T-1282-89
Carolyn Khan (Applicant)
v.
Minister of Employment and Immigration, Carol
Bell, Adjudicator, and Attorney General of
Canada (Respondents)
INDEXED AS: KHAN V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Muldoon J.—Ottawa, July 18 and
28, 1989.
Immigration — Practice — Application to quash inquiry
into applicant's status in Canada — Applicant arrested pursu
ant to s. 103 at place of employment based upon information
suggesting misrepresentation of home address and place of
employment — S. 103 empowering immigration officers to
arrest persons illegally employed where of opinion unlikely to
appear for inquiry — Detained two hours until immigration
officers verifying address by phoning applicant's sister —
Released under s. 103(5) — Application allowed — Inquiry
resting on illegal base — S. 28, requiring inquiry where person
detained pursuant to s. 103, no longer applicable once released
— S. 27 requiring report to Deputy Minister detailing infor
mation re: illegal employment, unless arrested and held in
detention pursuant to s. 103 — Deputy Minister not indicating
"considered inquiry warranted" as required by s. 27(3) — Also
failure to comply with s. 103(4) by mistakenly not notifying
senior immigration officer of reasons for detention.
This was an application for certiorari to quash an inquiry
into the applicant's status in Canada. Based upon information
that the applicant may have misrepresented her home address
and place of employment and falsified letters of reference for
her annual assessment, immigration officers attended at the
home where she worked as a caregiver and arrested her under
section 103 of the Immigration Act. Subsection 103(2) empow
ers immigration officers to arrest without warrant persons who
engage in employment contrary to the Act or Regulations
where the officers are of the opinion that the person poses a
danger to the public or would not otherwise appear for the
inquiry. There was no question of the applicant, who was eight
months pregnant, posing any danger to the public. The officers
did not attempt to verify her true address before arresting the
applicant. They went to the home in question with the intention
of arresting the applicant if they found her working there. The
applicant was released two hours later, upon verification of the
applicant's true place of employment and residence, apparently
by phoning her sister with whom she lived. The arresting
officer, who later interviewed the applicant and released her
pursuant to subsection 103(5), mistakenly did not particularize
his reasons for arresting the applicant on the Notice of Arrest
Report contrary to subsection 103(4). Subsection 27(2)
requires an immigration officer to provide a written report to
the Deputy Minister detailing suspected illegal employment,
unless that person has been arrested and held in detention
pursuant to section 103. Subsection 27(3) provides that the
Deputy Minister shall direct an inquiry to be held when he
considers that it is warranted. Section 28 requires that an
inquiry be held forthwith where a person is held in detention
pursuant to section 103. The issue was whether the immigration
officers were justified in arresting the applicant rather than
forwarding a report to the Deputy Minister under section 27.
Held, the application should be allowed.
The applicant's release removed her from the application of
section 28. There could not be any automatic institution of an
inquiry because the applicant was no longer held in detention
pursuant to section 103. She was a person released from
detention pursuant to subsection 103(5). The obvious implica
tion of the statutory scheme is that the arresting officer must
comply with subsection 27(2) and forward a written report to
the Deputy Minister. There is no time limit, apart from unrea
sonable delays, for forwarding the written report. The inquiry
must be quashed because it rested on an illegal base. The
Deputy Minister had not indicated that he "consider[ed] that
an inquiry [was] warranted" in compliance with subsection
27(3) "subject to any order or direction of the Minister". The
applicant may make representations to the Deputy Minister
that an inquiry is not warranted.
The immigration officers were overly zealous and officious in
arresting the applicant pursuant to section 103. The telephone
call which ultimately satisfied them of the applicant's true
address could have been made from the house where the
applicant was arrested, or the applicant could have been invited
to voluntarily accompany the officers. The immigration officers
wielded their power of arrest too callously, but not strictly
illegally. Legality must be observed throughout the entire
process. The arresting officer failed to comply with the manda
tory provision of subsection 103(4) which requires the notifica
tion of a senior immigration officer of the reasons for detention.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III, s.
1(b).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 10(b), 15, 24.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27, 28, 30, 103.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 83.1 (as
enacted by S.C. 1988, c. 35, s. 19), 104.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Kindler v. MacDonald, [1987] 3 F.C. 34; 41 D.L.R. (4th)
78 (C.A.).
