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GUIDE TO PROCEEDINGS
BEFORE THE IMMIGRATION DIVISION
Legal Services
Guide to Proceedings Before the ID
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Table of Contents
About the Guide to Proceedings Before the Immigration Division ………ii, iii
Notes and references………………………………………………………………..iv
Chapter 1………..…….……………POWERS OF THE IMMIGRATION DIVISION
Chapter 2………..…….……………………...……………BEFORE THE HEARING
Chapter 3………………..………….MAKING AND PROVIDING APPLICATIONS
Chapter 4………………………………….….…PUBLIC OR PRIVATE HEARINGS
Chapter 6…………….....LANGUAGE OF PROCEEDINGS AND INTERPRETER
Chapter 7…………..…………………………...DESIGNATED REPRESENTATIVE
Chapter 8……………………………………………………….RIGHT TO COUNSEL
Chapter 9..…………….…………..CHANGING THE LOCATION OF A HEARING
Chapter 10………………..….CHANGING THE DATE OR TIME OF A HEARING
Chapter 11….……………………………..….JOINING OR SEPARATING CASES
.
Chapter 12…………..…………………….……...CONSTITUTIONAL QUESTIONS
Chapter 13…………….………………………….EVIDENCE AND SUBMISSIONS
Chapter 14……………………………..…………...…DECISIONS AND REASONS
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MEMORANDUM
Date:
2005-08-26
To:
Immigration Division members
From:
Krista Daley
General Counsel / Director, Legal Services
Subject:
Guide to Proceedings Before the Immigration Division
Attached please find the Guide to Proceedings Before the Immigration Division, dated
August 26, 2005, prepared by Legal Services. The Guide is intended to assist
Immigration Division members in their work. It was written during 2003 and 2004. The
date at which each chapter was completed is indicated at the bottom right-hand side of
the page. The Guide will be updated following a review beginning in the coming
months.
We want to make sure the Guide meets your needs. If you have any comments about the
format or the content of this work, please forward them to Anna Colaianni, Legal
Services, Eastern Region.
As is the case with all major reference works produced by Legal Services, this work is
available through INTRANET and the IRB Web site, and you may find electronic search
capabilities will facilitate your use of this work.
Original signed by
Krista Daley
Guide to Proceedings Before the ID
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About the Guide to Proceedings Before the Immigration Division
This document was prepared in order to guide the members of the Immigration Division
in the many procedural decisions that they will have to make before or during a hearing.
Basically, the members of the Immigration Division preside over two types of hearings:
admissibility hearings in order to determine the merits of allegations of
inadmissibility and to take the applicable removal measures, if any;
detention reviews in order to determine whether a person detained under the Act
may be released on whatever conditions the member considers necessary.
The procedure for a hearing varies depending on whether it is an admissibility hearing or a
detention review, but the difference lies mainly in the presentation of evidence and the
parties’ submissions [see Chapter 13]. The matters dealt with in this guide apply, for the
most part, to both types of hearings. Specific features, depending on whether an
admissibility hearing or a detention review is involved, are noted.
So that members can perform their functions properly, namely, to exercise effective
control over the hearings at which they preside, following the rules of procedural fairness
and respecting the principles of natural justice, the Act confers powers on the members,
the most important of which are examined in this guide.
In addition, it is important to examine the Immigration Division Rules, which are a
valuable tool to assist members in using their powers appropriately.
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The Rules govern the work, procedure and practice of the Immigration Division. Among
other things, they help ensure that hearings run smoothly. The Rules are divided into
three parts:
Part 1:
Rules applicable to admissibility hearings
Part 2:
Rules applicable to detention reviews
Part 3:
Rules applicable to both admissibility hearings and detention
reviews
Most of the Rules apply to both types of hearings. Rules specific to admissibility hearings
and detention reviews are identified in the various chapters.
A number of procedural issues may arise before or during a hearing. It is therefore not
possible to cover them in chronological order in this guide. Nevertheless, wherever
practicable, they are presented in accordance with the stages of preparing for the hearing,
the hearing itself and concluding the hearing.
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Notes and References
The following definitions apply in this guide:
“Act” means the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
“Rule” or “Rules” means the Immigration Division Rules,
SOR/2002-229.
“48-hour review,” “7-day review” and “30-day review”
mean the “forty-eight hour review,” “seven-day review” and
“thirty-day review,” as defined in section 1 of the Rules.
“Charter” means the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982 [Schedule B
of the Canada Act, 1982 (1982, U.K., c. 11)].
The text of some sections of the Act and the text of the Rules are not reproduced in
this document. Readers should consult this document in conjunction with the
relevant legislation.
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TABLE OF CONTENTS
1.
POWERS OF THE IMMIGRATION DIVISION ............................ 1-1
1.1
INTRODUCTION..................................................................................... 1-1
1.2
CONDUCT OF HEARINGS – SECTION 173 OF THE ACT ................... 1-1
1.2.1
1.3
Nature of the hearing.......................................................................... 1-2
GENERAL POWERS – SECTION 165 OF THE ACT ............................ 1-2
1.3.1
Powers under the Inquiries Act......................................................... 1-2
1.3.2
Power to do any other thing considered necessary to provide
a full and proper hearing .................................................................. 1-3
1.4
OTHER POWERS OF THE IMMIGRATION DIVISION........................... 1-3
1.5
EXERCISE OF DISCRETION ................................................................. 1-4
ANNEX 1-A........................................................................................................ 1-6
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1.
POWERS OF THE IMMIGRATION DIVISION
1.1
INTRODUCTION
An administrative agency like the Immigration Division exists only because Parliament
has provided for its creation by statute. Such a “statutory creature” may exercise only the
powers that have been expressly or impliedly conferred on it by statute. (In contrast, a
“superior court of record,” such as a superior court or a provincial supreme court, has
inherent powers that allow it to take all the measures necessary to ensure that its orders
are complied with and that justice is done.) In other words, any measure taken or decision
rendered by the Immigration Division must flow from a legislative provision.
The powers conferred on the Immigration Division are diffuse. The Act must therefore be
examined carefully to determine what measures the Immigration Division is authorized to
take. This chapter sets out the manner in which the Immigration Division is required to
perform its duties and exercise the main powers conferred on it, for the purpose of
achieving its objectives.
1.2
CONDUCT OF HEARINGS – SECTION 173 OF THE ACT
According to paragraphs 173(a) and (b) of the Act, the Immigration Division must carry
out its duties by holding hearings and must give notice of the proceedings to the parties.
173. The Immigration Division, in any proceeding before it,
(a) must, where practicable, hold a hearing;
(b) must give notice of the proceeding to the Minister and to the person who is
the subject of the proceeding and hear the matter without delay.
A case is brought before the Immigration Division when the Minister forwards a request
for an admissibility hearing or a detention review to the Division [for further details, see
Chapter 3 – Making and Providing Applications].
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Nature of the hearing
The hearing is adversarial. The two parties may adduce evidence, cross-examine
witnesses and make submissions. “Party” is defined in Rule 1 as “a permanent resident or
foreign national, as the case may be, and the Minister.” In practice, a permanent resident
or foreign national is referred to as the person concerned. The person may be represented
by a lawyer or other counsel of the person’s choice. The Minister is represented at a
hearing by an employee of Citizenship and Immigration Canada, who is referred to as the
Minister’s counsel.
1.3
GENERAL POWERS – SECTION 165 OF THE ACT
Section 165 of the Act is worded as follows:
165. The Refugee Protection Division and the Immigration Division and each
member of those Divisions have the powers and authority of a commissioner
appointed under Part I of the Inquiries Act and may do any other thing they
consider necessary to provide a full and proper hearing.
1.3.1
Powers under the Inquiries Act
As stated in section 165 of the Act, the members of the Immigration Division have the
same powers as a commissioner appointed under Part I of the Inquiries Act.
Commissioners appointed under Part I of the Inquiries Act [see Annex 1-A] have the
power to summon witnesses and require them to give evidence, orally or in writing, and
on oath, and produce such documents and things as the commissioners deem requisite. To
enforce the attendance of witnesses, they have the powers of a court of record in civil
cases. This is what allows members, among other things, to:
issue a summons (Rules 33 and 34);
issue a warrant of arrest if the person does not appear at the hearing
as required by the summons (Rule 35).
[For further details, see Chapter 13 – Evidence and Submissions]
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Power to do any other thing considered necessary to provide a full and
proper hearing
Section 165 of the Act also provides that members “may do any other thing they consider
necessary to provide a full and proper hearing.” This catch-all provision gives members
broad discretion and allows them to do anything necessary for the conduct of the hearing.
In addition, it justifies the general provisions set out in Rules 49, 50 and 51, namely,
that the Division may act on its own, that the Rules are not exhaustive, that they may be
changed and that they may be waived.
On the one hand, some situations require the member to make decisions on procedure,
even where there is no specific legislative provision that permits it. A practical example
would be where a member requires a security guard to be present in the hearing room
because the member is of the opinion that the person who is the subject of the
admissibility hearing or detention review may pose a threat to the safety of the
participants.
On the other hand, the strict application of certain rules could, in specific circumstances,
contravene a provision of the Act or a principle of natural justice or lead to infringement
of a right guaranteed by the Charter. The member must therefore take all of the
circumstances of the case into account when exercising discretion with respect to
procedure.
1.4
OTHER POWERS OF THE IMMIGRATION DIVISION
In addition to the powers provided for in section 165 of the Act, members may exercise
the powers conferred by other provisions of the Act to ensure that the proceedings are
conducted fairly and efficiently. The most important of these provisions are found in
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Part 4 of the Act, under the heading Provisions that Apply to All Divisions. For example,
the member has the power and sometimes the obligation:
to conduct a hearing by a means of live telecommunication
(section 164 of the Act)1;
determine whether the hearing will be held in private or in public
(section 166 of the Act and Rules 45 and 46) [see Chapter 4 – Public
or Private Hearing];
designate a representative in the case of a minor or a person who is
unable to appreciate the nature of the proceedings (subsection 167(2)
of the Act and Rules 18 and 19) [see Chapter 7 – Designated
Representative];
determine that a proceeding brought before it has been abandoned
(subsection 168(1) of the Act) [see Chapter 14 – Decisions and
Reasons];
make a finding of abuse of process (subsection 168(2) of the Act and
Rule 5) [see Chapter 14 – Decisions and Reasons];
examine information in the absence of the permanent resident or
foreign national (sections 86 and 78 of the Act and Rule 41) [see
Chapter 5 – Non-Disclosure of Information].
1.5
EXERCISE OF DISCRETION
As an administrative tribunal, the Immigration Division must proceed with fairness and
in accordance with the principles of natural justice. It must also proceed informally and
quickly. An Immigration Division member is always required to make a great many
interlocutory decisions that may, to varying degrees, affect the conduct of the hearing.
When making such decisions, the member must always be mindful of these requirements,
which, moreover, are imposed on the member by subsection 162(2) of the Act:
1
In practice, telephone and video communications are used regularly.
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162.(2) Each Division shall deal with all proceedings before it as informally and
quickly as the circumstances and the considerations of fairness and natural justice
permit.
In practice, it is not always easy for a member to carry out the duties imposed on him or
her under subsection 162(2) of the Act. The duty to act fairly and in accordance with the
principles of natural justice may at times interfere with the duty to act informally and
quickly. For example, granting an adjournment of the hearing on the application of a
party has an adverse effect on how quickly the case is heard and decided. Conversely, the
refusal to grant an adjournment could result, in some circumstances, in an infringement
of the right to be heard.
In all cases, the member must take into account the rights of the parties, the provisions of
the Act and the Rules and all of the circumstances of the case when making an
interlocutory decision. In some cases where fundamental rights are involved, such as
cases where an interpreter is needed or where a representative must be designated for a
person who is a minor or a person who is unable to appreciate the nature of the
proceedings, the decision to adjourn the hearing is undoubtedly correct. In practice, such
situations are infrequent because the registry office generally makes the necessary
arrangements before the hearing.
In most cases, the issues are not so clear-cut. The member must then use his or her
judgment to ensure that the hearing proceeds as quickly as possible, but without
infringing the rights of the parties and without breaching the principles of natural justice.
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ANNEX 1-A
INQUIRIES ACT
An Act respecting public and departmental inquiries
SHORT TITLE
Short title
1.
This Act may be cited as the Inquiries Act
R.S., c. I-13, s. 1.
PART I
PUBLIC INQUIRIES
Inquiry
2.
The Governor in Council may, whenever the Governor in
Council deems it expedient, cause inquiry to be made into
and concerning any matter connected with the good
government of Canada or the conduct of any part of the
public business thereof.
R.S., c. I-13, s. 2.
Appointment of commissioners
3.
Where an inquiry as described in section 2 is not regulated
by any special law, the Governor in Council may, by a
commission, appoint persons as commissioners by whom the
inquiry shall be conducted.
R.S., c. I-13, s. 3.
Powers of commissioners
concerning evidence
4.
The commissioners have the power of summoning before
them any witnesses, and of requiring them to
(a)
give evidence, orally or in writing, and on oath or, if
they are persons entitled to affirm in civil matters on
solemn affirmation; and
(b)
produce such documents and things as the
commissioners deem requisite to the full investigation
of the matters into which they are appointed to
examine.
R.S., c. I-13, s. 4.
Idem, enforcement
5.
The commissioners have the same power to enforce the
attendance of witnesses and to compel them to give evidence
as is vested in any court of record in civil cases.
R.S., c. I-13, s. 5.
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TABLE OF CONTENTS
2.
BEFORE THE HEARING ................................................................. 2-1
2.1
INTRODUCTION..................................................................................... 2-1
2.2
REQUEST FOR A HEARING ................................................................. 2-1
2.2.1
Admissibility hearing.......................................................................... 2-1
2.2.1.1
2.2.2
Requirement to provide evidence ......................................... 2-3
Detention review ................................................................................. 2-3
2.2.2.1
48-hour review and 7-day review ......................................... 2-4
2.2.2.2
Early review........................................................................... 2-4
2.2.2.3
Location of the detention review .......................................... 2-4
2.3
FIXING THE HEARING DATE AND NOTIFYING THE PARTIES .......... 2-5
2.4
REVIEWING THE FILE........................................................................... 2-6
2.4.1
Main checks ......................................................................................... 2-6
2.4.2
Conference........................................................................................... 2-7
ANNEX 2-A……….………………………………………..………………………………….2-9
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2.
BEFORE THE HEARING
2.1
INTRODUCTION
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The Rules require the Minister to submit his or her request for an admissibility hearing or
detention review, along with certain information, to the Immigration Division. This
allows the Immigration Division to perform its role more effectively. Based on that
information, the registry office can make the necessary arrangements to ensure that
everything is in place so that, if at all possible, the hearing can proceed on the date fixed.
Nonetheless, this responsibility also lies with the member, who must examine the file and
do whatever is needed to resolve any matter that might result in the postponement of the
hearing.
Preparation is essential for the smooth conduct of the hearing. Reviewing the file enables
the member to become familiar with the nature of the upcoming hearing; quickly settle
preliminary issues; anticipate, in some cases, which applications the parties will make;
and, often, identify the issues.
This chapter describes the main steps to be taken before the hearing begins.
2.2
REQUEST FOR A HEARING
When the Minister wants to bring a case before the Immigration Division for an
admissibility hearing or a detention review, the request must be addressed to the registry
office under Rule 3 or 8. Citizenship and Immigration Canada (CIC) complies with these
rules by providing a form entitled “Request for Admissibility Hearing / Request for
Detention Review” [see Annex 2-A].
2.2.1
Admissibility hearing
When the Minister refers a case to the Immigration Division for an admissibility hearing,
the request must, according to Rule 3, provide various information that allows the
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Division to make the necessary arrangements to ensure that the admissibility hearing can,
if at all possible, proceed on the date fixed for it. A copy of the request must be provided
to the person concerned. The registry office that receives the request must be provided
with the following:
the identity of the person concerned so that it can open a file and
enter the case in the schedule (Rule 3(a) and (b));
the person’s marital status and, if appropriate, the contact
information for any family members who are also the subject of an
admissibility hearing so that it can be decided whether the cases
should be joined (Rule 3(c) and (k);
contact information so that the Division can communicate with the
person concerned and with that person’s counsel (Rule 3(a), (f) and
(i));
documents establishing the jurisdiction of the Division, the date of
the request, the name and title of Minister’s counsel (Rule 3(d), (l)
and (m));
the official language chosen for the proceedings and whether an
interpreter is needed so that arrangements can be made to have a
certified interpreter available on the date fixed for the hearing
(Rule 3(g) and (h));
indications of whether the person concerned has made a claim for
refugee protection or of whether the Minister has made an
application for non-disclosure of information so that the necessary
physical arrangements can be made to hold the proceedings in
private and to protect information (Rule 3(e) and (n));
an indication of whether the person concerned is less than 18 years
of age or is unable to appreciate the nature of the proceedings so
that arrangements can be made to have a designated representative
available on the date fixed for the hearing (Rule 3(o));
the client identification number given to the person by CIC, which
will be used for all future communications (Rule 3(j)).
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Requirement to provide evidence
The Minister must also provide, along with the request for an admissibility hearing, the
evidence that he or she intends to present at the hearing (Rule 3(p)). This requirement is
not always complied with [see also Chapter 13 – Evidence and Submissions]. If the
notice is accompanied by an application for non-disclosure of information, the
requirement will obviously not be met, at least in part [for more details, see Chapter 5 –
Non-Disclosure of Information].
Furthermore, the Minister routinely submits some documents only at the hearing.
Sometimes, the relevance of a document does not become apparent until the hearing. But,
regardless of the Minister’s motives, if the evidence is relevant and of crucial importance,
it may be difficult to refuse to accept it on the grounds that the requirements of Rule 3(p)
have not been met. Failure to observe a requirement of the Rules cannot justify an
infringement of a principle of natural justice [for more details, see Chapter 13 – Evidence
and Submissions].
2.2.2
Detention review
Under Rule 8, the Minister must include certain information with his or her request for a
detention review. As in the case of a request for an admissibility hearing, the registry
office needs this information so that it can make the necessary arrangements to ensure
that the hearing is held on the date fixed [see 2.2.1 – Admissibility hearing]. Since
subsections 57(1) and (2) of the Act provide for specific time limits for detention
reviews, it is even more important to ensure that all measures are in place so that the
member can proceed with the hearing on the date fixed for the review.
57.(1) Within 48 hours after a permanent resident or a foreign national is taken
into detention, or without delay afterward, the Immigration Division must review
the reasons for the continued detention.
(2) At least once during the seven days following the review under
subsection (1), and at least once during each 30-day period following each
previous review, the Immigration Division must review the reasons for the
continued detention.
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Rule 8 also requires the Minister to indicate whether the review is a 48-hour review or a
7-day or 30-day review.
2.2.2.1
48-hour review and 7-day review
The 48-hour review and the 7-day review leave little time for disclosure and for making
and providing applications in writing to the other party before the hearing. The evidence
is often presented at the hearing. This is also true of applications, which are often made
orally at the hearing.
Moreover, when the Rules provide for time limits, they generally do not apply to 48-hour
reviews or 7-day reviews or to admissibility hearings held at the time of such reviews.
The Rules also mention “an admissibility hearing held at the same time” because, in
practice, an admissibility hearing concerning a detainee is, wherever possible, scheduled
to coincide with the detention review. When this happens, the member holds the
admissibility hearing first and then the detention review.
2.2.2.2
Early review
Except for the 48-hour review, the time limits cannot be exceeded, but they can, on
application by a party, be brought forward if new facts justify it. At the end of a hearing
where the detention is continued, the member usually fixes the date for the next 7-day or
30-day review after consulting with the registry office. An application for early review
may be made under Rule 9. The application must be made in writing and must meet the
requirements of Rule 38(4) and 38(5) [see 3.3.1 – Procedures and time limits for
submitting an application].
2.2.2.3
Location of the detention review
According to subsection 57(3) of the Act and Rule 23, the Minister must bring the
detainee to the hearing at a location specified by the Division. Generally, the detainee
is brought before the tribunal for the hearing. An exception to this rule is a case where the
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person is also detained by other authorities, for example, if the person is serving a
sentence in a prison or penitentiary. Furthermore, depending on the region, some
Immigration Division offices may be unsuitable for receiving detainees who might be a
danger to public security. This type of case is covered by administrative agreements
between CIC and the Immigration Division that provide for such hearings to be held in
the place of detention.1
Holding a hearing in a prison or penitentiary can also have repercussions on the public or
private nature of the hearing. This aspect is examined in Chapter 4, more specifically, in
4.5.2.1 – Hearings in a detention institution.
When a hearing is held outside Division offices, careful preparation to minimize the
possibility of a postponement is even more important since the member often has no
access to on-site support, not to mention that the participants, including the member, must
travel to the location.
2.3
FIXING THE HEARING DATE AND NOTIFYING THE PARTIES
After making all necessary arrangements, the registry office must fix the date for the
hearing (Rule 21), notify the parties (Rule 22) and provide the file to the member who
has been designated to conduct the admissibility hearing or detention review. Practices in
this regard may vary from region to region (Rule 21).
1
In M.C.I. v. Ariyarathnam, Sivathakaran (F.C.T.D., No. IMM-5545-01), Dawson, January 17, 2002,
the Federal Court interpreted the provisions of the former Immigration Act (section 103 of the Act and
Rules 7, 18 and 30). It found that an adjudicator (Immigration Division member) had no jurisdiction to
order the detention review to be held in a location other than where the person was detained, despite
the lack of adequate facilities. The Court noted that the provisions of the Act and the Rules were not a
“model of clarity.” Since subsection 57(3) of the Act is much clearer, it is generally thought that this
case law is no longer applicable [see also 4.5.1.2 – Hearings in a detention institution].
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REVIEWING THE FILE
Reviewing the file is essential for the smooth conduct of the hearing. A good
understanding of the case file helps the member exercise effective control over the
hearing and complete it as quickly as possible.
2.4.1
Main checks
A member who is given a file for an admissibility hearing or a detention review should:
if it is for an admissibility hearing, ensure that the file contains the
officer’s report and the referral, as well as all of the information
required under Rule 3;
if it is for a detention review, ensure that the file contains all of the
information required under Rule 8;
in all cases, pay special attention to the following:
•
Has the person concerned claimed refugee protection?
This information will help the member determine whether
the hearing should be held in private or in public. [see
Chapter 4 – Public or Private Hearing]
•
Is there a note stating that the person concerned is less
than 18 years of age or is unable to appreciate the nature
of the proceedings? If so, have arrangements been made
to ensure that someone is present who could be suitably
designated to act as a representative on the date fixed for
the hearing? [see Chapter 7 – Designated Representative]
•
Is there a note indicating that an interpreter is required? If
so, has the registry office made arrangements to ensure
that an interpreter is present on the day fixed for the
hearing? [see Chapter 6 – Language of Proceedings and
Interpreter]
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•
Is there a note indicating that an application for nondisclosure of information has been made? If so, is the
application in the file? Have arrangements been made for
the hearing to be held in private and in the absence of the
person concerned and his or her counsel? [see Chapter 5
– Non-Disclosure of Information]
•
Are other family members the subject of an admissibility
hearing or a detention review? If so, has the registry
office joined the files? [see Chapter 11 – Joining or
Separating Cases]
•
Does the file contain specific applications by the parties?
When were the applications made? Did the Division
respond? If the applicant has not received a response or
has received a negative response to his or her application,
the applicant may make the application again orally at the
hearing. The member will then be better prepared to
decide on the issue.
It is important for the member to do the above checks, because some concern duties that
he or she will have to perform at the outset of the hearing. Failure to carry out these
duties may invalidate the proceedings or adversely affect one of the two parties if the
obligations the Act imposes on the member are not complied with. In addition, the
member will be able to ensure, if need be, that the necessary arrangements have been
made or will be made so that the hearing can proceed on the date and at the time fixed. In
this way, the member discharges his or her duty under subsection 162(2) of the Act to
deal with the proceeding quickly.
2.4.2 Conference
When the member is given a relatively complex file and he or she believes it advisable to
settle certain procedural issues before the hearing begins, the member can call the parties
to a conference (Rule 20), if time permits, of course, given the specific time limits that
the Act imposes for detention reviews. The conference can also be used during an
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admissibility hearing for the same reasons. This procedure is rarely used in the
Immigration Division, but it may prove useful in some cases.
It is not necessary to record the discussions at a conference. However, at the outset of the
hearing, or when it resumes, as the case may be, the member must either state whatever
decision was made or summarize the agreements reached at the conference so that they
can be reflected in the hearing transcript or put them in writing, in which case he or she
should mark the document and place it in the file as an exhibit (Rule 20(3)).
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ANNEX 2-A
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TABLE OF CONTENTS
3.
MAKING AND PROVIDING APPLICATIONS ............................ 3-1
3.1
INTRODUCTION..................................................................................... 3-1
3.2
GENERAL PROVISION.......................................................................... 3-1
3.3
APPLICATIONS MADE IN WRITING ..................................................... 3-1
3.3.1
3.3.2
3.3.3
3.4
Procedures and time limits for providing an application ............... 3-2
3.3.1.1
Procedures............................................................................. 3-2
3.3.1.2
Time limits............................................................................. 3-3
Procedures and time limits for providing a response or a reply .... 3-3
3.3.2.1
Procedures............................................................................. 3-3
3.3.2.2
Time limits............................................................................. 3-4
Manner and means of providing documents ................................... 3-4
APPLICATIONS MADE ORALLY .......................................................... 3-5
3.4.1
Procedure to be followed.................................................................... 3-5
3.4.2
Restrictions on applications made orally.......................................... 3-6
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3.
MAKING AND PROVIDING APPLICATIONS
3.1
INTRODUCTION
The Rules set out the procedure and the time limits for making and providing applications
and, in some cases, what factors are to be considered in ruling on the various
applications. A number of applications are specifically provided for in the Rules and are
dealt with in the chapters that follow.
This chapter deals with the general provisions for applications found in Rules 37, 38,
39 and 40. The introductory words to Rule 37 state “Unless these Rules provide
otherwise,….”. This means that specific provisions take precedence over general
provisions, but the latter complete any specific provisions.
3.2
GENERAL PROVISION
Rule 37 states that an application to the Immigration Division is to be made by a party
under Rule 38, that the other party may respond to it under Rule 39, and that the applicant
may reply to the response under Rule 40.
According to Rule 38(2), an application may be made orally or in writing.
3.3
APPLICATIONS MADE IN WRITING
Between the time a request for an admissibility hearing or a detention review is filed with
the registry office and the date fixed for the hearing, the Division may receive various
applications which the registry office or the regional director will respond to or which
will be provided to the member responsible for the hearing. An application made before
the beginning of a hearing is generally made in writing, which does not rule out the
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possibility that an informal application may be made by telephone. An example would be
an application for a change in the time fixed for a 48-hour detention review.
An application in writing may also be made while the hearing is adjourned. In this case, it
will be provided to the member before whom the case has been brought so that he or she
can rule on the application. It is also possible, although rare, for an application in writing
to be made in person at the hearing.
In contrast to the situation where an application is made orally at the hearing and the
other party is usually present to hear it and respond if he or she wishes, the other party
has no knowledge of applications in writing unless they are provided to him or her. The
Rules therefore set out the procedures and the time limits for making and providing
applications in writing, as well as responses to the applications and replies to the
responses.
3.3.1 Procedures and time limits for providing an application
3.3.1.1
Procedures
The principle is that an application in writing must be provided to the registry office.
However, when a case is already before a member, the application in writing may be
addressed to the member (see Rules 27 and 28(1)).
According to Rule 38(4), the application must
state the decision the party wants;
give reasons why that decision is wanted;
include any relevant evidence;
be accompanied by an affidavit or statutory declaration, only in the case
of an application that is not specifically provided for in the Rules.
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The application must be provided to the other party (Rule 38(5)(a)) to allow for a
response and a reply in the form and within the time limits set out in Rules 9 and 40. The
application is provided to the Division, accompanied by a written statement of how
and when the party provided it (Rule 38(5)(b)). The statement referred to in this
section does not have to be formal. A simple note on the application, such as “true copy
provided to the other party,” is acceptable.
3.3.1.2
Time limits
According to Rule 38(2), an application must be made as soon as possible or within the
time limit provided in the Act or the Rules. The general provisions concerning
applications (Rules 37 to 40) do not provide for any specific time limits, but instead, refer
to the provisions of the Act, for example, subsection 57(2) of the Act concerning the
7-day and 30-day detention reviews, and Rule 45(4) concerning an application to have a
hearing conducted in private.
3.3.2 Procedures and time limits for providing a response or a reply
3.3.2.1
Procedures
According to Rule 39(1), the response must contain the same items as the application
[see 3.3.1.1 Procedures].
With respect to replies, the Rules govern only their form and do not cover content.
Rule 40(1) merely states that a reply to a written response must be in writing.
A written statement of how and when the party provided the copy to the other party
is also required for a response or a reply (Rules 39(2)(b) and 40(2)(b)). As in the case of
the written statement of how and when the party provided the copy to the other party, the
statement referred to in the Rules does not have to be formal. A simple note on the
response or reply, such as “true copy provided to the other party,” is acceptable.
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Time limits
Rules 39(3) and 40(3) provide for time limits for the reception of responses and
replies by their recipients. However, in view of the very short amount of time allotted
for 48-hour and 7-day detention reviews, as well as for admissibility hearings held at the
same time as those reviews, a reasonable amount of time in which to respond or reply in
writing frequently cannot be given. Moreover, the applicant may have made the
application only a few days before the date fixed for the hearing.
If the date fixed for the hearing is so close that it does not allow the other party to comply
with the time limit for responding to the written application, the member should refrain
from making a decision on the written application before the hearing. The
application should, in this case, be dealt with at the hearing, which will give the party
who is entitled to make a response the opportunity to make it orally. If necessary, the
reply can also be made orally.
3.3.3
Manner and means of providing documents
Rule 27 states that Rules 28 to 31 apply to documents, notices, written requests and
applications. Chapter 13 covers filing and providing documents. Where the Rules
require a notice in writing, this is dealt with in the chapter on that subject [see, for
example, Rules 14 and 15 and Chapter 8 – Right to Counsel].
The manner and the means that can be used to provide the applications to the parties
and to the Division are set out in Rules 28, 29 and 30. Rule 31 outlines presumptions as
to the date of reception of applications by the Division or a party. The provisions are
self-explanatory and do not require special comment except in connection with providing
documents to the person who is the subject of the proceeding.
Although Rule 28(3) states that a document that is to be provided to the person concerned
may be sent to that person’s counsel, it is recommended that it also be sent to the person
concerned, as well as to his or her counsel. This practice lessens the chance that the
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person concerned will not receive the documents if, for example, communication
between counsel and client is poor or there is a change of counsel.
3.4
APPLICATIONS MADE ORALLY
In practice, applications are frequently made orally at the hearing. According to
Rule 38(3), when an application is made orally, the member determines the procedure
that will apply. This means that the member has the discretion needed to proceed as he
or she sees fit, but, as the person presiding at the hearing, the member nevertheless has a
duty to ensure that the proceedings are fair.
3.4.1
Procedure to be followed
In order for the proceedings to be fair, the member should:
require the applicant to state the reasons in support of his or her
application [and, if appropriate, to justify any delay in making
the application at the earliest possible moment];
permit the other party to respond to the application;
permit a reply;
ensure that a copy of any document provided in support of the
application, response or reply is provided to the other party.
Rules 39 and 40 govern the procedures and time limits for providing the response and the
reply to a written application. However, the member may also use the provisions of
Rule 38 concerning written applications as a model when determining the procedure that
will apply when an application is made orally [see 3.3.1 – Procedures and time limits for
providing an application; 3.3.2 – Procedures and time limits for providing a response or a
reply]. These rules are consistent with the principles of natural justice, which require that
both parties have a reasonable opportunity to be heard, including with respect to
procedural issues.
