T-1073-84
James Bauer (Applicant)
v.
Regina (Canadian) Immigration Commission
(Respondent)
Trial Division, McNair J.—Toronto, May 28;
Ottawa, July 6, 1984.
Judicial review — Prerogative writs — Prohibition —
Request to have reporter record proceedings at seven-day
Immigration Act detention reviews denied — Prohibition
available only to restrain excess or improper exercise of
jurisdiction by inferior tribunal — No procedural irregularity
herein equivalent to excess of jurisdiction — Apart from
statutory requirement, administrative tribunal need not make
stenographic record of proceedings — Bauer v. The Queen
(Canadian Immigration Commission), F.C.T.D. file T-125-84
authority that no duty at common law or under Act to provide
reporter at detention review hearings — Circumstances not
requiring record — Procedural fairness rules not violated —
No evidence applicant denied fair opportunity of answering
case — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 18.
Immigration — S. 104(6) detention reviews — Applicant
denied permission to engage court reporter to record review
proceedings — Whether denial contravening Act, Charter or
common law procedural fairness principle — Whether deten
tion review an inquiry — No duty to provide reporter at
detention review hearings: Bauer v. The Queen (Canada Immi
gration Commission), F.C.T.D. file T-125-84 — Reviews not
inquiries — Applicant cannot rely on mandatory terms of s.
29(2) — Denial was administrative decision — No evidence
review conducted unfairly — Prohibition motion denied —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 29(2), 34,
104(6),(7).
Constitutional law — Charter of Rights — Denial of per
mission to engage reporter to record proceedings at Immigra
tion Act detention reviews — No duty under Charter to
provide reporter at detention review hearings: Bauer v. The
Queen (Canadian Immigration Commission), F.C.T.D. file
T-125-84 — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
Motion for writ of prohibition or other relief to set aside
proceedings under the Immigration Act, 1976. The applicant
was denied permission to engage, at his own expense, a court
reporter to record the seven-day reviews of his detention under
the procedure prescribed by subsections 104(6) and (7) of the
Act. The applicant contends that review proceedings are in
quiries. Subsection 29(2) of the Act provides that at the request
of the detainee, an adjudicator shall allow any person to attend
an inquiry if such attendance is not likely to impede the
inquiry. The first issue is whether prohibition is available. If
not, the next issue is whether the refusal of permission to
engage a reporter contravenes the Charter or otherwise violates
a principle of fundamental fairness.
Held, the application is dismissed. Prohibition only lies to
restrain an excess or improper exercise of jurisdiction by an
inferior tribunal and not to remedy a procedural irregularity
unless the irregularity amounts to an excess of jurisdiction. The
refusal to permit the engagement of a reporter was not a
procedural irregularity equivalent to an excess of jurisdiction.
As to the second question, the reasoning of Collier J. in an
application for mandamus in Bauer v. The Queen (Canadian
Immigration Commission), order dated February 28, 1984,
Federal Court, Trial Division, T-125-84, not yet reported,
applies. There is no duty under the Immigration Act, 1976, the
common law or the Charter to provide a reporter on detention
reviews or at an inquiry. However, it may be in a particular
situation where a reporter is refused that the refusal is so
tainted with unfairness as to require intervention by judicial
review. Whether it is necessary that a shorthand record be kept
depends upon the circumstances of each case. Detention review
proceedings are simply adjuncts within the general inquiry
process and are not inquiries within the meaning of the Act.
The mandatory terms of subsection 29(2) thus do not apply.
The refusal by the Adjudicator was an administrative decision.