COUNSEL:
Michael W. Swinwood for applicant.
Barbara A. Mcisaac for respondents.
SOLICITORS:
Honeywell, Wotherspoon, Ottawa, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: This is an urgent application
pursuant to section 18 of the Federal Court Act,
R.S.C., 1985, c. F-7 and section 24 of the 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.). It is instituted
pursuant to leave accorded by Mr. Justice Teitel-
baum on June 12, 1989, in accordance with section
83.1 of the amendments to the Immigration Act,
1976, being c. 35 of the Statutes of Canada 1988,
which are not consolidated with the Immigration
Act, R.S.C., 1985, c. I-2, proclaimed to come into
force on December 12, 1988.
The applicant, whose full name appears to be
Carolyn Naziffa Khan, moves for the following
orders:
1. An order in the nature of certiorari, quashing
the inquiry into the applicant's status in Canada
convoked pursuant to section 28 of the Immigra
tion Act on the basis that:
a. the immigration officer exceeded his jurisdiction under
104(2) [sic, actually subsection 103(2) of the law now in force]
in the arrest of the applicant in that there was no basis to
believe that the applicant posed a danger to the public or would
not otherwise appear for an inquiry or for removal from
Canada;
b. that proceeding by section 104(2) [sic] of the Immigration
Act violated the applicant's right guaranteed under section 15
of the Charter of Rights and Freedoms and section 1(b) of the
Canadian Bill of Rights, R.S.C. 1970, Appendix 3; [sic, now
R.S.C., 1985, Appendix III]
c. that the immigration officer failed to direct his mind to the
question of whether the applicant posed a danger to the public
or would not otherwise appear for the inquiry and in fact had
no evidence to that effect; and
d. that the procedure by virtue of section 104 [sic] deprived the
applicant of a discretionary review provided for in section 27(3)
of the Immigration Act, 1976 and amendments thereto c. 35.
[sic]
and thereby should vitiate the inquiry and all the
above grounds combine to allow this Court to
quash the inquiry.
2. An order excluding all evidence obtained after
the arrest of the applicant on March 6, 1989, by
virtue of subsection 24(2) of the Canadian Charter
of Rights and Freedoms in that the applicant's
rights were denied as guaranteed by paragraph
10(b) of the Canadian Charter of Rights and
Freedoms, such evidence to include:
a. the notice of arrest;
b. the statement of allegations;
c. the applicant's declaration; and
d. any documentary evidence obtained after the arrest and to
be used in evidence in the inquiry.
The applicant had entered Canada in 1987 with
a Trinidad and Tobago passport as a participant in
the Foreign Domestic Movement (FDM) Pro
gram. Under the terms of that program, and her
particular authorization, the applicant was
restricted to working as a domestic "live-in" helper
at a stated place of employment and location. At
the material times she was authorized to work in
Ottawa at 121 Curtis Crescent for a Mrs. Godden
who, in fact is the applicant's sister, although that
fact seems not to have been appreciated by the
immigration examining officers until after they
arrested the applicant on March 6, 1989.
On December 14, 1988, the Minister's officials
had authorized the applicant, at her request, to
change her place of employment from a previous
place to that of Mrs. Godden's residence, effective
until December 14, 1989. The relevant form of
such authorization, signed by the applicant, is
copied as exhibit A to the affidavit of Lyne
Deschamps, one of the senior immigration examin
ing officers who attended upon the applicant's
arrest.
On February 23, 1989, the applicant had
attended at the immigration offices in Ottawa for
her first annual assessment under the FDM pro
gram. At that time she brought to the assessor a
letter apparently from Mrs. Godden certifying that
the applicant "has been in my employ since the
14th December 1988" and praising her in glowing
terms. A copy of that letter is exhibit B to Ms.
Deschamps' affidavit.
In her affidavit, upon which she was subsequent
ly cross-examined by the applicant's counsel, Ms.
Deschamps records in paragraph 6, that on March
2, 1989:
... I received a telephone call from [Allen Thompson] the
husband of a Dr. Gould, who informed me that the applicant
had in fact been in his and his wife's employ since January 17,
1989. I met with him the following day and he informed me
that the applicant had presented herself to him as having
landed immigrant status and had provided him and his wife
with an address inconsistent with that given to [the assessment
interviewer] on February 23, 1989. He advised me that he was
concerned because the applicant was unable to provide him
with a social insurance number or other documentation author
izing her to work.