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3.4.2
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Restrictions on applications made orally
It is important to remember that the specific provisions of the Rules that govern
applications take precedence over the general provisions. These provisions require some
applications to be made in writing. Sometimes, a departure from the requirements of a
rule that governs a specific kind of application does not involve serious consequences. In
some cases, however, although Rule 50 allows applications to be made orally, it would be
inappropriate, except in very unusual circumstances, to allow an application, such as an
application for non-disclosure of information, to be made orally [for more details, see
Chapter 5 – Non-Disclosure of Information].
Furthermore, an application made orally may sometimes take the other party by surprise
and give rise to an application for an adjournment. The member must rule on the
application, taking into account the provisions of the Act and the Rules and all of the
circumstances in the case.
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TABLE OF CONTENTS
4.
PUBLIC OR PRIVATE HEARINGS ........................................ 4-1
4.1
INTRODUCTION..................................................................................... 4-1
4.2
IDENTIFYING THE PEOPLE PRESENT AT A HEARING ..................... 4-1
4.3
4.2.1
People whose presence is authorized at any time............................. 4-2
4.2.2
People whose presence must be authorized by the member ........... 4-3
Witnesses ............................................................................... 4-3
4.2.2.2
Observers and interveners .................................................... 4-3
PRINCIPLES GOVERNING PRIVATE AND PUBLIC HEARINGS ....... 4-4
4.3.1
4.4
4.2.2.1
Loss of status as a claimant of refugee protection ........................... 4-5
HEARING IN PRIVATE........................................................................... 4-6
4.4.1
4.4.2
Application of the principle ............................................................... 4-6
4.4.1.1
Presence of observers ........................................................... 4-7
4.4.1.2
Exclusion of observers.......................................................... 4-7
Hearing in private on application or on the member’s own
initiative ............................................................................................... 4-7
4.4.2.1
Interpretation of paragraph 166(b) of the Act..................... 4-8
4.4.2.1.1
4.4.2.1.2
Introductory words to paragraph 166(b) ................ 4-8
Standard of proof ...................................................... 4-9
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4.4.2.1.3
4.4.2.1.4
4.4.2.1.5
4.4.2.2
4.4.2.2.2
4.4.2.2.3
4.5
Subparagraph 166(b) (i) – Life, liberty or
security ..................................................................... 4-10
Subparagraph 166(b) (ii) - Fairness of the
proceeding................................................................ 4-13
Subparagraph 166(b) (iii) – Public security ......... 4-13
Application to have a proceeding conducted in private..... 4-13
4.4.2.2.1
4.4.2.3
IRB
Procedures and time limits for providing the
application................................................................ 4-14
Content of the application ...................................... 4-14
Hearing the application .......................................... 4-14
Hearing in private on the member’s own initiative ........... 4-16
HEARING IN PUBLIC........................................................................... 4-17
4.5.1
Application of the principle ............................................................. 4-17
4.5.1.1
Immigration Division premises .......................................... 4-17
4.5.1.2
Hearing in a detention institution...................................... 4-18
4.5.1.2.1
4.5.1.2.2
4.5.2
Access to the detention institution ......................... 4-18
Inadequate space ..................................................... 4-19
Hearing in public on application or on the member’s own
initiative ............................................................................................. 4-20
4.5.2.1
Interpretation of paragraph 166(d) of the Act................... 4-20
4.5.2.1.1
4.5.2.1.2
4.5.2.1.3
4.5.2.2
Difference between the English and French
versions..................................................................... 4-21
Codification of case law principles ........................ 4-21
Public proceeding with any other measure
considered necessary ............................................... 4-22
Application to have a proceeding conducted in public ...... 4-22
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4.5.2.2.1
4.5.2.2.2
4.5.2.2.3
4.5.2.2.4
4.5.2.3
IRB
Procedures and time limits for providing the
application................................................................ 4-23
Content of the application ...................................... 4-23
Response to an application to have the
proceeding conducted in public ............................. 4-24
Assessing the application ........................................ 4-24
Circumstances justifying conducting a hearing in
public on the member’s own initiative ............................... 4-25
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4.
PUBLIC OR PRIVATE HEARINGS
4.1
INTRODUCTION
Whether a member is presiding at an admissibility hearing or a detention review, one of
the first issues that must be settled is whether the hearing is to be held in public or in
private. Under paragraphs 166(a) and 166(c) of the Act, proceedings must be held in
public unless they concern a claimant of refugee protection, in which case they must be
held in private.
Compliance with these provisions is the responsibility of the Immigration Division
member, who must rule on the issue at the outset of the hearing. Parliament has also
provided in paragraphs 166(b) and (d) of the Act that the Division may conduct a
proceeding in public or in private on application or on its own initiative regardless of
whether any of the other principles in paragraphs (a) or (c) applies.
This chapter is intended to guide members in identifying the various elements that can
help them determine which of the two principles applies and to decide on applications to
have hearings conducted in public or in private or to order such a measure on their own
initiative when the circumstances suggest it.
4.2
IDENTIFYING THE PEOPLE PRESENT AT A HEARING
A number of people may attend a hearing:
the member;
the Minister’s counsel;
the permanent resident or foreign national, as the case may be, who is the
subject of the admissibility hearing or the detention review (the person
concerned);
the counsel of the person concerned;
the designated representative, if the person concerned is under 18 years of
age or is unable to appreciate the nature of the proceedings;
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the interpreter;
the witnesses;
the observers;
the interveners (the press).
Some of these people are authorized to attend the hearing at any time, regardless of
whether the hearing is held in public or in private. Others require the authorization of the
member.
4.2.1
People whose presence is authorized at any time
In most cases, the only people present at a hearing, apart from the member, are the
Minister’s counsel, the person concerned and his or her counsel, if any, and the
interpreter, if any. Their seats in the hearing room are assigned, which lets the member
know in advance the roles of those present.
If a representative accompanies a person under 18 years of age or a person who is
unable to appreciate the nature of the proceedings, the member should identify and
designate that person at the beginning of the hearing. This topic is covered in detail in
Chapter 7.
These people participate in the hearing, and their presence is authorized at all times,
regardless of whether the hearing is conducted in public or in private. There is an
exception to this rule if the Minister has made an application for non-disclosure of
information [for more details, see Chapter 5].
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4.2.2
IRB
People whose presence must be authorized by the member
4.2.2.1
Witnesses
Generally speaking, the member will exclude witnesses from the hearing room before
beginning the presentation of the evidence [for more details, see Chapter 13 – Evidence
and Submissions]. Occasionally, a witness may be authorized to remain in the hearing
room throughout the proceeding if, for example, his or her testimony only concerns the
performance bond that he or she would be prepared to give to secure the release of the
person concerned. With the exception of when he or she is testifying, the witness
remains in the hearing room as an observer.
4.2.2.2
Observers and interveners
Anyone other than the parties and their counsel, the designated representative, the
interpreter and the witnesses when testifying is an observer. This includes members of the
press if there is no objection to their presence.
Observers are not authorized to intervene during the hearing unless they are called as
witnesses or they acquire intervener status. Observers acquire intervener status if they
have an interest in the case. In most cases, this involves members of the press, who are
authorized to intervene only to the extent that they want to argue freedom of the press as
guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms.1
With a few exceptions, interveners and observers are not authorized to remain in
the room if the hearing is held in private [for more details, see 4.4.1.1 – Presence of
observers and 4.4.1.2 – Exclusion of observers]
1
2. Everyone has the following fundamental freedoms:
…
(b) freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
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4.3
IRB
PRINCIPLES GOVERNING PRIVATE AND PUBLIC HEARINGS
Paragraphs 166(a) and (c) of the Act read as follows:
166. Proceedings before a Division are to be conducted as follows:
(a) subject to the other provisions of this section, proceedings must be held in
public;
…
(c) subject to paragraph (d), proceedings before the Refugee Protection Division
and the Immigration Division concerning a claimant of refugee protection,
proceedings concerning cessation and vacation applications and proceedings
before the Refugee Appeal Division must be held in private.
In other words, the principle is that hearings are held in public unless they concern a
claimant of refugee protection, in which case the hearings are held in private.
By these provisions, Parliament recognizes that a claimant of refugee protection is
entitled to a high level of confidentiality because of the need to protect his or her safety
and that of others.
Normally, the information provided by the Minister (Rules 3(e) and 8(c)) will indicate
whether the person concerned has filed a claim for refugee protection. However, even if
the information in the file indicates that there is no claim for refugee protection, it is
strongly recommended that, when a member notices that there are people in the room
other than the usual participants (that is, the Minister’s counsel, the person concerned, his
or her counsel and the interpreter), the member should check with the parties to make
sure that no claim for refugee protection has been filed, even before making his or her
opening remarks.
Such precautions are necessary because, if there has been a mistake or if the person
concerned decides to make a claim for refugee protection at the hearing, the mere
disclosure of the person’s name could, in certain circumstances, endanger his or her
safety and that of others. The member would then have to make arrangements, as outlined
below, to ensure that the information is kept confidential.
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Even if the member sees that the usual participants are the only people present in the
room, it is important that the member indicate at the outset of the hearing whether the
hearing is to be conducted in public or in private so that any subsequent request for
access to the Division file may be processed accordingly.
Occasionally, an indication that the hearing is being held in public may trigger an
application to have the hearing conducted in private, under paragraph 166(b) of the Act
and Rule 45 [for more details, see 4.4.2 – Hearing in private on application or on the
member’s own initiative]. Conversely, an indication that the hearing is being held in
private may sometimes trigger an application under paragraph 166(d) of the Act and
Rule 46 to have the hearing conducted in public [for more details, see 4.5.2 – Hearing in
public on application or on the member’s own initiative].
4.3.1
Loss of status as a claimant of refugee protection
When several hearings are held concerning the same person (for example, when the
person concerned is detained and is the subject of an admissibility hearing and a number
of detention review hearings), it is possible that some hearings will be held in private
and others, in public. The person concerned ceases to be a claimant of refugee protection
when:
an immigration officer determines that the claim is ineligible (sections 100
and 101 of the Act);
the Refugee Protection Division rejects the claim for refugee protection
(sections 96, 97 and 107 of the Act).
The principle is that any hearing following such a decision is held in public even if the
decision of the immigration officer or the Refugee Protection Division is the subject of an
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application for judicial review by the Federal Court.2 The person concerned becomes a
claimant of refugee protection once again if the Federal Court later sets aside the decision
of the immigration officer or the Refugee Protection Division. The result is that a hearing
following such a decision of the Federal Court is held in private.
4.4
HEARING IN PRIVATE
4.4.1
Application of the principle
When the person concerned claims refugee protection, the principle is that the hearing
must be held in private, under paragraph 166(c) of the Act. “In private” means that the
public is not admitted. Consequently, when the member notes that there are people
present apart from the usual participants, he or she should indicate that the hearing is
being held in private and should ask these people to:
identify themselves;
explain the reasons for their presence;
indicate whether they are present at the request of one of the
parties.
The responses will enable the member to determine whether it is appropriate to allow the
observers to be present while continuing to conduct the hearing in private or whether they
should be excluded.
2
Judicial proceedings are public, unless the Court allows an application to have the proceedings
conducted in private. If the Federal Court allows an application to have the proceedings conducted in
private, the person concerned will likely make an application to the Immigration Division for the
proceedings to be conducted in private. When there is no such application, the member should raise the
issue on his or her own initiative [see also 4.4.2.3 – Hearing in private on the member’s own initiative].
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4.4.1.1
IRB
Presence of observers
The presence of observers may be allowed even if the hearing is being held in private.
Under paragraph 166(e) of the Act, a representative of the United Nations High
Commissioner for Refugees may be present as an observer at a hearing that is to be held
in private. IRB staff are not considered “members of the public” and therefore may be
present at a hearing, even one that is to be held in private.
Depending on the circumstances, the member may be of the opinion that certain people
are not members of the public. For example, some observers, such as relatives or friends
of the person concerned may be present simply to provide moral support, or an employee
of Citizenship and Immigration may be present for training purposes.
4.4.1.2
Exclusion of observers
If the member determines that the observers are members of the public, the member must
exclude them unless, on application or on the member’s own initiative, he or she
conducts the proceedings in public, under paragraph 166(d) of the Act. Even if the
observers are not considered members of the public, the member may, under the powers
conferred on him or her by section 165 of the Act, choose to exclude them if he or she
believes that their presence may upset the person concerned or some of the witnesses or
may hinder the smooth conduct of the hearing.
4.4.2
Hearing in private on application or on the member’s own initiative
If there is no claim for refugee protection, the member may conduct the proceeding in
private or order that part of the proceeding be kept confidential, either on application or
on his or her own initiative. Paragraph 166(b) of the Act reads as follows:
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166. Proceedings before a Division are to be conducted as follows:
…
(b) on application or on its own initiative, the Division may conduct a proceeding
in private, or take any other measure that it considers necessary to ensure the
confidentiality of the proceedings, if, after having considered all available
alternate measures, the Division is satisfied that there is
a serious possibility that the life, liberty or security of a person will
be endangered if the proceeding is held in public,
(ii) a real and substantial risk to the fairness of the proceeding such that
the need to prevent disclosure outweighs the societal interest that the
proceeding be conducted in public, or
(iii) a real and substantial risk that matters involving public security will
be disclosed.
(i)
These provisions also apply in response to an application to have the proceeding
conducted in public, under paragraph 166(d) of the Act, when it should, in principle, be
held in private because the person is a claimant of refugee protection [see 4.5.2 – Hearing
in public on application or on the member’s own initiative].
An application may be made not to have the proceedings conducted in private, but to
have part of the proceedings kept confidential. The member may then take any other
measure that he or she considers necessary [for more details, see 4.4.2.1.1 – Introductory
words to paragraph 166(b); 4.5.2.1.1 – Difference between English and French versions;
4.5.2.1.3 – Public proceeding with any other measure considered necessary].
4.4.2.1
Interpretation of paragraph 166(b) of the Act
Since this provision, as worded, is new, the higher courts have not yet had an opportunity
to interpret it. Some comments may be made, nevertheless, based on the case law
developed in other fields.
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4.4.2.1.1
IRB
INTRODUCTORY WORDS TO PARAGRAPH 166(B)
On reading the introductory words to paragraph 166(b) of the Act, the following points
can be noted:
The burden of showing that one of the three situations referred to
exists lies with the applicant (or with the party who objects to an
application to have the proceeding held in public)3 [see also 4.5.2.1. –
Interpretation of paragraph 166(d) of the Act; and 4.5.2.2.4. –
Assessing the application].
A hearing in private is not granted if the member determines
that any other measure that he or she considers necessary is
required. The hearing remains public with some restrictions [for
more details, see 4.5.2.1.3 – Public proceeding with any another
measure considered necessary].
“After having considered all available alternate measures” means
that, before allowing an application for the proceeding to be held
in private, the member considers whether a proceeding in public
could be maintained, with measures to protect the party to whom
one of the situations listed in subparagraph 166(b)(i), (ii), or (iii)
applies [compare paragraph 166(d) of the Act; and 4.5.2.1 –
Interpretation of paragraph 166(d) of the Act; 4.5.2.2.4 – Assessing
the application].
4.4.2.1.2
STANDARD OF PROOF
Subparagraphs 166(b)(i), (ii) and (iii) set out the standard of proof required to show that
one of the three situations referred to exists. It may be asserted that “serious possibility”
3
Parliament has codified the case law principles in this area. See Toronto Star Newspapers Ltd. v.
Kenney, [1990] 1 F.C. 425 (T.D.); Pacific Press Ltd. v. Canada (Minister of Employment and
Immigration), [1990] 1 F.C. 419 (C.A.). In Pacific Press Ltd., the Federal Court of Appeal ruled
(pp. 423-424) that the adjudicator (member) had erred in not receiving sufficient evidence to justify the
decision to hold the admissibility hearing in private. Moreover, the Court decided (p. 423) that, when
an application to have a proceeding conducted in public is made by the media (whose right of access in
judicial or quasi-judicial proceedings is founded on paragraph 2(b) of the Charter, which guarantees
freedom of the press), the onus shifts to the objecting party to produce evidence indicating the adverse
effect that conducting a hearing in public might cause.
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refers to the same standard of proof as “real and substantial risk”.4 The Refugee
Protection Division has also taken this position on the standard of proof applicable to
section 97 of the Act.5
The “serious possibility” standard is less than a balance of probabilities, but requires
more than a mere possibility.6 However, the “serious possibility” or the “real and
substantial risk” of the existence of one of the three situations referred to in
subparagraphs 166(b) (i), (ii) or (iii) must be established by facts proven on a balance of
probabilities.7
4.4.2.1.3
SUBPARAGRAPH 166(B)((I) – LIFE, LIBERTY OR
SECURITY
Parliament used wording “life, liberty or security” similar to that in section 7 of the
Charter.8 The case law in constitutional matters can therefore shed some light on the
meaning of that wording.
The three elements—life, liberty or security—can be argued together, but they also can
be argued separately.9
4
5
6
7
8
9
See Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Secretary of State
for the Home Department v. Kacaj, Immigration Appeal Tribunal, Appeal No. CC-23044-200,
July 19, 2001; R. v. Governor of Pentonville Prison Ex Parte Fernandez, [1971] 1 W.L.R. 987; R. v.
Secretary of State for the Home Department, Ex Parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.) 196.
For more details, see the document, Consolidated Grounds in the Immigration and Refugee Protection
Act, January 23, 2002, http://www.irb.gc.ca/en/about/tribunals/rpd/cgrounds/torture/index_e.htm.
Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.).
For example, in Pacific Press Ltd., supra, note 3, Mr. McVey argued that conducting the proceedings
in public could have a detrimental effect on the health of his wife, who was suffering from terminal
cancer. The fact that Mr. McVey’s wife was suffering from terminal cancer must be proved on a
balance of probabilities. The effect that holding the proceedings in public might have on her health
must be established on a “serious possibility” standard of proof.
Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177.
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With respect to life, basically, the evidence that the life of a person is in danger is that the
person is in danger of death. The little case law that exists on the subject does not apply
in the context of public or private hearings.
The liberty of a person is a concept that is difficult to define. Even if it is clear that
imprisonment constitutes an infringement of liberty,10 it is not only physical constraints
that can endanger a person’s liberty. In Morgentaler,11 Madam Justice Wilson said that
the section 7 right to liberty relates to a concept of human dignity that includes the right
to make certain fundamental decisions free of interference by the State. However, such
“liberty” is not synonymous with a total absence of constraint. The right to pursue one’s
own purposes, free of any governmental obstacle, must take into account the
corresponding rights of others,12 and is an aspect of the respect for human dignity on
which the Charter is founded, the right to make fundamental personal decisions without
interference from the state.
When a person’s liberty may be endangered by a public proceeding, it is important to
examine the constraints that the person might suffer as a result of the public hearing, as
well as the constraints that a private proceeding would impose, particularly on the media,
taking into account the concept of freedom of the press. The member must weigh these
constraints in a balancing process. The exercise is not easy and will depend on the
particular circumstances of the case.
In addition, according to the Supreme Court of Canada, the right to liberty guaranteed by
section 7 of the Charter does not apply to economic rights.13 It might, in some
circumstances, include the right to privacy.14 Usually, an infringement of the right to
privacy is dealt with under the “security” segment of section 7 of the Charter. We will
deal with this issue, therefore, in the following paragraphs.
10
11
12
13
14
Reference re Motor Vehicle Act (British Columbia) S. 94(2), [1985] 2 S.C.R. 486.
R. v. Morgentaler, [1988] 1 S.C.R. 30, p. 166.
R. v. Operation Dismantle Inc., [1985] 1 S.C.R. 441, p. 488.
Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927; Edwards Books and Art Limited v. The Queen,
[1986] 2 S.C.R. 713.
R. v. Beare, [1988] 2 S.C.R. 387.
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A person’s security is not limited to physical security alone; it also includes
psychological security.15 Pacific Press Ltd.16 offers a practical example of such a
situation. The adjudicator (member) had granted a private proceeding because the person
concerned, Mr. McVey, had argued that his spouse was suffering from terminal cancer
and that the publicity from the admissibility hearing could have a harmful effect on her
health. The Federal Court of Appeal set aside the adjudicator’s decision because the
situation argued by Mr. McVey had not been proved. However, the Court did not
question the validity of the reason for the application.
The concept of security does not appear to include protection from injury to reputation,17
but it may include the right to privacy if, for example, evidence or information
concerning the health of a person could be revealed at the hearing.18 In Mills,19 Lamer J.
wrote as follows at page 727:
The values protected by privacy rights will be most directly at stake where the
confidential information contained in a record concerns aspects of one’s
individual identity or where the maintenance of confidentiality is crucial to a
therapeutic, or other trust-like, relationship.
Public proceedings could therefore constitute a breach of privacy and thereby endanger a
person’s security, depending on the nature of the information that might be disclosed
during the hearing and the relationships between the people with respect to this
information. An example might be the relationship between a person and his or her
lawyer, accountant or clergy.
15
16
17
18
19
R. v. Morgentaler, supra, note 11; Kodellas v. Saskatchewan Human Rights Commission, (1989) 10
C.H.R.R. 6305 (C.A. Sask.), p. 6310.
Supra, note 3.
MacBain v. C.H.R.C., [1984] 1 F.C. 696, affirmed at [1985] 1 F.C. 856, although the Federal Court of
Appeal did not rule on the issue; see also, Royer v. Mignault, [1988] R.J.Q. 670 (C.A.).
See, for example, R. v. Dyment, [1988] 2 S.C.R. 417.
R. v. Mills, [1999] 3 S.C.R. 668.
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4.4.2.1.4
IRB
SUBPARAGRAPH 166(B)(II) - FAIRNESS OF THE
PROCEEDING
The principle of procedural fairness was enshrined in Nicholson.20 Despite the many
judgments that have followed, the concept of procedural fairness in administrative law
has continued to be difficult to explain. As Dickson J. said in Martineau, “The content of
the principles of natural justice and fairness in application to the individual cases will
vary according to the circumstances of each case.”21
In the context of a hearing, there could be an infringement of the right to procedural
fairness if, for example, a public proceeding might upset one of the two parties to such a
degree that the party’s ability to present all that party’s arguments would be affected. The
evidence might then be incomplete or biased.
4.4.2.1.5
SUBPARAGRAPH 166(B)(III) – PUBLIC SECURITY
The Royal Canadian Mounted Police (RCMP) and provincial and local police forces are
responsible for ensuring public security. For that reason, in most cases, an application to
have the proceeding conducted in private will be based on the fact that disclosure of some
information could compromise their investigations or operations. Other situations where
matters affecting public security might be disclosed are not ruled out.
4.4.2.2
Application to have a proceeding conducted in private
Usually, an application to have a proceeding conducted in private is made by one of the
two parties, in contrast to an application to have a proceeding conducted in public, which
usually comes from a third party, the media. However, it must be emphasized that neither
paragraph 166(b) of the Act nor Rule 45 restricts such applications to the parties alone. If
the applicant is a third party, he or she will have to show interest in intervening in the
case that is before the member.
20
21
Nicholson v. Haldimand Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.
Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, p. 630.
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4.4.2.2.1
IRB
PROCEDURES AND TIME LIMITS FOR PROVIDING THE
APPLICATION
Rule 45 provides that an application to have the proceeding conducted in private
must be made in writing and provided to the Division and the parties as soon as possible
in the case of a 48-hour or 7-day review or an admissibility hearing held at the same time
and, in all other cases, at least five days before the hearing.
The member must handle any failure to abide by these requirements with caution because
the fundamental rights guaranteed by the Charter may come into play. Often, particularly
in the case of a 48-hour review, the application will be made orally at the outset of the
hearing. The member may then, under Rule 50(c), allow the application to be made
orally. It may be heard in private [see below, 4.4.2.2.2 – Content of the application].
4.4.2.2.2
CONTENT OF THE APPLICATION
According to Rule 45(2), a person who applies to the Division to have a proceeding
conducted in private may request that the application be heard in private. The applicant
may be reluctant to set out in writing the reasons in support of the application, which in
fact are the very reasons for which he or she is applying to have the hearing conducted in
private. The same is true when the application is made orally at the outset of the hearing
when observers are present in the room.
In most cases, an application to have the proceeding conducted in private is heard in
private. According to Rule 45(5), the applicant must give reasons why the Division
should conduct the proceedings in private and present any evidence that the applicant
wants the Division to consider in deciding the application.22
4.4.2.2.3
HEARING THE APPLICATION
For effective control of the proceedings, the following measures are suggested:
22
See Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), supra, note 3.
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Observers are excluded during the hearing of the application.
If necessary, interveners who want to object to the application
to have the proceeding conducted in private are also excluded,
after they have been informed that they may make
submissions after the application has been heard.
The member hears the application.
The member determines whether the applicant has
demonstrated the existence of one of the three situations set
out in paragraph 166(b) of the Act.
If the member determines that the application to have the
proceeding conducted in private is without merit, he or she
informs the applicants and declares that the hearing will be
held in public. The member then allows the observers to enter
the room and be present at the hearing. There is no need, then,
to hear the comments of the interveners who are opposed to
the application to have the proceeding conducted in private.
If the member finds that one of the three situations described
in paragraph 166(b) of the Act exists, he or she permits the
interveners or their counsel, as the case may be, to enter the
hearing room. He or she reports to them, in as much detail as
possible, on the evidence and the submissions made by the
applicant, but does not provide information that could be
prejudicial to the latter.23
The member invites the interveners to make their
submissions, including the various measures that would be
acceptable to ensure confidentiality [4.5.2.1.3 – Public
proceeding with other measure considered necessary].
The member decides whether to allow a hearing in private or
a hearing in public with any other measures that he or she
considers necessary to ensure the confidentiality of the
23
The media are generally represented by counsel. Excluding the press while allowing their counsel to
remain in the hearing room, could be contemplated, depending on circumstances. If this is done,
counsel for the interveners should be given specific instructions to prevent the disclosure of the
proceedings to his or her clients.
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proceedings in whole or
paragraph 166(d) of the Act].
4.4.2.3
in
part
[see,
likewise,
Hearing in private on the member’s own initiative
Even if the person concerned is not claiming refugee protection, the member may, on his
or her own initiative, have the proceeding conducted in private if he or she sees that one
of the three situations described in paragraph 166(b) of the Act exists. If no application
has been made for the proceeding to be conducted in private, the member will probably
not be aware that such a situation exists, if it does, except in the course of the hearing. If
observers, particularly the press, have been present since the outset of the hearing, it
would be inappropriate to hold the proceedings in private at that time. In such a situation,
the member should raise the issue, then invite the parties to make submissions and ask the
press to intervene so that the member can decide what measures should be taken [see
4.5.2.1.3 – Public proceeding with any other measure considered necessary].
The member should raise the issue of proceedings in private on his or her own initiative
when there are indications that an application for a proceeding to be conducted in
private24 has been allowed in other judicial proceedings [see also 4.3.1 – Loss of status as
a “claimant of refugee protection”].
Other situations that justify the member’s conducting the proceeding in private on his or
her own initiative. The member will have to take into account the principle set out in
paragraph 166(a) of the Act, state his or her intention to depart from the principle, offer
the parties an opportunity to make submissions and assess all of the circumstances of the
particular case before going ahead with such a measure on his or her own initiative.
24
Supra, note 2.
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4.5
IRB
HEARING IN PUBLIC
4.5.1
Application of the principle
If, after checking with the parties, it is found that no claim for refugee protection has
been made, the hearing is, in principle, public, according to paragraph 166(a) of the
Act. In the absence of an application to have the proceedings conducted in private or
particular circumstances suggesting that a proceeding in private should be considered, or
in the absence of an indication that access to the hearing would be limited [see
below 4.5.1.2 – Hearing in a detention institution], the member may proceed with his or
her opening statement and consideration of other preliminary matters.
A public hearing means that any member of the public, including the press, may be
present as an observer. Access to the hearing room is therefore important. For the most
part, hearings are held on Immigration Division premises. Some hearings are held in
detention institutions. To hold a hearing in other kinds of locations is not impossible, but
is very rare. The comments relating to hearings held in detention institutions apply in
every case. When access is limited, it is up to the member to make the necessary
arrangements to conduct the hearing in public.25
4.5.1.1
Immigration Division premises
The hearing rooms on Immigration Division premises are generally small but adequate. It
is rare for a case to attract a lot of media attention and for a large number of people
(mainly, the press) to want to attend a hearing. In such a case, the regional director and
the public affairs officer make the necessary arrangements to ensure that a larger room is
available.
Wherever practicable, the Division will try to accommodate people who want to attend
the hearing, but a “public hearing” does not mean that unlimited places must be
available in the hearing room. If too many people want to attend the hearing, some of
25
Gervasoni v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 189 (T.D.).
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them might not have access to the room because of the limited number of seats, but this
would not adversely affect the public nature of the hearing.
4.5.1.2
Hearing in a detention institution
In general, public hearings in a detention institution pose no problem because members of
the public rarely ask to attend. When the member has no indication that members of the
public want to attend a hearing, he or she may say in the opening statement that the
hearing is public and proceed to consider other preliminary matters.
However, if the board member is informed that members of the public want to attend the
hearing, the member must make the necessary arrangements to ensure that the public has
access to the hearing room. Hearings in detention institutions pose two problems:
access may be limited by the institution’s security rules; and
the space provided for the hearing may be inadequate.
4.5.1.2.1
ACCESS TO THE DETENTION INSTITUTION
In Gervasoni26 (decided under the former Immigration Act), the counsel for the person
concerned told the member, at the outset, that some people who wanted to attend the
hearing had not been allowed to do so. The member responded that he had informed the
institution’s staff that the hearing was open to the public, that he did not object to the
presence of these people and that it was up to the staff to decide whether these people
would be admitted to the institution. The members of the public had asked for
information from the detention institution the day before the hearing, but the people in
charge of security had not had enough time to run security checks on those who had
asked to be admitted.
26
Id.
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The Federal Court set aside the member’s decision because the obligation to hold a public
hearing was mandatory. Paragraph 9 of the Court decision reads as follows:
Mere absence of an order by the Adjudicator [the member] to exclude the public
or his affirmation that he had no objection to their attending does not mean that
the inquiry meets the requirement of subsection 29(1). By referring to “the
limited access by the public here today”, the Adjudicator implicitly
acknowledged that the hearing was not conducted in public. The issue was not
whether the Act required unlimited access, without regard for the conduct of
those admitted or the integrity of the proceedings, but whether the inquiry is
conducted in public if no member of the public is present and members of the
public wishing to attend are excluded.
However, the Court acknowledged that the purposes of an “open court” do not require
unreasonable measures. The security concerns of the institution are understandable. In
this case, the Court had no evidence about the reasonableness of the measures imposed in
the preliminary selection of the people who wanted to attend the hearing, but it noted that
these measures would not be reasonable if their consequence was to exclude members of
the public from any hearing in immigration matters.
Consequently, a member who finds himself or herself in a similar situation should
consider adjourning the hearing to give the members of the public who want to attend
the hearing the opportunity to comply with the institution’s security rules, unless the
consequence of these rules is to exclude members of the public systematically, which
would necessitate a change of location for the hearing. However, before
contemplating such a measure, the member should adjourn the hearing and either try
to negotiate with the authorities of the institution or refer such negotiations to his or her
director, because the transportation of people held in prisons or penitentiaries can
sometimes pose a danger to public security [see Chapter 9 – Change of location for a
hearing and Rule 42(2)(e)). Taking a detainee away from the institution may even be
impossible in some cases, for example, when the person is also held by other authorities.