There is no evidence that the detention review proceedings were
conducted unfairly nor is there anything to show that the
applicant was not afforded a fair opportunity of answering the
case against him. There was no violation of any guaranteed
right under the Charter. The refusal of a stenographer was not
unfair under the circumstances. There is, nevertheless, a linger
ing aura of unfairness. The applicant has been incarcerated for
thirteen or more months. Surely the mechanism of bureaucracy
could be accelerated to bring about a final determination of the
applicant's case.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bauer v. The Queen (Canadian Immigration Commis
sion), order dated February 28, 1984, Federal Court,
Trial Division, T-125-84, not yet reported; Belgo Canadi-
an Pulp and Paper Co. v. Court of Sessions of the Peace
of Three Rivers (1920), 54 D.L.R. 597 (Que. S.C.); Re
Ashby, [1934] 3 D.L.R. 565 (Ont. C.A.); Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1 S.C.R.
602.
REFERRED TO:
Mindamar Metals (Corp.) v. Richmond County, [1955] 2
D.L.R. 183 (N.S.S.C.); Re Fitzpatrick and City of Cal-
gary (1965), 47 D.L.R. (2d) 365 (Alta. S.C.).
APPEARANCE:
James Bauer on his own behalf.
COUNSEL:
M. Duffy for respondent.
APPLICANT ON HIS OWN BEHALF:
James Bauer, Toronto.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
McNAIR J.: This is a motion by the applicant,
James Bauer, under section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] for a
writ of prohibition or appropriate relief in the
nature thereof or otherwise to set aside proceed
ings under the Immigration Act, 1976 [S.C. 1976-
77, c. 52] said to contravene the Charter [Canadi-
an Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] and the rules of
procedural fair play. The applicant appeared on
his own behalf in support of the motion. The
respondent was represented by counsel.
The gist of the applicant's complaint, if I
apprehend it correctly, is simply that he has been
denied the right to have, at his own expense, a
court reporter to record and transcribe the periodic
seven-day reviews of his continued detention at the
Rexdale maximum security institution under the
procedure prescribed by subsections 104(6) and
(7) of the Immigration Act, 1976. It was made
obvious that the applicant wants a "record" for
attacks likely to be made against these detention
reviews. The applicant contends that these review
proceedings are inquiries which should be recorded
by a competent court reporter and that the denial
of this right flies in the face of the Immigration
Act, 1976 itself, contravenes the Charter and vio
lates the common law principle of procedural fair
play.
It is apparent from the material filed and what
was stated during the hearing that the applicant
was arrested and detained under the Immigration
Act, 1976, and that periodic reviews of his deten
tion have been held from time to time pursuant to
section 104. The statutory provision which bears
directly on the matter is subsection 104(6) of the
Immigration Act, 1976 which reads:
104....
(6) Where any person is detained pursuant to this Act for an
examination, inquiry or removal and the examination, inquiry
or removal does not take place within forty-eight hours from
the time when such person is first placed in detention, that
person shall be brought before an adjudicator forthwith and the
reasons for his continued detention shall be reviewed and
thereafter that person shall be brought before an adjudicator at
least once during each seven day period, at which times the
reasons for continued detention shall be reviewed.
It was generally conceded that there have been
numerous court and other proceedings relating to
the applicant's detention. These do not concern
me. The complaint addressed by the applicant on
this application is simply that he has been denied
the right to a court reporter in the detention
reviews before adjudicators under the above-men
tioned subsection.
It is clear from the argument that one of the
points on which the matter could turn is whether a
detention review under section 104 of the Act is an
inquiry within the meaning of the Act. Counsel for
the respondent says it is not and takes the position
that a review proceeding is something altogether
separate from an inquiry. The applicant submits
otherwise and relies on sections 29 and 34 of the
Act to support his contention.
I do not consider that section 34 is particularly
applicable, save only for the fact it does use the
words "arrest and detention for an inquiry pursu
ant to section 104".
Section 29 relates to the conduct of inquiries by
adjudicators. Generally, they must be held in the
presence of the person with respect to whom the
inquiry is held. Every such person has the right to
be represented by counsel, obtained at his own
expense, at the inquiry. The adjudicator may
receive evidence at the inquiry and base his deci
sion upon such evidence adduced that he considers
to be credible and trustworthy in the circum
stances of the case. The adjudicator's decision
shall be given as soon as possible after the comple
tion of the inquiry and in the presence of the
person concerned, wherever practicable.