Ms. Deschamps further explained her part in
the investigation and subsequent arrest of the
applicant in the following paragraphs of her
affidavit, thus:
7. Acting upon this information, I reviewed the applicant's file.
It appeared to me that:
(i) the applicant was a person described in paragraphs
27(2)(b) and (e) of the Act in that she may have falsely
represented her place of employment contrary to subsec
tion 18(2) of the Regulations and had reconfirmed this
misrepresentation at her annual assessment only a week
earlier;
(ii) the applicant may have falsified letters of reference in
order to pass her annual assessment. These possibly
fabricated items included a letter dated February 23,
1989, from Mrs. Godden as an alleged employer and a
letter dated October 26, 1988 from Ms. Zinora Ferreira
[also a sister of the applicant] to Mrs. Godden again as
an alleged employer. Copies of these two letters are
attached hereto and marked respectively as Exhibits
"B" and "C" to this my affidavit;
(iii) the applicant had provided the Goulds with a different
address than the one she had given to Employment and
Immigration, putting doubts in my mind as to where her
true place of residence was. Mr. Gould had informed
me that she had told him she lived at 1545 Alta Vista
Drive, Ottawa, Ontario, but that he had checked the
address board in the lobby and had reason to believe she
did not live there. The address given to Employment
and Immigration was alleged to be Mrs. Godden's
residence at 121 Curtis Crescent, Ottawa, Ontario.
Based on these apparent misrepresentations, it was my opinion
that there were reasonable grounds to believe that the applicant
would not appear for inquiry or for removal from Canada.
Now, there is an omission in the sequence of
events recounted in Ms. Deschamps' affidavit. On
March 3, 1989, Mr. Thompson tendered to her a
typed document called herein an "information
sheet" which is exhibit 1 (joint motion record, tab
3) on the cross-examination of Albert Pace who
accompanied Ms. Deschamps to arrest the appli
cant on March 6, 1989. The information sheet
clearly discloses an address for the applicant as
being 121 Curtiss [sic] Crescent, Ottawa. That
omission does nothing, however, in the circum
stances to displace the doubts Ms. Deschamps
asserts about where the applicant's true place of
residence was, before she and Mr. Pace attended
at the Thompson/Gould residence on the following
March 6. They were later satisfied that 121
Curtis, Mrs. Godden's address was in fact the
applicant's residence.
Ms. Deschamps continues:
8. Mr. Albert Pace and I thus proceeded under s. 104 [sic:
really section 103] of the Act and arrested the applicant at the
Gould household on March 6, 1989. We arrived at approxi
mately 9:30 a.m. At the time of her arrest, the applicant was
caring for the Gould's two children.
It may be noted that on her cross-examination
Ms. Deschamps acknowledged in answers to ques
tions 194 through 208 that, if she found the appli
cant in effect working at the Thompson/Gould
residence she, Deschamps, intended to arrest the
applicant. According to subsection 103(2) of the
Act the immigration officers are empowered to
arrest without warrant a "person who on reason
able grounds is suspected of being a person
referred to in paragraph 27(2)(b) [or] (e) ...
where, in the opinion of the officer, the person
poses a danger to the public or would not other
wise appear for the inquiry ...". The officers were
certainly not of the opinion that the applicant,
then eight months pregnant, posed any danger
whatsoever to the public.
Ms. Deschamps' affidavit continues:
9. Immediately upon our arrival at the Gould household, the
applicant was informed of her rights to retain counsel and to
contact her Consulate. Attached hereto and marked as Exhibit
"D" to this my affidavit is a copy of my notes made at the time
of the applicant's arrest. The applicant requested to make a
telephone call but did not end up doing so even though she was
in no way prohibited from making the call. The applicant left
the Gould household with us. Her manner was co-operative.
Immediately upon their arrival, or virtually
immediately thereafter, the applicant was arrested,
in accordance with Ms. Deschamps' intention to
have the applicant arrested, as stated in her cross-
examination. As the applicant's counsel stated in
oral argument, it seems that the officers were
intent upon verifying the applicant's employment
at and in the Thompson/Gould residence, but they
did not then and there attempt to verify her true
address before arresting her. Furthermore, the
consulate above referred to, as shown in exhibit B
to Albert Pace's affidavit, is located in Toronto.
