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T-947-85
Haia Kravets (Applicant) v.
Minister of Employment and Immigration (Respondent)
Trial Division, Strayer J.—Winnipeg, May 7 and 8, 1985.
Immigration — Practice — Application for mandamus and certiorari concerning inquiry into whether applicant allowed to remain in Canada — Respondent seeking adjournment — Applicant not opposed provided not prejudiced thereby — Prohibition ordered to prevent Adjudicator from making re moval order or issuing departure notice until present applica tion disposed of — Necessary to preserve status quo so ss. 7, 12 and 15 Charter rights may be given effect — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19, 37(2).
Constitutional law — Charter of Rights — Application for mandamus and certiorari concerning inquiry into whether applicant allowed to remain in Canada — Applicant not opposed to adjournment provided not prejudiced thereby — Prohibition ordered to prevent Adjudicator from making re moval order or issuing departure notice until present applica tion disposed of — Necessary to preserve status quo so that alleged Charter rights may be given effect — Issuance of removal order or departure notice possibly rendering subject- matters of application for mandamus irrelevant and exclusion of applicant possible before decision could be reviewed in Federal Court — Effective denial of constitutional rights beyond jurisdiction of Minister and Adjudicator — S. 24(1) of Charter, applying to "Anyone whose rights have been infringed or denied", relevant — Application alleging in part past denial of rights — To extent application alleging apprehended denial by Adjudicator exercising in future inquiry, powers contrary to Charter, s. 24(1) interpreted implicitly to cover situation — If Court competent to give remedies in anticipation of violation of other rights, by means of injunctions or writs of prohibition, then able to protect Charter rights before, as well as provide redress after infringement — Adjudicator not precluded from proceeding with inquiry as inquiry per se not changing possible Charter rights — Prohibition only preventing making of deci sion until application disposed of — Style of cause amended adding Adjudicator as party so order of prohibition can issue against him or her — Canadian Charter of Rights and Free doms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 12, 15, 24(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASE JUDICIALLY CONSIDERED REFERRED TO:
Nat. Citizen's Coalition Inc. Coalition Nat. Des Citoyens Inc. v. A.G. Can. (1984), 32 Alta. L.R. (2d) 249 (Q.B.).
COUNSEL:
Kenneth Zaifman for applicant. Brian H. Hay for respondent.
SOLICITORS:
Margolis Kaufman Cassidy Zaifman Swartz, Winnipeg, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
STRAYER J.: The applicant seeks various orders for mandamus and certiorari concerning decisions or actions of the Minister and her officers, and concerning an impending inquiry by an adjudica tor as to whether the applicant should be allowed to remain in Canada. The respondent asks for an adjournment to permit adequate preparations to deal with the issues to be raised, which include the possible application of sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]. The appli cant does not oppose the request for an adjourn ment but does not wish to be prejudiced by it: in particular, she does not want the inquiry to pro ceed to the point of a possible decision by the adjudicator to issue a deportation order or a depar ture notice, before this Court can deal with her application here.
I agree that there should be an adjournment to enable the parties to prepare evidence and argu ment. Some very important and novel issues are involved, particularly the possible effect of section 15 of the Charter on section 19 of the Immigration Act, 1976 [S.C. 1976-77, c. 52]. I also agree with the respondent that if the inquiry goes forward in
the meantime there is a possibility of prejudice to the applicant if matters should proceed as far as the issuance of a deportation order or departure notice prior to the Trial Division being able to deal with the present application. Once such a decision is taken by the adjudicator, the jurisdiction of the Trial Division with respect to it would be in ques tion. With respect to matters involved in the present application other than the inquiry, argu ably those could be rendered irrelevant by the making of such an order: for example, a Minister's permit would thereby be precluded (see subsection 37(2) of the Immigration Act, 1976). Further, once such an order is issued there would be a serious question as to whether any Court could prevent its execution, even if it were subject to review under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 101.
I am therefore issuing an order in the nature of prohibition to prevent the adjudicator from making a removal order or issuing a departure notice until the present application has been dis posed of by the Trial Division. I have concluded that subsection 24(1) of the Charter empowers me to do so. This is a "court of competent jurisdic tion" to grant prohibition in respect of such an adjudicator exercising power under an Act of Par liament. I have concluded that it is necessary to issue prohibition here in order to preserve the status quo so that alleged Charter rights, if they can be established, may be given effect by the Court. In the absence of such an order there would be a strong possibility of such rights being ren dered meaningless by the issuance of a removal order or departure notice: such a decision could render irrelevant the subject-matters of the application for mandamus and could, as far as I can ascertain, make possible the exclusion of the applicant from Canada before the decision to exclude her could be reviewed in either Division of the Federal Court. This could have the effect of denying the applicant's constitutional rights which it is beyond the jurisdiction of the Minister and the adjudicator to do. Therefore prohibition is an appropriate remedy. It should also be noted that while subsection 24(1) of the Charter applies to "Anyone whose rights ... have been infringed or
denied [underlining added]" I have concluded that it is relevant here. In part, this application alleges a past denial of rights. To the extent that it alleges an apprehended denial through the adjudicator exercising, in a future inquiry, powers which are contrary to the Charter, subsection 24(1) should be interpreted implicitly to cover the situation. If the Court in question is competent to give reme dies in anticipation of the violation of other rights, as this Court is by means of injunctions or writs of prohibition, then it can similarly protect Charter rights before, as well as provide redress after, their infringement. See generally Nat. Citizen's Coali tion Inc. Coalition Nat. Des Citoyens Inc. v. A.G. Can. (1984), 32 Alta. L.R. (2d) 249 (Q.B.) at page 253; Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Com mentary (1982), at pages 498-502.
This order will not preclude the adjudicator from proceeding with the inquiry as that will not per se have the effect of changing any possible Charter rights. It will only prevent him from making a decision until this application is disposed of.
Counsel argued that the style of cause should be amended, and I so order, so as to make the adjudicator a party to these proceedings in order for the order of prohibition to issue against him or her. While counsel for the Minister apparently accepted that he could agree to this amendment, he insisted that the prohibition order could not be made against the Minister so far as the inquiry is concerned, as the adjudicator is not subject to the direction of the Minister as to how such inquiries are conducted. The order will also be subject to further direction of the Court. If this present application does not proceed to determination in a timely fashion, it will be open to the parties to seek a modification of my order.
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