T-1866-85
Samir Georges Rabbat (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: RABBAT V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Trial Division, Denault J.—Montreal, October 7;
Ottawa, December 16, 1985.
Judicial review — Prerogative writs — Immigration —
Application to prohibit holding second inquiry — 1981 report,
forming basis of first inquiry, erroneously describing appli
cant's resident status — Adjudicator not ruling on merits —
Second report alleging same facts, but correctly describing
applicant as permanent resident — Res judicata not applicable
as no attempt to review decision on merits and new summons
based on different sections of Act — S. 34 excluding res
judicata — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
19(1)(c), 20, 27, 34, 104 — Immigration Act, R.S.C. 1970, c.
I-2, s. 27(4).
Constitutional law — Charter of Rights — Enforcement —
Two-year delay between decision in first immigration inquiry
and institution of second — Attempt to link right to be tried
within reasonable time in criminal proceedings to guarantee of
right to life, liberty and security — Immigration Act, 1976 not
imposing duty to act within particular time — Delay not so
unreasonable as to constitute injustice — No evidence of cruel
and unusual treatment in deportation to Lebanon — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 7, 11, 12, 24.
Immigration — Application to prohibit second inquiry
based on same facts, but different subsection of Act — S. 34
excluding res judicata with respect to ss. 20, 27 or 104 —
Okolakpa v. Minister of Manpower and Immigration, f 1977J I
F.C. 437 (T.D.) distinguished — Different wording in s. 27(4)
and new s. 34 — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 20, 27, 34, 104 — Immigration Act, R.S.C. 1970, c. I-2, s.
27(4).
This is an application for a writ of prohibition to bar an
adjudicator from holding an inquiry pursuant to section 27 of
the Immigration Act, 1976. The applicant also seeks such
remedy as the Court considers appropriate pursuant to section
24 of the Charter.
The applicant has been a permanent resident of Canada since
1972. He was arrested in 1981. A report filed pursuant to
section 27 described him as a person other than a Canadian
citizen or a permanent resident who might not be granted entry
by reason of his being a member of an inadmissible class. At
the inquiry, the Adjudicator held that the applicant had never
lost his permanent resident status, but he did not rule on the
substance of the matter (i.e. whether the applicant should be
authorized to remain in Canada). Two years later, a new report
was filed alleging the same facts, but describing the applicant
as a permanent resident. The applicant submits that all the
conditions for application of the principle of res judicata are
present, namely identity of person, object and case. He argued
that the first decision rendered was a final judgment. Finally,
he argued that if he was summoned to appear as a visitor rather
than as a permanent resident, it was an error of law that is fatal
to the holding of a new inquiry.
Held, the application should be dismissed.
All the conditions for the application of the principle of res
judicata are not present. No attempt is being made to review a
decision made on the merits; the new summons is based on
different sections of the Act. In Chi Ming Au v. Attorney
General of Canada, [1977] 2 F.C. 254 (T.D.), it was held that
res judicata only applies when the first tribunal was competent
and had jurisdiction to hear the matter. There jurisdiction was
missing because of an irregular report.
Furthermore, section 34 of the Act excludes res judicata in
the specific context of the sections to which it refers.
The case of Okolakpa v. Minister of Manpower and Immi
gration, [1977] 1 F.C. 437 (T.D.), wherein a writ of prohibition
was issued to bar the holding of a second special inquiry, is
distinguishable because of special circumstances in that case
and because the Court had to interpret subsection 27(4) of the
previous Immigration Act. In Okolakpa it was held that the
"subsequent report" referred to in subsection 27(4) must be a
report based on new information and not just a new subsection.
There is a substantial difference between the wording of sub
section 27(4) and the new section 34. Okolakpa cannot now
serve as a precedent.
In support of the action under section 24 of the Charter, the
applicant argued that the delay between the decision on the
first inquiry and the institution of the second (two years)
constitutes an infringement of his constitutional rights. The
applicant attempted to link the section 11 right to be tried on a
criminal charge within a reasonable time to the section 7
guarantee of the right to life, liberty and security of the person.
No attempt was made to explain the two-year delay. Although
it may seem to be so long as to be unreasonable, the Immigra
tion Act, 1976 does not impose a duty to act within a particular
time. The delay was not so unreasonable as to constitute an
injustice to the applicant who suffered no prejudice. Even if
there was a duty to proceed within a reasonable time, it does
not necessarily follow that the breach of such a duty would give
rise to setting aside of the tardy action: Gill v. M.E.I., [1984] 2
F.C. 1025; (1985), 60 N.R. 241 (C.A.).