The officers seemed to have given no thought to
the possibility of contacting the High Commis
sion's office in Ottawa. It surely employs repre
sentatives of the applicant's home government.
The applicant declined the offer to get in touch
with the Toronto consulate. That document, exhib
it B, "Notice Concerning the Right to be Repre
sented by Counsel at an Immigration Inquiry", a
form established by the Minister, refers to
representation by "a barrister or solicitor or other
counsel .. . at his inquiry" as provided in subsec
tion 30(1) of the Act, but makes no reference to
retaining and instructing counsel without delay
upon arrest or detention, as provided in paragraph
10(b) of the Charter.
The last two paragraphs of Ms. Deschamps'
affidavit run as follows:
10. At 10:00 A.M. we returned to the immigration office and
at 10:05 the applicant placed a call to her sister Mrs. Godden.
They spoke for up to ten minutes and, at the applicant's
request, I spoke personally with Mrs. Godden explaining the
situation to her.
11. I accompanied the applicant to the office of Mr. Albert
Pace and left him to conduct an interview. I am informed by
Mr. Pace, and do verily believe that the applicant was released
within two hours, after signing an Acknowledgement of Terms
and Conditions form, agreeing to appear for an inquiry when
directed to do so by an immigration officer.
Albert Pace also provided his own affidavit on
behalf of the respondents. In it he adopts para
graphs 3 through 11 of Ms. Deschamps' affidavit
as if they formed a part of his. It was Mr. Pace
who interviewed the applicant following her arrest.
He swears that she was again given notice, but this
time in writing of her right to have counsel at the
inquiry and of her right to notify her government's
representative pursuant to the Vienna Convention.
He attaches copies of the applicant's signed
acknowledgements of receipt. Mr. Pace believes
that the applicant made yet a second telephone
call from his office, in order to arrange for a ride
home.
In regard to use of the telephone, Mr. Pace
swears that if the applicant had wished to call
anyone, including a lawyer, she would have been
allowed to do so and that a telephone directory
would have been provided. On his cross-examina
tion by the applicant's counsel, he swore that the
applicant was offered the opportunity to contact a
lawyer either at the Thompson/Gould residence or
at the officers' office "downtown". (Joint motion
record, tab 2, page 26, answers to questions 167 to
171). Mr. Pace said that after the interview stated
the applicant appeared no longer to be nervous. He
does not, and did not know the applicant at all.
The applicant herself, on her oral re-examination
stated that she felt very "much intimidated", "very
scared", "broke down in tears" apprehensive that
what was happening to her "would really be bad"
and that her state of agitation persisted until she
was released. (Joint motion record, tab 1, page 16
answers to questions 97 and 98.) This testimony
probably describes the applicant's true condition
and state of mind at the material time. The Court
accepts it for its truth and accuracy.
Attached to Mr. Pace's affidavit as exhibit "C"
is a copy of a declaration written by the applicant
during the interview. The applicant stated that he
told her to write a "confession" and directed her to
write what in other proceedings would be termed
inculpatory statements. Given Mr. Pace's direct
contradiction of that assertion, and the applicant's
acknowledged state of agitation, the Court accepts
Mr. Pace's version of the events. Needless to
emphasize, had he so misbehaved, especially prior
to the arrival of, or conference with, the counsel
whom the applicant in fact declined or was not
sufficiently informed to contact there would have
been a serious infringement of the applicant's
rights under paragraph 10(b) of the Charter.
However, when asked to complete that written
declaration, the applicant and Ms. Deschamps had
both already spoken with the applicant's sister
Mrs. Golden; and, although offered the opportu
nity to telephone a lawyer, the applicant had seem
ingly declined, whether out of confusion, anxiety,
not knowing a lawyer, failure of the officers to
inform her properly of her paragraph 10(b) right,
or because of her sister's advice is not precisely
known to the Court, but could raise an inferential
finding of fact.