4.5.1.2.2
INADEQUATE SPACE
The space provided in detention institutions for public hearings is often inadequate. In a
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number of detention institutions, the space reserved for hearings is inadequate, even when
the hearing is to be held in private. Before contemplating a change of location for the
hearing because of deficiencies in the facilities, the member should look at all the
alternative solutions [see 4.5.1.2.1. – Access to the detention institution].
4.5.2
Hearing in public on application or on the member’s own initiative
Even if the person concerned is a claimant of refugee protection, the member may
conduct proceedings in public in whole or in part on application or on his or her own
initiative. Paragraph 166(d) of the Act reads as follows:
166. Proceedings before a Division are to be conducted as follows:
…
(d) on application or on its own initiative, the Division may conduct a proceeding
in public, or take any other measure that it considers necessary to ensure the
appropriate access to the proceedings if, after having considered all available
alternate measures and the factors set out in paragraph (b), the Division is
satisfied that it is appropriate to do so;
The provisions at 166(b)(i), (ii) and (iii) of the Act also apply in responding to an
application to have the proceeding conducted in private or to have a part of the
proceedings kept confidential, when the hearing must, in principle, be conducted in
public because the person concerned is not a claimant of refugee protection [see 4.4.2 –
Hearing in private on application or on the member’s own initiative].
4.5.2.1
Interpretation of paragraph 166(d) of the Act
Under paragraph 166(d) of the Act, the member must take the three factors set out in
paragraph (b) into account in determining whether he or she will conduct the proceeding
in public and take other measures [see 4.4.2.1 – Interpretation of paragraph 166(b) of the
Act].
Paragraph 166(d) should therefore be read in conjunction with paragraph 166(b) of the
Act and cannot be interpreted in isolation.
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4.5.2.1.1
IRB
DIFFERENCE BETWEEN THE ENGLISH AND FRENCH
VERSIONS
The French and English versions of paragraph 166(d) differ slightly.
The English version states “ …may conduct a proceeding in public or take any other
measure…to ensure the appropriate access to the proceedings…” The member’s choice
of the second option means that, subject to some reservations, he or she conducts the
proceeding in public.
The hearing must be held either in public or in private. If it were held in private,
measures to ensure the confidentiality of the proceeding are pointless. Such measures
may, however, be necessary if the hearing is held in public. The French version of this
paragraph reflects Parliament’s intention more clearly: “… la publicité des débats peut
être accordée assortie de toute mesure….”
4.5.2.1.2
CODIFICATION OF CASE LAW PRINCIPLES
An application to have the proceedings conducted in public usually comes from the
media. The case law generally27 indicates that the courts are very reluctant to deny media
access to judicial and quasi-judicial proceedings and have often criticized the decisionmaker’s failure to consider measures other than exclusion of the media in order to ensure
the confidentiality of the proceedings.
The words “…after having considered all available alternate measures…”, found in
paragraphs 166(b) and (d), indicate an intention to codify the case law and to respect, as
much as possible, the freedom of the press guaranteed by the Charter, while avoiding the
dangers that publicity could represent for the person concerned or for other persons, for
the fairness of the proceedings, or for public security. Consequently, holding a
27
Pacific Press Ltd v. Canada (Minister of Employment and Immigration, supra, note 3; Toronto Star
Newspaper Ltd. v. Kenney, supra, note 3; Edmonton Journal v. IRB (CRDD) and M.C.I. (F.C.T.D.,
IMM-677-95 and IMM-510-95], Jérome, January 26, 1996; Gervasoni, supra, note 25; Re Southam
Inc. and the Queen (No. 1) (1983), 4l O.R. (2d) 113 (C.A.).
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proceeding in private (and therefore excluding the media) should be used only as a last
resort.
4.5.2.1.3
PUBLIC PROCEEDING WITH ANY OTHER MEASURE
CONSIDERED NECESSARY
An application to have the proceeding conducted in private will not be allowed if the
member determines that “any other measure that [the Division] considers necessary” can
be applied. The hearing remains public with certain restrictions. The words “any other
measure that it considers necessary” give broad discretion to the member, who, instead of
conducting the proceeding in private, may, among other things, make orders for the
following:28
the exclusion of the observers and interveners for part of
the proceeding;
a ban on publishing any information that could identify the
person concerned;
a ban on filming or photographing in the hearing room;
a total publication ban;
the sealing of the record in whole or in part.
4.5.2.2
Application to have a proceeding conducted in public
It should be noted at the outset that neither paragraph 166(d) of the Act nor Rule 46
restricts this kind of application to the parties. When the applicant is a third party, he or
she must express interest in intervening in the case that is before the member. In contrast
to an application to have the proceeding conducted in private, it is rare that an application
to have the proceeding conducted in public comes from the parties. Usually, it comes
from the media and argues for freedom of the press as guaranteed under paragraph 2(b)
28
Under the former Immigration Act, the power of the members in this regard was not clearly set out.
Nonetheless, the Federal Court recognized that IRB members had this power. See, supra, note 27.
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of the Charter.29 The wording of paragraph 166(d) of the Act does not exclude the
possibility that a person who is not a journalist might apply to have the proceeding
conducted in public.
4.5.2.2.1
PROCEDURES AND TIME LIMITS FOR PROVIDING THE
APPLICATION
Rule 46 provides that an application to have a proceeding conducted in public must be
made in writing and that three copies (the original and two copies) be provided to the
Division as soon as possible, in the case of a 48-hour or 7-day review or an admissibility
hearing held at the same time, and at least five days before the hearing in all other cases.
Under Rule 46(3), the Division provides a copy of the application to the parties. This is
done because an application to have a proceeding conducted in public generally comes
from a third party, usually the media, which often does not have the parties’ contact
information.
In practice, the application is frequently made orally at the beginning of the hearing.
Often, the observers do not know that the hearing is supposed to be held in private if a
claimant of refugee protection is involved. The fact that the member rules at the
beginning of the hearing on the application of this principle will trigger an application to
have the proceeding conducted in public.
The member should handle any failure to observe these requirements with caution
because fundamental rights guaranteed by the Charter may be at stake [see also 4.4.2.2. –
Application to have a proceeding conducted in private; 4.4.2.2.1 – Procedures and time
limits for the application].
4.5.2.2.2
CONTENT OF THE APPLICATION
According to Rule 46(2), a person who makes an application to have a proceeding
29
Supra, note 1.
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conducted in public must give reasons why the Division should make that decision and
include any evidence that the person wants the Division to consider in deciding the
application. In practice, since this type of application usually comes from the media, the
latter have no evidence to submit concerning the particular case before the member. They
make submissions based on freedom of the press, with copies of the relevant case law.
4.5.2.2.3
RESPONSE TO AN APPLICATION TO HAVE A
PROCEEDING CONDUCTED IN PUBLIC
Whether the application has been provided in writing under Rule 46 or is made orally at
the beginning of the hearing, the member will have to invite the parties to respond to the
application since he or she must take the three factors set out in paragraph 166(b) of the
Act into account in order to determine whether he or she will conduct the proceeding in
public and, if need be, what other measures should accompany the public hearing.
If neither party objects to the application, the member may conduct the proceeding in
public, unless there are indications in the file that one of the situations described in
paragraph 166(b) of the Act might exist.
If one of the parties objects, the member must proceed just as if there were an
application to have the proceeding conducted in private, with the necessary modifications
[see 4.4.2.2.2 – Content of the application and 4.4.2.2.3 – [Hearing the application].
4.5.2.2.4
ASSESSING THE APPLICATION
The factors listed in paragraph 166(b) of the Act concern situations that often only the
parties have knowledge of. Although the burden of proof lies, in principle, with the
applicant, it is difficult to imagine how a third party who applies to have the proceeding
conducted in public (usually the media), could prove the existence of one of the
three situations described in paragraph 166(b) of the Act.
Freedom of the press is a right recognized by the Charter and, when it is involved, it
must, where practicable, be respected even if the Act provides that a hearing concerning a
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claimant of refugee protection must be held in private. The Federal Court of Appeal’s
decision in Pacific Press Ltd. reads as follows:
It seems to me that the assertion of a right to access to a judicial or quasijudicial proceeding founded on paragraph 2(b) of the Charter must, of itself,
inferentially satisfy that slight burden and shift the onus to the person seeking
to exclude the press.30
Consequently, even if the principle of holding the proceeding in private applies
because the person concerned is a claimant of refugee protection, as soon as an
application to have the proceeding conducted in public is made by the media, the
burden of showing that one of the situations described in paragraph 166(b) exists shifts
to the party who objects to conducting the hearing’s in public [see 4.4.2.1 –
Interpretation of paragraph 166(b) of the Act].
4.5.2.3
Circumstances justifying conducting a hearing in public on
the member’s own initiative
When members of the public, particularly the media, are present at a hearing that should,
in principle, be held in private, and with the agreement of the person concerned and the
Minister’s counsel, the member should consider the possibility of conducting the hearing
in public, even if there is no specific application in this regard. However, before he or she
makes such a decision, the parties should be given an opportunity to make submissions in
this respect.
Other situations that justify the member’s conducting the proceeding in public on his or
her own initiative are possible. The member should take into account the principle set out
in paragraph 166(c) of the Act, announce his or her intention to depart from the principle,
offer the parties an opportunity to make submissions in this regard and assess all of the
circumstances of the case before conducting the hearing in public on his or her own
initiative.
30
Supra, note 3, p. 423.
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TABLE OF CASES
Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C.
297 (C.A.) .................................................................................................................. 4-10
Edmonton Journal v. IRB (CRDD) and M.C.I. (F.C.T.D., IMM-677-95 and
IMM-510-95], Jérome, January 26, 1996 .........................................................4-21, 4-22
Edwards Books and Art Limited v. The Queen, [1986] 2 S.C.R. 713............................ 4-11
Gervasoni v. Canada (Minister of Citizenship and Immigration),
[1995] 3 F.C. 189 (T.D.) ............................................................................ 4-17, 4-21, 4-22
Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927.................................................. 4-11
Kodellas v. Saskatchewan Human Rights Commission, (1989) 10 C.H.R.R.
6305 (C.A. Sask.),...................................................................................................... 4-12
MacBain v. C.H.R.C., [1984] 1 F.C. 696....................................................................... 4-12
Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 ................. 4-13
Nicholson v. Haldimand Norfolk Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311 ................................................................................................... 4-13
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), [1990] 1 F.C. 419 (C.A.) ........... 4-9, 4-10, 4-12, 4-15, 4-21, 4-22, 4-25
R. v. Beare, [1988] 2 S.C.R. 387.................................................................................... 4-12
R. v. Dyment, [1988] 2 S.C.R. 417................................................................................. 4-12
R. v. Governor of Pentonville Prison Ex Parte Fernandez, [1971] 1 W.L.R. 987 ........ 4-10
R. v. Mills, [1999] 3 S.C.R. 668..................................................................................... 4-12
R. v. Morgentaler, [1988] 1 S.C.R. 30..................................................................4-11, 4-12
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R. v. Operation Dismantle Inc., [1985] 1 S.C.R. 441 .................................................... 4-11
R. v. Secretary of State for the Home Department, Ex Parte Sivakumaran,
[1988] 1 All E.R. 193 (H.L.) 196............................................................................... 4-10
Re Southam Inc. and the Queen (No. 1) (1983), 4l O.R. (2d) 113 (C.A.) ............4-21, 4-22
Reference re Motor Vehicle Act (British Columbia) S. 94(2), [1985] 2 S.C.R.
486.............................................................................................................................. 4-11
Royer v. Mignault, [1988] R.J.Q. 670 (C.A.)................................................................. 4-12
Secretary of State for the Home Department v. Kacaj, Immigration
Appeal Tribunal, Appeal No. CC-23044-200, July 19, 2001 .................................... 4-10
Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R.
177.............................................................................................................................. 4-11
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3......... 4-10
Toronto Star Newspapers Ltd. v. Kenney, [1990] 1 F.C. 425 (T.D.)............ 4-9, 4-21, 4-22
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TABLE OF CONTENTS
6. LANGUAGE OF PROCEEDING AND INTERPRETER............... 1
6.1 INTRODUCTION ..........................................................................................1
6.2 GENERALLY................................................................................................1
6.2.1
Procedure................................................................................................... 2
6.3 LANGUAGE OF THE PROCEEDING ..........................................................4
6.3.1
Determining the language of the proceeding.......................................... 4
6.3.2
Application to change the language of the proceeding .......................... 5
6.3.3
Consequences of changing the language of the proceeding on the
presentation of the documentary evidence ............................................. 6
6.4 INTERPRETER ............................................................................................6
6.4.1
Determining whether an interpreter is needed ...................................... 6
6.4.2
Notification that an interpreter is needed............................................... 7
6.5 DUTY TO PROVIDE AN INTERPRETER.....................................................8
6.5.1
Person concerned .................................................................................... 10
6.5.2
Counsel for the person concerned ......................................................... 10
6.5.3
Minister’s counsel ................................................................................... 12
6.5.4
Special circumstances ............................................................................. 13
6.5.5
Witnesses.................................................................................................. 14
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6.6 PRINCIPLES FROM THE CASE LAW.......................................................15
6.6.1
The right to an interpreter ..................................................................... 15
6.6.1.1
When an interpreter cannot be found ...................................... 17
6.6.2
Waiver of the right to an interpreter .................................................... 19
6.6.3
Criteria for the intervention of the Federal Court .............................. 21
6.6.4
Quality of the interpretation .................................................................. 22
6.6.4.1
6.6.4.2
6.6.4.3
6.6.4.4
6.6.4.5
Continuous interpretation......................................................... 24
Precise interpretation................................................................ 25
Impartial interpretation ............................................................ 25
Contemporaneous interpretation.............................................. 26
Competence of the interpreter .................................................. 27
6.6.4.5.1
Factors to check to determine the interpreter’s
competence ..................................................................... 28
6.7 INTERPRETER’S ROLE ............................................................................30
6.8 TRANSLATION OF DOCUMENTS ............................................................30
6.8.1
Translation at the hearing...................................................................... 31
6.8.2
Documents provided by the person concerned .................................... 32
6.8.3
6.8.2.1
Documents in English or French............................................. 32
6.8.2.2
Documents in another language .............................................. 32
Documents provided by the Minister.................................................... 32
ANNEX 6-A ...................................................................................... 34
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6.
LANGUAGE OF PROCEEDING AND INTERPRETER
6.1
INTRODUCTION
The considerations of natural justice referred to in subsection 162(2) of the Act require,
among other things, that the Immigration Division make arrangements to ensure that the
person concerned understands the proceeding and can express himself or herself at the
hearing. This explains the importance of holding the hearing in the official language
(English or French) spoken by the person concerned or, if this is not possible, of
providing him or her with an interpreter. In addition, the Charter provides for the right of
any person to use the official language of his or her choice in court and the right to the
assistance of an interpreter, the latter right is also provided for by the Canadian Bill of
Rights.1
This chapter provides a general explanation of the steps members should follow in
determining the official language in which a hearing will be held and whether an
interpreter should be used, in addition to specifics about each of those matters. This
chapter also examines the IRB’s duty to provide an interpreter and the case law
concerning the use of an interpreter, standards of interpretation and the translation of
documents. It also describes the interpreter’s role and the standard of conduct he or she
must observe.
6.2
GENERALLY
In principle, when the case is scheduled, the registry office determines the official
language in which the hearing will be held and whether an interpreter is needed. When an
interpreter is needed, that person is usually already present in the hearing room since,
when the case is set down for hearing, the registry office will have identified the need for
an interpreter and will have made arrangements to have an interpreter available for the
hearing.
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However, in order for the hearing to be held in accordance with the principles of natural
justice and the fundamental rights of the parties, the member must verify that the choice
of the official language for the hearing has been acted upon and that an interpreter has
been provided if one is needed. If an interpreter is provided, the member must ensure that
the interpretation is adequate. As the Supreme Court of Canada held in Tran,2 “[…] The
principle underlying all of the interests protected by the right to interpreter assistance
under s. 14 is that of linguistic understanding.” [our emphasis]
At the hearing, the member deals with the issues of the language of the proceeding
and the need for an interpreter at the same time. At the outset of the hearing, the
member must ensure that the person concerned has a sufficient command of the language
in which the hearing is to take place. If the person does not, the member must change the
language of the proceeding [see 6.3 – Language of the proceeding] or request an
interpreter to interpret from one official language to the other. If the member finds that
the person does not have a sufficient command of either official language, the member
must call for an interpreter to interpret from the language of the proceeding into the first
language of the person concerned and vice versa [see 6.4 - Interpreter].
6.2.1
Procedure
In order to determine the language in which the hearing is to take place, whether an
interpreter is needed or whether the right interpreter has been chosen, the member may
proceed as follows, depending on whether an interpreter is present in the hearing room.
•
In all cases
Verify the first language of the person concerned.3
1
2
3
8-9 Eliz. II, c. 44; R.S.C. (1985), App. III.
R. v. Tran, [1994] 2 S.C.R. 951, p. 977.
It is possible, although rare, that the person concerned knows another language better than his or her
first language. Unless there are special circumstances, it is preferable to hold the hearing in the
language that the person knows best.
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•
IRB
If the person’s first language is neither English nor French, determine
whether an interpreter is required.
If there is no interpreter
If the first language of the person concerned is English or French, conduct
the hearing in the official language that is the person’s first language.4
If the first language of the person concerned is not one of the two official
languages, ensure that the person has a sufficient knowledge of English or
French and conduct the hearing in the official language that the person
knows.
If the person does not have a command of either English or French, adjourn
the hearing and check with the registry office to determine whether an
interpreter is available in the person’s first language.
If an interpreter cannot be made available within a reasonable time, adjourn
the hearing and ask the registry office to arrange to have an interpreter
present on the date fixed for the resumption of the hearing.
•
When an interpreter is present
Check with the interpreter to see whether he or she has been asked to
translate from the language of the proceeding (English or French) into the
person’s first language and vice versa.
Ensure that the interpreter has conversed with the person in the person’s
own language and that they can understand each other well.
If the interpreter and the person concerned have not had the opportunity to
converse before the hearing, ask them to speak with each other for a few
minutes to ensure that they communicate well.
If there are problems with the communication, arrange with the registry
office to have the interpreter replaced, even if doing so means that the
hearing may be adjourned.
4
When the member or some of the participants at the hearing do not know the official language that is
the first language of the person concerned well enough, the hearing can be held, if the latter consents,
in the other official language with the assistance of an interpreter, who will translate into the person’s
first language [see also 6.5.4 – Special circumstances].
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If communication is good, administer the oath to the interpreter as
required by Rule 17(2).
The following oath may be administered:
Do you solemnly swear/affirm to translate accurately from
English/French to XXX (the language of the person concerned) and
from XXX to English/French every thing that is said during the
hearing and every document that is presented in evidence?
6.3
LANGUAGE OF THE PROCEEDING
6.3.1
Determining the language of the proceeding
Based on the indications provided by the Minister pursuant to Rules 3(g) and 8(1)(d), the
registry office will determine in which of the two official languages the hearing will be
held. Such indications are usually accurate because Citizenship and Immigration Canada
(CIC) officers have communicated with the person concerned before requesting that the
Division hold an admissibility hearing or a detention review. As a result, most of the
time, they are in a position to evaluate the person’s knowledge of either official language
and whether an interpreter is needed. Counsel for the person concerned, if any, can also
provide some indications in this regard.
The person concerned may not have good knowledge of both official languages. Usually,
the language of the proceeding is chosen because the person has a good knowledge of
English or French, or else an interpreter is required because the person has little or no
knowledge of English or French. When an interpreter is not needed, the person concerned
is entitled to use the official language of his or her choice, under section 19 of the
Charter5 [for more details, see 6.5.1 – Person concerned].
5
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing
from, any court established by Parliament.
(2) Either English or French may be used by any person in, or in any pleading in or process issuing
from, any court of New Brunswick.
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If the person concerned has adequate knowledge of either English or French, that
knowledge will obviously be a decisive factor in the choice of an official language for the
hearing. If his or her knowledge of English or French is inadequate and an interpreter is
needed, the official language is usually chosen on the basis of the official language
primarily used in the region where the hearing is held and/or the interpreter’s knowledge
of English or French. Some can interpret into both languages, others not.
Even if the language of the proceeding has been determined prior to the hearing, a change
may sometimes be necessary. The member must ensure that the person concerned has a
sufficient knowledge of the language of the proceeding. The member must not hesitate to
change the language if it turns out at the hearing that the person knows the other official
language better, or the member should call for an interpreter if he or she believes it
necessary.
6.3.2
Application to change the language of the proceeding
The information that the Minister provides to the Division under Rules 3 and 8 is also
provided to the person concerned. If the language chosen to communicate with the
Division is not suitable for the person concerned, he or she may, under Rule 16, apply to
have the language of the proceeding changed to English or French. The application
may be made orally or in writing and must be made as soon as possible in the case of a
48-hour detention review or 7-day review or an admissibility hearing held at the same
time. In all other cases, it must be made in writing at least five days before the hearing.
If the application is made before the hearing, the registry office will make arrangements
to change the language of the proceedings. When the application is made during the
hearing, the person concerned may be excused from the requirements of Rule 16 and to
change the language of the proceeding or make provision for an interpreter if the member
believes that the person does not have a sufficient command of the language in which the
hearing is to be held, unless the application is abusive or dilatory [see also 6.4 –
Interpreter and 6.6.1 – Right to an interpreter]. Moreover, if changing the language of the
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proceeding has no real impact on the person concerned,6 the member assesses whether
the application should be granted or whether he or she should act on his or her own in the
matter (Rule 50(a)), because a decision to change the language can unduly delay the
hearing process.
6.3.3
Consequences of changing the language of the proceeding on the
presentation of the documentary evidence
A change in the language of proceedings affects the conduct of the hearing. If it had been
anticipated that the hearing would be held in English, for example, the parties might have
filed in evidence documents written in English. If the language of the proceeding is then
changed to French, a French translation might well not be available. According to
Rule 25(1), the person concerned may provide documents in either official language.
Under Rule 25(2), if the Minister provides a document that is not in the language of the
proceeding, the Minister must provide a translation. Consequently, a change in the
language of the proceeding may mean adjourning the hearing so that the documents
provided by the Minister can be translated [for more details, see 6.8.3 - Documents
provided by the Minister].
6.4
INTERPRETER
6.4.1
Determining whether an interpreter is needed
Under Rules 3(h) and 8(1)(e), the registry office is informed if an interpreter must be
provided for the hearing. If there is a need, arrangements are made, and the interpreter is
6
For example, the hearing is supposed to take place with the assistance of an interpreter who can
translate equally well from English or French into the first language of the person concerned, and the
two parties agree to change the language of the proceeding because the Minister’s counsel and counsel
for the person concerned express themselves more easily in the other official language or for other
reasons.
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present in the hearing room on the day of the hearing. Usually, the indications given by
the Minister in the request to hold an admissibility hearing or a detention review are
accurate, and the arrangements made by the registry office are adequate [see 6.3.1 –
Determining the language of the proceeding]. Generally, an interpreter is hired to work in
the first language of the person concerned.7
Even when an interpreter is present at the beginning of the hearing, a change of
interpreter may be necessary if there are interpretation problems. The member must
remain alert to detect any interpretation problem that may arise and should not hesitate to
adjourn the hearing to change the interpreter if necessary [see also 6.6.4 – Quality of the
interpretation]. When the first language of the person concerned is neither English nor
French and the hearing proceeds without an interpreter anyway, the member must
constantly ensure during the course of the hearing that the person does not require the
assistance of an interpreter.8
In short, even if the matter of the assistance of an interpreter is, in principle, settled at the
outset of the hearing, the member must continue to be vigilant throughout the entire
hearing when the language of the proceeding is not the first language of the person
concerned.
6.4.2
Notification that an interpreter is needed
Under Rule 17(1), the person concerned may notify the Division if the person or his
or her witness needs an interpreter.
7
8
Supra, note 3.
Azofeifa, Kattia Perez v. M.C.I. (F.C.T.D., IMM-1889-94), McKeown, December 21, 1994.
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Note that this provision applies to both parties. However, the Minister’s counsel is not
expected to request an interpreter for himself or herself.9 It is possible, though rare, that
the Minister will need an interpreter for one of his or her witnesses. The same is true for
the person concerned. It is primarily the right of the person concerned to the assistance of
an interpreter that is at stake [for more details, see below 6.6 – Principles from the case
law].
The notification that an interpreter is needed must be provided in writing and must be
received by the Division as soon as possible in the case of a 48-hour or 7-day detention
review or an admissibility hearing held at the same time as the review. In other cases, the
notification must be received at least five days before the hearing. It must specify the
language or dialect of the interpreter.10
When the notification is provided to the Division prior to the hearing, the registry office
makes arrangements to have an interpreter present at the hearing. When the notice is
provided during the hearing, the member may excuse the person concerned from the
requirements of Rule 17(1) if he or she thinks that the person or a witness does not have
sufficient command of the language of the proceeding [see also 6.6.1 – Right to an
interpreter].
6.5
DUTY TO PROVIDE AN INTERPRETER
No provision of the Act deals specifically with the assistance of an interpreter. However,
in order to comply with the principles of natural justice and the right to the assistance of
an interpreter that is guaranteed by the Charter and by the Canadian Bill of Rights,11 the
Division must provide an interpreter when it thinks that one is needed. Rule 17
9
10
11
If the Minister’s counsel does not know the official language in which the proceeding is to be held, he
or she may be replaced by a colleague. It is also possible, if the person who is the subject of the
proceeding agrees, to proceed in the other official language with interpretation services from one
official language to the other [see also 6.5.3 – Minister’s counsel].
An interpreter may also be necessary if the person concerned has a hearing or speech impairment.
Supra, note 1.
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governs the practice and procedure of the Immigration Division when an interpreter is
required.
The panel’s duty to provide an interpreter flows from section 14 of the Charter, which is
worded as follows:
14. A party or witness in any proceeding who does not understand or
speak the language in which the proceedings are conducted or who is
deaf has the right to the assistance of an interpreter.
and from section 2 of the Canadian Bill of Rights, which reads as follows:
Every law of Canada shall […] be so construed and applied so as not
to
[…]
(g) deprive a person of the right to the assistance of an interpreter
in any proceedings in which he is involved or in which he is a party
or a witness, before a court, commission, board or other tribunal, if
he does not understand or speak the language in which such
proceedings are conducted.
In immigration matters, a “party” or a “witness” may avail himself or herself of the right
to the assistance of an interpreter (Rule 17). There is no “person … involved” as is
sometimes the case in civil matters. The parties to a hearing are the Minister’s counsel
and the person concerned. The latter may be represented by counsel. The witnesses are
the persons who appear at the hearing to testify.
Furthermore, even when, in principle, no interpreter is required because the person
concerned has a good command of English or French, the need for an interpreter to
translate from one official language to the other may result from the application of
subsection 19(1) of the Charter, which is worded as follows:
19. (1) Either English or French may be used by any person in, or in
any pleading in or process issuing from, any court established by
Parliament. [our emphasis]
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To determine the scope of the Division’s obligation to provide an interpreter, it is
important to know which persons (the person concerned, his or her counsel, the
Minister’s counsel or the witnesses) are entitled to the assistance of an interpreter and the
circumstances in which they may assert this right.
6.5.1
Person concerned
The person concerned has a right to the assistance of an interpreter, although it is not
absolute [for more details, see 6.6.1 – Right to an interpreter]. When the person
concerned has no command of either official language, the Division must provide
him or her with an interpreter. It would seem that a person concerned may not, in our
opinion, assert the right guaranteed by section 19 of the Charter since he or she cannot
use English or French.
However, when the assistance of an interpreter is unnecessary because the person
concerned has a command of one of the two official languages, that person may assert the
right guaranteed by section 19 of the Charter. Generally, the language of the proceeding
will be chosen on the basis of the official language that the person knows. Sometimes, it
is preferable to hold the hearing in the other official language (the one that the person
concerned does not know) using an interpreter who will translate from one official
language to the other for the benefit of the person concerned [for more details, see 6.5.2 –
Counsel for the person concerned and 6.5.4 – Special circumstances]. If this happens, the
person concerned must specifically agree to it.
6.5.2
Counsel for the person concerned
Although the case law has not settled the issue, it is arguable that counsel for the person
concerned cannot assert the right to the assistance of an interpreter guaranteed by
section 14 of the Charter and section 2 of the Canadian Bill of Rights, which are aimed at
protecting the person concerned. However, counsel for the person concerned may
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assert the right, guaranteed by section 19 of the Charter, to use the official language of
his or her choice.
It would seem that the panel has no obligation to provide an interpreter to counsel for
the person concerned,12 but the result in practice may be the same in some cases [see
also 6.5.4 – Special circumstances]. If the official language that the counsel wants to use
is not the official language of the hearing, the member must still check to see whether the
person concerned understands the official language in which his or her counsel will speak
and must provide the person, on request, with an interpreter who will translate from one
official language to the other so that the person concerned can understand what his or her
counsel is saying.13
In practice, in such circumstances, the consent of the person concerned to changing the
language of the proceeding must be obtained so that the hearing is held in the language
that counsel wants to use. For example, if the hearing must proceed in French because the
first language of the person concerned was French and counsel wanted to assert the right
to express himself or herself in English, the consent of the person concerned must be
obtained to hold the hearing in English with an interpreter who will translate from one
official language to the other for the benefit of the person concerned.
12
13
Taire, Queen v. M.C.I. (F.C., IMM-2948-02), Blanchard, July 15, 2003. In this case, a number of
questions were raised concerning the rights guaranteed by sections 14 and 19 of the Charter and their
application both to the person concerned and to his or her counsel. The Minister’s counsel put forward
a number of arguments, including that the right to the assistance of an interpreter does not apply to the
lawyers involved in the proceedings. In this regard, he cited the Supreme Court of Canada in R. v.
Beaulac, [1999] 1 S.C.R. 768, at page 800: “The right to full answer and defense is linked with
linguistic abilities only in the sense that the accused must be able to understand and must be
understood at his trial. But this is already guaranteed by s. 14 of the Charter […] Language rights have
a totally distinct origin and role. They are meant to protect official language minorities in this country
and to insure the equality of status of French and English.” The Federal Court expressed its agreement
with the submissions of the Minister’s counsel, but did not specifically decide this issue.
Supra, note 12. In Taire, the hearing before the Refugee Protection Division (RPD) was held in
English, a language that the claimant knew well. Her counsel made his submissions in French. The
RPD stressed that an interpreter could be called to translate the submissions from French into English
but, since there was no specific request to do so, it did not call one. The Federal Court rejected the
arguments concerning the language rights guaranteed by section 19 of the Charter and determined that
the claimant and her counsel had waived the linguistic services guaranteed by the Official Languages
Act and the Charter.
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Usually, the person concerned will consent to changing the language of the proceeding,
but, if he or she refuses, the person’s counsel can use the official language of his or her
choice and, if he or she so requests, what he or she says will have to be translated into the
language of the proceeding for the benefit of the person concerned. The result is that,
most of the time, the panel will have to provide an interpreter to translate from one
official language to the other anyway. This has a tendency to create some confusion, but
it sometimes cannot be avoided.
Sometimes, the counsel will agree to proceed in the language of his or her client, but will
say that he or she will make submissions in the other official language. In the absence of
a request by the person concerned or his or her counsel to have the submissions
translated, it is not necessary to provide an interpreter.14 It is nonetheless recommended
that the person concerned be asked if he or she waives translation of the submissions.
If the person concerned does not know either of the two official languages and it is
necessary to use an interpreter anyway, the language of the proceeding should be changed
to the one that counsel for the person concerned wants to use, and it must be ensured that
the interpreter can translate from the language of the proceeding into the person’s first
language and vice versa. It is doubtful that the person concerned who has the assistance
of an interpreter can assert the right guaranteed by section 19 of the Charter [see 6.5.1 –
Person concerned]. There is arguably no need to obtain his or her consent to change the
language.