Finally, the applicant argued that deportation to Lebanon
would constitute cruel and unusual treatment in view of the
civil war there, contrary to section 12 of the Charter. No
evidence of cruel and unusual treatment that would be inflicted
on him was adduced. Also, the argument is premature until the
applicant is in danger of deportation.
The Act requires the officers to inform the Deputy Minister
of the matters mentioned in sections 20, 27 and 104 when in
possession of such information.
CASES JUDICIALLY CONSIDERED
APPLIED:
Chi Ming Au v. Attorney General of Canada, [1977] 2
F.C. 254 (T.D.); Gill v. M.E.I., [1984] 2 F.C. 1025;
(1985), 60 N.R. 241 (C.A.).
NOT FOLLOWED:
Les États-Unis d'Amérique v. Alain Allard et Jean-
Pierre Charette, judgment dated September 13, 1984,
S.C. Montreal Nos. 500-27-009036-841 and
500-27-009035-843, not yet reported.
DISTINGUISHED:
Okolakpa v. Minister of Manpower and Immigration,
[1977] 1 F.C. 437 (T.D.).
REFERRED TO:
R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.).
COUNSEL:
David Cohen for applicant.
Suzanne Marcoux- Paquette for respondent.
SOLICITORS:
Campbell, Cohen & Associate, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
DENAULT J.: The applicant is asking the Court
to issue a writ of prohibition to bar an adjudicator
from holding an inquiry concerning him pursuant
to section 27 of the Immigration Act, 1976 (S.C.
1976-77, c. 52, as amended). He is also exercising
the remedy specified in section 24 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.)] and claiming that
holding another inquiry concerning him would be
likely to bring the administration of justice into
disrepute.
The applicant has held the status of a perma
nent resident since January 19, 1972. In December
1981, the RCMP arrested an individual who iden
tified himself as, and held a French passport under
the name of Jean Bernard Marcel Gaston. He
subsequently proved to be the applicant. Shortly
afterwards, an immigration officer filed a report
pursuant to section 27 of the Immigration Act,
1976 describing him as a person other than a
Canadian citizen or a permanent resident who
might not be granted entry by reason of his being a
member of an inadmissible class described in para
graph 19(1) (c) of the Act (conviction of offence).
He was subsequently summoned to appear so it
could be determined whether he should be author
ized to remain in Canada. This inquiry, based on
paragraphs 27(2)(a),(e) and (g) of the Act, was
held in October 1982. At that time, the applicant
challenged the inquiry, pointing out that he did not
have the visitor status attributed to him in the
report, but that of a permanent resident, which he
had never lost. The Adjudicator in fact concluded
that he had never lost his permanent resident
status; however, he did not rule on the substance of
the matter, namely whether the applicant should
be authorized to remain in Canada. This decision
was not appealed by the immigration authorities.
On November 28, 1984, that is over two years
after the Adjudicator's decision, a senior immigra
tion officer signed a new report in which the same
facts were alleged against the applicant as in the
earlier report, except that he was now described as
a permanent resident: this report was based on
paragraph 27(1)(a) and subparagraph (d)(ii) of
the Act. He was summoned to appear on May 10,
1985.
The application at bar seeks to prevent the
second inquiry from being held, and in support of
it counsel for the applicant cited the principle of
res judicata or the rules of double jeopardy and
autrefois acquit. He further mentioned that the
facts alleged against his client are identical in both
reports, and that all the necessary bases for
application of the principle of res judicata are
present, namely identity of person, object and case.
Additionally, he argued that the first decision
rendered was a final judgment in the applicant's
favour, and the second inquiry would disclose no
new facts, but be based on a different subsection of
the Act. Finally, he argued that all the facts
concerning his client were known at the first inqui
ry in 1982, and that if he was summoned to appear
as a visitor rather than as a permanent resident at
that time, an error of law was made which is now
fatal and a bar to the holding of a new inquiry
concerning him.
This first argument made by the applicant,
namely the principle of res judicata, does not
stand up to careful analysis as all the conditions
for application of that rule are not present in the
case at bar. Thus, no attempt is being made to
review a decision made on the merits of the
matter, and the new summons is based on different
sections of the Act. In this regard it may be worth
referring to the judgment in Chi Ming Au v.
Attorney General of Canada, [1977] 2 F.C. 254
(T.D.), in which on facts similar to those in the
case at bar Maguire D.J. held [at pages 255-256]:
Res judicata and merger only apply when the first tribunal
was competent and had jurisdiction to hear and determine the
matter brought before it. McIntosh v. Parent 55 O.L.R. 552;
[1924] 4 D.L.R. 420, Halsbury's Laws of England, 3rd ed., vol.