In any event, there is a pragmatic resolution of
this matter. While not admitting that the appli
cant's Charter right was infringed, the respon
dent's counsel stated that the declaration will not
be admitted—nor will the respondents seek to have
it admitted—at the inquiry. Therefore, the Court
will, with the respondents' consent and noting that
no admission of infringement is expressed, grant
the remedy claimed by the applicant and order,
pursuant to subsection 24(2) of the Charter that
the declaration written by the applicant on March
6, 1989 be excluded from evidence and that knowl
edge of its contents be denied to the official who
conducts the inquiry. If already known to such
official, a new adjudicator will have to conduct the
inquiry.
The other three items which the applicant seeks
to have excluded from evidence at any continued
or newly instituted inquiry are: (a) the notice of
arrest; (b) the statement of allegations; and ...(d)
any documentary evidence obtained after the
arrest and to be used in evidence at the inquiry.
Items (a) and (b) are not evidence and can never
be evidence. Item (a) is a document which seems
to be a hybrid cross between a subpoena and an
appearance undertaking. Item (b) is akin to a
statement of claim which serves to alert the oppo-
site party of the claim, but is evidence of nothing.
Item (d) is too broadly cast to be accorded here.
These require no affirmative order of the Court
and will be dismissed on the basis that they do not
constitute evidence of anything before any
adjudicator, but such adjudicator is, as always,
restricted to the admission of proper evidence only.
The last three paragraphs of Mr. Pace's affida
vit are all significant and run thus:
8. I asked the applicant to sign an Acknowledgement of Terms
and Conditions form agreeing to appear for an inquiry when
directed to do so by an immigration officer. Having ascertained
her true place of employment and residence, I decided that it
would not be necessary to detain her until the inquiry. [Empha-
sis not in original text.]
9. The applicant was released within two hours of arriving at
the Employment and Immigration offices, at approximately
12:00 p.m.
10. I was later informed by my supervisor that I had omitted to
particularize my reasons for proceeding with the arrest on the
Notice of Arrest Report. Attached hereto and marked as
Exhibit "D" to this my Affidavit is the Notice of Arrest
Report. However, for the reasons set out in paragraph 7 of the
affidavit of Lyne Deschamps, I did verily believe that the
applicant might not have appeared for an inquiry.
Although the last avowal expressed in
paragraph 10 above, could seem to be lame after
thought, it is not necessarily so, as will be
discussed.
The principal issue in contention at the hearing
of this case was whether the immigration officers
Deschamps and Pace were justified in arresting
the applicant instead of writing and forwarding a
report of the matter to the Deputy Minister. The
reason for the applicant's counsel stout disparage
ment of the exercise of the officers' power of arrest
he explained thus: upon arrest pursuant to subsec
tion 103(2) an inquiry must automatically follow;
but upon proceeding pursuant to subsection 27(2)
the officer, without arresting the person pursuant
to section 103, merely forwards a written report to
the Deputy Minister, the latter, (subject to any
direction of the Minister) shall, only if he "consid-
ers that an inquiry is warranted", direct that an
inquiry be conducted. The applicant's counsel
stated that once the applicant is arrested, there is
no provision to "dis -arrest" her, and, since the
inquiry follows automatically, she thereby loses the
benefit or advantage of the Deputy Minister's
consideration of whether it be warranted, or not.
In the circumstances of this case, viewed as they
are with lucid hindsight, the Court holds that the
immigration officers Deschamps and Pace were
overly zealous and officious in effecting the appli
cant's arrest pursuant to section 103. Having so
readily become satisfied that the applicant would
indeed appear for an inquiry—no doubt as a result
of the telephone call to her sister from the office,
which could as effectively have been performed
from the Thompson/Gould residence—the ground
for arrest evaporated readily like a wisp of fog
before a refreshing zephyr. Indeed if they believed
that the residence was not an appropriate place in
which to conduct an interview with the applicant
nothing whatever prevented them from requesting
or inviting her to accompany them voluntarily to
their office, without even exerting their power of
arrest, but leaving it in reserve, if their slim ground
for it appeared to be more substantial than expect
ed. One wishes that they had exercised better,
more moderate judgment, rather than bringing the
State's heavy artillery to bear at the outset.
Of course, such a circumstance does not indicate
that the ground was illusory or never existed.