6.5.3
Minister’s counsel
The Minister’s counsel is an employee of the Department of Citizenship and Immigration
who, under the Official Languages Act,15 must provide services in either official
14
15
Ibid.
R.S. 1985, c. 31 (4th Supp.).
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language.16 If the Minister’s counsel does not have command of the language of the
proceeding, he or she may be replaced by a colleague. The same is true for the panel
member.17 Consequently, the Minister’s counsel cannot assert the right to use the
official language of his or her choice in the context of the hearing. The panel therefore
has no duty to provide an interpreter to translate from one official language to the other
for the benefit of the person concerned by reason of the fact that the Minister’s counsel
would like to use the official language of his or her choice.
6.5.4
Special circumstances
When a majority of the participants do not have a command of the official language that
is the language spoken by the person concerned,18 the person’s consent to change the
language of the proceeding must be obtained even if the parties have not so requested.
Rather than change the panel member and the Minister’s counsel, it is more efficient to
hold the hearing in the official language that the majority of the participants know and to
provide an interpreter who will translate from one official language to the other for the
benefit of the person concerned.
Usually, the person concerned will consent to change the language of the proceeding,
primarily because his or her counsel is also more familiar with the language of the
majority. If the person concerned refuses to consent and wants to proceed in the official
language of his or her choice, the member must adjourn the hearing so that he or she and
the Minister’s counsel may be replaced. Despite such replacement, counsel for the person
concerned may want to assert the right to use the official language of his or her choice,
16
17
18
The obligation may vary depending on the region or location of the hearing, but usually, CIC will
make arrangements for the Minister to be represented by a counsel who knows the language of the
proceeding [see Official Languages Act, supra, note 15, ss. 22, 23 and 24; Official Languages
Regulations, Communications with and service to the public, SOR/92-48, ss. 6, 7 and 9].
Supra, note 15, ss. 14, 15 and 16.
For example, the first language of the person concerned is French, but the hearing is held in a primarily
Anglophone region and the majority of the participants (the Minister’s counsel, the member and
perhaps even counsel for the person concerned) do not know French.
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and, consequently, an interpreter will be required in any event to translate from one
official language to the other.
Certain circumstances may warrant providing an interpreter, even when the IRB
has no obligation to provide one. Under subsection 162(2) of the Act, the member has a
duty to proceed as quickly as the considerations of natural justice permit. Sometimes, it
may be more efficient to provide an interpreter, particularly if one is available on short
notice, even when there is no obligation to do so. Every situation must be evaluated on its
own merits. Based on the circumstances, the member must choose the solution that
allows the hearing to proceed as simply and quickly as possible, provided that the
principles of natural justice are complied with.
6.5.5
Witnesses
Whether they are called by the person concerned or by the Minister’s counsel, witnesses
have the right to the assistance of an interpreter if they do not have a command of
the language of the proceeding. It is rare for witnesses to need an interpreter. If one is
necessary, the Division must provide an interpreter at the request of either party.
However, when the requirements of Rule 17(1) have not been met and a witness needs
the assistance of an interpreter, the member assesses how relevant and important it is to
hear the witness, in order to avoid, whenever possible, adjourning the hearing.
Sometimes, the other party is prepared to admit the facts that would be established by the
evidence of the witness, which would make his or her testimony unnecessary. If the
testimony is necessary, the member will determine whether to excuse the party requesting
the presence of the witness from the requirements of Rule 17(1).
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6.6
IRB
PRINCIPLES FROM THE CASE LAW
Several principles taken from the case law provide guidance on the right to the assistance
of an interpreter and may facilitate the resolution of issues that arise during the hearing.19
6.6.1
The right to an interpreter
At times, there may be no indication that the person concerned needs an interpreter.
When the first language of the person concerned is neither English nor French, the
member is responsible for determining whether an interpreter is required, even if
the person concerned does not request the assistance of an interpreter.
In Tran, Lamer J. wrote as follows at page 979:
Although the ultimate burden of proof in establishing the required
level of need rests, of course, on the party asserting that he or she has
suffered a violation of his or her s. 14 rights, it is important to
appreciate that the right to interpreter assistance is not one which
must necessarily have been invoked or asserted in order to be
enjoyed. As part of their control over their own proceedings,
courts have an independent responsibility to ensure that those
who are not conversant in the language being used in court
understand and are understood. Accordingly, unless the issue of
interpretation is only being raised for the first time on appeal and/or
there is some question as to whether the right is being asserted in bad
faith, establishing “need” will not normally be an onerous step.20 [our
emphasis]
Throughout the hearing, the member must ensure that the person concerned does not need
an interpreter.21
19
20
21
A number of judgments concern cases heard by the Refugee Protection Division (formerly, the
Convention Refugee Determination Division (CRDD)). The principles taken from that case law apply
in the same manner before the three divisions of the IRB.
Supra, note 2.
Supra, note 8.
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The right to the assistance of an interpreter is not absolute. The opposing party may
cross-examine on the need for an interpreter.22
When the person concerned requests the assistance of an interpreter, it is usually
granted. The member need not conduct a detailed inquiry into the ability of the person
concerned to understand or speak the language in which the proceeding is held.23
However, it is appropriate to investigate the linguistic competence of a person who
requests the assistance of an interpreter.24 To do so, the member may speak with the
person concerned regarding some of the questions of fact and law that will be dealt with
at the hearing. Simply because a person understands a language well enough to watch a
movie or read the newspapers does not necessarily mean that the person can understand a
quasi-judicial proceeding.25
The fact that a person has been educated in the language of the proceedings is a factor
that the member may take into consideration. In Taire,26 the person had requested the
assistance of an Uvwie-French interpreter. Since he could not find such an interpreter, the
member held the hearing in English because he believed that the person understood and
expressed herself well in that language. Ms. Taire had received her primary and
secondary school education in Nigeria in English. The Federal Court found that she had
not suffered any prejudice because of the use of English at the hearing and that section 14
of the Charter had been complied with.
In Hamidu,27 it was impossible to find an interpreter in the dialect of the person
concerned (Kusasi/English). After several years, the CRDD decided to hold the hearing
in English, based mainly on the fact that the claimant had been able to provide the
information in his personal information form to a consultant in English and that he had
22
23
24
25
26
27
Roy v. Hackett (1987), 62 O.R. (2d) 351 (C.A.).
R. v. Petrovic (1984) 47 O.R. (2d) 97 (C.A.).
Hamidu, Alasa v. M.C.I. (F.C.T.D., IMM-4886-97), Tremblay-Lamer, June 25, 1998.
Garcia, Jairo Hernando Ravagli v. M.E.I. (F.C.T.D., 92-T-1854), Rothstein, November 24, 1993;
Boateng, Prince Agyenim v. M.E.I. (F.C.T.D., 92-T-1226), Rothstein, November 24, 1993.
Supra, note 12.
Supra, note 24.
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communicated in English at his workplace for three years. The Federal Court upheld the
decision.
In Vasile,28 an interpreter had been provided on request even though Mr. Vasile spoke
English fluently. The Federal Court concluded by saying “[t]o request the services of an
interpreter when one is fluent in English is surely an abuse of the process.”
The member must ensure that the person has a good command of the language of the
proceeding. If there is any doubt, it is better to adjourn so that the services of an
interpreter may be retained, especially if the person’s credibility is at issue. A poor
understanding of the language of the proceeding may explain inconsistencies and
contradictions in testimony that is given without an interpreter present.
6.6.1.1
When an interpreter cannot be found
In Taire29 and Hamidu,30 it had not been possible to find an interpreter for the dialect of
the person concerned. Despite the lack of an interpreter, the CRDD was able to hold the
hearing because the individual’s had a good knowledge of English or French. This is not
always the case as an individual’s knowledge of one of the two official languages may be
inadequate and it may not be possible to locate an interpreter in the required language.
Different approaches are possible to resolve this issue depending on whether it arises at
an admissibility hearing or a detention review.
Not being able to locate an interpreter fluent in the first language or dialect of the person
concerned does not justify a lowering of the usual standards or requirements
concerning the ability to understand the language in which the admissibility hearing is
28
29
30
Vasile, Adrian. v. Canada (Secretary of State) (F.C.T.D. IMM-7576-93), Reed, August 31, 1994.
Supra, note 12.
Supra, note 24.
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held and to communicate in this language. In Faiva,31 the Federal Court set aside the
adjudicator’s (member’s) decision. The adjudicator had initially decided that an
interpreter in the Tonga language was needed. Since a Tongan interpreter could not be
found, the adjudicator decided to proceed with the inquiry. He said that he was “prepared
to relax somewhat the standard that would normally apply.” At the end of the hearing, the
adjudicator stated that he was satisfied that the person concerned knew English well
enough to communicate effectively at the inquiry.
The Federal Court held that, if an interpreter was necessary but could not be found, the
adjudicator had neither a duty nor a right to continue the inquiry. The fact that it
may be impossible to conduct the inquiry if an interpreter for the language required
cannot be found does not allow the requirement to provide an interpreter to be dispensed
with, because it is a fundamental right of the person concerned.
When a person is to be the subject of an admissibility hearing and it is not possible to
find an interpreter in his or her language or dialect, the hearing should be adjourned
until an interpreter is found. Before adjourning the hearing, the member should ask the
parties whether a friend or relative of the person concerned or a member of his or her
community could interpret at the hearing. The IRB’s practice is to retain only the services
of interpreters it has certified [for more details, see 6.7 – Interpreter’s role]. However,
when it is not possible to find an interpreter in the person’s first language or dialect, the
possibility of having someone other than an IRB-certified interpreter translate the
proceeding for the person concerned should be explored. In this case, the member will
have to evaluate the interpreter’s competence and impartiality32 [see also 6.6.4.3 –
Impartial interpretation and 6.6.4.5 – Competence of the interpreter].
In circumstances similar to those in Faiva, a different conclusion may be reached if the
hearing is a detention review. Under section 57 of the Act, the Immigration Division
has a duty to hold a review hearing at regular intervals and within specific time limits.
31
32
Faiva v. Canada (M.E.I.), [1983] 2 F.C. 3 (C.A.).
Unterreiner v. The Queen (1980) 51 C.C.C. (2d) 373 (Ont. Co. Ct.).
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Furthermore, the stakes are not the same as in an admissibility hearing. In a detention
review, the worst that can happen is that the detention will be upheld; at best, the person
concerned regains his or her liberty. Therefore, it is arguable that a detention review
may be held without the assistance of an interpreter if one in the required language
cannot be found.
At the very least, it is appropriate to examine the reasons why CIC arrested and detained
the person concerned. The member may consider these reasons unwarranted in and of
themselves and may order the person’s release. If the detained person has some
knowledge, even though insufficient, of English or French, it may be possible to use very
simple language to explain the nature of the proceeding and the facts against him or her
and to obtain his or her version of the facts. If the person detained has no knowledge of
English or French, the member can deduce from this that the immigration officers were
unable to communicate with him or her and should ask the Minister’s counsel for
evidence to support the facts he or she has alleged in support of the detention [see
Chapter 13 – Evidence and Submissions].
If the member decides to continue the detention, he or she may explore, just as in the case
of an admissibility hearing, the possibility that someone other than an IRB-certified
interpreter could interpret at the next detention review.
6.6.2
Waiver of the right to an interpreter
Occasionally, the person concerned may prefer to proceed without an interpreter, even
though he or she has difficulties with English or French. When the person’s language
deficiencies are not significant, his or her decision to go ahead without an interpreter may
be accepted. However, if the lack of interpretation will adversely affect the smooth
conduct of the hearing and the panel’s ability to make a decision in the case, the member
can be expected to request the services of an interpreter. In all cases, the person
concerned must fully understand his or her right to the assistance of an interpreter.
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Even if the person concerned waives his or her right to an interpreter at the hearing, it is
prudent, when it is not fully clear that the person has a good knowledge of the language
of the proceedings, to have an interpreter present at the hearing so that he or she can be
called on if needed. The rights of the person concerned are not violated when the person
explicitly waives his or her right to an interpreter.33
Waiver of interpretation may be tacit. It may be inferred from a person’s conduct.34 In
Mohammadian,35 the claimant, an Iranian Kurd, attended at three Refugee Protection
Division (RPD) sittings. The interpreter at the first sitting was a Turkish Kurd, and the
hearing was immediately adjourned because of communication problems. At the second
hearing, an Iranian Kurdish interpreter was present, and there was no difficulty in
communicating. At the third session, the interpreter was an Iraqi Kurd. The claimant
argued before the Federal Court that communication was deficient at the third sitting, but
he did not raise this before the RPD.
The Federal Court of Appeal upheld the decision of the trial judge who had regard to
the common law according to which waiver of a right to object may be inferred from the
person’s conduct. The Court decided that the person had waived the right he had
under section 14 of the Charter by not objecting to the quality of the interpretation at
the first opportunity when his claim was heard. In this case, the Court found that
Mr. Mohammadian’s assertion that he did not know he could object to the interpreter was
not credible given that the first hearing had been adjourned because he and the interpreter
could not communicate.
The Federal Court has subsequently applied the principles laid down by the Federal Court
of Appeal in Mohammadian [for more details, see 6.6.3 – Criteria for the intervention of
the Federal Court and 6.6.4 – Quality of the interpretation].
33
34
Amadasun, Osazuwa v. M.C.I. (F.C.T.D., IMM-927-97), Gibson, August 18, 1997; Poopalasingam,
Thamilchelvan Selliah v. M.C.I. (F.C.T.D. IMM-4563-93), Richard, January 30, 1995.
Konadu, Yaa v. M.C.I. (F.C.T.D. A-985-92), Heald, November 20, 1996; Huynh, Cam Hoa v. M.E.I.
(F.C.T.D., 92-T-1772), Rothstein, June 24, 1993.
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6.6.3
IRB
Criteria for the intervention of the Federal Court
When the person has not objected to the quality of the interpretation at the IRB hearing,
the case law indicates that the Federal Court first considers whether, in the circumstances,
the person should reasonably have been aware of inaccuracies in the interpretation. When
it determines that the person should have detected the problems with the interpretation at
the time of the IRB hearing, it will find that the person has waived his or her right to the
assistance of an interpreter if the problems of interpretation were not raised before the
member.36 However, if it is unreasonable to expect the person should have known that the
interpretation was inadequate or if the problems with the interpretation were raised before
the tribunal, the Court may not conclude to a waiver of the right to an interpreter. It may
examine if errors in translation were made and, if so, will identify the repercussions that
these errors had or could have had on the member’s decision.37
In Tung,38 the Federal Court of Appeal decided that prejudice resulting from inadequate
translation must be proved. In Mohammadian,39 the Federal Court of Appeal decided,
among other matters, that, for the Court to intervene, the claimant does not have to show
that he or she suffered actual prejudice as a result of the violation of the standards of
interpretation. The test for the Court’s intervention appears to have been relaxed.40
Nonetheless, the translation errors must be significant and must bear on the elements that
served as the basis for the member’s decision.41 Consequently, the case law that
developed prior to Mohammadian is arguably still applicable.
35
36
37
38
39
40
41
Mohammadian, Soliman v. Canada (M.C.I.), [2001] 4 F.C. 85 (C.A.), leave to appeal denied, [2001]
C.S.C.R. No. 435.
See, for example, Dhot v. M.C.I. (F.C.T.D., IMM-4968-00), Pinard, August 16, 2001; Babir v. M.C.I.
(F.C.T.D., IMM-4071-00) McKeown, August 9, 2001.
Huang, Xin Tong Huang v. M.C.I. (F.C.T.D., IMM-2236-02), Snider, March 19, 2003; Iantbelidze,
Davit v. M.C.I. (F.C.T.D., IMM-3335-01), Heneghan, September 4, 2002.
Tung v. Canada (M.C.I.) (1991), 124 N.R. 388 (F.C.A.).
Supra, note 35.
See also Mosa, Hidat v. M.E.I. (F.C.A., A-992-92), Stone, Linden, Létourneau, April 19, 1993. In this
case, the Federal Court of Appeal referred the case back to the CRDD to be reheard. Notwithstanding
Tung, it held that the inaccurate translation had prevented the CRDD from asking other questions about
the claim. It was therefore possible that the claimant had been harmed.
Supra, note 37.
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In Basyony,42 the Federal Court said in paragraph 8 of the decision:
Some errors in translation, which do not affect the overall outcome
of the hearing, are not sufficient for that conclusion [that the hearing
is defective]. One is mindful of the fact that translation is not an
exact science. There is always room for differences in nuance
between what is said in one language and its translation into another.
The Court held that the alleged translation errors did not have a significant impact on the
hearing or on the panel’s decision. The Federal Court reached a similar conclusion in a
number of other cases.43
Conversely, it set aside an IRB decision where, in its opinion, the translation errors were
significant and had an impact on the panel’s decision.44
6.6.4
Quality of the interpretation
In Tran,45 the Supreme Court of Canada set out the principles that applied, in a criminal
law context, to the right to the assistance of an interpreter guaranteed by section 14 of the
Charter, but postponed consideration of the possibility that different rules would apply in
other situations such as civil actions or administrative proceedings. In Mohammadian,46
the Federal Court of Appeal confirmed that the Supreme Court of Canada’s analysis in
Tran generally applied to proceedings before the CRDD [before the three divisions of the
IRB]. Although the standard of interpretation is high in the context of section 14, it is not
a standard of perfection. In order for an interpretation to be adequate, it must be
42
43
44
45
46
Basyony, Mohamed v. M.E.I. (F.C.T.D., 92-A-4946), Reed, March 29, 1994.
See, for example, Abadi, Akbar Mokhtari v. M.C.I. (F.C.T.D., IMM-5440-97), Reed, November 26,
1998; Ho, Li Hua v. M.C.I. (F.C.T.D., IMM-4301-97), Denault, September 3, 1998; Abdibi, Abdol
Mohammad v. M.C.I. (F.C.T.D., IMM-4906-97), Tremblay-Lamer, June 26, 1998; Banegas, Sandro
Nahun Flores v. M.C.I. (F.C.T.D., IMM- 2642-96), McGillis, June 30, 1997; Gholam-Nejad v. M.E.I.
(F.C.T.D., IMM-2479-93), Gibson, March 31, 1994; Hagopian, Samvel v. M.E.I. (F.C.T.D., IMM-93A-201), Noël, August 23, 1993.
See, for example, Lin, Zhen Shan Lin v. M.C.I. (F.C.T.D., IMM-5261-98), Evans, July 16, 1999; Jiang,
Xue Zhi v. M.E.I. (F.C.T.D., IMM-482-94), Gibson, April 13, 1994; Yu, Li Na v. M.E.I. (F.C.T.D.,
IMM-569-93), Nadon, January 27, 1994; Tung, supra, note 38; Mosa, supra, note 40.
Supra, note 2.
Supra, note 35.
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continuous, precise, impartial, contemporaneous and competent. This excerpt from
Tran illustrates the requirements for the quality of the interpretation:
[…]The principle underlying all of the interests protected by the
right to interpreter assistance under s. 14 is that of linguistic
understanding.
In determining whether there has in fact been a breach of s. 14, it
must be clear that the accused did not understand or speak the
language being used in court and was thus actually in need of
interpreter assistance. Where an interpreter was appointed and it is
the quality of the interpretation provided that is being challenged, it
is necessary to determine whether there has been a departure or
deviation from what is considered adequate interpretation. While the
interpretation provided need not be perfect, it must be
continuous, precise, impartial, competent and contemporaneous.
The question should always be whether there is a possibility that the
accused may not have understood a part of the proceedings by virtue
of his or her difficulty with the language being used in court. Not
every deviation from the protected standard of interpretation will
constitute a violation of s. 14 of the Charter: the claimant of the
right must establish that the lapse in interpretation was in
respect of the proceedings themselves, thereby involving the vital
interests of the accused, and was not merely in respect of some
collateral or extrinsic matter. In determining whether the alleged
deviation in interpretation was part of an occurrence which actually
served in some way to “advance the case”, one must consider
whether there was an unfolding or development in the proceeding
with respect to a point of procedure, evidence and/or law. Since s. 14
guarantees the right to interpreter assistance without qualification, it
would be wrong to introduce into the assessment of whether the right
has been breached any consideration of whether or not the accused
actually suffered prejudice when being denied his or her s. 14 rights.
The Charter in effect proclaims that being denied proper
interpretation while the case is being advanced is in itself prejudicial
and is a violation of s. 14. […]
Here the accused was in need of interpreter assistance throughout his
trial, since he did not understand or speak English, and there is no
doubt that the interpretation of the proceedings in which the
interpreter was involved as a witness fell well below the guaranteed
standard. First, the accused did not receive continuous
interpretation of all the evidence at his trial, since the questions
posed to and answers given by the interpreter were condensed into
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two one-sentence summaries and the interpreter’s exchange with
the judge was not translated at all. Second, the interpretation was
not precise, as the summaries failed to convey everything that had
been said and the first summary was incorrect in that it referred
to something which had not in fact been said. Third, while there is
no reason to doubt the actual impartiality or objectivity of the
interpretation provided in this case, the practice of having an
interpreter act as both a witness and an interpreter is one which
should be avoided in all but exceptional circumstances. Finally,
the timing of the interpretation was unsatisfactory, in that it
should have occurred contemporaneously with the asking of
questions and the giving of answers. These lapses were not trivial
or de minimis in nature, but rather occurred at a point when the
accused’s vital interests were clearly involved and the case was thus
being advanced. The problems with the interpretation arose during
the testimony of a witness, and the evidence given by that witness
covered a topic of considerable importance to the accused, namely,
the issue of identification upon which his entire defence was built.
[our emphasis]
6.6.4.1
Continuous interpretation
The right to the assistance of an interpreter requires that all that is said during the
proceeding must be interpreted. In Mandi,47 the RPD’s decision was set aside because
the interpreter did not translate everything the witness said. For example, instead of
translating literally the insults made to the claimant in Germany, the interpreter had
simply said “that she had been called all kinds of names.” In Weber,48 the Federal Court
of Appeal held that the fact that the interpreter had summarized a part of the testimony at
the hearing was insufficient.
Usually, the interpreter translates everything that is said at the hearing, including the
parties’ submissions, unless the person concerned waives this right. The member must
nevertheless ensure that this requirement is met at all times. The interpreter may be
inexperienced or have difficulty interpreting what each of the interveners says if, for
example, the speaker goes too fast or there are heated exchanges and people speaking all
47
48
Mandi, El-Menouar v. M.C.I. (F.C.T.D., IMM-1952-97), Campbell, February 24, 1998.
Weber v. Canada (M.M.I.), [1977] 1 F.C. 750 (C.A.).
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at once. The member should not hesitate to control the interventions of the parties or
witnesses so that the interpreter can translate everything that is said during the hearing.
6.6.4.2
Precise interpretation
More often than not, the member is not in a position to determine the accuracy of the
interpretation without an indication from one of the participants. Sometimes, the person
concerned has some, though not much, knowledge of the language of the proceeding, or
the person’s counsel speaks the first language of his or her client and can call attention to
an inaccurate interpretation. On this subject, Stone J. wrote as follows in Mohammadian:
Indeed, where a claimant chooses to do nothing despite his or her
concern with the quality of the interpretation, the Refugee Division
would itself have no way of knowing that the interpretation was in
any respect deficient. The claimant is always in the best position to
know whether the interpretation is accurate and to make any concern
with respect to accuracy known to the Refugee Division during the
course of the hearing, unless there are exceptional circumstances for
not doing so.49
When a problem with the interpretation is reported, it is usually the accuracy of the
interpretation that is questioned. The member investigates the matter50 and has the
interpreter replaced if necessary [for more details, see 6.6.4.5 – Competence of the
interpreter].
6.6.4.3
Impartial interpretation
Interpreters must be impartial and avoid circumstances which may cast doubt on their
neutrality. In Tran,51 the interpreter had also served as a witness. The Supreme Court of
Canada held that the practice of using the same person as an interpreter and a witness
should be used only in exceptional circumstances.
49
50
51
Supra, note 35, p. 97.
Kandola, Piara Singh v. M.E.I. (F.C.T.D., 89-T-735), Rouleau, January 30, 1990.
Supra, note 2.
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In Alexandrov,52 while the hearing was in progress, the interpreter requested and received
the authorization to make a personal statement in the sole presence of the refugee
protection officer and counsel for the refugee claimant. The member was then informed
that the interpreter might be called as a witness. The member refused to restart the
hearing but continued it with another interpreter. The Federal Court decided that there
was no reasonable apprehension of bias because the interpreter’s comments were never
communicated to the panel; they could therefore not have influenced the panel’s
assessment of the evidence.
In cases involving some countries where there are ethnic conflicts, the interpreter’s
ethnicity can sometimes raise a reasonable apprehension of bias when it is different from
that of the person concerned.53
When a hearing is postponed, counsel for the person concerned may want to speak with
his or her client and may ask for permission to use the services of the interpreter for this
purpose. Barring exceptional circumstances, the member may allow it especially if the
conversation is brief. This practice does not affect the impartiality of the interpreter, who
is bound by the Code of Conduct for Interpreters (Annex 6-A).
If the member plans to use someone other than an IRB-certified interpreter because an
interpreter in the first language or dialect of the person concerned cannot be found, the
member must verify the proposed interpreter’s impartiality. In such circumstances, it is
advisable to check the familial and social relationships that the person concerned may
have with the proposed interpreter and the interpreter’s possible interest in the outcome
of the hearing.
6.6.4.4
Contemporaneous interpretation
The interpreter is present in the room and translates what the participants say as the
hearing proceeds. Some interpreters translate simultaneously. When the translation is
52
53
Alexandrov, Serguei v. M.C.I. (F.C.T.D., IMM-1708-96), Jerome, November 20, 1997.
See, for example, Milic, Ljubivoje v. M.C.I. (F.C.T.D., IMM-1243-94), Rouleau, September 23, 1994.
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simultaneous, the hearing proceeds quickly because there is no wait for the interpreter to
translate what each person has said. However, some participants may be distracted by
simultaneous translation. In such cases, it is advisable to ask the interpreter to adjust his
or her method of translation. When the translation is not simultaneous, the member
should not hesitate to intervene if someone is talking too fast so that the interpreter can
translate everything that is said during the hearing.
6.6.4.5
Competence of the interpreter
“Competence of the interpreter” refers to the interpretation provided in a specific case
and not just to the interpreter’s general knowledge, training and experience.
When a problem with the interpretation is brought to the panel’s attention, the
member should investigate the matter.54 The source of the problem may vary.
Sometimes, the person concerned and the interpreter do not come from the same region.
The vocabulary or the accent may therefore be different and may adversely affect
linguistic comprehension. The interpreter may have an inadequate knowledge of the first
language or dialect of the person concerned, or may lack rigour when translating. The
person’s vocabulary may be limited, as may be his or her understanding of the language
used by the participants at the hearing.55
It must be assumed that objections to the quality of the interpretation are made in good
faith. However, objections can also be used as a delaying tactic or a strategy to explain a
witness’s lack of credibility by the inadequacies of the interpretation. The basis for the
objection should be explained with as much precision as possible.
A different interpreter should be used if the linguistic comprehension is deficient.
However, interpreters should not be dismissed for frivolous or vexatious reasons.
54
55
Infra, notes 56 and 57.
In such a case, a change of interpreter would not solve the problem. All of the participants would have
to simply their language as much as possible.
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In Ming,56 the Federal Court of Appeal determined that the adjudicator (member) did not
investigate the issue of the interpreter’s competence correctly. He considered only the
matter of the rapidity of speech, although other problems had been raised, in particular,
the fact that the interpreter had used a dialect that the person concerned did not know and
had used English words.
However, in Varaich,57 the Federal Court decided that the adjudicator investigated the
issue of the interpreter’s competence properly. He did not rely on the interpreter’s
reputation, but instead directly asked the person who was the subject of the proceeding
hat he had not understood. He also questioned the interpreter at length about his skills.
6.6.4.5.1
FACTORS TO CHECK TO DETERMINE THE
INTERPRETER’S COMPETENCE
It may not always be easy to assess an interpreter’s competence. When an objection to the
interpretation is raised at the beginning of the hearing and seems to be well founded, it
may be more efficient to check with the registry office to see whether another interpreter
is on site and available instead of undertaking an investigation into the competence of the
interpreter in the hearing room.
Sometimes, the objection is raised later, after part of the evidence has already been
presented. If the member believes that the objection is well founded, the matter must be
heard anew, since the evidence may be flawed because of improper translation. However,
if the member suspects that the objection is not well founded, the member can decide to
submit the recording of the proceeding to another interpreter for an opinion on the
56
57
Ming v. Canada (M.E.I.), [1990] 2 F.C. 336 (C.A.).
Varaich, Ravinder v. M.E.I. (F.C.T.D., 92-T-2129), Tremblay-Lamer, March 11, 1994.
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accuracy of the interpretation. The interpretation does not have to be perfect. Translation
errors that have no impact on the overall outcome of the hearing would not warrant rehearing the matter.
To identify the source of a problem of interpretation that is brought to the member’s
attention or noted by the member, he or she may proceed by process of elimination,
checking the following elements in the order they are listed:
Does the first language or dialect of the person concerned correspond to the
language used by the interpreter?
Are the person concerned and the interpreter from the same country? From
the same region?
Is the rate of speaking too fast?
Is the language used by the participants too elaborate given the educational
background of the person concerned?
What is it that the person concerned does not understand?
Does the interpreter think there is a problem?
How long has the interpreter been certified by the IRB?
How long has he or she interpreted in the language of the person concerned?
How did the interpreter acquire his or her knowledge of the first language or
dialect of the person concerned?
Does the interpreter have training or experience in interpretation?
Verification of these elements will enable the member to determine whether there really
is a problem of interpretation and, if so, to identify the source of the problem and correct
it as quickly as possible.
If a change of interpreter proves necessary, the availability of another interpreter should
be checked with the registry office before the hearing is adjourned.
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6.7
IRB
INTERPRETER’S ROLE
An interpreter is provided for the person who is the subject of an admissibility hearing or
a detention review and for the witnesses at the IRB’s expense. The IRB has a pool of
interpreters whom it calls on as needed. The interpreters are certified by the IRB after
undergoing a background check and passing the IRB certification examination. They are
bound by a contract to provide personal interpretation services and must comply with,
among other things, the Code of Conduct for Interpreters. As a result, the member
generally does not have to verify the interpreter’s reliability and skill, unless an
objection to the interpretation is raised.
The Code of Conduct for Interpreters, a copy of which appears in Annex 6-A, sets out
the rules intended to ensure the highest standard of professionalism and conduct for the
interpreters. The interpreters are required to interpret everything that is said during the
proceeding precisely, without paraphrasing or exaggerating, without providing
explanations and without expressing an opinion. They must be objective and impartial at
all times and refrain from giving advice to the participants.
It must be noted that the interpreter must use the same subject used in the source
language. In other words, he or she must avoid interpreting by saying, for example, “the
person concerned said that…”, but must use the first person singular.
6.8
TRANSLATION OF DOCUMENTS
According to Rule 25(1), all documents used at a proceeding must be in English or
French or, if in another language, be accompanied by an English or French
translation and a translator’s declaration (Rule 25(3)). In principle, this means that it
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is up to the parties to have any document they want to present in evidence translated into
one of the two official languages prior to the hearing.
Rule 25(2) imposes an additional requirement on the Minister in that every document
that he or she provides must be in the language of the proceeding or be accompanied by a
translation into that language and a translator’s declaration.
6.8.1
Translation at the hearing
It is not necessary to have the Minister’s request for an admissibility hearing or a
detention review translated. However, when an admissibility hearing is involved, the
inadmissibility report and the document in which the Minister refers the case to the
Division must be translated for the person concerned. Whether an admissibility hearing
or a detention review is involved, all the documents which have been provided by the
Minister prior to the hearing under Rule 26 and which are presented in evidence must be
translated (with the exception of the request that a hearing be held).