1, p. 204. Here the first Special Inquiry Officer did not have
jurisdiction by reason of the irregular report and it follows that
these two grounds do no support the application.
For similar reasons double jeopardy has not occurred.
Moreover, section 34 of the Act excludes the
principle of res judicata for all practical purposes
in the specific context of the sections to which it
refers.
It is true that in Okolakpa v. Minister of Man
power and Immigration, [1977] 1 F.C. 437 (T.D.),
relied on by the applicant, Walsh J. issued a writ
of prohibition to bar the holding of a second
special inquiry. Though the facts are strangely
similar to those of the case at bar, there were
special circumstances in that case, as the applicant
was seeking an order requiring a determination on
his application for a student visa, which was no
longer in effect at the time of the second inquiry:
he was thus in danger of being deprived of a
remedy. In that case Walsh J. gave the following
opinion [at page 440]:
It appears to me however that the "subsequent report" must
be a report based on new information and not merely a report
made which bases the recommendation on a different subpara-
graph of the Act, as a result of the Court of Appeal having held
that the subparagraph on which it was based was not appli
cable. The Inquiry Officer could have invoked subparagraph
(viii) instead of or in addition to subparagraph (iv) in ordering
the deportation had he so desired but failed to do so, and this
oversight or error in law does not justify a new report and new
special inquiry based on identical facts.
It should be noted, however, that in that case
the Court had to interpret subsection 27(4) of the
Act [Immigration Act, R.S.C. 1970, c. 1-2], which
read as follows:
27....
(4) No decision rendered under this section prevents the
holding of a future inquiry if required by reason of a subse
quent report under section 18 or pursuant to section 24.
Subsection 27(4) became section 34 in the
Immigration Act, 1976, and now reads as follows:
34. No decision given under this Act prevents the holding of
a further inquiry by reason of the making of another report
under subsection 20(1) or 27(1) or (2) or by reason of arrest
and detention for an inquiry pursuant to section 104.
In my opinion, there is a substantial difference
between the old wording of subsection 27(4) and
the new section 34. Where in the old wording the
section spoke of a future (ultérieure) inquiry and a
subsequent (rapport subséquent) report, it now
speaks of a further (autre) inquiry by reason of
another (autre) report. Similarly, where the old
wording applied only to the decisions rendered
pursuant to section 24, the new provision applies to
sections 20, 27 and 104. As can be seen, the
legislator wished to expressly exclude the plea of
res judicata in an immigration matter, at least
within the limited scope of this section, and I
consider that the decision in Okolakpa cannot
serve as a precedent in the case at bar in view of
the fact that the wording of the statute is now
quite different.
In that case, as noted above, there was an
attempt to hold a new inquiry based on the same
facts while the applicant was awaiting a decision
on an application for an extension of his student
visa. The Judge there said at page 440:
Moreover when the first deportation order was issued his visa
had not yet expired so he could have appealed to the Immigra
tion Appeal Board instead of bringing a section 28 application
by virtue of the Federal Court Act to the Court of Appeal
whereas his visa has now expired so if a second special inquiry
were held he would have no grounds to seek the quashing of a
deportation order by the Immigration Appeal Board if such an
order were again made as appears likely, and therefore would
suffer prejudice as a result of being deprived of one of his
recourses.
In his findings, the learned Judge prohibited the
holding of another special inquiry and "declare[d]
that petitioner has a right to a determination on
his application for extension of his student visa,
which decision should be made forthwith, the
whole with costs". As can be seen, the particular
facts of that case were of the greatest concern to
the learned Judge, who sought to avoid the appli
cant suffering any prejudice.
In their comments on section 34, the writers
have recognized that the legislator appears to have
wished to exclude the res judicata defence, but
they have quickly raised the spectre of abuse by
the immigration authorities, and taken the oppor
tunity of the decision in Okolakpa to limit its
scope. In his text Immigration Law in Canada,
Julius H. Grey comments on section 34 of the Act
as follows (page 66):
Section 34 states that nothing prevents new inquiries based on
new reports made by the Department. This could be interpreted
to mean that, after an unsuccessful inquiry, the Department
could simply recommence by rewording its original report. This
may have been the draftsman's intention but it is now subject
to a major gloss in Okolakpa v. Lanthier and M.M.I. In that
case, Mr. Justice Walsh held that the new report must deal
with new facts. While this may go highly beyond the text, a
contrary decision would permit a major abuse of procedures by
the Department, which could keep trying on the same facts
until it found a favourable adjudicator. It is, therefore, suggest
ed that Mr. Justice Walsh's interpretation should be followed.