Alerted to the possibility of two addresses where
there ought to have been only one, and the con
comitant realization that one of them was possibly
a phantom address, the officers could with a little
bit of reason form the opinion that the applicant
would not appear for an inquiry because they
would not know where to contact her. The reason
able basis for such opinion is very slim indeed and
soon proved to be non-existent. But hindsight, no
matter how keen, does not eradicate the circum
stance in which the immigration officers formed
their opinion. Even if this Judge, in their place,
would have performed differently—of which there
can be no doubt—their performance of their duty
cannot be gainsaid on that account. Suffice it to
say that this Court awards officers Deschamps and
Pace no accolade for good judgment or humane
concern in the performance of their duty as they
saw it on what were barely reasonable and prob
able grounds for arresting an agitated, scared
woman who was eight months through an evident
pregnancy.
The applicant's counsel also castigated the offi
cers for not ascertaining the applicant's address by
simply telephoning Mrs. Godden on March 3,
1989, in order to inquire if the applicant truly lived
there. That would be no way to conduct an investi
gation. After all, there were indeed reasonable
grounds to believe that Mrs. Godden had some
complicity in misrepresenting the state and place
of the applicant's employment. Her letter of Feb-
ruary 23, 1989 as compared with Mr. Thompson's
information, provided such grounds. Naturally the
investigators would not telephone her then, before
verifying where in fact the applicant was working,
without compromising their own competence as
investigators worthy of the name.
The power of arrest even in a free and demo
cratic society, is a formidable instrument of coer
cion, not to emphasize intimidation. That power is
to be wielded cautiously and, of course, strictly
legally. The Court here has concluded that the
immigration officers wielded their formidable state
power too callously, but not strictly illegally.
Legality, however, is not an ephemeral require
ment, it must be observed throughout the entire
process. The two senior immigration examining
officers' conduct of the case after arrest must be
viewed through the optic of such legality.
The provisions of the Immigration Act are the
primary source of such legality. The pertinent
provisions run so:
27....
(2) Where an immigration officer or a peace officer is in
possession of information indicating that a person in Canada,
other than a Canadian citizen or permanent resident, is a
person who
(b) has engaged or continued in employment in Canada
contrary to this Act or the regulations,
the immigration officer or peace officer shall forward a written
report to the Deputy Minister setting out the details of such
information unless that person has been arrested without war
rant and held in detention pursuant to section 103.
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to subsec
tion (1) or (2), and where the Deputy Minister considers that
an inquiry is warranted, forward a copy of that report and a
direction that an inquiry be held to a senior immigration
officer.
28. Where a person is held in detention pursuant to ...
section 103 for an inquiry, a senior immigration officer shall
forthwith cause the inquiry to be held concerning that person.
103... .
(2) Every peace officer in Canada, whether appointed under
the laws of Canada or of any province or municipality thereof,
and every immigration officer may, without the issue of a
warrant, an order or a direction for arrest or detention, arrest
and detain or arrest and make an order to detain
(a) for an inquiry, any person, who on reasonable grounds is
suspected of being a person referred to in paragraph
27(2)(b),...
where, in the opinion of the officer, the person poses a danger
to the public or would not otherwise appear for the inquiry or
for removal from Canada.
(4) Where any person is detained for an ... inquiry pursuant
to this section, the person who detains or orders the detention of
that person shall forthwith notify a senior immigration officer
of the detention and the reasons therefor.
(5) A senior immigration officer may, within forty-eight
hours from the time when a person is placed in detention
pursuant to this Act, order that the person be released from
detention subject to such terms and conditions as the officer
deems appropriate in the circumstances, including the payment
of a security deposit or the posting of a performance bond.
[Emphasis not in original text.]
If the applicant was indeed held in detention
pursuant to section 103 for an inquiry it is clear
that such detention endured for only about two
hours. Her relatively prompt release, pursuant to
the statutory provision of subsection 103(5),
removed her—at least in the circumstances here
revealed—from the operation of section 28 and
made compliance with its mandatory direction im
possible, or at least, not in fact achieved. In effect,
there is a "dis -arrest" provision, which resides in
subsection 103(5), and it is entirely practical and
humane. Mr. Pace is certainly not to be criticized
for invoking it. He did, however, fail to comply (on
the evidence presented) with the mandatory direc
tion of subsection 103(4) for, if he did forthwith
notify a senior immigration officer of the appli
cant's then discontinued detention, he appears to
have failed to notify such officer forthwith of the
reasons for such detention. (Para. 10 and exhibit D
to his affidavit; and joint motion record, tab 2,
page 34, answer to Q. 224.) He mistakenly failed
to record any reasons and only later adopted the
reasons set out in Ms. Deschamps' paragraph 7 of
her affidavit. The principal ground for arrest had
been allayed, and the applicant was no longer held
in detention for an inquiry.