Often, the parties will present documents only at the hearing, but it rarely happens that
they wish to present voluminous documents in evidence in a language other than English
or French. If this occurs, it is appropriate to ask to have it translated into the language of
the proceeding, under Rule 25. Sometimes, the parties will produce a document such as a
certificate or letter in a language other than English or French. Rather than adjourn the
hearing, the member may excuse them from the requirement of Rule 25 and have a short
document translated orally at the hearing by the interpreter.
Depending on the length of time the interpreter estimates it will take for the translation of
the document, the panel may adjourn the hearing and have the document translated by the
interpreter to the person concerned during the adjournment. However, when the hearing
resumes, it is important that the interpreter (who has taken an oath under Rule 17(2))
officially confirm that he or she has translated the entire document.
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Failure to have a document translated, especially if it is an important factor in the
member’s decision, has led to the Federal Court’s setting aside the IRB decision.58
6.8.2
Documents provided by the person concerned
Every document provided by the person concerned must be translated into English or
French or, if it is in another language, it must be accompanied by an English or French
translation and the translator’s declaration (Rules 25(1) and 25(3)).
6.8.2.1
Documents in English or French
Counsel for the person concerned may submit documents in English or in French such as,
for example, an excerpt from the criminal code of an American state or the French Penal
Code. In Kainth,59 the Federal Court ruled that the panel is not required to have translated
the documents filed in either official language by the counsel from the language of the
proceeding into the language of the person concerned. Nevertheless, if the document is
relatively short and crucial to the outcome of the case, the member may consider that it
should be translated.
6.8.2.2
Documents in another language
Sometimes, the translation of documents written in another language may appear dubious
even when the translator’s declaration seems to be in order. The member may then ask
the interpreter who is present in the room (IRB-certified) to check the translation.
6.8.3
58
59
Documents provided by the Minister
See Sasani, Farzad v. M.E.I. (F.C.A., A-26-91), Heald, Hugessen, Stone, January 17, 1992; Fuentes,
Patricia Sandoval v. M.E.I. (F.C.A., A-450-78), Jackett, Pratte, Ryan, November 20, 1978; Prado,
Gustavo Adolfo Ocampo v. M.C.I. (F.C.T.D., IMM-4727-97), Dubé, October 29, 1998.
Kainth, Ram Singh v. M.E.I. (F.C.T.D., 89-T-717), Muldoon, October 31, 1989.
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The Minister must submit his or her documents in the language of the proceeding or
accompany them with a translation into that language. Failure to respect the requirements
of Rule 25(2) may lead to an adjournment if, for example, the hearing is held in French
without an interpreter and the Minister’s documents are in English or if the hearing is
held in French with the assistance of an interpreter who is not competent to translate from
English into the first language of the person concerned.
When this requirement is not met, it may be advisable in some circumstances to excuse
the Minister from having to do this in order to avoid an adjournment. If the interpreter is
competent in both official languages, he or she can translate from the official language of
the documents into the language of the person concerned and vice versa. If the interpreter
is not competent in the other official language and the hearing is held on the IRB
premises, it should be adjourned in order to verify with the registry office whether a
competent interpreter is available to translate the documents quickly.
Finally, before adjourning the hearing, it is recommended that the member consider
whether the person concerned might waive translation of the documents, particularly if
the hearing is held outside Division offices, for instance, at a detention institution. This
solution is possible if the person concerned states that he or she is familiar with the
contents of the documents or has a good enough knowledge of the other official language
to understand them.60 In all cases, the person concerned must fully understand his or her
right to the assistance of an interpreter and, if he or she waives translation of the
documents, this should be done in a clear and unequivocal manner.
60
See Amadasun, Osazuwa v. M.C.I., supra, note 33.
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ANNEX 6-A
CODE OF CONDUCT FOR INTERPRETERS
Interpreters providing services to the Immigration and Refugee Board (the
“Board”) shall comply with the rules that are set out in the following Code of
Conduct.
Rule 1 – Conduct Generally
a. Interpreters shall, at all times, conduct themselves with courtesy, discretion and
decorum and provide high-quality services to assist the Board in its proceedings.
b. On the day of the proceedings, the interpreter shall go directly to the reception
area or designated area for interpreters. A case management officer or a clerk will
meet the interpreter and inform him or her of the assigned case.
c. If the proceedings are recessed, adjourned, postponed or concluded the interpreter
shall return immediately to the reception area or designated area for interpreters to
await further instructions; in the event that the interpreter does not return
immediately to the reception/designated area, he or she shall keep the case
management officer or clerk informed of his or her whereabouts in case further
interpretation services are required.
d. At no time shall the interpreter withdraw from, or leave, a proceeding without
discussing the reasons for this with the presiding decision-maker.
Rule 2 – Competence
a. Interpreters shall only undertake to provide and shall only provide services for
which they have the required competence.
b. If at any time the interpreter believes that he or she is unable to competently
interpret or translate what is stated in the source language into the target language,
the interpreter shall, without delay, inform the case management officer or clerk
or the presiding decision-maker, as the case may be.
Rule 3 – Care, Skill, Diligence and Efficiency
Interpreters shall take all reasonable care to faithfully and accurately interpret or translate
what is stated in the source language into the target language, having regard primarily to
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meaning and secondarily to style, without any paraphrasing, embellishment, omission,
explanation, or expression of opinion, using the same person as in the source language
and the closest natural equivalent of the source language.
Rule 4 – Impartiality and Avoidance of Conflict of Interest
a. Interpreters shall be, and shall appear to be, objective and impartial at all times,
inside and outside the conference or hearing room, in relation to any matter for
which they provide services to the Board.
b. Interpreters shall avoid, and where it arises, shall, without delay, disclose to the
case management officer, clerk or presiding decision-maker, as the case may be,
any real, potential, or apparent conflict of interest in relation to any matter for
which they provide services to the Board.
Commentary:
i.
As soon as an interpreter becomes aware, for example, of any ties,
whether personal, professional, or other, that the interpreter has or may
have with the person with respect to whom he or she is providing
interpretation, the interpreter is required to disclose this fact, without
delay, to the case management officer or clerk or presiding decisionmaker, as the case may be.
ii.
An interpreter is likewise required to disclose, in the same manner and to
the same person, for example, any employment or other activity,
association, or private interest, (such as membership in an organization
that is critical of or in favour of the government of the country of origin of
the person concerned), that may be incompatible with his or her duties as
an interpreter.
iii.
An interpreter is also expected, for example, to refrain from giving advice
to, or discussing any aspect of a case with, any of the participants in the
proceedings for which the interpreter is providing services to the Board.
Rule 5 – Confidentiality
Interpreters shall keep confidential all information gained in the course of providing
services to the Board. More specifically, interpreters shall not, either within or outside
the Board premises, discuss, report on, or give an opinion concerning any matter for
which they provide services to the Board.
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Rule 6 – Compliance
Interpreters shall, without delay, disclose to the case management officer or clerk or the
presiding decision-maker, as the case may be, any matter of which they are aware that
may impede full compliance with this Code.
I have read and understood the Code of Conduct for Interpreters and hereby
undertake to comply with its provisions.
__________________________________
Printed Name
__________________________________
Signature
__________________________________
Date
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TABLE OF CASES
Abadi, Akbar Mokhtari v. M.C.I. (F.C.T.D., IMM-5440-97), Reed, November
26, 1998...................................................................................................................... 6-22
Abdibi, Abdol Mohammad v. M.C.I. (F.C.T.D., IMM-4906-97),
Tremblay-Lamer, June 26, 1998................................................................................ 6-22
Alexandrov, Serguei v. M.C.I. (F.C.T.D., IMM-1708-96), Jerome,
November 20, 1997.................................................................................................... 6-26
Amadasun, Osazuwa v. M.C.I. (F.C.T.D., IMM-927-97), Gibson,
August 18, 1997 ................................................................................................6-20, 6-33
Azofeifa, Kattia Perez v. M.C.I. (F.C.T.D., IMM-1889-94), McKeown,
December 21, 1994 .............................................................................................6-7, 6-15
Babir v. M.C.I. (F.C.T.D., IMM-4071-00) McKeown, August 9, 2001........................ 6-21
Banegas, Sandro Nahun Flores v. M.C.I. (F.C.T.D., IMM- 2642-96), McGillis,
June 30, 1997 ............................................................................................................. 6-22
Basyony, Mohamed v. M.E.I. (F.C.T.D., 92-A-4946), Reed, March 29, 1994 .............. 6-22
Boateng, Prince Agyenim v. M.E.I. (F.C.T.D., 92-T-1226), Rothstein,
November 24, 1993.................................................................................................... 6-16
Dhot v. M.C.I. (F.C.T.D., IMM-4968-00), Pinard, August 16, 2001 ............................ 6-21
Faiva v. Canada (M.E.I.), [1983] 2 F.C. 3 (C.A.) ......................................................... 6-18
Fuentes, Patricia Sandoval v. M.E.I. (F.C.A., A-450-78), Jackett,
Pratte, Ryan, November 20, 1978.............................................................................. 6-32
Garcia, Jairo Hernando Ravagli v. M.E.I. (F.C.T.D., 92-T-1854), Rothstein,
November 24, 1993.................................................................................................... 6-16
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Gholam-Nejad v. M.E.I. (F.C.T.D., IMM-2479-93), Gibson, March 31, 1994............. 6-22
Hagopian, Samvel v. M.E.I. (F.C.T.D., IMM-93-A-201), Noël, August 23,
1993............................................................................................................................ 6-22
Hamidu, Alasa v. M.C.I. (F.C.T.D., IMM-4886-97), Tremblay-Lamer,
June 25, 1998 ........................................................................................................6-16, 6-17
Ho, Li Hua v. M.C.I. (F.C.T.D., IMM-4301-97), Denault, September 3, 1998............. 6-22
Huang, Xin Tong Huang v. M.C.I. (F.C.T.D., IMM-2236-02), Snider,
March 19, 2003 .......................................................................................................... 6-21
Huynh, Cam Hoa v. M.E.I. (F.C.T.D., 92-T-1772), Rothstein, June 24, 1993.............. 6-20
Iantbelidze, Davit v. M.C.I. (F.C.T.D., IMM-3335-01), Heneghan, September 4,
2002................................................................................................................................ 6-21
Jiang, Xue Zhi v. M.E.I. (F.C.T.D., IMM-482-94), Gibson, April 13, 1994 ................. 6-22
Kainth, Ram Singh v. M.E.I. (F.C.T.D., 89-T-717), Muldoon, October 31, 1989......... 6-32
Kandola, Piara Singh v. M.E.I. (F.C.T.D., 89-T-735), Rouleau, January 30, 1990...... 6-25
Konadu, Yaa v. M.C.I. (F.C.T.D. A-985-92), Heald, November 20, 1996.................... 6-20
Lin, Zhen Shan Lin v. M.C.I. (F.C.T.D., IMM-5261-98), Evans, July 16, 1999 ........... 6-22
Mandi, El-Menouar v. M.C.I. (F.C.T.D., IMM-1952-97), Campbell,
February 24, 1998 ...................................................................................................... 6-24
Milic, Ljubivoje v. M.C.I. (F.C.T.D., IMM-1243-94), Rouleau, September 23,
1994............................................................................................................................ 6-26
Ming v. Canada (M.E.I.), [1990] 2 F.C. 336 (C.A.) .............................................6-27, 6-28
Mohammadian, Soliman v. Canada (M.C.I.), [2001]
4 F.C. 85 (C.A.) ............................................................................. 6-20, 6-21, 6-22, 6-25
Mosa, Hidat v. M.E.I. (F.C.A., A-992-92), Stone, Linden, Létourneau,
April 19, 1993 ...................................................................................................6-21, 6-22
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Poopalasingam, Thamilchelvan Selliah v. M.C.I. (F.C.T.D. IMM-4563-93),
Richard, January 30, 1995 ......................................................................................... 6-20
Prado, Gustavo Adolfo Ocampo v. M.C.I. (F.C.T.D., IMM-4727-97), Dubé,
October 29, 1998........................................................................................................ 6-32
R. v. Beaulac, [1999] 1 S.C.R. 768 ................................................................................ 6-11
R. v. Petrovic (1984) 47 O.R. (2d) 97 (C.A.)................................................................. 6-16
R. v. Tran, [1994] 2 S.C.R. 951 ........................................................... 6-2, 6-15, 6-22, 6-25
Roy v. Hackett (1987), 62 O.R. (2d) 351 (C.A.) ............................................................ 6-16
Sasani, Farzad v. M.E.I. (F.C.A., A-26-91), Heald, Hugessen, Stone, January 17,
1992............................................................................................................................ 6-32
Taire, Queen v. M.C.I. (F.C., IMM-2948-02), Blanchard,
July 15, 2003........................................................................................... 6-11, 6-16, 6-17
Tung v. Canada (M.C.I.) (1991), 124 N.R. 388 (F.C.A.) .....................................6-21, 6-22
Unterreiner v. The Queen (1980) 51 C.C.C. (2d) 373 (Ont. Co. Ct.)............................ 6-18
Varaich, Ravinder v. M.E.I. (F.C.T.D., 92-T-2129), Tremblay-Lamer,
March 11, 1994 .....................................................................................................6-27, 6-28
Vasile, Adrian. v. Canada (Secretary of State) (F.C.T.D. IMM-7576-93), Reed,
August 31, 1994 ......................................................................................................... 6-17
Weber v. Canada (M.M.I.), [1977] 1 F.C. 750 (C.A.) ................................................... 6-24
Yu, Li Na v. M.E.I. (F.C.T.D., IMM-569-93), Nadon, January 27, 1994 ……………..6-22
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TABLE OF CONTENTS
7.
DESIGNATED REPRESENTATIVE ................................................ 7-1
7.1
INTRODUCTION..................................................................................... 7-1
7.2
ROLE OF THE DESIGNATED REPRESENTATIVE .............................. 7-1
7.3
7.4
7.5
7.2.1
Assistance in decision making............................................................ 7-2
7.2.2
Distinction between the role of the designated representative
and the role of counsel ........................................................................ 7-2
7.2.3
Participation by a person who is under 18 years of age or
unable to appreciate the nature of the proceedings......................... 7-3
PROCEDURE FOR DESIGNATING A REPRESENTATIVE .................. 7-4
7.3.1
Steps before the hearing ..................................................................... 7-4
7.3.2
Duty to designate a representative .................................................... 7-5
7.3.3
Requirements for being designated................................................... 7-6
7.3.4
Choosing a designated representative............................................... 7-6
7.3.5
Information to be provided to the designated representative......... 7-8
PERSON UNDER 18 YEARS OF AGE .................................................. 7-9
7.4.1
Determining age .................................................................................. 7-9
7.4.2
Presence and participation by the person under 18 years of
age at the hearing.............................................................................. 7-10
PERSON UNABLE TO APPRECIATE THE NATURE OF THE
PROCEEDINGS.................................................................................... 7-11
7.5.1
Determining the inability to appreciate the nature of the
proceedings ........................................................................................ 7-12
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7.5.2
Medical reports ................................................................................. 7-12
7.5.3
Comments on the state of health ..................................................... 7-13
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7.
DESIGNATED REPRESENTATIVE
7.1
INTRODUCTION
The Act contains specific procedural guarantees for persons who may not be able to
understand the legal process in which they are participating. Subsection 167(2) of the Act
provides for the appointment of a representative for:
persons under 18 years of age (minors);
persons unable to appreciate the nature of the proceedings.
It reads as follows:
167. (2) If a person who is the subject of proceedings is under 18 years of
age or unable, in the opinion of the applicable Division, to appreciate the
nature of the proceedings, the Division shall designate a person to
represent the person.
This chapter explains the role of a designated representative, the procedure for
designating a representative and the case law that has evolved on the subject.
7.2
ROLE OF THE DESIGNATED REPRESENTATIVE
It is the member’s responsibility to ensure that the person whom he or she is preparing to
designate as a representative understands that role. When the prospective representative is
a professional, generally a lawyer or a social worker, it is usually unnecessary to explain
the role, because he or she should be quite familiar with it [see also 7.3.1 – Steps before
the hearing]. However, when the person is not familiar with IRB proceedings, usually a
family member or a friend, it is important that the member explain the role of
representative to that person [see also 7.3.5 – Information to be provided to the
designated representative].
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In Espinoza,1 the member designated the father as the representative for his three minor
children. The Federal Court wrote as follows at paragraph 29 of the decision:
[…] it is the responsibility of the Board, before designating a
representative to ensure that the representative understands what it is to
be a representative and the consequences of being named a representative
by the Board.
7.2.1 Assistance in decision making
A designated representative must act in the best interests of the person he or she is
representing by helping the person make decisions concerning the proceedings of which
he or she is to be the subject,2 especially to retain and instruct counsel. The extent to
which a designated representative may intervene in an admissibility hearing or detention
review can vary [see also 7.2.3 – Participation by a person who is under 18 years of age
or unable to appreciate the nature of the proceedings and 7.4.2 – Presence and
participation by the person under 18 years of age at the hearing].
7.2.2
Distinction between the role of a designated representative and the role
of counsel
A person may act as the designated representative and counsel at the same time.
However, the two roles must not be confused even though, in some respects, the
responsibilities of one may encroach on the responsibilities of the other. The designated
representative acts as a sort of litigation guardian in relation to the proceedings
concerning the person who is under 18 years of age or unable to appreciate the nature of
1
2
Espinoza, Oscar Francisco Anaya v. M.C.I. (F.C.T.D., IMM-4185-98), Teitelbaum, March 22, 1999.
For example, the designated representative at an admissibility hearing might decide to proceed by way
of admitting the allegations brought against the person he or she is representing if he or she believes
that, in the circumstances, it is in the person’s best interests to be returned to his or her own country as
soon as possible. At the detention review of an unaccompanied minor or person who is unable to
appreciate the nature of the proceedings and who has no financial means and no address, the
representative might argue that the necessary arrangements have been made with social services to
provide for the needs of the person being represented on a temporary basis and that the representative
can therefore supply an address for that person.
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those proceedings. The representative’s role is distinct from that of counsel, which is to
provide legal advice, prepare the case and present the evidence and make oral
submissions.
In some circumstances, the designated representative may be asked to testify if his or her
testimony is relevant to the decision that the member is to make and if, for example, the
person concerned is very young or if the extent of his or her ability is such that it would
be of little use, or even impossible, to question him or her. When the two roles are
assumed by one person, the member must inform that person that, if asked to testify, he
or she cannot act as counsel.
7.2.3
Participation by a person who is under 18 years of age or unable to
appreciate the nature of the proceedings
The designation of a representative for a person who is under 18 years of age or unable to
appreciate the nature of the proceedings does not mean that that person cannot take part
in the hearing. The role of a designated representative varies depending on the
represented person’s level of understanding.
As much as possible, the designated representative should explain, in simple terms, the
purpose and possible consequences of the hearing and invite the represented person to
take part in the decisions that concern him or her. For example, a 17-year-old student will
naturally have a right to influence the proceedings, whereas an 8-year-old will depend
almost entirely on the representative. Similarly, a person who is unable to appreciate the
nature of the proceedings and who suffers from a temporary attention deficit should be
consulted more than a person who has a serious cognitive impairment.
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7.3
IRB
PROCEDURE FOR DESIGNATING A REPRESENTATIVE
7.3.1
Steps before the hearing
Rules 3(o) and 8(1)(m) provide that the Minister must inform the Immigration
Division if he or she believes that a person who is to be the subject of an admissibility
hearing or a detention review is less than 18 years of age or is unable to appreciate the
nature of the proceedings.
This duty is also imposed on counsel. Under the provisions of Rule 18, counsel must
also provide contact information for any person in Canada who, in his or her opinion,
meets the requirements to be designated as a representative. Usually, this is the father,
mother, another family member or a friend.3
When the registry office receives such information, it will make arrangements to ensure
that the prospective designated representative is present on the day fixed for the hearing.
If necessary, the counsel of record is consulted. Furthermore, when there is a counsel of
record, it is very often a member of the person’s family in Canada who has retained the
person’s counsel.
If the parties do not know anyone who meets the requirements to be designated as a
representative for the person less than 18 years of age or unable to appreciate the nature
of the proceedings, the registry office will make arrangements to ensure that such a
person is present. The IRB has agreements to that effect with various organizations
depending on the region (for example, lawyers’ associations, provincial social services,
NGOs).
3
A legal guardian other than the parents would also be an appropriate person to act as designated
representative, but it is rare for a person less than 18 years of age or unable to appreciate the nature of
the proceedings to have a legal guardian in Canada.
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Consequently, a potential representative is usually already present on the day fixed for
the hearing. If the member sees that the person concerned is less than 18 years of age or
is unable to appreciate the nature of the proceedings and no representative is present in
the hearing room, the hearing will have to be adjourned so that the registry office can
arrange to have a representative present when the hearing resumes.
7.3.2
Duty to designate a representative
Even if a possible representative is present in the hearing room, the responsibility to
designate him or her as representative lies with the member. The member must
perform this duty at the outset of the hearing or risk invalidating the entire proceeding. In
Phillip,4 the member first questioned the children, aged five and eight years, in the
absence of their mother and then designated her as their representative and provided her
with a summary of the children’s testimony. The Federal Court quashed the member’s
decision and noted that, although a late designation does not always invalidate the entire
proceeding, a representative should be designated at the outset of the hearing. If the need
to appoint a representative for a person less than 18 years of age or unable to appreciate
the nature of the proceedings does not become evident until later in the course of the
hearing, the member will have to decide whether the hearing should proceed or
recommence, depending on the evidence that has been presented.
Someone must be designated as a representative, even if the person less than 18 years
of age or unable to appreciate the nature of the proceeding is accompanied by counsel. In
Kissoon,5 the Federal Court of Appeal ruled that the adjudicator (member) erred in law
by failing to designate a representative for a 17-year-old who was accompanied by
counsel. This principle has been followed by the Federal Court. In Csonka,6 the Court
reiterated that the duty to designate a representative and added that the hearing
transcript must clearly reflect the designation.
4
5
6
Phillip, Mary Francisca v. M.C.I. (F.C.T.D., IMM-434-98), Rothstein, December 11, 1998.
Kissoon v. Canada (M.E.I.), [1979] 1 F.C. 301 (C.A.).
Csonka, Miklos v. M.C.I. (F.C.T.D., IMM-6268-99), Lemieux, August 17, 2001.
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7.3.3
IRB
Requirements for being designated
Even if a prospective representative is already present in the hearing room, the question
of whether that person is suitable to represent a person less than 18 years of age or unable
to appreciate the nature of the proceedings is the responsibility of the member, who
must determine whether the person meets the requirements to act as a representative.
Rule 19 sets out the requirements for a person to be designated as a representative. The
person must:
(a)
be 18 years of age or older;
(b)
understand the nature of the proceedings;
(c)
be willing and able to act in the best interests of the permanent resident or foreign
national;
(d)
not have interests that conflict with those of the permanent resident or foreign
national.
7.3.4
Choosing a designated representative
When one of the two parents, a family member or a friend of the person concerned is in
Canada and appears to meet the requirements of Rule 19, that person will usually be
designated to act as representative.
The age of the representative can easily be verified. More often than not, no verification
is necessary because it is obvious that the prospective representative is older than 18. It is
also relatively easy to determine whether the prospective representative understands the
nature of the proceedings by asking the person to explain it briefly in his or her own
words. The member must ensure that the representative understands the purpose of the
hearing and its possible consequences for the person concerned.
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In Espinoza,7 the father was designated as the representative for his three minor children.
The family of five, which had claimed refugee protection, consisted of the father, a
Salvadorian, the mother and the three children, who were Mexicans. The member
allowed the mother’s claim and rejected that of the father and the three children. The
Federal Court ruled that the member had erred in designating the father without ensuring
that he understood his role as the representative for his children and the consequences
that could ensue from a negative decision with respect to the children. It quashed the
member’s decision concerning the three children, finding that they had been denied a fair
hearing. It is therefore up to the member to determine which person is the most apt
to act as a representative.
Generally speaking, it is presumed that the father, mother, family member or friend is
ready and able to act in the interests of the person concerned and that he or she does not
have interests that conflict with those of the person concerned. However, some situations
warrant an investigation of these two points.
For example, where a person less than 18 years of age is accompanied by one parent and
the other parent is not present, it is always prudent to enquire as to the whereabouts of the
absent parent and the family situation. The parents could be separated, and custody of the
minor could be a subject of conflict. Where the person less than 18 years of age or unable
to appreciate the nature of the proceedings is accompanied by a family member or a
friend, it is always appropriate to ask where the parents are and to enquire about the
circumstances of the trip to Canada (organization and purpose of the trip) and about the
other people the person knows in Canada. Persons under 18 years of age or unable to
appreciate the nature of the proceedings are vulnerable and might be victims of human
trafficking.
If the person knows no one who is qualified to act as his or her representative, the
member may designate a professional, usually a lawyer or a social worker. The registry
office will very often have made the necessary arrangements, and the prospective
7
Supra, note 1.
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representative will be present in the hearing room. It can be assumed that a professional
will meet the requirements of Rule 19. If there is any doubt, the member can question the
representative to ensure that he or she has the knowledge and experience required to act
as representative and that he or she is subject to a professional code of ethics.
When the member is not convinced that the prospective representative meets the
requirements for designation, the member should share his or her doubts with the parties
and, if necessary, adjourn the hearing so that arrangements can be made to have another
representative present.
A designation of someone to act as representative may be changed. If it becomes
apparent in the course of a hearing that the designated representative is not performing
his or her role correctly, the member should replace the representative. The reasons for
this decision should be given.
7.3.5
Information to be provided to the designated representative
The designated representative should be informed of the reasons for his or her
designation, his or her role, the purpose and possible consequences of the hearing for the
person concerned, and his or her right to retain a lawyer or other counsel. The member
should ensure that the designated representative has been given a copy of all the
documents that will be used at the hearing. If the designated representative decides not to
retain counsel, it is important to find out whether he or she is also assuming the role of
counsel. The transcript of the proceedings must clearly reflect the role or roles of each.
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7.4
IRB
PERSON UNDER 18 YEARS OF AGE
The member must designate a representative for any person who has not reached
the age of 18.8 When the person concerned is under 18, the member must designate a
representative, and it is not necessary to assess whether the person concerned appreciates
the nature of the proceedings.9
Sometimes, a representative is designated at the outset of the hearing because the person
concerned is not quite 18 years of age. If the hearing is continued and the person turns 18
between two sittings, the services of the representative are no longer required, and he or
she should be relieved of his or her duties.
7.4.1
Determining age
Generally speaking, a person’s age is easy to determine and may be established by an
identity or other document. If there is no document whereby the age of the person
concerned can be determined, a statement by the person as to his or her date of birth is
usually sufficient to determine whether a representative needs to be designated. It
sometimes, but seldom, happens that young people travelling alone are afraid to reveal
that they are minors or are in possession of false identity papers, especially if they have
travelled with an agent. Whenever possible, a member who has doubts about the real age
of a young person because of that person’s physical appearance or for other reasons
should try to sort out the matter. The decision on whether or not to designate a
representative must be based on the evidence available.
8
9
Stumf, Gyozo, Hajnalka Illyies and Hajnalka Vivien v. (M.C.I.) (F.C.A., A-699-00), Stone, Evans,
Sharlow, April 23, 2002.
Quinteros, Fabiana Jacqueline v. M.C.I. (F.C.T.D., IMM-3519-93), McGillis, October 12, 1995.
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7.4.2
IRB
Presence and participation by the person under 18 years of age at the
hearing
As explained in section 7.2.3 – Participation by a person under 18 years of age or unable
to appreciate the nature of the proceedings, the role of the designated representative
varies depending on the minor’s age, which is often indicative of the person’s ability to
understand the nature of the proceedings. It is up to the member, however, to determine
whether the minor should be present during the entire proceedings and the extent to
which the minor should participate.
It is always preferable for a minor who is the subject of the hearing to be present at the
hearing. However, when the minor is very young and clearly cannot participate in the
hearing, his or her presence is not necessary as long as the designated representative and
counsel, if any, are present throughout the entire proceedings. In fact, it is sometimes
preferable to exclude very young children if they are so unruly that they disrupt the
smooth conduct of the hearing. The designated representative and counsel, if any, should
always be consulted before excluding a minor who is the subject of a hearing. If they
consider his or her presence necessary, it is up to them to argue that he or she should
remain.10
When the minor is old enough to testify,11 it is preferable to require his or her presence.
In Mandi,12 children aged 12, 15 and 16 were excluded from the hearing room. The
Federal Court ruled that, before excluding the minors, the panel should have (1) ensured
that counsel consulted the designated representative (in this case, the mother) to
determine whether she wanted the children to be excluded; (2) asked the designated
representative whether she wanted the children to be excluded; and (3) asked the children
whether they wanted to be excluded. It also should have been determined whether the
children would be asked to testify.
10
11
12
Ali, Abdourahman v. M.C.I. (F.C.T.D., T-3026-92), Dubé, July 26, 1995.
Generally, about the age of 7 [for more details, see Chapter 13 – Evidence and Submissions.
Mandi, El-Menouar v. M.C.I. (F.C.T.D., IMM-1952-97), Campbell, February 24, 1998.
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When the minor is old enough to testify, the designated representative should be
consulted before allowing the Minister’s counsel to call the minor as a witness or even to
require his or her testimony. If the member finds that the minor’s testimony is necessary,
the minor and his or her representative must be allowed to prepare. In Ganji,13 the
Federal Court ruled that there was a denial of natural justice when the panel ordered a
15-year-old girl to testify without consulting her designated representative, in that case,
her mother, and without allowing them to prepare.
7.5
PERSON UNABLE TO APPRECIATE THE NATURE OF THE
PROCEEDINGS
The member must designate a representative for any person who, in the member’s
opinion, is unable to appreciate the nature of the proceedings. If there is no indication to
the contrary, it is reasonable to assume that the person concerned can appreciate the
nature of the proceedings. Sometimes, the incapacity will not be apparent until the
hearing, but, more often than not, the Minister’s counsel or the counsel for the person
concerned will indicate that a designated representative may be necessary. This opinion is
generally based on:
medical reports concerning the mental state or intellectual ability of
the person concerned; or
difficulties noted in meetings or discussions with the person concerned
before the hearing.
It is up to the member to determine whether the person concerned is able to appreciate the
nature of the proceedings of which he or she is the subject. To do so, the member must
consider several factors.
13
Ganji, Shalah Namdar v. M.C.I. (F.C.T.D., IMM-3632-96), Gibson, August 29, 1997.
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7.5.1
IRB
Determining the inability to appreciate the nature of the proceedings
To decide whether the person concerned is able to appreciate the nature of the
proceedings, the member may base himself on the following factors:
admissions by the person who is the subject of the proceedings
concerning his or her inability to understand what is going on;
the testimony or report of an expert on the mental health or cognitive
abilities of the person who is the subject of the proceedings;
the behaviour observed at the hearing (namely, the responses of the
person who is the subject of the proceedings to the questions that are
put to him or her); and
the observations of the parties.
Unless the nature of the illness prevents it, the member should always talk to the person
who is the subject of the proceedings before designating a representative. In order to
determine whether the person who is the subject of the proceedings appreciates the nature
of the proceedings, the member should explain the possible consequences of the hearing
in very simple terms and, then, ask the person to explain them in his or her own words. If
the person is unable to do so, this will usually demonstrate the person’s inability to
appreciate the nature of the proceedings and will justify the designation of a
representative for him or her.
7.5.2
Medical reports
The fact that there are medical reports does not mean that a representative should
automatically be designated. A person may have a mental illness or limited intellectual
skills but still be able to appreciate the nature of the proceedings. Medical reports are one
factor that the member should consider. They must be current. Sometimes, they are
sufficiently precise and detailed to indicate that it will probably be necessary to designate
a representative, but the member must consider other factors, in particular, the behaviour
of the person concerned, before designating a representative.