Obviously, the applicant relies in support of his
contention on subsections 29(2) and (3) of the Act,
which read:
29....
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera.
The subsections do have a distinct mandatory
connotation.
The first question to be addressed is whether
prohibition or relief in the nature thereof avails at
all.
The following statement from 1 Halsbury's
Laws of England, 4th ed., para. 130, page 138,
represents a clear and succinct enunciation of the
general principle:
Prohibition lies not only for excess of or absence of jurisdiction,
but also for a departure from the rules of natural justice. It
does not, however, lie to correct the course, practice, or proce
dure of an inferior tribunal, or a wrong decision on the merits
of proceedings. [Emphasis added.]
This statement of principle finds support in
Canadian law as the following passages from the
judgment of Lemieux C.J., in Belgo Canadian
Pulp and Paper Co. v. Court of Sessions of the
Peace of Three Rivers (1920), 54 D.L.R. 597
(Que. S.C.) illustrate, the first being at page 603:
In spite of law and settled principle, the purpose or object of
the writ of prohibition seems to be too often misconceived. The
writ should only be issued and maintained when the inferior
tribunal exceeds its jurisdiction or has exercised a jurisdiction
which is not within its competence.
The following statement of the Chief Justice at
pages 604-605 is particularly instructive on the
point:
... the writ of prohibition is never granted as a ground of
appeal or of revision of judgments rendered by inferior Courts,
but merely to bring back these Courts within the limits of their
jurisdiction, from which they departed or are on the point of
departing. Consequently, this writ should not be granted to
remedy an irregularity of procedure committed by an inferior
Court, if such irregularity is not equivalent to an excess of
jurisdiction. Nor should this writ be granted to repair an
illegality, however grave it may be, committed by a Court, in
the course of a proceeding in which it has jurisdiction ration
materiae. In order that an irregularity may give rise to prohibi
tion, it is necessary that it be equivalent to an excess of
jurisdiction. "The irregularity must however be such as to
amount to an excess of jurisdiction; and a mere mistake or error
be it ever so manifest ... will not be a ground for prohibition."
The rationale of prohibition is elucidated thus
by Masten J.A., in Re Ashby, [ 1934] 3 D.L.R. 565
(Ont. C.A.) at pages 567-568:
It is plain both on principle and on authority that except for
procedural error invalidating the jurisdiction, prohibition does
not lie against an administrative tribunal acting within its
proper province.
Clearly, prohibition only lies to restrain an
excess or improper exercise of jurisdiction by an
inferior tribunal and not to remedy a procedural
irregularity unless the irregularity amounts to an
excess of jurisdiction. The refusal of the Adjudica
tor to permit the applicant to engage the services
of a court reporter or stenographer at his own
expense for the purpose of recording the detention
review proceedings does not constitute, in my opin
ion, an irregularity of procedure equivalent to an
excess of jurisdiction. The application for prohibi
tion must therefore fail.
This still leaves the question whether the refusal
of the applicant's request for the services of a court
reporter or stenographer to record the detention
review proceedings, at his own expense and for his
own purposes, contravenes any entrenched right
under the Canadian Charter of Rights and
Freedoms' or otherwise violates any principle of
' Part I of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.).
fundamental fairness. The applicant alludes loose
ly to the Constitution Act, 1982 but it is obvious
that he means to invoke the Charter.
The same subject-matter of complaint, along
with others, was addressed by the applicant to my
colleague, Collier J., [Bauer v. The Queen
(Canadian Immigration Commission), order dated
February 28, 1984, Federal Court, Trial Division,
T-125-84, not yet reported] in an application for a
writ of mandamus or relief in the nature thereof.