Since there could be, and in fact there was, no
compliance with section 28, there obviously could
not be any automatic institution of an inquiry.
Whatever the effect of section 103, it is clear that
the applicant was no longer held in detention
pursuant to section 103, a circumstance predicated
in subsection 27(2). Rather she is a person who
was released from detention pursuant to section
103—subsection (5). The obvious implication of
the statutory scheme enacted by Parliament, in
circumstances such as are here revealed, is that
either Ms. Deschamps or, more likely Mr. Pace,
since both agree that he actually effected the
arrest, must comply with the provisions of subsec
tion 27(2) and "forward a written report to the
Deputy Minister setting out the details of [the]
information". After all, the applicant had not been
held in detention pursuant to section 103 (read
with the mandatory provisions of section 28 and
subsection 103(4) as necessary conditions thereof)
but in fact, at the material times for such condi
tions, had been released from detention, if the
interview was such, pursuant to section 103 —
subsection (5). This appears to be the statute's
effect without straining any interpretation of it,
and bearing in mind that where the individual's
right to liberty is involved the statute ought to be
strictly interpreted in order to avoid infringement
of such a right and of the (very) liberty itself.
Counsel both agreed that, apart from unreasonable
delays, there is no time limit within which the
forwarding of the written report to the Deputy
Minister must be accomplished.
In the result the inquiry already instituted and
now adjourned until August 28, 1989, must be
quashed for it rests on an illegal base. That is, the
Deputy Minister has not indicated that he "consid-
ers that an inquiry is warranted" in compliance
with subsection 27(3), "subject to any order or
direction of the Minister". This Court considers
that the foregoing must be the result of any invo
cation of the outstandingly reasonable and practi
cal provisions of subsection 103(5) and, at least, it
must be the result in the circumstances of this case
at bar.
In view of the foregoing findings and disposition,
it is unnecessary to consider the applicant's claims
expressed to be pursuant to subsections 15(1) and
(2) of the Charter and pursuant to paragraph 1(b)
of the Canadian Bill of Rights [R.S.C., 1985,
Appendix III]. No order will be promulgated in
regard to those particular claims for relief.
If "the Deputy Minister considers that an inqui
ry is warranted" a new inquiry must be instituted,
with a new adjudicator. The applicant's declara
tion of March 6, 1989, is and remains quite inad
missible in evidence at any such inquiry.
There is, of course, no provision of law to pre
vent or prohibit the applicant's counsel from
making written representations to the Deputy
Minister in order to attempt to persuade the latter
that an inquiry is not warranted. The Deputy
Minister is not obliged to wait for such representa
tions for he is not obliged even to receive written
representations, but it is assumed that the Deputy
Minister, being an honourable person, will not
unduly rush consideration of the matter in order to
frustrate counsel's efforts. Undoubtedly the
Deputy Minister approaches the task in accord
ance with the determinations of this Court's
Appeal Division in Kindler v. MacDonald, [1987]
3 F.C. 34; 41 D.L.R. (4th) 78 and, if so, the
applicant can have no complaint about it. It may
be thought that this disposition amounts to very
little, if not an illusory gain for the applicant. Even
so, the Court, in its discretion, grants it because
she is, in strict law, entitled to this disposition.
The applicant has been successful herein on the
principal contentious issue calling for adjudication,
and at the same stage of the litigation, her counsel
persuaded the respondents to consent to the
inadmissibility of the applicant's written and
signed declaration dated March 6, 1989. The
foregoing provides reason enough to award the
applicant her party-and-party costs of and inciden
tal to these proceedings, after taxation thereof.
Such award in no manner reflects anything but
high respect for the demeanour and professional
ism of the respondents' counsel. It reflects only the
principle that ordinarily the loser pays the victor's
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.