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7.5.3
IRB
Comments on the state of health
The member should avoid making specific comments about the mental health or
intellectual capacity of the person concerned, unless expert evidence supports a finding to
that effect (the member is generally not qualified to do this). The member only has to
form an opinion that the person is unable to appreciate the nature of the proceedings of
which he or she is to be the subject.
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TABLE OF CASES
Ali, Abdourahman v. M.C.I. (F.C.T.D., T-3026-92), Dubé, July 26, 1995.................... 7-10
Csonka, Miklos v. M.C.I. (F.C.T.D., IMM-6268-99), Lemieux, August 17, 2001.......... 7-5
Espinoza, Oscar Francisco Anaya v. M.C.I. (F.C.T.D., IMM-4185-98),
Teitelbaum, March 22, 1999.................................................................................7-2, 7-7
Ganji, Shalah Namdar v. M.C.I. (F.C.T.D., IMM-3632-96), Gibson, August 29,
1997............................................................................................................................ 7-11
Kissoon v. Canada (M.E.I.), [1979] 1 F.C. 301 (C.A.).................................................... 7-5
Mandi, El-Menouar v. M.C.I. (F.C.T.D., IMM-1952-97), Campbell, February 24,
1998............................................................................................................................ 7-10
Phillip, Mary Francisca v. M.C.I. (F.C.T.D., IMM-434-98),
Rothstein, December 11, 1998..................................................................................... 7-5
Quinteros, Fabiana Jacqueline v. M.C.I. (F.C.T.D., IMM-3519-93),
McGillis, October 12, 1995 ......................................................................................... 7-9
Stumf, Gyozo, Hajnalka Illyies and Hajnalka Vivien v. (M.C.I.)
(F.C.A., A-699-00), Stone, Evans, Sharlow, April 23, 2002....................................... 7-9
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TABLE OF CONTENTS
8.
RIGHT TO COUNSEL............................................................. 8-1
8.1
INTRODUCTION..................................................................................... 8-1
8.2
STATUTORY PROVISIONS ................................................................... 8-1
8.3
8.2.1
Minister’s counsel ............................................................................... 8-2
8.2.2
Counsel for the person who is the subject of the proceeding.......... 8-3
8.2.2.1
Information concerning counsel.......................................... 8-3
8.2.2.2
Withdrawal as counsel of record.......................................... 8-4
8.2.2.3
Removal of counsel of record............................................... 8-5
PRINCIPLES FROM THE CASE LAW ................................................... 8-6
8.3.1
Right to counsel before the hearing................................................... 8-6
8.3.2
Right to counsel at a hearing before the Immigration
Division ................................................................................................ 8-8
8.3.2.1
Lawyer versus other counsel .............................................. 8-10
8.3.2.2
In the absence of counsel ................................................... 8-11
8.3.2.2.1
8.3.2.2.2
8.3.2.2.3
Admissibility hearing .............................................. 8-12
Detention review ...................................................... 8-13
Admissibility hearing for a detained person ......... 8-13
8.3.2.3
Counsel not ready to proceed ............................................. 8-13
8.3.2.4
Incompetent counsel ........................................................... 8-16
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8.
RIGHT TO COUNSEL
8.1
INTRODUCTION
IRB
The Act provides that the parties may be represented by a barrister or solicitor or other
counsel. In addition, the Charter guarantees the right to counsel in certain circumstances.
This chapter discusses the statutory provisions concerning the right to counsel and the
case law principles on the subject.
8.2
STATUTORY PROVISIONS
Subsection 167(1) of the Act provides for the right to be represented before the Board by
a barrister or solicitor or other counsel. It is worded as follows:
167. (1) Both a person who is the subject of Board proceedings and the
Minister may, at their own expense, be represented by a barrister or
solicitor or other counsel.1
The English version is far more specific and clearly reflects the right of both parties to a
barrister or solicitor or other counsel. The French version of subsection 167(1) reads
as follows:
167. (1) L’intéressé peut en tout cas se faire représenter devant la
Commission, à ses frais, par un avocat ou un autre conseil.
1
With regard to the French version of subsection 167(1), it might be wondered who the “intéressé” is
before the Immigration Division. The logical answer would be that it is the Minister, since the person
who is the subject of the proceedings has no interest in being the subject of an admissibility hearing
with a view to his or her removal from Canada or in being detained. The French term is somewhat
overused in the Act and Regulations. It refers to the parties in subsection 167(1) of the Act (see the
English version). However, it is used, particularly in subsection 167(2), in relation to the designation of
a representative, and in several places in the Regulations (see, for example, sections 246 and 247) to
designate the person who is the subject of the proceeding before the Division.
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In addition, if a detention is involved, the right to counsel is guaranteed by section 10 of
the Charter and paragraph 2(c)(ii) of the Canadian Bill of Rights:2
10. Everyone has the right on arrest or detention
(a)
(b)
(c)
to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and to be informed
of that right; and
to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not lawful.
2. Every law of Canada shall, unless it is expressly declared by an Act of
the Parliament of Canada that it shall operate notwithstanding the
Canadian Bill of Rights, be so construed and applied as not to abrogate,
abridge or infringe or to authorize the abrogation, abridgment or
infringement of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be construed or
applied so as to
(c) deprive a person who has been arrested or detained […]
(ii) of the right to retain and instruct counsel without delay
[…]
8.2.1
Minister’s counsel
A number of public servants are designated to represent the Minister before the IRB.
They are not necessarily lawyers. The Minister’s counsel is sometimes, although rarely,
accompanied by a lawyer from the Department of Justice who is also instructed to
represent the Minister at the hearing. This may happen when complex questions of law
are raised.
When two counsel represent the Minister at a hearing, the member should clarify the role
of each at the outset of the hearing to avoid having two counsel who represent the same
party intervene at every turn with regard to the same issue, which would complicate and
needlessly prolong the proceeding. The two counsel may consult each other and take
2
8-9 Eliz. II, c. 44; R.S.C. 1985, App. III.
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turns handling different issues, or they may decide that one of them will act as
spokesperson throughout the proceeding. The same is true of counsel for the person who
is the subject of the proceeding, if that person has more than one counsel [see
section 8.2.2 – Counsel for the person who is the subject of the proceeding].
8.2.2 Counsel for the person who is the subject of the proceeding
The person who is the subject of the proceeding has a right to be represented by a
barrister or solicitor or other counsel. “Other counsel” can be anyone. Sometimes, the
person chooses to be represented by a family member or a friend who has no knowledge
of IRB proceedings. In that case, the best approach is to explain counsel’s role because,
often, the family member or friend is there more to offer moral support to the person or to
testify than to represent the person. In short, counsel’s role is to give legal advice, to
adduce evidence, including by examining witnesses, and to make submissions.
Some people act as “immigration consultants” for a fee. Such people generally have
experience in immigration matters and do not need to have their role explained. The
member should remain alert, however, because such people are not governed by rules of
professional conduct3 [see also section 8.3.2.1 – Lawyer versus other counsel].
8.2.2.1
Information concerning counsel
The person who is the subject of the proceeding is usually informed by Citizenship and
Immigration Canada of his or her right to be represented by a lawyer or other counsel at
the hearing. The Notice to Appear (Rule 22) also refers to this. Consequently, counsel is
often already counsel of record (Rule 13) and present on the day fixed for the hearing.
3
This situation is likely to change in the near future, because the Minister has announced the creation of
a self-regulating independent agency, the Canadian Society of Immigration Consultants (CSIC).
For more details, go to http://www.cic.gc.ca/english/press/03/0347-pre.html. See also Shirwa v.
Canada (M.E.I.), [1994] 2 F.C. 51. In this case, the Federal Court allowed the application for judicial
review for several reasons, including counsel’s incompetence. Counsel was not a lawyer, and the Court
emphasized that “the applicant was led to believe that Mr. Flynn was a lawyer and this
misrepresentation was not corrected at the hearing.”
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Under Rules 3(i) and 8(1)(f), the Minister must provide the Division’s registry office with
the contact information of counsel for the person who is the subject of the proceeding.
Often, the person will not have obtained counsel at the time of the Minister’s request for
an admissibility hearing or a detention review, especially if the person has been arrested
and detained. Rule 12 therefore provides that the person who is the subject of the
proceeding must provide the Division and the Minister with counsel’s contact
information as soon as the person has obtained counsel and must inform them if that
information changes. These provisions enable the registry office to contact counsel to fix
a date and time for the hearing that will be convenient for the parties to the extent
possible. In this way, it is possible to avoid an adjournment of the hearing on the grounds
that counsel is not available.
Rules 13, 14 and 15 provide for the Division’s recognition of counsel of record and the
circumstances in which counsel ceases to be counsel of record. These provisions are
applicable at any time between the receipt of the notice that a hearing is to be held and
the conclusion of the hearing. It is important for counsel to be on the Division’s record
for, among other things, any application counsel may want to make before, during or
after the hearing in connection with the case, especially if the hearing is held in private.
8.2.2.2
Withdrawal as counsel of record
According to Rule 14, counsel wanting to withdraw from a case must notify the Division
and the Minister in writing as soon as possible. A withdrawal on the day of the hearing
may result in an adjournment since the member will have to offer the person who is the
subject of the proceeding the opportunity to retain and instruct another counsel. It may be
that counsel cannot be prevented from withdrawing from a case,4 but the member is
entitled to ask for explanations for counsel’s withdrawing at such a late date and should
require written notification.
4
Rule 14 provides that counsel ceases to be counsel of record as soon as the Division receives the notice
of withdrawal. The withdrawal of counsel of record is not to be confused with the withdrawal of a case,
which can lead, according to subsection 168(2) of the Act, to an abuse of process [for more details, see
Chapter 14 – Decisions and Reasons].
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Occasionally, counsel decides to withdraw from a case simply because he or she did not
obtain a favourable response to an application or an objection. Such conduct is
reprehensible.5 The member does not have the power to cite the counsel for contempt of
court as a judge can, but the member may indicate that, in his or her opinion, such
conduct demonstrates a lack of professionalism. Furthermore, if counsel is a lawyer, the
member may remind counsel of his or her duties under the applicable rules of
professional conduct. If counsel still decides to withdraw from the case, he or she should
be asked to leave the hearing room immediately.
The person who is the subject of the proceeding should then be informed of his or her
right to be represented by another counsel. If the person exercises this right, the hearing
must be adjourned. In such circumstances, the member is entitled to refuse to allow the
previous counsel to appear again when the hearing continues. The right of the person who
is the subject of the proceeding to be represented by counsel of his or her choice is not
unlimited. The person should be informed that he or she will have to appear with another
counsel when the hearing continues. Depending on the circumstances, the member could
fix a peremptory date for the continuation of the hearing [see also section 8.3.2 – Right to
counsel at a hearing before the Immigration Division].
8.2.2.3
Removal of counsel of record
According to Rule 15, a person who wants to remove counsel of record must notify the
Division and the Minister in writing as soon as possible. As in the case of a withdrawal
by counsel of record, the removal of counsel on the day of the hearing should be an
exceptional occurrence. If it happens, counsel must be asked to leave the hearing room.
The member must then ask the person who is the subject of the proceeding whether he or
she wants to retain and instruct another counsel. If the person wants to do so, the member
will have to assess the credibility of the reasons given by the person for removing his or
her counsel at the last minute and all the circumstances of the case. If, in the member’s
opinion, the reasons are frivolous and there are serious indications that the removal of
5
See, for example, Acquah, Agnes v. M.E.I. (F.C.T.D., 93-T-32), Rothstein, July 5, 1994; Castroman
(Vezzani), Carlos Adrian v. S.S.C. (F.C.T.D., A-1302-92), McKeown, June 20, 1994.
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counsel is just a delaying tactic, the member is justified in refusing to grant an
adjournment so that another counsel can be obtained [see also section 8.3.2 – Right to
counsel at a hearing before the Immigration Division].
8.3
PRINCIPLES FROM THE CASE LAW
8.3.1
Right to counsel before the hearing
The right to counsel at various stages of the immigration process has been raised in
various cases, including Dehghani.6 In that case, it was argued that denial of the right to a
lawyer during the examinations conducted by immigration officers at the port of entry
infringed the rights guaranteed by section 7 and paragraph 10(b) of the Charter.7 The
Supreme Court of Canada decided that questioning by an immigration officer at the port
of entry is a routine part of the general screening process for persons seeking entry to
Canada. The same is true of secondary examinations by immigration officers.8
With respect to section 7 of the Charter, the Court decided that the principles of
fundamental justice do not include a right to counsel for routine information-gathering
purposes. However, the Court indicated that denial of the right to counsel during a
hearing could constitute an infringement of the right guaranteed by section 7 of the
Charter.
6
7
8
Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R. 1053.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
10. Everyone has the right on arrest or detention
[…]
(b) to retain and instruct counsel without delay and to be informed of that right ;[…]
At the port of entry, the primary examination is usually conducted by the customs officer, who acts,
among other things, as an immigration officer. If the customs officer has doubts concerning the
admissibility of the person whom he or she is questioning, the officer directs the person to a Citizenship
and Immigration Canada officer for a second examination that constitutes the “secondary
examination.” Sometimes, the person may undergo a third examination by another immigration officer;
this is also part of the “secondary examination.”
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With regard to paragraph 10(b) of the Charter, the Court decided that, even if the person
experienced restrictions on his or her freedom while waiting for his or her application to
be processed, this is not a detention within the meaning of paragraph 10(b) of the Charter.
When a person tries to enter Canada at a port of entry, the exact moment when the person
is considered to be detained within the meaning of section 10 of the Charter is not clearly
defined and depends on the circumstances of the case. In that regard, the Supreme Court
of Canada cited the comments of Finlayson J. in Kwok:9
Finlayson J.A. stated at p. 207 that “[s]urely there must be some action
on the part of the immigration authorities to indicate that the restriction
on an immigrant’s freedom has gone beyond that required for the
processing of his application for entry and has become a restraint of
liberty such as that contemplated by Le Dain J.” in Therens [R. v.
Therens, [1985] 1 S.C.R. 613], supra. The court held that “the [accused]
was detained when [the senior immigration officer], having filled out the
detained convocation letter, invited the [accused] and [his co-accused]
into his office with the intention of advising them of his decision to
detain them”. Finlayson J.A. apparently relied on the combination of a
decision by the senior immigration officer to detain, and his action in
calling the accused into his office to determine the point at which a
detention had occurred for constitutional purposes.10
In Dragosin,11 the Federal Court set aside the exclusion order issued by an immigration
officer because, among other things, the applicant’s right to counsel had not been
respected. Mr. Dragosin was questioned for the first time, by an officer on his arrival on
November 3, 2001. He was then taken to the regional detention centre and, on
November 5, 2001, he was questioned for the second time after which the officer issued
the exclusion order. The Minister, relying on Dehghani, argued that the applicant’s right
to counsel arose only when the exclusion order was issued on November 5.
MacKay J. emphasized that the facts differed significantly in two respects from those in
Dehghani. Mr. Dehghani was first examined and was then sent to another part of the
9
10
11
R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.).
Supra, note 6, p. 1068.
Dragosin, Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay, January 27, 2003. See also Patrasc,
Gabriel v. M.C.I. (F.C.T.D., IMM-5262-01), MacKay, January 27, 2003.
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airport, where he waited for four hours before undergoing a second examination. Before
yet another examination, Mr. Dragosin waited for two days, during which time he was
detained at the regional detention centre, which constituted a detention for constitutional
purposes. His right to counsel arose at the moment that he was ordered to be detained at
the regional correctional centre.
Section 7 of the Charter was apparently not raised as it had been in Dehghani. The issue
of whether the principles of fundamental justice include the right to counsel when a
person is not detained but is subject to an examination that could lead to the issuance of a
removal order by an officer has therefore not been settled.
8.3.2
Right to counsel at a hearing before the Immigration Division
The right to counsel at a hearing before the Immigration Division is provided for in
subsection 167(1) of the Act. In addition, as regards detention reviews, the right is
guaranteed under section 10 of the Charter and paragraph 2(c)(ii) of the Canadian Bill of
Rights.12
In the case of examinations concerning persons who are not detained, the right to
counsel is guaranteed by section 7 of the Charter. In Dehghani,13 the Supreme Court of
Canada wrote the following at page 1077 of the decision:
While the right to counsel under s. 7 may apply in other cases
besides those which are encompassed by s. 10(b), for example in
cases involving the right to counsel at a hearing, it is clear from my
earlier comments that the secondary examination of the appellant at the
port of entry is not analogous to a hearing. [Emphasis added.]
The member must ensure that the person who is the subject of the proceeding fully
understands his or her rights and must give the person the opportunity to retain and
12
13
Supra, note 2.
Supra, note 6.
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instruct counsel. What constitutes an “opportunity” depends on the circumstances of each
case. The case law on this subject varies greatly, each case being decided on its own
merits.14 However, some principles may be drawn from the case law;
The right to counsel of one’s choice is not absolute.15
The panel may try to help counsel, but it is not required to adjust to
counsel’s availability.16
The panel must take into consideration the efforts made by the person
who is the subject of the proceeding to be represented by counsel.
Counsel’s occasionally poor conduct cannot be imputed to a person in
good faith.17
In order to determine whether to grant an adjournment to enable the
person who is the subject of the proceeding to be represented by
counsel, the panel must consider all of the circumstances of the case
and all relevant factors.18
In Siloch,19 the Federal Court of Appeal listed the factors that the member should take
into account in determining whether to grant an adjournment to permit the person to avail
himself or herself of the right to be represented by counsel. These factors are not
exhaustive:
14
15
16
17
18
19
See for example Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992;
Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh, November 27, 1992; Siloch, Hancy
v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary, January 11, 1993; Edumadze, Margaret v.
M.E.I. (F.C.T.D., 92-T-1238), Rouleau, January 18, 1993; Ali, Umer v. M.C.I. (F.C.T.D.,
IMM-5212-00, Dawson, March 7, 2002; Tokar, Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry,
January 24, 2003.
Tokar, Milan v. M.C.I., supra, note 14; Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99),
[2000] F.C.J. No. 804, Dubé, June 1, 2000; Dadi, Kamel v. M.C.I. (F.C.T.D., IMM-4195-98), Pinard,
August 12, 1999; Pilnitz, Viktor v. M.C.I. (F.C.T.D., IMM-1205-96), Tremblay-Lamer, March 7, 1997;
Afrane v. Canada (M.E.I.) (1993), 20 Imm. L.R. (2d) 312.
Aseervatham, Vimalathas v. M.C.I., supra, note 15; Nemeth, Imre Janos et al. v. M.C.I. (F.C.T.D.,
IMM-2522-02), O’Reilly, May 14, 2003.
Siloch, Hancy v. M.E.I., supra, note 14; Calles v. Canada (M.E.I.) (1990), 12 Imm. L.R. (2d) 48;
Desousa v. Canada (M.E.I.) (1988), 5 Imm. L.R. (2d) 73.
Siloch, Hancy v. M.E.I., supra, note 14; Dias, Ernesto Fabian et al. v. M.C.I. (F.C.T.D.,
IMM-2593-01), Heneghan, January 27, 2003.
Supra, note 14, p. 2.
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whether the applicant (the person who is the subject of the proceeding)
has done everything in his or her power to be represented by counsel;
the number of previous adjournments;
the length of time for which the adjournment is being sought;
the effect on the immigration system;
whether the adjournment would needlessly delay, impede or paralyse the
conduct of the proceeding;
the fault or blame to be placed on the applicant (the person who is the
subject of the proceeding) for not being ready;
whether any previous adjournments were granted on a peremptory basis;
any other relevant factors.
This case was decided under the former Immigration Act, but the principles continue to
apply. At that time, the Rules were less clear on this issue. The member should also
consider the factors set out in Rule 43 concerning applications to change the date or time
of the hearing, some of which are similar to the factors listed by Décary J. in Siloch [see
also Chapter 10 – Changing the Date or Time of a Hearing].
8.3.2.1
Lawyer versus other counsel
While subsection 167(1) of the Act allows recourse to counsel other than a lawyer, the
Charter guarantees the right to counsel. It is therefore necessary to ensure that the person
who is the subject of the proceeding fully understands his or her right to a lawyer or other
counsel. When counsel at the hearing is a lawyer, the member may simply acknowledge
him or her as playing this role for the person who is the subject of the proceeding and
proceed with the hearing. However, if counsel at the hearing is not a lawyer, the person
who is the subject of the proceeding must be reminded of his or her right to be
represented by a lawyer and should be asked to confirm that he or she has instructed the
person accompanying him or her to act as his or her counsel. A person who freely decides
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to be represented by counsel other than a lawyer cannot argue later that his or her Charter
rights have been infringed.
8.3.2.2
In the absence of counsel
When the person who is the subject of the proceeding is not accompanied by counsel, the
member must inform the person of his or her right to be represented, at his or her own
expense, by a barrister or solicitor or other counsel. Although the person who is the
subject of the proceeding is, in principle, informed before the hearing of his or her right
to be represented by counsel, it is not uncommon for the person to appear alone at the
hearing. The person may not have been informed of his or her right to counsel or may not
have understood. When the member informs the person who is the subject of the
proceeding of his or her right to counsel at the hearing, the person may request an
adjournment in order to take advantage of this right.
The person may also ask for an adjournment of the hearing because he or she has not
obtained counsel who will represent him or her or because he or she has retained
someone who is not available on the day of the hearing. A request for an adjournment to
enable counsel to be present will be treated differently depending on whether an
admissibility hearing or a detention review is involved [see sections 8.3.2.2.1 –
Admissibility hearing and 8.3.2.2.2 – Detention review].
The member should proceed with the hearing if the person says that he or she does not
want to be represented by counsel. In Pierre,20 the Federal Court of Appeal wrote as
follows at page 876:
In any proceeding, the person concerned, being aware or having been
properly informed of his right to counsel, chooses to act on his or her
own behalf, he or she cannot later attack the regularity of the proceedings
because he was not represented by counsel. If his choice is to proceed
20
Pierre v. Canada (M.M.I.), [1978] 2 F.C. 849 (C.A.); see also Nemeth, Imre Janos et al. v. M.C.I.,
supra, note 16.
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personally, and he has rejected the opportunity to secure counsel, he has
not been denied counsel.
Sometimes, the person would like to be represented by counsel, but cannot afford the
cost.21 Unless the person can call on an acquaintance in Canada who would be prepared
to represent him or her at no cost, the person cannot avail himself or herself of this right.
The person’s lack of desire or his or her financial inability to exercise his or her
right to counsel does not warrant an adjournment of the hearing.
8.3.2.2.1
ADMISSIBILITY HEARING
When the person who is the subject of the proceeding is not accompanied by counsel, it is
usually appropriate to grant an initial adjournment to allow the person to obtain a lawyer
or other counsel or, if the person has already retained counsel, to permit counsel to be at
the hearing. A two-week delay is generally considered reasonable. Depending on the
circumstances of the case, the delay could be a little longer. It could also be shorter if the
person who is the subject of the proceeding is detained for investigation [see
section 8.3.2.2.3 – Admissibility hearing for a detained person]. However, the right to
counsel of one’s choice is not unlimited. A person must choose a counsel who is able to
appear within a reasonable time.22
For this reason, the member should treat every subsequent request for an adjournment
very firmly. The member should consider the factors listed in Rule 43 and assess the
credibility and reasonableness of the person’s explanations regarding the efforts he or she
has made to obtain counsel who is available on the date fixed for the continuation of the
21
22
In some provinces, certain people may be entitled to legal aid. In principle, waiting for confirmation of
legal aid does not justify adjourning the hearing. On this matter, see Kiani, Raja Ishtiaq Asghar v.
M.C.I. (F.C.T.D., IMM-2879-96), Muldoon, December 20, 1996. In that case, Muldoon J. wrote in
paragraph 5 of the decision: “It has been said many times that waiting for confirmation of legal aid is
not an adequate excuse for allowing a prescribed time limit to pass. This principle is virtually inscribed
in stone.”
Pierre v. Canada (M.M.I.), supra, note 20. See Jackett J. at pages 857 - 858 and Kelly J. at page 876;
Pilnitz, Viktor v. M.C.I., supra, note 15; Aseervatham, Vimalathas v. M.C.I., supra, note 15; Tokar,
Milan v. M.C.I., supra, note 14.
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hearing. If the member thinks that another adjournment should be granted, he or she
should consider whether to fix a peremptory date for the continuation of the hearing.
8.3.2.2.2
DETENTION REVIEW
When the person who is the subject of the proceeding appears at the detention review
alone, the member should inform the person of his or her right to be represented by a
lawyer or other counsel. Even if the person clearly indicates a desire to be represented by
counsel, it is often inappropriate to grant an adjournment to permit counsel to be present,
unless counsel can be available quickly (in most cases, counsel should be available on the
same day). When an adjournment would delay the review to the point that it could not be
held within the time limit imposed by section 57 of the Act, the member must go ahead
with the review in the absence of counsel. In such a case, the member should inform the
detained person that the Act requires the member to observe certain time limits for a
detention review. If the detention is continued, the person can be represented by counsel
at the next 7-day, 30-day or early review (Rule 9).
8.3.2.2.3
ADMISSIBILITY HEARING FOR A DETAINED PERSON
Usually, an admissibility hearing for a detained person is fixed for the same date as the
detention review. The hearing should be started, and the preliminary issues that can be
addressed in the absence of counsel should be resolved as much as possible. These would
include the need for an interpreter or a designated representative. The hearing may then
be adjourned to permit counsel to be present, and the detention review is held in the
absence of counsel. The date for the continuation of the admissibility hearing can be
fixed after the end of the review to have it coincide with the next detention review, if
appropriate.
8.3.2.3
Counsel not ready to proceed
Sometimes, the person who is the subject of the proceeding is accompanied by counsel
who seeks an adjournment because he or she is not ready to begin or continue a hearing.
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A number of possible reasons may be given and the circumstances may vary. Just as in
the case where counsel is absent, the member must evaluate all of the circumstances in
the case and the factors listed in Rule 43 in order to determine whether to grant the
adjournment requested [see also section 8.3.2.2 – In the absence of counsel]. The case
law recognizes that this matter is fully within the discretion of the panel, as long as the
panel gives the person who is the subject of the proceeding a reasonable opportunity to be
represented by counsel of his or her choice. Since each case must be decided on its own
merits, the case law varies considerably on this subject.23 However, certain trends may be
observed.
Generally, the fact that counsel is too busy or has professional or personal commitments
is not in itself sufficient to justify an adjournment.24 Counsel should provide detailed
explanations to justify a request for an adjournment. In the absence of such explanations,
the member should not hesitate to request them so that he or she can evaluate all of the
circumstances of the case and all of the factors listed in Rule 43 in order to exercise his or
her discretion in an informed manner.25
In this respect, the comments of Reed J. at paragraphs 8 and 9 of Chin26 are of interest:
[…] I look for some reason for the delay which is beyond the control of
counsel or the applicant, for example, illness or some other unexpected
or unanticipated event.
[…] counsel knew her client lived in Campbell River and that she would
be attending the Bar Convention towards the end of August. The
scheduling was under her personal control. Thus, it was hard for me to
justify, in such circumstances, the granting of an extension of time.
23
24
25
26
Supra, note 14.
Supra, notes 16 and 22.
See Dias, Ernesto Fabian et al. v. M.C.I., supra, note 18. In that case, the Federal Court allowed the
application for judicial review. It found that the panel had taken into account only the fact that the date
of the hearing had been fixed peremptorily. Nothing indicated that the panel had taken the other factors
into account.
Chin, Freddy Swee Ban v. M.E.I. (F.C.T.D., IMM-4045-93), Reed, October 8, 1993.
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In Farooq,27 the request for an adjournment was based on the fact that counsel had to
make an emergency trip abroad; the adjournment was refused because no explanation
was given concerning the reasons for the trip.
In Pierre,28 after counsel had withdrawn, another counsel argued that he could not
proceed on the peremptory date fixed for the continuation of the hearing because he had
other commitments and did not have time to familiarize himself with the procedures for
admissibility hearings. When the member refused to grant the adjournment sought, that
counsel withdrew and the member continued and concluded the hearing in the absence of
counsel. The Federal Court of Appeal upheld the decision of the Special Inquiry Officer
(the member). At page 855 of the decision, it wrote the following:
With reference to the question of counsel being ready to proceed, it must
be recognized that every tribunal considering a request for an
adjournment, whether faced with objections from parties opposing the
adjournment or subject to a statutory duty to proceed with due
expedition, must recognize the fact that submissions of counsel based on
their not being ready to proceed or not being available to proceed must
be weighed with care. It is, for example, not unknown for a party who
does not desire to proceed to change counsel to obtain delay. Having
regard to the course of events in this inquiry, particularly the fixing of a
peremptory date after innumerable adjournments and attempts to agree
on a date when counsel would agree to proceed, I am not prepared to say
that the exercise of discretion under consideration was a wrong exercise
of discretion.
Conversely, unforeseen personal obligations such as the illness or death of a family
member or unanticipated events such as an accident may justify granting an
adjournment.29
For detention reviews, lawyers and other counsel working in the immigration field are
generally familiar with the time limits imposed by section 57 of the Act and avoid
27
28
29
Farooq, Tanvir v. M.C.I. (F.C.T.D., IMM-503-97), Blais, June 2, 1999.
Supra, note 20.
See, for example, Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [1999] F.C.J. 1675,
Blais, November 4, 1999.
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seeking adjournments. Usually, they will ask instead for the time of the hearing to be
changed. It is appropriate to assist them when possible, particularly in the case of a
48-hour or 7-day review.
In the end, administrative tribunals are the masters of their own procedures and granting
an adjournment is a discretionary action. The member must be mindful of the duty
imposed on him or her by subsection 162(2) of the Act—the duty to proceed as quickly
as the circumstances and the considerations of fairness and natural justice permit—in this
case, to ensure that the person who is the subject of the proceeding has a reasonable
opportunity to be represented by counsel of his or her choice.
8.3.2.4
Incompetent counsel
In some circumstances, being represented by an incompetent counsel is a violation of the
principles of natural justice and so may justify reopening the hearing.30 It is an extremely
delicate matter to determine that counsel is incompetent, particularly if counsel is a
lawyer who is governed by professional rules of conduct and can be sanctioned by the
law society to which he or she belongs. Furthermore, the case law indicates that superior
courts refrain from intervening when counsel is a lawyer, except in the most unusual of
circumstances, in the belief that the person has freely chosen his or her counsel, that the
two are one and the same party and that the person can use the remedy provided by the
law society concerned.31 Fortunately, cases of incompetence are rare. In addition, as the
case law indicates, only extraordinary facts can justify a finding that counsel is
incompetent.
30
31
There is no statutory provision governing the reopening of a hearing before the Immigration Division.
This is not the case for the other two IRB divisions. [For the Immigration Appeal Division, see
section 71 of the Act and for the Refugee Protection Division, see Rule 55 of the Refugee Protection
Division Rules, SOR/2002-228]. However, in Chandler v. Alberta Association of Architects, [1989]
2 S.C.R. 848, pp. 860 to 864, the Supreme Court of Canada decided that an administrative tribunal may
reopen a proceeding in order to correct a breach of the principles of natural justice.
See, for example, Chin, Freddy Swee Ban v. M.E.I, supra, note 26; Huynh, Cam Hoa v. M.E.I.
(F.C.T.D., 92-T-1772), Rothstein, June 24, 1993.
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An example may be found in Sheikh,32 where the Federal Court of Appeal found that
counsel was incompetent; he had fallen asleep on three occasions during the hearing. In
Shirwa,33 the Federal Court also found that counsel was incompetent for the following
reasons: (1) the refugee claimant had been led to believe that counsel was a lawyer;
(2) counsel entered into evidence the Personal Information Form only; (3) counsel failed
to make submissions; (4) the claimant’s complaint to the law society was of limited use
since the society could not take action against the counsel as he was not a lawyer.
