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A-556-80
Brian James Webb" (Applicant)
v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Pratte and Heald JJ. and Maguire D.J.—Edmonton, May 8; Ottawa, July 6, 1981.
Judicial review — Immigration — Application to review and set aside deportation order — According to applicant, deportation order irregular because of being (1) founded on testimony that applicant was compelled to give against himself contrary to s. 2(d) of the Canadian Bill of Rights and (2) founded on violations of the Immigration Act, 1976 that had taken place before its coming into force — Application dis missed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(2)(a),(b),(f) — Immigration Regulations, 1978, SOR/78- 172, s. 18(1) — Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix II11, s. 2(d).
R. v. Cole [19801 6 W.W.R. 552, distinguished.
APPLICATION for judicial review. COUNSEL:
J. C. Robb for applicant.
B. Saunders for respondent.
SOLICITORS:
Freeland, Robb, Royal, McCrum & Browne, Edmonton, 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 on July 28, 1980. That order was based on three grounds, namely, that the applicant, who admittedly was neither a Canadian citizen nor a permanent resident of Canada, was
1. a person described in paragraph 27(2)(a) of the Immigration Act, 1976, S.C. 1976-77, c. 52, in that he was a person who, if he were applying for entry, would not or might not be granted entry by reason of being a member of an inad missible class, since he was a person who had
already been deported from Canada who was required to obtain the consent of the Minister to come into Canada;
2. a person described in paragraph 27(2)(b) of the Act in that he had engaged in employment in Canada without an employment authoriza tion, contrary to subsection 18(1) of the Immi gration Regulations, 1978, SOR/78-172; and
3. a person described in paragraph 27(2)(f) in that he had come to Canada at a place other than a port of entry and had failed to report forthwith to an immigration officer.
Of the many arguments put forward on behalf of the applicant, only two deserve consideration.
Counsel for the applicant first said that the deportation order was bad because it was founded on the testimony that the applicant had been compelled to give against himself contrary to para graph 2(d) of the Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix III] which provides in part:
2.... no law of Canada shall be construed or applied so as to
(d) authorize a ... tribunal ... or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
Counsel invoked the decision of the Manitoba County Court in R. v. Cole ([1980] 6 W.W.R. 552) where it was held that, notwithstanding para graph 95(g) of the Immigration Act, 1976 follow ing which every person who refuses to answer a question at an inquiry under the Act is guilty of an offence, paragraph 2(d) of the Canadian Bill of Rights authorizes a person to refuse to testify at an inquiry under the Immigration Act, 1976 if that inquiry is held in order to determine whether that person should be allowed to remain in Canada.
There is, I think, a short answer to that argu ment. If the case of R. v. Cole was rightly decided, the applicant could have refused to testify at his inquiry without committing any offence. However, the fact is that the applicant did not refuse to testify; he did not even manifest a reluctance to testify. In those circumstances, I do not see how
the principle invoked by the applicant can help him.
The second contention of the applicant is that the deportation order is irregular in that it was pronounced under the Immigration Act, 1976 but was founded on violations of the Act that had taken place before the coming into force of that Act. This contention is factually inaccurate in so far as the first two grounds of deportation are concerned. The first ground of deportation was that, at the time of the making of the deportation order, the applicant was not admissible to Canada; the second ground of deportation was that the applicant had been employed in Canada without authorization not only before but also after the coming into force of the Immigration Act, 1976. In those circumstances, it is not necessary to deter mine the validity of the argument with respect to the third ground of deportation; indeed, the first two grounds are sufficient to support the order.
For those reasons, I would dismiss the application.
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HEALD J.: I agree.
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MAGUIRE D.J.: I concur.
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