A-82-86
Victor Fernando Correia Nunes (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
and
Anne Marie Micillo (Mis -en-cause)
INDEXED AS: NUNES V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Pratte, Marceau and Lacombe
JJ.—Montreal, June 17; Ottawa, June 24, 1986.
Immigration — Deportation — Adjudicator ruling appli
cant not true visitor — Argument evidence before Adjudicator
illegally obtained — Letters found in applicant's luggage
during examination by immigration officer at Mirabel Airport
— Immigration officer allegedly requiring applicant to open
suitcase and hand over letters — Seizure of letters valid under
s. 111(2)(b) Immigration Act, 1976 — No violation of Charter
— Search and seizure of documents under Immigration Act,
1976, made as part of examination of persons seeking admis
sion, not requiring prior authorization — Mahtab v. Canada
Employment and Immigration Commission, 119861 3 F.C. 101
(T.D.) overruled — No express provision in Act authorizing
immigration officer to examine luggage to determine whether
anything therein contradicting or confirming applicant in
Canada for visit — Even if illegally seized, letters admissible
as use thereof not likely to bring administration of justice into
disrepute — Application to review and set aside deportation
order dismissed — Immigration Act, 1976, S.C. 1976-77, c.
52, s. 111(2)(b) (as am. by S.C. 1980-81-82-83, c. 47, s. 23)
- Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Immigration officer seizing letters
found in applicant's luggage during examination at airport —
Seizure not contravening Charter — Search and seizure of
documents under Immigration Act, 1976, made as part of
examination of persons seeking admission, not requiring prior
authorization — Mahtab v. Canada Employment and Immi
gration Commission, 1 . 1986J 3 F.C. 101 (T.D.) wrongly decided
— Letters admissible as evidence — Use thereof not bringing
administration of justice into disrepute — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
CASE JUDICIALLY CONSIDERED
OVERRULED:
Mahtab v. Canada Employment and Immigration Com
mission, [1986] 3 F.C. 101 (T.D.).
COUNSEL:
Pierre Duquette for applicant.
Suzanne Marcoux-Paquette for respondent.
SOLICITORS:
Borenstein, Duquette, Brott & Tsirnberis,
Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment of the Court rendered by
PRATTE, MARCEAU and LACOMBE JJ.: The
applicant is asking the Court, pursuant to section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], to set aside a deportation order
made against him by an Adjudicator pursuant to
the Immigration Act, 1976 [S.C. 1976-77, c. 52]
on the ground that he should not be admitted to
Canada because, in the opinion of the Adjudicator,
he was not a true visitor.
Counsel for the applicant argued that this
deportation order was, first, illegal, and second,
based on erroneous findings of fact.
On the second point, the Court indicated to
counsel for the applicant at the hearing that we
saw no merit in it. It is therefore not necessary to
consider it further.
The allegation that the decision impugned is
illegal rests on the claim that the decision is based
on documentary evidence obtained in contraven
tion of the 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.)], and because of this should not have been
admitted by the Adjudicator.
The evidence in question consists of two letters
found in the luggage of the applicant, when he was
examined by an immigration officer on his arrival
at Mirabel Airport. At that time the officer
allegedly required the applicant to open his suit
case, and finding the two letters in it, told the
applicant to open them and give them to him.
Counsel for the applicant maintained that this
constituted a wrongful search and seizure, because
it was not allowed by the Immigration Act, 1976
and also because the immigration officer making it
had not previously obtained leave from some au
thority that would guarantee impartiality. In the
submission of the applicant, it follows that these
two letters were [TRANSLATION] "evidence ...
obtained under circumstances constituting an inva
sion of the rights or freedoms guaranteed by the
... Charter", and that they were therefore inad
missible in evidence since [TRANSLATION] "their
use [was] likely to bring the administration of
justice into disrepute".
In our opinion, this argument must be dismissed.
First, we feel it is clear that the search and
seizure of documents which under the Immigra
tion Act, 1976 can be made as part of the exami
nation of persons seeking admission to Canada,
having regard to the circumstances in which they
were made, do not have to be first authorized by
someone else. In our view the decision by the Trial
Division to the contrary in Mahtab' is wrong.
Secondly, we feel that paragraph 111(2)(b) of the
Immigration Act, 1976 [as am. by S.C. 1980-81-
82-83, c. 47, s. 23] clearly authorized seizure of
the two letters in question.
However, the question remains whether the Act
authorized the immigration officer to examine the
applicant's luggage to determine whether it con
tained anything that confirmed or contradicted his
statement he was coming to Canada simply for a
visit. There is no provision expressly conferring
such a power on immigration officers. Mrs.
Paquette, counsel for the respondent, argued how
ever that the power had been implicitly conferred
since the immigration officers could not perform
their duties properly if they did not have it. It is
not necessary for the Court to rule on this point,
for even if the two letters in question were seized
in an unauthorized search, we consider that they
' Mahtab v. Canada Employment and Immigration Com
mission, [1986] 3 F.C. 101 (T.D.).
could still be admitted in evidence as in our opin
ion their use in such circumstances was not likely
to bring the administration of justice into
disrepute.
The application will be dismissed.
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.