On February 28, 1984, Mr. Justice Collier made
an order dismissing the application. Reasons for
judgment were filed. I am in agreement with the
following statement of law made by Collier J. [at
page 3]:
In this case, there is no duty, by statute, on the adjudicator to
provide a "court" reporter, official or otherwise, on detention
reviews. There is actually no specific duty to provide a reporter
at an inquiry. Under section 113, an adjudicator may, if he
deems it necessary "for a full and proper inquiry", engage the
services of a stenographer. From experience, I know that
inquiry proceedings are usually recorded in some manner.
Some aspects of inquiry proceedings must be recorded: See for
example, subsection 45(2).
The applicant contends the subsection 104(6) proceedings
are inquiries. In my view, they are not. They are merely reviews
as to the reasons for continued detention.
As I see it, there is no enforceable duty, under the Immigra
tion Act, 1976, the common law, or the Canadian Charter of
Rights and Freedoms, to provide a reporter, when requested, at
detention review hearings. That aspect of the applicant's
motion is dismissed.
The learned Judge went on to interpose the
following caveat:
I add this. It may be desirable to have review proceedings
recorded. And it may well be, in a particular situation where a
reporter is refused, the refusal may be so tainted with unfair
ness, as to require intervention by judicial review.
Apart from some statutory provision to the con
trary, an administrative tribunal is not required to
make a stenographic record of its proceedings. 2
Whether it is necessary that a shorthand record be
kept depends upon the circumstances of each case.
It is certainly necessary that the record be
2 Mindamar Metals (Corp.) v. Richmond County, [1955] 2
D.L.R. 183 (N.S.S.C.), at p. 189.
complete 3 , otherwise a court would find it impos
sible to perform its function on an appeal or
application for judicial review.
The remaining question is whether the applicant
was unjustly deprived of a right or was otherwise
treated unfairly by the refusal to allow him to
engage the services of a court reporter or stenogra
pher at his own expense to record the detention
review proceedings.
In my view, these detention review proceedings
are simply adjuncts within the general inquiry
process and are not, strictly speaking, inquiries
within the meaning of the Act. The applicant thus
loses any advantage or benefit which might derive
from the mandatory terms of subsection 29(2).
There is no duty incumbent on the Adjudicator to
provide upon request a reporter or stenographer to
record the detention review proceedings. The
refusal by the Adjudicator was an administrative
decision. There is no evidence that the detention
review proceedings were conducted unfairly nor is
there anything to show that the applicant was not
afforded a fair opportunity of answering the case
against him. In my opinion, there has been no
violation of any guaranteed right under the
Charter.
There is but one final question—was the refusal
fair? Mr. Justice Dickson [as he then was] puts it
in these terms in Martineau v. Matsqui Institution
Disciplinary Board: 4
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved?
My answer to that question on the facts of this
case is that the refusal of the request of a court
reporter or a stenographer was not unfair under
the circumstances. In my opinion, there was no
violation of any duty of fairness. For these reasons,
I must dismiss the applicant's motion.
That suffices to dispose of the matter. There was
no outright unfairness in what was done in this
particular instance. But there is a lingering aura of
3 Re Fitzpatrick and City of Calgary (1965), 47 D.L.R. (2d)
365 (Alta. S.C.), at p. 369.
[1980] 1 S.C.R. 602, at p. 631.
unfairness about this whole sorry affair. While the
wheels of bureaucracy may be seen to turn with
interminable slowness in matters of a routine or
perfunctory nature, surely, in a free and democrat
ic society operating under the rule of law and
dedicated to the concept of liberty and freedom
from arbitrary arrest and imprisonment, the mech
anism could be accelerated to bring about a final
determination of the applicant's case, one way or
the other. The applicant has been incarcerated for
some thirteen or more months. This is not a matter
to be regarded lightly. Conceivably, he could
remain incarcerated for an indefinite period unless
positive steps are taken in the administrative pro
cess to bring about a speedy conclusion. The law
always seeks to serve as the champion of liberty
and not as an instrument of oppression. Adminis
trative tribunals in performing their proper func
tions under statutory authority would do well to
remember that the duty of fairness is not circum
scribed by the strict letter of the rule.
ORDER
The applicant's motion is denied, but without
costs.
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.