[My emphasis.]
Wydrzynski states in Canadian Immigration Law
and Procedure, at pages 276-277:
The intent of this section seems to be, to allow for further
inquiries with respect to the same person, even though an
earlier inquiry might have come to a decision that the person
was not excludable or expellable. In other words, the section
seeks to avoid the raising of any issue of res judicata with
respect to the second inquiry ....
The exact effect of the provision allowing for further in
quiries has not been subject to judicial interpretation. However,
cases under the former legislation, which did not contain a
similar provision, have held, in line with general principles of
administrative law, that where an inquiry has been terminated
or a removal order set aside for a jurisdictional error, further
inquiries were not prohibited by application to the principle of
res judicata.
The Commission may be estopped from asserting grounds
which should have been used earlier, and the matter may be
seen as res judicata. However, this interpretation of the right to
institute further inquiries should be seen as highly tentative
until some jurisprudence is developed on the specific statutory
provision.
For the reasons already stated, I conclude that
section 34 excludes the defence of res judicata
within the limited scope of the sections to which it
refers.
In support of his action under section 24 of the
Canadian Charter of Rights and Freedoms, the
applicant argued that the excessive delay between
the decision on the first inquiry and the institution
of the second (two years) constitutes an infringe
ment of his constitutional rights. Without express
ly mentioning section 11 of the Charter, which
provides that a person charged with an offence has
the right to be tried within a reasonable time, the
applicant, undoubtedly aware that this section
applies only to criminal proceedings, sought to link
this concept to the legal guarantee provided in
section 7 of the Charter. He relied inter alia on a
recent judgment of the Quebec Superior Court in
Les États-Unis d'Amérique v. Alain Allard et
Jean-Pierre Charette (judgment dated September
13, 1984, S.C. Montreal, Nos. 500-27-009036-841
and 500-27-009035-843, not yet reported), in
which Réjean Paul J. dismissed an application to
extradite two former members of the FLQ, finding
that an action in the Canadian courts fifteen years
after the crime was committed and five years after
the two respondents had returned to Canada cons
tituted a denial of justice and, citing Dubin J. in
Young [R. v. Young (1984), 40 C.R. (3d) 289
(Ont. C.A.), at page 329], infringed:
... those fundamental principles of justice which underlie the
community's sense of fair play and decency ....
This judgment has been appealed to the
Supreme Court and will be heard shortly. Though
I find very understandable the reluctance to extra
dite the two respondents after such a long lapse of
time, I do not accept the reasons given by the
learned Judge to support dismissing the applica
tion for extradition.
In the case at bar also no attempt was made to
explain the two-year delay before making a second
request for an inquiry. Clearly at first sight it
would seem to be so long as to be unreasonable.
However, the Immigration Act, 1976 mention no
peremptory duty to act within a particular time.
Section 27 imposes on an immigration officer the
duty to submit such a report if he is in possession
of information specified in the section. It would
undoubtedly have been desirable for the govern
ment to have acted earlier, but there was no
requirement that it do so, and it is difficult to
conclude that the delay was so unreasonable as to
constitute an injustice to the applicant, who in any
case suffered no prejudice in the meanwhile. In
Gill v. M.E.I., [1984] 2 F.C. 1025; (1985), 60
N.R. 241, Hugessen J. of the Federal Court of
Appeal responded as follows [at pages 1028-1029
F.C.; at page 243 N.R.] to an applicant complai
ning that the government had delayed for two
years in acting on his application in an immigra
tion matter:
It may well be that the recently discovered administrative duty
to act fairly encompasses a duty not unreasonably to delay to
act; or, put positively, that the procedural duty to act fairly
includes a duty to proceed within a reasonable time. It does not
by any means follow, however, that the breach of such a duty
would give rise to the setting aside of the tardy action when it is
finally taken. The remedy surely is to compel timely action
rather than to annul one that, though untimely, may otherwise
be correct.
Finally, the applicant cited section 12 of the
Charter, namely that his deportation to Lebanon
would constitute cruel and unusual punishment in
view of the civil war raging there. This argument
cannot be allowed, as the applicant presented no
evidence of any cruel and unusual punishment or
treatment that would be inflicted on him. Additio
nally, this argument is premature and could be
more validly made when the applicant is in danger
of deportation.
In the circumstances, there is no basis for allo
wing the remedy sought. The general scheme of
the Act not only allows but requires the competent
officers to inform the Deputy Minister of the
matters mentioned in sections 20, 27 and 104 of
the Act, when they are in possession of such
information.
The application is accordingly dismissed with
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.