age of eighteen. Are you
willing to fill those two roles at this inquiry?
MR. YOUKHANA: Yes.
This passage of the transcript shows that the
reason why the Adjudicator did not deem it neces
sary to comply with the requirement of subsection
29(5) that the inquiry be adjourned and that
someone be designated to represent the applicant
is that he, the Adjudicator, considered the appli
cant was already represented by a guardian.
Counsel for the applicant argued that the word
"guardian" has, in law, the very precise meaning
of "One who legally has the care and management
of the person, or the estate, or both, of a child
during its minority." 2 There was, said he, no evi
dence on which the Adjudicator could base his
finding that Mr. Youkhana was, in that sense, the
applicant's guardian.
Counsel for the respondent conceded during
argument that the section 28 application must
succeed if the word "guardian" in subsection 29(5)
is to be given its narrow legal meaning. He argued,
however, that the word "guardian" in that subsec
tion is used in its broad and current sense which,
according to the Shorter Oxford English Diction
ary is "One who guards, protects, or preserves".
According to him, the evidence that I have quoted
was sufficient to support the inference that, in that
broad sense, the applicant was represented by a
"guardian".
In my view, the text of the French version of
subsection 29(5), 3 where the word "guardian" is
translated by the word "tuteur", indicates that the
word "guardian" is used in its narrow legal sense
since the French word "tuteur" is a legal expres
sion which does not have the broad general mean
ing of its English counterpart. As section 8 of the
Official Languages Act, R.S.C. 1970, c. O-2, 4
prescribes that, in construing an enactment, both
2 Black's Law Dictionary vbo GUARDIAN.
3 The French version of that provision reads as follows:
29....
(5) Au cas où une personne visée au paragraphe (4) n'est
pas représentée par son père, sa mère ou un tuteur ou bien
au cas où l'arbitre qui mène l'enquête estime que le père, la
mère ou le tuteur ne représente pas convenablement la
personne, l'enquête est ajournée et l'arbitre doit désigner Ã
ladite personne une autre personne pour la représenter, aux
frais du Ministre.
That section reads in part as follows:
8. (1) In construing an enactment, both its versions in the
official languages are equally authentic.
(2) In applying subsection (1) to the construction of an
enactment,
(b) subject to paragraph (c), where in the enactment there
is a reference to a concept, matter or thing the reference
shall, in its expression in each version of the enactment, be
construed as a reference to the concept, matter or thing to
which in its expression in both versions of the enactment
the reference is apt;
its English and French versions be read together, I
cannot escape the conclusion that the applicant's
narrow interpretation of the word "guardian"
must prevail.
In reaching that conclusion, I am not unmindful
of the recent decision of the Supreme Court of
Canada in The Queen v. Compagnie Immobilière
BCN Limitée 5 where it was held that paragraph
8(2)(b) of the Official Languages Act is merely
one of several aids to be used in the construction of
statutes and should not be given such an absolute
effect that it would override all other canons of
construction. However, in the present case, there
does not exist any reason, in my view, not to apply
the clear rule of the Official Languages Act.
I must confess that, for a while, I wondered
whether the construction that I now propose to
adopt should not be rejected on the ground that it
would create, for the Adjudicator having to
comply with subsection 29(5), too many problems
of conflict of laws and of proof of foreign law.
However, I no longer have any doubt on the
subject. In applying subsection 29(5), when an
infant is not represented by a parent, an adjudica
tor must determine whether the person represent
ing the infant is his guardian. He must make that
determination on a balance of probabilities on the
basis of evidence that he considers trustworthy. In
most cases, the mere assertion or denial by the
person concerned that he is the guardian (in the
legal sense) of the infant will afford the adjudica
tor sufficient ground for a decision.
For these reasons, I would grant the application
and set aside the deportation order made against
the applicant.
* * *
RYAN J.: I agree.
* * *
KELLY D.J.: I concur.
5 [1979] 1 S.C.R. 865.
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.