In Huynh,34 the lawyer who handled the judicial review argued that the representation by
the other lawyer who had been present at the hearing before the Refugee Protection
Division was inadequate for a number of reasons, including his poor preparation of the
case, his failure to introduce all of the evidence and to make the appropriate submissions,
and his lack of familiarity with refugee procedures. He relied on Sheikh. The Federal
Court dismissed the application for judicial review. At paragraph 16 of the decision, the
Court wrote the following:
In my view, the facts in Ali Sheikh, (supra), are quite
extraordinary. While if it can be demonstrated that counsel slept during a
proceeding, a party may not have been given reasonably effective
assistance from counsel, I do not think the same conclusion may be
drawn from the facts of this case. That the applicant’s story was not told
or did not come out clearly may have been a fault of counsel or it may
have been that the applicant did not properly brief counsel. As I
understand the circumstances, counsel was freely chosen by the
applicant. If counsel did not adequately represent his client, that is a
matter between client and counsel.
In Ye,35 the Immigration Appeal Division dismissed an application to reopen an appeal of
a removal order. The applicant alleged that her counsel was incompetent because he
failed to ask specific questions during the hearing and did not present adequate
32
33
34
35
Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.).
Supra, note 3.
Huynh, Cam Hoa v. M.E.I, supra, note 31.
Ye, Ai Hua v. M.C.I. (I.A.D. VA1-01247), Wiebe, August 5, 2003.
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arguments. The Appeal Division stressed that counsel’s incompetence must be egregious
before a question of natural justice could be raised.
In practice, the member may occasionally observe that the person who is the subject of
the proceeding is not being adequately represented, but it is not recommended that the
member determine that counsel is incompetent, unless the level of incompetence is so
great that it completely deprives the person of his or her right to be heard. In Shirwa,36 at
paragraph 11 of the decision, the Federal Court wrote the following:
In a situation where through no fault of the applicant the effect of
counsel's misconduct is to completely deny the applicant the opportunity
of a hearing, a reviewable breach of fundamental justice has occurred
(Mathon).37
The level of incompetence must therefore be significant and obvious before it can be
determined that counsel’s incompetence constitutes a denial of natural justice. The
member may make up for an inadequate representation by playing a more active role, in
particular, by questioning the person who is the subject of the proceeding on certain
issues that the member thinks are important for the decision that he or she has to make.
However, the member must do this tactfully and respectfully. The member must avoid
substituting himself or herself for counsel, which could cast doubt on the member’s
impartiality.38
36
37
38
Supra, note 3.
Reference to Mathon, Immacula v. M.E.I. (F.C.T.D., T-737-88), Pinard, August 15, 1988.
See Hundal, Manmohan Singh v. M.C.I. (F.C.T.D., IMM-3914-02), Dawson, July 16, 2003.
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TABLE 0F CASES
Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh,
November 27, 1992.............................................................................................8-9. 8-14
Acquah, Agnes v. M.E.I. (F.C.T.D., 93-T-32), Rothstein, July 5, 1994........................... 8-5
Afrane v. Canada (M.E.I.) (1993), 20 Imm. L.R. (2d) 312 ............................................. 8-9
Ali, Umer v. M.C.I. (F.C.T.D., IMM-5212-00, Dawson, March 7, 2002 ...............8-9, 8-14
Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [1999]
F.C.J. 1675, Blais, November 4, 1999 ....................................................................... 8-15
Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [2000]
F.C.J. No. 804, Dubé, June 1, 2000 .......................................................... 8-9, 8-12, 8-14
Calles v. Canada (M.E.I.) (1990), 12 Imm. L.R. (2d) 48 ................................................ 8-9
Castroman (Vezzani), Carlos Adrian v. S.S.C. (F.C.T.D., A-1302-92),
McKeown, June 20, 1994 ............................................................................................ 8-5
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 ............................ 8-16
Chin, Freddy Swee Ban v. M.E.I. (F.C.T.D., IMM-4045-93), Reed,
October 8, 1993.................................................................................................8-14, 8-16
Dadi, Kamel v. M.C.I. (F.C.T.D., IMM-4195-98), Pinard, August 12, 1999 .................. 8-9
Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R. 1053 ....................................... 8-6, 8-7, 8-8
Desousa v. Canada (M.E.I.) (1988), 5 Imm. L.R. (2d) 73............................................... 8-9
Dias, Ernesto Fabian et al. v. M.C.I. (F.C.T.D., IMM-2593-01),
Heneghan, January 27, 2003...............................................................................8-9, 8-14
Dragosin, Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay,
January 27, 2003 .......................................................................................................... 8-7
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Edumadze, Margaret v. M.E.I. (F.C.T.D., 92-T-1238), Rouleau, January 18,
1993.....................................................................................................................8-9, 8-14
Farooq, Tanvir v. M.C.I. (F.C.T.D., IMM-503-97), Blais, June 2, 1999 ...................... 8-15
Hundal, Manmohan Singh v. M.C.I. (F.C.T.D., IMM-3914-02), Dawson,
July 16, 2003.............................................................................................................. 8-18
Huynh, Cam Hoa v. M.E.I. (F.C.T.D., 92-T-1772), Rothstein, June 24,
1993...................................................................................................................8-16, 8-17
Kiani, Raja Ishtiaq Asghar v. M.C.I. (F.C.T.D., IMM-2879-96), Muldoon,
December 20, 1996 .................................................................................................... 8-12
Mathon, Immacula v. M.E.I. (F.C.T.D., T-737-88), Pinard, August 15, 1988 .............. 8-18
Nemeth, Imre Janos et al. v. M.C.I. (F.C.T.D., IMM-2522-02), O’Reilly,
May 14, 2003 ............................................................................................ 8-9, 8-11. 8-14
Patrasc, Gabriel v. M.C.I. (F.C.T.D., IMM-5262-01), MacKay, January 27,
2003.............................................................................................................................. 8-7
Pierre v. Canada (M.M.I.), [1978] 2 F.C. 849 (C.A.) ....................... 8-11, 8-12, 8-14, 8-15
Pilnitz, Viktor v. M.C.I. (F.C.T.D., IMM-1205-96), Tremblay-Lamer,
March 7, 1997 .....................................................................................................8-9, 8-12
R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.)......................................................... 8-7
Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.).................................................... 8-17
Shirwa v. Canada (M.E.I.), [1994] 2 F.C. 51 .................................................................. 8-3
Siloch, Hancy v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary,
January 11, 1993 .................................................................................................8-9, 8-14
Tokar, Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry, January 24,
2003........................................................................................................... 8-9, 8-12, 8-14
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Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992 .......8-9, 8-14
Ye, Ai Hua v. M.C.I. (I.A.D. VA1-01247), Wiebe, August 5, 2003 .............................. 8-17
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TABLE OF CONTENTS
9.
CHANGING THE LOCATION OF A HEARING...................... 9-1
9.1
INTRODUCTION..................................................................................... 9-1
9.2
GENERALLY .......................................................................................... 9-1
9.2.1
Hearing fixed in a detention facility.................................................. 9-2
9.3
MANNER OF MAKING AN APPLICATION............................................ 9-4
9.4
DUTY TO APPEAR AT THE LOCATION FIXED ................................... 9-5
9.5
FACTORS TO CONSIDER IN DECIDING AN APPLICATION............... 9-5
9.5.1
General factors.................................................................................... 9-6
9.5.2
A full and proper hearing .................................................................. 9-7
9.5.3
Delaying or slowing the hearing ........................................................ 9-8
9.5.4
Operation of the Division ................................................................... 9-8
9.5.5
Effect on the parties............................................................................ 9-9
9.5.6
Public safety....................................................................................... 9-10
ANNEX 9-A: LIST OF ID OFFICES ................................................ 9-12
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9.
CHANGING THE LOCATION OF A HEARING
9.1
INTRODUCTION
Paragraph 159(1)(f) of the Act provides that the IRB, inter alia, fixes the place of
proceedings. In addition, subsection 57(3) of the Act provides that a detained person will
be brought to a place specified by the Division to have his detention reviewed.
Accordingly, it is the Immigration Division that determines the location where the
hearing will be held. Rule 42 provides that a party may apply to the Division to change
the location of a hearing and sets out the factors that must be considered in deciding the
application; it also provides that, if it is decided not to allow the application, the person
has a duty to appear for the hearing at the location fixed.
This chapter presents an overview of the circumstances that can lead to an application’s
being made to change the location of a hearing, how the application is to be made, the
duty to appear at the location that has been fixed and the factors that the member must
consider in deciding the application.
9.2
GENERALLY
Hearings are usually held in the IRB offices in the region where the matter has been
referred to the Division [see Annex 9-A]. Where the person in question is detained by
authorities other than immigration authorities, the hearing is held in the prison or
penitentiary where the person is detained. In some circumstances, the Division fixes the
location of a hearing in a prison, penitentiary or immigration detention centre in order to
accommodate Citizenship and Immigration Canada (CIC).
The parties are informed of the hearing location by a Notice to Appear for a hearing that
must specify, inter alia, the location of the hearing (Rule 22). Rule 42(1) provides that a
party may make an application to the Division to change the location of a hearing.
The word “location” is to be interpreted broadly. An application for a change of location
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can be made not just to have the hearing transferred from one region or one city to
another, but also to move the hearing from a detention facility to an IRB office.1
Although Rule 42 authorizes the Minister to make such an application, in practice, the
application is usually made by the person who is the subject of the proceedings. This is so
because, if the Minister wants the hearing to be held in another region, all he or she has to
do is file a notice indicating that the hearing will be held in the region of his or her
choice. Where, because of the circumstances, the Minister requests that the hearing be
held in a particular location, for example, at an immigration detention centre rather than
in the IRB offices, an administrative agreement is generally worked out in advance and
the Division fixes the location of the hearing accordingly.2
More often than not, the person who is the subject of the proceedings will apply to
change the location of the hearing because the person wants the hearing to be held in a
different region. Sometimes, although rarely, an application is made to move the hearing
from a detention facility to an IRB office [for more details, see section 9.5.5 – Effect on
the parties].
9.2.1
Hearing fixed in a detention facility
Where a hearing is to be held in a prison, penitentiary or immigration detention centre, an
application by the detained person to change the location of the hearing should be granted
only in exceptional circumstances.
In the first place, it should be noted that it is doubtful whether a member has the
jurisdiction to allow an application to change the location of a hearing by a person who is
detained in a prison or a penitentiary by authorities other than immigration authorities.
For example, a person serving a term of imprisonment can receive an authorization for a
temporary absence only if the warden of the institution or the Parole Board grants it.
Where the person is also detained under the Act, an order to change the location of a
hearing could be carried out only at the end of the detention period imposed by the other
1
2
Ariyarathnam, Sivathakaran v. M.C.I. (F.C.T.D., IMM-5545-01), Dawson, January 17, 2002.
Such agreements are often made for security and financial reasons.
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authorities. To consider an application to change the location of the hearing in such
circumstances would therefore be premature.
Where a person is detained solely for immigration reasons, whether in an immigration
detention centre or a prison or penitentiary,3 it would appear, although the matter is
undecided, that the tribunal would have the jurisdiction to grant an application to change
the location of a hearing.
In Ariyarathnam,4 the Federal Court considered the provisions of the former Immigration
Act and decided that the adjudicator [the member] lacked jurisdiction to decide that the
detention review would be held in the IRB offices and not in the detention centre.
Arguably, this decision no longer applies since the legislation has been amended. In the
first place, an application to change the hearing location under the former Adjudication
Division Rules5 (the former Rules) applied only to admissibility hearings; such an
application was expressly excluded in the case of a detention review. Under the current
Rules, the provision obviously applies to both kinds of hearing since it is found in Part 3,
entitled “Rules that apply to both admissibility hearings and detention reviews.”
Furthermore, the former Immigration Act had no analogue to subsection 57(3) of the Act:
57. (3) In a review under subsection (1) or (2), an officer shall bring the
permanent resident or the foreign national before the Immigration
Division or to a place specified by it. [Emphasis added.]
The only provision that dealt with the issue was former Rule 18, which was worded as
follows:
3
4
5
Some regions do not have an immigration detention centre. As a result, persons arrested under the Act
are held in prisons or penitentiaries. Furthermore, even if the region does have a detention centre, it is
possible for a person to be held in a prison or a penitentiary solely for immigration reasons if the
Minister believes that the person is a danger to the public. Sometimes, a detained person will ask to be
held in another institution. Where a person is not detained by another authority, the “place of
detention” comes under the Minister’s jurisdiction. The IRB has no jurisdiction to determine the place
where the person who is the subject of the proceedings should be held. Its jurisdiction is limited to
determining the location where the hearing will be held.
Supra, note 1.
SOR/93-47.
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18. Where a person concerned is detained, the Adjudication Division
may order the person who detains the person concerned to bring the latter
in custody to a conference or hearing held in respect of the person
concerned.
The Federal Court has interpreted section 18 of the old Rules as meaning that “an
adjudicator can order that a detained person be brought to a conference or hearing within
the detention facility”6 [emphasis added] and not as the power to order that the person
be taken to another place outside the detention facility.
The wording of subsection 57(3) of the Act is much clearer, in our opinion. These
substantive legislative changes probably mean that Ariyarathnam is no longer applicable.
Nonetheless, where a hearing has been fixed in a detention facility, a change of location
should be granted only in exceptional circumstances because the change could cause
serious prejudice to the Minister and endanger public safety [for more details, see
sections 9.5.5 – Effect on the parties and 9.5.6 – Public safety].
9.3
MANNER OF MAKING AN APPLICATION
An application to change the location of a hearing is generally made in writing prior to
the hearing or orally at the outset of the hearing. The party making the application must
state the reasons why the Division should change the location of the hearing.
While the application can be made during the hearing, once proceedings have begun, a
change of location could mean that some evidence would have to be reheard, which
would be inefficient and expensive for the Division.
The provisions of Rule 38 apply to an application to change the location of a hearing [for
more details, see Chapter 3 – Making and providing applications].
6
Supra, note 1.
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9.4
IRB
DUTY TO APPEAR AT THE LOCATION FIXED
Where an application that was made in writing before the beginning of the hearing is
dismissed or if the application was made too late to allow the Division to respond to it
before the date fixed for the hearing, the party must, according to Rule 42(3), appear
for the hearing at the location fixed and be ready to start or continue the hearing.
The party may, when he appears at the location fixed, resubmit his application orally at
the outset of the hearing. However, the member may rightly reject an application that is
made late because of a lack of diligence on the part of the person who is the subject of the
proceeding.7
A member who sees that the person who is the subject of the proceeding8 is not present
may either adjourn the hearing or bring it to an end. If he sees that counsel for the person
who is the subject of the proceedings is not present, the member may hold the hearing or
adjourn it [for more details, see Chapter 10 – Changing the Date or Time of a Hearing,
section 10.3.1 – Procedure where there is a failure to appear at the date and time fixed].
9.5
FACTORS TO CONSIDER IN DECIDING AN APPLICATION
In deciding an application to change the location of a hearing, the member must
consider any relevant factors, including those listed in Rule 42(2). He or she must
consider:
whether a change of location would allow the hearing to be full and
proper;
whether a change of location would likely delay or slow the hearing;
how a change of location would affect the operation of the Division;
how a change of location would affect the parties;
whether a change of location would endanger public safety.
7
8
Estrada, Jorge Lionel Palacios v. M.E.I. (F.C.T.D., T-2613-91), Strayer, February 17, 1992.
The comments apply only to hearings of persons who are not detained. Citizenship and Immigration
Canada brings detained persons before the ID for detention reviews and admissibility hearings, if any.
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A number of factors may have an impact on one or more of the elements listed in the
provision. The member must weigh them to determine whether he or she will allow the
application. It is not possible to anticipate all of the various combinations of factors that
may justify a change of location for a hearing. However, a non-exhaustive list of the
factors that should be considered as they relate to one or more of the items set out above
with comments and examples of each may prove useful.
9.5.1
General factors
The following is a non-exhaustive list of questions the member may consider in relation
to one or more of the factors listed in the provision:
Is the person being detained? Can he or she be moved? Is there any
danger to public safety? What consequences may there be for the
Minister?
Are there conditions of release that would prevent the person from
going to the location where the person would like the hearing to be
held?
Does the hearing involve a person who is under 18 years of age or
unable to appreciate the nature of the proceedings and whose most
suitable “designated representative” is in another location?
Would a change of location facilitate joining hearings that ought to be
joined (see Rule 44)?
What additional costs or disadvantages would there be for the
Division?
If the person who is the subject of the proceedings has claimed refugee
protection, is that person waiting for a hearing before the Refugee
Protection Division? At what location?
What additional costs and disadvantages would there be for the
Minister?
To what extent would refusing a change of location cause the person
who is the subject of the proceedings serious financial or other
prejudice?
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Is a change of location necessary so that the person can prepare his or
her case adequately and present all relevant evidence? Can the
“problem” be resolved in another way, for example, by instructing
another counsel or by presenting the evidence by affidavit,
teleconferencing or videoconferencing?
9.5.2
A full and proper hearing
A change of location would permit a full and proper hearing, for example, if the person
who is the subject of the proceedings is a person who is under 18 years of age or unable
to appreciate the nature of the proceedings and the person most suitable to act as his or
her designated representative is in another region or if the hearings for persons who are in
different locations should be joined.
Most of the time, the person who is the subject of the proceedings will argue that his or
her final destination in Canada is somewhere other than the place fixed for the hearing, or
the person may argue that he or she has moved to another city where family members or
friends live who could testify or furnish security for his or her release. As a general rule,
it is not necessary to change the location of the hearing to ensure a full and proper
hearing. If the member believes that the testimony is important, he or she may consider
other methods such as affidavits, teleconferencing or videoconferencing. Making a
deposit or signing a guarantee can be done at the CIC offices in the city where the surety
lives.
Sometimes, the person who is the subject of the proceedings will argue that the presence
of counsel of his or her choice is necessary to ensure a full and proper hearing for his case
but that counsel lives in another city and lacks the time or the desire to travel to the
designated location for the hearing, whereas he would agree to represent the person if the
hearing were held in another city.
As a general rule, in order to ensure a full and proper hearing of the case, it is
unnecessary to change the location of the hearing so as to take into account the choice of
counsel by the person who is the subject of the proceedings. The person should choose
among counsel who are available and willing to attend at the location fixed for the
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hearing [for more details, see Chapter 8 – Right to counsel]. However, sometimes counsel
has represented the person before, is already conversant with the case or for some other
reason has significant involvement with the case. To ensure a full and proper hearing of
the case, it may then be appropriate to have the particular counsel chosen by the person
who is the subject of the proceeding present.
9.5.3
Delaying or slowing the hearing
Generally, an application to change the location of a hearing will delay or slow the
proceeding since other arrangements will have to be made in order to hold the hearing in
another region, including transferring the record, scheduling the hearing and arranging
for an interpreter, if necessary. Moreover, where the application is made at the hearing,
granting it will inevitably lead to an adjournment.
On the other hand, if more sittings are required because of the complexity of the case and
if the person who is the subject of the proceedings asks to have his hearing held in an
office where there are few pending cases, a change of location might speed up the
proceedings. This would also be true if, for example, the hearing would be unduly
delayed because of the scarcity of interpreters who speak the person’s language fluently
but in a large centre where such interpreters are more numerous it could quickly proceed.
Initially, it may seem that changing the location of a hearing will inevitably delay or slow
the hearing, but there are some factors that can occasionally have the opposite effect.
Thus, it is important to evaluate the situation as a whole.
9.5.4
Operation of the Division
One must proceed from the premise that, under the Act, it is up to the Division to fix the
location of a hearing and that it is not in its interest, from an operational standpoint, to
authorize changes of location because of the arrangements it will have to make to hold
the hearing elsewhere. More often than not, such changes result in additional cost and
inconvenience to the Division. Even if the application is made in writing before the
hearing, a number of arrangements will often have already been made by the registry
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office: opening the file, communications with the parties and the interpreter, if any, and
scheduling. Where an application to change the location of a hearing is allowed, the
record must be transferred and the same arrangements must be made all over again in the
region where the hearing will be held.
Furthermore, if witnesses living in another location must be heard, this may result in the
Division’s incurring significant expense, depending on what arrangements can be made
in the circumstances, or it may make the case so complex that it would be much simpler
to allow the application to change the location. The member must weigh all these factors.
Moreover, the operation of the Division may be disrupted if, for example, the change of
location means transferring the record from an office where there are few pending cases
to an office where there are many. Some people are aware of the volume of work in the
various offices of the Division and may apply for transfers solely to delay their hearing as
much as possible and, possibly, their removal from the country. Applications of this kind
that are not made in good faith may rightly be dismissed.
9.5.5
Effect on the parties
A change of location necessarily has an effect on both parties, often positive for the one
and negative for the other. For example, a person who has moved to Vancouver whose
hearing is to be held in Montreal may suffer serious financial prejudice if the person’s
application for a change of location is refused. The person must pay for the trip to
Montreal, not to mention the fact that he may have already paid counsel in Vancouver to
review his file. Moreover, if the application is granted, the Minister will inevitably be at a
disadvantage and will have to bear the additional expense. He will have to transfer his file
and, while one Minister’s counsel was prepared for the case, another counsel will have to
review the file and prepare the case.
The member should determine which of the two parties would suffer the greater
prejudice. However, even if he determines that the person who is the subject of the
proceedings would suffer the greater prejudice, an application to change the location may
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be refused if other relevant factors, including those listed in Rule 42(2), militate in favour
of dismissing the application.
Where the location fixed for the hearing is in a detention facility, a change of location
will necessarily cause the Minister serious prejudice since he or she will have to provide
for the transportation and surveillance of the detained person, which is very expensive,
particularly if the hearing is to take place in a different region. Furthermore, even if the
change of location does not result in a change of region, the detained person may, in
some cases, pose a threat to public safety and necessitate special security arrangements if
the hearing is held in an IRB office.
Where a hearing has been fixed in a detention facility, a change of location for the
hearing may be argued for if the space set aside for holding the hearing is inadequate. It is
also not unusual for such places to be inappropriate in that they are very small and
sometimes lack sufficient seating to accommodate all participants. The result is
inconvenience, not just for the parties, but for everyone. Normally, this state of affairs
does not in itself justify a change of location for a hearing [see section 9.2.1 – Hearing
fixed in a detention facility].
9.5.6 Public safety
This factor is relevant where a person is detained on the grounds that he or she represents
a danger for public safety [for more details, see “Inadmissibility and detention, Part II –
Detention] and his or her application is to have the hearing moved from a detention
facility to an IRB office. More often than not, the person who is the subject of the
proceedings will argue that he or she must call witnesses who do not meet the criteria for
admission to the institution or that the hearing is public and that some members of the
public cannot be admitted to the institution.
Such grounds should not prevail over the risk of endangering public safety. In terms of
hearing witnesses, the member should consider other solutions, such as affidavits or
means of live telecommunication (section 164 of the Act). As concerns members of the
public who cannot be admitted to the institution, the case law indicates that a “public
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hearing” does not require taking unreasonable measures9 [see also Chapter 4 – Hearing in
public or in private, section 4.5.1.2 – Hearings in a detention facility].
9
See, for example, Gervasoni v. Canada (M.C.I.), [1995] 3 F.C. 189; Ariyarathnam, supra, note 1.
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ANNEX 9-A
LIST OF ID OFFICES
IRB HEADQUARTERS
Immigration and Refugee Board
Minto Place, Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario
Canada
K1A 0K1
OFFICES
CALGARY (ID, RPD)
Fording Place
205 9th Avenue SouthEast, 9th Floor
Calgary, Alberta
T2G 0R3
MONTREAL (ID, RPD, IAD)
200 René-Lévesque Boulevard West
Complexe Guy-Favreau
East Tower, Office 102
Montreal, Quebec
H2Z 1X4
WINNIPEG (ID, RPD, IAD)
391 York Avenue
Winnipeg, Manitoba
R3C 0P4
TORONTO (ID, RPD, IAD)
74 Victoria Street
Room 400
Toronto, Ontario
M5C 3C7
VANCOUVER (ID, RPD, IAD)
Library Square
300 Georgia Street, Office 1600
Vancouver, B.C.
V6B 6C9
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TABLE OF CASES
Ariyarathnam, Sivathakaran v. M.C.I. (F.C.T.D., IMM-5545-01), Dawson,
January 17, 2002 ............................................................................................. 9-2, 9-3, 9-11
Estrada, Jorge Lionel Palacios v. M.E.I. (F.C.T.D., T-2613-91), Strayer,
February 17, 1992 ........................................................................................................ 9-5
Gervasoni v. Canada (M.C.I.), [1995] 3 F.C. 189......................................................... 9-11
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TABLE OF CONTENTS
10.
CHANGING THE DATE OR TIME OF A HEARING.................. 10-1
10.1
INTRODUCTION............................................................................................. 10-1
10.2
MANNER OF MAKING THE APPLICATION............................................. 10-1
10.3
DUTY TO APPEAR AT THE DATE AND TIME FIXED ........................... 10-2
10.3.1
Procedure where there is a failure to appear at the date and
time fixed ........................................................................................... 10-3
10.3.1.1 Person who is the subject of the proceeding...................... 10-3
10.3.1.2 Counsel for the person who is the subject of the
proceeding ........................................................................... 10-3
10.3.1.3 Minister's counsel ............................................................... 10-4
10.3.2
Waiting period .................................................................................. 10-4
10.4
FACTORS TO CONSIDER IN DECIDING AN APPLICATION .............. 10-5
10.5
PROCESSING THE APPLICATION DEPENDING ON WHETHER
A DETENTION REVIEW OR AN ADMISSIBILITY HEARING IS
INVOLVED ....................................................................................................... 10-7
10.5.1
Detention review ............................................................................... 10-7
10.5.2
Admissibility hearing........................................................................ 10-8
10.5.2.1 To obtain evidence essential to the case............................. 10-9
10.5.2.2 To allow the party who is taken by surprise to prepare
when evidence was not disclosed before the hearing ...... 10-10
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10.5.2.3 To prepare submissions .................................................... 10-11
10.5.3
Admissibility hearing in the case of a detained person ............... 10-11
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10.
CHANGING THE DATE OR TIME OF A HEARING
10.1
INTRODUCTION
Paragraph 159(1)(f) of the Act provides that the IRB fixes, inter alia, the date and time of
proceedings.1 Under Rule 43, a party may apply to the Division to change the date or
time of a hearing.
Any change in the date or time of a proceeding affects the ability of the Division to
manage its role efficiently and thus to deal with proceedings quickly, as subsection
162(2) of the Act requires. Moreover, the provision makes this duty subject to
considerations of fairness and natural justice. The question of postponements and
adjournments accordingly involves striking the right balance between the requirements of
fairness and efficiency.
This chapter describes the manner of making such an application, the provisions that deal
with the duty to appear at the date and time fixed, the factors to be considered in deciding
an application and the differences in processing an application depending on whether a
detention review or an admissibility hearing is involved.
10.2
MANNER OF MAKING THE APPLICATION
The parties are informed of the date and time of the hearing through a Notice to Appear
at a hearing that, in addition to the location, specifies the date and the time of the hearing
(Rule 22).2 In so far as practicable, counsel of record is consulted in order to fix a date
and time for the hearing that takes his availability into account. Since the Minister has a
1
2
In some regions where a scheduling conference system is in place (Rule 21), Citizenship and
Immigration Canada takes care of giving the person who is the subject of the proceeding and is not
detained a notice requesting him to appear at the Immigration Division on a given date for a hearing (in
about two weeks’ time). The person appears for the scheduling conference and at that time the member
fixes the date of the hearing or, if circumstances permit (for example, the person is ready to proceed
and his counsel indicates his intention to proceed by admissions), the hearing may be held
immediately.
See also, supra, note 1.
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number of counsel at his disposal, there is no need to consult him or her when scheduling
the hearing, unless an application for a postponement or an adjournment is involved, in
which case the date and time of the hearing must be fixed in consultation with both
parties.
According to Rule 43(1), either party may apply to the Division to change the date or
time of a hearing. Although the provision applies both to admissibility hearings and
detention reviews, the application will be processed differently depending on the type of
hearing [see section 10.5 – Processing the application, depending on whether a detention
review or an admissibility hearing is involved].
The application may be made orally at the hearing or in writing before the hearing begins
or resumes, where the proceeding is continued. The provisions of Rule 38 apply to
applications to change the date or time of a hearing [for more details, see Chapter 3 –
Making and providing applications].
10.3
DUTY TO APPEAR AT THE DATE AND TIME FIXED
Where a written application made before the beginning of the hearing has been denied or
if the application was made too late to permit the Division to respond before the date
fixed for the hearing, the party must, according to Rule 43(3), appear for the hearing
at the date and time fixed and be ready to start or continue the hearing. The
applicant may repeat his application orally when he or she appears at the date and time
fixed. Failure to appear can have consequences for the parties. The procedure the member
should follow when a party does not appear for the hearing will be explained below.
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Procedure where there is a failure to appear at the date and time
fixed
10.3.1.1
Person who is the subject of the proceeding
Where the person who is the subject of the proceeding fails to appear for the hearing, the
member may adjourn or terminate the hearing.3 The member may adjourn the hearing if
he or she is informed of the reasons for the absence by counsel for the person who is the
subject of the proceeding or the Minister’s counsel and if he or she believes that the
explanations are reasonable. The member should then consider whether the hearing
should be adjourned to a peremptory date.
Where the absence of the person who is the subject of the proceeding is unjustified, the
member should terminate the admissibility hearing and close the file. This is a purely
administrative measure. The Minister could request a continuation of the hearing if the
person who is the subject of the proceeding is later found, but he or she will usually issue
an arrest warrant under subsection 55(1) of the Act and will make another report under
section 44 of the Act that will be referred to the Division when the person is eventually
arrested.
10.3.1.2 Counsel for the person who is the subject of the proceeding
Where counsel for the person who is the subject of the proceeding does not appear, the
member may conduct the hearing or adjourn it. If the person who is the subject of the
proceeding does not know why his or her counsel is absent, a short break will allow him
or her to telephone his counsel’s office. The latter may have been delayed or some
emergency may have prevented him or her from appearing.
3
These comments apply only to admissibility hearings for persons who are not detained. Citizenship
and Immigration Canada brings detained persons before the ID for a detention review and admissibility
hearing, if any.
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The member can start or continue the hearing if counsel’s absence is unwarranted and if
the person who is the subject of the proceeding has had a reasonable opportunity to
obtain representation. The member may adjourn the hearing if he believes that the
explanations for counsel’s absence are reasonable. [see Chapter 8 – Right to counsel,
section 8.3.2. – In the absence of counsel]. He or she should then consider whether the
hearing should be adjourned to a peremptory date.
10.3.1.3 Minister’s counsel
It is extremely rare for the Minister’s counsel to be absent. If this happens, it is
appropriate to call a short break and ask the registry office to contact Citizenship and
Immigration Canada (CIC) to find out why counsel is absent. If the member does not
obtain this information within a reasonable time, he or she may adjourn the admissibility
hearing to a peremptory date. Although the matter has not been settled, the member may
also commence abandonment proceedings [on this subject, see Chapter 14 – Decisions
and reasons]. If a detention review or an admissibility hearing held at the same time as
the review is involved, the time fixed for the proceeding should be changed. CIC will
arrange for a Minister’s counsel to appear as soon as it has been notified by the registry
office.
10.3.2
Waiting period
In principle, the parties must be present in the hearing room and ready to start at the time
fixed. If a party is not present at the time fixed, the waiting period is 15 minutes at most,
unless the party has indicated that he or she will be late and the member, after consulting
the participants present in the room, agrees to wait longer. This practice was instituted
because it was recognized that occasionally a person might be delayed for a host of
reasons independent of his or her will.
However, the 15-minute waiting period is not mandatory. The member may rightly start
the hearing at the time that was fixed if he or she becomes aware that counsel is
frequently late. However, it is recommended that the member give advance notice to a
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person who is habitually late, explaining that hearings will start at the time fixed from
now on and that the person will no longer be granted the 15-minute waiting period.
10.4
FACTORS TO CONSIDER IN DECIDING AN APPLICATION
In deciding an application to change the date or time of a hearing, the member must
consider any relevant factors,4 including those listed in Rule 43(2). He or she must
consider:
in the case of a date and time that was fixed after the Division consulted
or tried to consult the party, the existence of exceptional circumstances
for allowing the application;
when the party made the application;
the time the party has had to prepare for the hearing;
the efforts made by the party to be ready to start or continue the
hearing;
the nature and complexity of the matter to be heard;
whether the party has counsel;
any previous delays and the reasons for them;
whether the time and date fixed for the hearing was peremptory; and
whether allowing the application would unreasonably delay the
proceedings or likely cause an injustice.
4
Siloch, Hancy v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary, January 11, 1993; Dias, Ernesto
Fabian et al. v. M.C.I. (F.C.T.D., IMM-2593-01), Heneghan, January 28, 2003.
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These factors are not exhaustive. Furthermore, there are many possible combinations of
factors. It is therefore impossible to apply strict rules, because each case and application
must be examined on its own facts.5
The member enjoys a broad discretion in terms of adjournment and it is up to him or her
to assess all of the relevant factors in order to determine whether the application is
justified. In this respect, the Supreme Court of Canada held in Prassad:6
We are dealing here with the powers of an administrative tribunal in
relation to its procedures. As a general rule, these tribunals are
considered to be masters in their own house. In the absence of specific
rules laid down by statute or regulation, they control their own
procedures subject to the proviso that they comply with the rules of
fairness and, when they exercise judicial or quasi-judicial functions, the
rules of natural justice.
In this case, a majority of the Supreme Court of Canada held that the adjudicator [the
member] did not err in dismissing the application for an adjournment to allow an
application to be made for a Minister’s permit. The Minister’s permit was a remedy or
benefit sought by the person concerned, which was quite distinct from the issues that
were the subject of the hearing. Furthermore, the person concerned had had sufficient
time before the hearing to request a permit. The adjudicator was in no way required to
adjourn the hearing under the former Act and Regulations in order to permit the
application for a permit to be made, but by the same token he was not prohibited from
adjourning it for that reason. It was a discretionary matter that had to be decided on the
basis of the specific circumstances of the case at bar.
5
6
See, for example, Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992;
Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh, November 27, 1992; Siloch,
Hancy v. M.E.I., supra, note 4; Edumadze, Margaret v. M.E.I. (F.C.T.D., 92-T-1238), Rouleau,
January 18, 1993; Ali, Umer v. M.C.I. (F.C.T.D., IMM-5212-00), Dawson, March 7, 2002; Tokar,
Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry, January 24, 2003.
Prassad v. Canada, [1989] 1 S.C.R. 560, p. 568.
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PROCESSING THE APPLICATION DEPENDING ON WHETHER A
DETENTION REVIEW OR AN ADMISSIBILITY HEARING IS INVOLVED
10.5.1
Detention review
The date and time of detention reviews are fixed on the basis of the time limits imposed
by section 57 of the Act. Forty-eight hour reviews are scheduled as soon as the registry
office receives notice from the CIC accompanied by the information required by Rule
8(1). The date and time of the hearing are fixed wherever practicable for no later than the
end of the forty-eight hour period following the initial detention or, in practice, within
twenty-four hours afterward (subsection 57(1) of the Act). If there is a counsel of record,
he or she is consulted and his or her availability, at least as to time, is taken into account
wherever practicable.
Where a member orders a person to be detained at the end of the hearing, he or she must,
in consultation with the parties and the registry office, fix the date and time of the next
review by taking into account the frequency of the detention review hearings imposed by
section 57 of the Act, that is, within seven days or thirty days, as the case may be.
Changing the time fixed for a detention review to accommodate the parties is not unusual
since such a change complies with the requirements of section 57 of the Act. A change of
date, on the other hand, is less common and should be considered only where it makes it
possible to proceed with the detention review within the time limits prescribed by section
57 of the Act. In the case of the forty-eight hour review, a postponement or adjournment
to the following day could be granted if, for example, it has only been 24 or 36 hours
since the initial detention. In the case of a seven-day or a thirty-day review, an
adjournment could be granted if there is sufficient time between the date fixed for the
hearing and the end of the seven-day or thirty-day time limit. An application to adjourn
a detention review to a date that does not comply with the time limits prescribed by
section 57 of the Act must be refused.
These considerations also apply where an adjournment is imposed by a member for
deliberation and decision. Wherever possible, the member should render the decision at
the end of the hearing, after a short break, if one is needed. It is only in unusual
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circumstances where, for example, the case is very complex, that postponing the decision
to another day is warranted.
Applications to postpone or adjourn a detention review are extremely rare and are usually
made by people who are not familiar with the duty imposed by section 57 of the Act to
hold a detention review in accordance with the time limits. These provisions should
prevail over any other consideration.
This is so because any departure from these requirements would make the detention
illegal and subject to habeas corpus. Furthermore, allowing an application to adjourn
would likely cause an injustice to the detained person (Rule 43(2)(i)). If an adjournment
is granted, the person will continue to be detained until the hearing, while if the review is
held, the person will remain in detention at worst and at best he or she will be released. In
addition, if the person has not been able to present all of the facts and make all of the
arguments in favour of his or her release because, for example, he or she was not
represented by counsel, he or she can always apply for an early review under Rule 9.
10.5.2
Admissibility hearing
It is relatively rare for a party to apply to change the time of an admissibility hearing.
When it happens, the application is treated in the same way as an application to change
the date of a hearing. The parties may have quite legitimate reasons to apply for a
postponement or an adjournment. The Division may rightly expect that they are acting in
good faith and diligently. The factors listed in Rule 43(2) must therefore be taken into
consideration in every case.
The grounds most frequently argued in support of an application to adjourn are to:
retain and instruct counsel;
allow the parties to prepare the case;
obtain evidence essential to the case;
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allow the party that has been taken by surprise to prepare when some of
the evidence was not disclosed before the hearing;7 and
prepare submissions.
The first two grounds are by far the most common, see Chapter 8 – Right to counsel,
section 8.3.2 – Right to counsel at a proceeding before the ID. The other three grounds
merit some comment.
10.5.2.1 To obtain evidence essential to the case
Where a party applies for an adjournment in order to obtain evidence that the party
considers essential to the case, the member should not hesitate to request particulars
concerning the nature, relevance, importance and availability of the evidence, as well as
the reasons why the evidence was not obtained before the hearing. What the party
considers essential evidence for the case may not be so in the eyes of the decision-maker.
For example, the evidence could be relevant but not very useful if its only purpose is to
corroborate facts that have already been established by other evidence.
Sometimes the possibility of obtaining the evidence is uncertain and somewhat illusory.
For example, it may be inappropriate to adjourn a hearing while waiting for a party to
obtain documents from a foreign organization, government or some other source over
which the person who is the subject of the proceeding has no control, or while awaiting
the outcome of an appeal from a judgment on a criminal conviction.
The same is true of an application for an adjournment while awaiting the decision of a
court or the outcome of another proceeding. In Nelson,8 the Minister asked for an
7
8
Under Rules 26 and 32, the evidence must in principle be disclosed before the hearing. In practice, it
often happens that some evidence will not have been disclosed before the hearing in the case of a fortyeight hour review or a seven-day review or where an admissibility hearing is held at the same time as
the review. In view of the tight time limits for the parties, Rules 26(a) and 32(2)(a) provide that the
evidence must be provided “as soon as possible” with the result that, more often than not, the evidence
will be presented at the hearing and may, in some cases, take the other party by surprise.
Nelson, Hortense Aneti v. M.E.I. (I.A.B., 86-10032), Fatsis, De Morais, Rotman, July 7, 1987.
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adjournment because another case with similar facts was pending in Federal Court. The
Immigration Appeal Board (IAB) [now the IAD] refused to grant the adjournment:
[Translation]
[…] whether the hearing of a case by the Board is to continue ought not
to depend on the outcome of another case pending in a higher court. The
Board is bound solely by the Act as it exists at the time it renders its
decision.
In Basdeo,9 the applicant challenged the validity of an exclusion order made by an
adjudicator [member]. He applied to have the Federal Court hearing adjourned until the
Supreme Court of Canada had ruled on the validity of the procedures used by the IAB in
reviewing claims for refugee status. The applicant did not directly challenge the IAB
decision in respect of his own refugee claim. The Court dismissed the motion to adjourn
because the issue of IAB procedures was only “collateral” to the issue directly before the
Federal Court.
10.5.2.2 To allow the party who is taken by surprise to prepare when
some of the evidence was not disclosed before the hearing
Sometimes, a party will apply to have the hearing adjourned on the grounds that the party
has been taken by surprise by evidence that was not communicated before the hearing.
The member may refuse to admit such evidence if he or she is of the opinion that the
requirements of Rules 26 and 32 have not been met, but in practice, the evidence is rarely
rejected.10 If he or she admits the evidence that was not communicated before the
hearing, the member should consider its nature and quantity. As a general rule, a break of
15 minutes to an hour is sufficient to give the party an opportunity to acquaint himself or
herself with the evidence. There are circumstances that warrant allowing an application to
adjourn -- for example, if there is a large amount of documentary evidence or if the
documentary evidence or testimony raises new issues that require preparation and the
presentation of rebuttal evidence.
9
10
Basdeo, Mohan v. M.E.I. (F.C.A., A-87-84), Urie, Ryan, Stone, June 4, 1984.
See, supra, note 7.
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10.5.2.3 To prepare submissions
As a general rule, submissions are made orally. If necessary, a break of 15 minutes to an
hour is enough to prepare submissions. Some counsel may apply for an adjournment so
they can make written submissions. In itself, this is not enough to warrant an
adjournment. However, if the case is complex, the legal issues are complicated or there is
a large amount of evidence, an adjournment might be called for so that the parties can
prepare their submissions. If this is the case, the member will determine, after consulting
the parties, whether submissions are to be made orally or in writing.
As much as possible, the member should avoid requiring written submissions because
they are generally a great deal more work than oral submissions. However they may be
necessary in some cases if, for example, the member intends to render his or her decision
in writing. It is important in this case to give the parties a deadline to provide submissions
to the Division. This is fairly rare in practice, however. Usually, a date for the
continuation of the hearing is fixed, and the decision and reasons are delivered orally in
the hearing room [for more details, see Chapter 14 – Decisions and reasons].
10.5.3
Admissibility hearing in the case of a detained person
If the person who is the subject of the proceeding is detained, the admissibility hearing is
generally fixed to coincide with the forty-eight-hour review. In view of the relatively
short time limits, the person who is the subject of the proceeding is often not ready to
proceed either because he has not had enough time to retain counsel or because counsel
needs time to prepare. The member may rightly grant an adjournment of the hearing in
such circumstances. However, he or she must conduct the detention review.
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TABLE OF CASES
Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh,
November 27, 1992.................................................................................................... 10-6
Ali, Umer v. M.C.I. (F.C.T.D., IMM-5212-00), Dawson, March 7, 2002……………..10-6
Basdeo, Mohan v. M.E.I. (F.C.A., A-87-84), Urie, Ryan, Stone, June 4, 1984........... 10-10
Dias, Ernesto Fabian et al. v. M.C.I. (F.C.T.D., IMM-2593-01), Heneghan,
January 28, 2003 ........................................................................................................ 10-5
Edumadze, Margaret v. M.E.I. (F.C.T.D., 92-T-1238), Rouleau, January 18,
1993............................................................................................................................ 10-6
Nelson, Hortense Aneti v. M.E.I. (I.A.B., 86-10032), Fatsis, De Morais,
Rotman, July 7, 1987 ................................................................................................. 10-9
Prassad v. Canada, [1989] 1 S.C.R. 560....................................................................... 10-6
Siloch, Hancy v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary,
January 11, 1993 ...............................................................................................10-5, 10-6
Tokar, Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry, January 24, 2003 ............. 10-6
Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992 .............. 10-6
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TABLE OF CONTENTS
11.
JOINING OR SEPARATING CASES .................................... 11-1
11.1
INTRODUCTION................................................................................... 11-1
11.2
OVERVIEW OF RULE 44 ..................................................................... 11-1
11.3
JOINING CASES .................................................................................. 11-2
11.4
11.3.1
Generally............................................................................................ 11-2
11.3.2
Cases joined by the Division before the hearing begins ................ 11-3
11.3.3
Application to join cases................................................................... 11-4
11.3.4
Holding a joint hearing .................................................................... 11-4
11.3.4.1
Exclusion of witnesses ...................................................... 11-5
11.3.4.2
Order of presentation of the evidence .............................. 11-5
11.3.4.3
Evaluation of the evidence and decision.......................... 11-6
SEPARATING CASES ......................................................................... 11-6
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11.
JOINING OR SEPARATING CASES
11.1
INTRODUCTION
Cases are “joined” when an admissibility hearing or a detention review is held for more
than one person. By joining cases, the Immigration Division can operate “informally and
quickly,” as required by subsection 162(2) of the Act.
The Act contains no specific provision for joining admissibility hearings or detention
reviews. Paragraph 161(1)(a) of the Act, however, provides that rules can be made to
govern the activities, practice and procedure of each of the divisions. Consequently,
Rule 44 was adopted for the joining of cases or for the separation of cases that have been
joined.
This chapter provides an overview of Rule 44 and describes Division practice for joining
or separating cases. The issue rarely causes problems before the Immigration Division.
The small amount of case law that has developed in the matter concerns the Refugee
Protection Division and will not be discussed in this Guide because it does not readily
apply to the Immigration Division given the differences in the nature of the hearings and
the matters that must be resolved.
11.2
OVERVIEW OF RULE 44
Rule 44 is contained in Part 3 of the Rules. Consequently, it applies to admissibility
hearings and detention reviews. Paragraphs (1) and (2) of Rule 44 allow a party to apply
to the Division to join several hearings or to separate hearings that have been joined.
Under Rule 50(a), the Division may act on its own. Therefore, the Division may join
cases in some circumstances even when no application has been made for this purpose
[for more details, see section 11.3 – Joining cases].
Paragraph (3) of Rule 44 sets out the factors that the Division should consider before
deciding an application to join or separate cases:
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whether the hearings involve similar questions of law or fact;
whether allowing the application would promote the efficient administration
of the work of the Division;
whether allowing the application would likely cause an injustice.
The Division should be guided by these considerations even when it acts on its own.
Usually, the Division (the registry office or, sometimes, the regional director, depending
on the circumstances) decides to join cases before the hearing begins. The advisability of
joining or separating cases depends on the circumstances. Sometimes, although rarely,
there are particular circumstances, only revealed at the hearing, that can give rise to an
application’s being made to the member in the hearing room to join or separate hearings.
11.3
JOINING CASES
11.3.1
Generally
There are definite advantages to joining cases, for example, the Division can decide the
cases before it more quickly and can avoid the inconsistent decisions that may result from
separate hearings when the evidence and arguments submitted are not necessarily the
same even though the questions of law or fact are similar.
Generally, the registry office will join the cases of members of the same family so that
their admissibility hearing or detention review can be held jointly, especially since they
speak the same language and are usually represented by the same counsel. Although the
allegations may vary, they are often based on the same facts. For example, the father of a
family may be the subject of a report alleging that he is inadmissible under
paragraph 40(1)(a) of the Act because of misrepresentations he made, while his wife and
children might be inadmissible because they are accompanying an inadmissible family
member paragraph 42(b). Another example might be a detention review for two brothers
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who are facing a deportation order and are alleged to have acted together to evade the
immigration authorities in order to avoid being removed from Canada.
In some circumstances, the cases of persons who are not from the same family may be
joined if, for example, the persons traveled together or for the same purpose or if they are
part of a group whose trip was organized by an agent. Joining hearings is particularly
effective in such cases because otherwise, the Division would have to hold more
hearings.
These people often speak the same language, are the subject of the same allegations and
are sometimes represented by the same counsel. It must be emphasized that the fact that
the people speak the same language or are represented by the same counsel are not
essential factors for joining cases. However, obviously, it is more difficult to conduct a
hearing when those factors are not present.
11.3.2
Cases joined by the Division before the hearing begins
If the cases have been joined before the hearing begins, the member should check the
information provided by the Minister under Rule 3 or 8 in order to determine whether:
the cases concern members of the same family;
the allegations are the same or arise from the same facts;
the language chosen for the hearing and the need for an
interpreter are the same;
counsel is the same.
When these elements are present, it is generally advisable to proceed jointly, and the
parties usually do not object.
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11.3.3
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Application to join cases
Rule 44(1) provides that the parties may apply to join hearings. On occasion, although
this is rare, a party will make such an application, usually before the hearing. If the
Division allows the application, the member should proceed as if the Division had joined
the hearings on its own [see section 11.3.2 – Cases joined by the Division before the
hearing begins].
In general, when an application to join hearings is made at the hearing, the member will
be taken by surprise because he or she has only the one case before him or her and is not
aware of the existence of the other requests to hold an admissibility hearing or a detention
review that the Minister has made to the Division. Such situations may arise, for
example, when, in the case of an admissibility hearing, two members of the same family
did not travel together or, in the case of detention reviews, the immigration authorities
arrested the people separately.
When this kind of application is allowed, the hearing is usually adjourned, which can
have an adverse effect on the Division’s efficiency. However, if the case appears to be
complex, it may be advantageous to allow the application even if it does lead to an
adjournment. In the case of detention reviews, the member should also take into
consideration the fact that the timing of the detention reviews must reflect the time limits
set out in section 57 of the Act. In all cases, the advisability of joining cases must be
evaluated in the light of the factors listed in Rule 44(3) and the circumstances of the case.
11.3.4
Holding a joint hearing
A joint hearing requires more care and closer supervision by the member, who must
ensure that the rights of each of the persons concerned in the joint hearing are respected.
For example, the member must designate a representative for persons less than 18 years
of age or who are unable to understand the nature of the proceedings. The member must
ensure that each person concerned or his or her designated representative fully
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understands the interpreter.
At a joint hearing, the member should inform the persons concerned that each of them
has the same rights that he or she would have at an individual hearing, namely, the right
to be represented by counsel, produce evidence, cross-examine witnesses and make
submissions. This does not mean that the evidence and the submissions have to be
repetitious. Usually, the evidence, or at least some of it, will apply to each person
concerned. However, each person concerned should be given the opportunity to examine
the documentary evidence, cross-examine the witnesses and produce evidence relevant to
the allegation against the person concerned and make submissions.
11.3.4.1
Exclusion of witnesses
Since each of the persons concerned has the right to review the evidence and crossexamine witnesses, they each have the right to be present throughout the entire
proceeding. For example, no one who is the subject of the proceeding can be excluded
from the hearing room while another person concerned delivers his or her testimony [for
more details, see Chapter 13 – Evidence and Submissions, section 13.4.2 – Hearing
witnesses]. However, in the case of very young children who might disrupt the
proceedings, the member may suggest that they be excluded, as long as their
designated representative remains in the room throughout the hearing.
11.3.4.2
Order of presentation of the evidence
The order in which the evidence is presented varies according to circumstances. In some
cases, the evidence must be presented in a particular order. For example, in the case of a
family where the children are alleged to be inadmissible under paragraph 42(b) of the
Act, it goes without saying that the parties must first present the evidence of the parents’
inadmissibility since the children’s inadmissibility flows from that of their parents. In
other cases, the member should invite the parties to propose an order for the presentation
of the evidence. For example, in a joint hearing for two people who are not from the same
family but who have travelled together with the help of an agent, the order in which the
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witnesses are heard is generally of little importance for the Division whereas it may be
part of the strategy that one of the parties intends to use in presenting his or her evidence.
The member should intervene and impose an order for the presentation of evidence only
if the order proposed by the parties might compromise efficiency.
11.3.4.3
Evaluation of the evidence and decision
At the outset of the hearing, the member should inform the persons concerned that, while
part of the evidence may apply to all of them and other evidence may apply to only some
of them, the evidence will be evaluated as a whole. The member may, as he or she sees
fit, issue individual decisions or one decision covering all of the persons concerned, but
in that case the decision and the reasons must clearly indicate the result of the
hearing in respect of each person.
11.4
SEPARATING CASES
Rule 44(2) provides that a party may apply to separate hearings that have been joined.
Such an application should not be granted unless the applicant justifies it. The reasons
may be varied, but it will usually be argued that the questions of law or fact are different
or that a joint hearing would cause an injustice. The member must ensure that the reasons
are serious and that it is not just a delaying tactic.
The mere possibility that there might be slight differences between the admissibility
hearings or the detention review hearings would not generally constitute sufficient
grounds to separate the cases. Cases should be separated if the applicant shows that the
issues are not really related.
A joint hearing could cause an injustice if there is a conflict of interest between the
persons concerned as, for example, in the case of a couple who is separated and are
fighting over custody of the children. It is up to the applicant to establish that a conflict of
interest exists between the persons who are to be the subjects of a joint hearing.
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Describing a situation as a “conflict of interest” must be avoided in cases where the
people merely give different versions of the facts. In such circumstances, it will be up to
the member to assess the credibility of each person.
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TABLE OF CONTENTS
12.
CONSTITUTIONAL QUESTIONS ......................................... 12-1
12.1
INTRODUCTION................................................................................... 12-1
12.2
PROCLAMATION OF THE CHARTER ................................................ 12-1
12.3
THE IMMIGRATION DIVISION’S JURISDICTION TO CONSIDER
AND DECIDE QUESTIONS OF CONSTITUTIONAL LAW .................. 12-3
12.4
12.3.1
Subsection 24(1) of the Charter....................................................... 12-5
12.3.2
Subsection 24(2) of the Charter....................................................... 12-6
12.3.3
Subsection 52(1) of the Constitution Act, 1982................................ 12-9
CHARTER CASE LAW........................................................................12-10
12.4.1
Removal orders ............................................................................... 12-10
12.4.2
Detention.......................................................................................... 12-12
12.4.2.1 Section 7 of the Charter.................................................... 12-12
12.4.2.2 Section 9 of the Charter.................................................... 12-13
12.4.2.3 Section 10 of the Charter.................................................. 12-15
12.5
12.4.3
Non-disclosure of information ....................................................... 12-17
12.4.4
Unconstitutional vagueness............................................................ 12-18
12.4.5
Unreasonable delay......................................................................... 12-19
PROCEDURE IN CHARTER CHALLENGES......................................12-21
12.5.1
Notice of Constitutional question .................................................. 12-21
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12.5.2
Failure to comply with Rule 47...................................................... 12-21
12.5.3
Discretionary power to deal with Charter challenges ................. 12-22
12.5.4
Procedure for deciding Charter challenges.................................. 12-23
ANNEX 12-A ..................................................................................................12-26
ANNEX 12-B ..................................................................................................12-28
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12.
CONSTITUTIONAL QUESTIONS
12.1
INTRODUCTION
Paragraph 3(3)(d) of the Act provides that the Act is to be construed and interpreted in a
manner that, among other things, ensures that decisions taken under it are consistent with
the Charter. The authority of some administrative tribunals, including the Immigration
Division, to decide constitutional questions has been recognized by the courts. That
authority is limited, however, to the powers they hold by virtue of their enabling statutes.
This chapter deals with the proclamation of the Charter, the Immigration Division’s
authority to consider and determine constitutional questions, the case law that has
evolved in this area as it relates to the Division’s powers and functions, and the procedure
in Charter challenges.
12.2
PROCLAMATION OF THE CHARTER
The Canadian Charter of Rights and Freedoms (the Charter) came into force on April 17,
1982. Section 15, on equality rights, took effect three years later, on April 17, 1985, in
order to give the federal and provincial governments time to amend their existing
legislation.
At the request of the Parliament of Canada, the Parliament of the United Kingdom
enacted the Canada Act 1982 (U.K.). This Act, which brought an end to the Parliament of
the United Kingdom’s power to enact laws in relation to Canada. Schedule A includes the
French version of the Constitution Act, 1982, while Schedule B contains the English
version. The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act,
1982.
The Constitution Act, 1982 is now the law in Canada. It consists of seven parts and one
schedule:
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Part I:
The Canadian Charter of Rights and Freedoms (ss. 1 to 34)
Part II:
Rights of the Aboriginal Peoples of Canada (s. 35)
Part III:
Equalization and Regional Disparities (s. 36)
Part IV:
Constitutional Conference (s. 37)
Part V:
Procedure for Amending Constitution of Canada (ss. 38 to 49)
Part VI:
Amendment to the Constitution Act, 1867 (ss. 50 and 51)
Part VII:
General (ss. 52 to 60)
Schedule I: (to the Constitution Act, 1982) Modernization of the Constitution
(30 sections renaming or repealing earlier statutes, including the British North America
Act, 1867 [BNA] which became the Constitution Act, 1867).
Under subsection 52(2) of the Constitution Act, 1982, the Constitution of Canada
includes this Act and various other statutes. The Charter, namely, Part I of the
Constitution Act, 1982, is therefore part of the Constitution of Canada.
From a technical point of view, it is inaccurate to refer to “section 52 of the Charter.” The
Charter consists of the first 34 sections of the Constitution Act, 1982. “Section 52” is
contained in Part VII of the Constitution Act, 1982. It should therefore be referred to as
“section 52 of the Constitution Act, 1982.”
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THE IMMIGRATION DIVISION’S JURISDICTION TO CONSIDER AND
DECIDE QUESTIONS OF CONSTITUTIONAL LAW
The Constitution Act, 1982 provides three ways to assert the rights guaranteed by the
Charter in the event of a violation. Charter challenges may be grounded on
subsection 24(1) or (2) of the Charter or on subsection 52(1) of the Constitution Act,
1982.
In Big M Drug Mart Ltd.,1 one of the first decisions on the subject, the Supreme Court of
Canada considered the arguments put forward by a company that had been charged with
violating the Lord’s Day Act. The company argued that that Act violated the freedom of
conscience and religion guaranteed by paragraph 2(a) of the Charter. The Supreme Court
held that the invalidity of that Act could be raised at trial in a provincial court (which is
not a superior court). It implied that a challenge to the constitutionality of an enactment
could be based on section 52 of the Constitution Act, 1982 without consideration being
given to whether the court was a court of competent jurisdiction within the meaning of
subsection 24(1) of the Charter. In short, subsection 52(1) of the Constitution Act, 1982 is
a remedy that is separate from section 24 of the Charter for asserting Charter rights in the
event of a violation.
The power of administrative tribunals to consider constitutional challenges and rule on
violations of Charter rights has been the subject of a number of decisions, but some
points remain unsettled.
With regard to section 24 of the Charter, the issue of whether an administrative tribunal
such as the Immigration Division is a “court of competent jurisdiction” that can grant an
appropriate remedy to a person whose Charter rights have been violated or denied has not
been definitively resolved, although the case law seems to indicate that, in certain
circumstances, the Division could grant a remedy under section 24 of the Charter.
1
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
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As for subsection 52(1) of the Constitution Act, 1982, the power of administrative
tribunals to declare “of no force or effect” a statutory provision that is inconsistent with
the Constitution depends on the nature of the tribunal2 and, specifically, on the authority
conferred on it by its enabling statute.3 The Federal Court of Appeal recognized in
Armadale Communications Ltd.4 that the Adjudication Division (Immigration Division)
is a court of competent jurisdiction to rule on questions concerning the application of the
Charter. The Federal Court wrote in Sahin5 at page 230:
The law is clear that adjudicators [panel members] under the
Immigration Act have the jurisdiction to exercise extensive powers to
decide important questions of law and fact, including detentions under
section 103 [now section 58 of the Act]. In making such decisions,
adjudicators are vested with the power to decide questions touching the
application and supremacy of the Charter.
This jurisdiction nevertheless is significantly limited, as explained in section 12.3.3 –
Subsection 52(1) of the Constitution Act, 1982.
2
3
4
5
Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; Tétreault-Gadoury v.
Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Cuddy Chicks Ltd. v.
Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Cooper v. Canada (Human Rights Commission),
[1996] 3 S.C.R. 854; Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43. In
Gwala, the Federal Court held that an immigration officer did not have the power to rule on
constitutional questions under subsection 52(1) of the Constitution Act, 1982.
Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, File No.: 28372,
October 3, 2003. In this decision, the Supreme Court of Canada clarified the jurisdiction of
administrative tribunals to rule on constitutional questions. It explained that the question is not
whether, under the tribunal’s enabling statute, Parliament or the legislature intended the tribunal to
apply the Charter, but rather whether the empowering legislation implicitly or explicitly grants to the
tribunal the power to decide questions of law. If it does, then the tribunal will be presumed to have the
jurisdiction to interpret or decide that question in light of the Charter, unless the legislator has
explicitly removed that power from the tribunal (see, specifically, paragraphs 35, 36 and 48).
Armadale Communications Ltd. et al. v. Minister of Employment and Immigration (1991), 127 N.R.
342 (F.C.A.).
Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214.
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Subsection 24(1) of the Charter
Subsection 24(1) of the Charter provides as follows:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate
and just in the circumstances.
In other words, the Charter explicitly provides that any person whose Charter rights have
been infringed may apply to a court of competent jurisdiction for a remedy.
Subsection 24(1) of the Charter uses the words “tribunal compétent” in the French
version but “court of competent jurisdiction” in the English version. The French wording
would appear to be broader and therefore more applicable to administrative tribunals than
the English version. The case law has not come down clearly in favour of one version or
the other. Superior court decisions holding that an administrative tribunal lacks
jurisdiction to award a remedy under subsection 24(1) of the Charter have been justified
on other grounds.
In Borowski,6 an adjudicator (panel member) decided that the provision of the former
Immigration Act permitting a lawyer to be appointed by the tribunal on its own initiative
in certain admissibility hearings and not in others was discriminatory and inconsistent
with the equality rights set out in section 15 of the Charter. He therefore appointed
counsel on his own initiative to represent the person. The Federal Court held that an
adjudicator could decide to disregard a provision of the Immigration Act but could not
grant a remedy under subsection 24(1) of the Charter. In fact, no provision in the former
Immigration Act authorized an adjudicator to appoint counsel in the kind of hearing with
which he was seized.
In Howard,7 the remedy sought was to have the deportation order quashed. The applicant
challenged the constitutionality of certain provisions of the former Young Offenders Act
6
7
Canada (Minister of Employment and Immigration) v. Borowski, [1990] 2 F.C. 728 (T.D.).
Howard, Kenrick Kirk v. M.C.I. (F.C.T.D., IMM- 5252-94), Dubé, January 4, 1996. See also Halm v.
M.E.I. (1991), 172 N.R. 315 (F.C.A.).
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on which the conviction leading to the deportation of this permanent resident was based.
A stay had been granted but was subsequently cancelled by the Immigration Appeal
Division. The Federal Court upheld the Appeal Division’s decision that it did not have
jurisdiction to rule on constitutional arguments. It noted that, in the case in question,
neither the adjudicator nor the Appeal Division was a court of competent jurisdiction
within the meaning of subsection 24(1) of the Charter since the Immigration Act did not
confer any power to determine the constitutionality of the Young Offenders Act.
In these cases, the remedy sought clearly did not fall within the tribunal’s jurisdiction.
The case law indicates that subsection 24(1) of the Charter does not confer new
powers on any tribunal. A tribunal is competent under subsection 24(1) of the Charter if
it has jurisdiction over the person, the subject matter of the dispute and the remedy
sought, under a legal source distinct from the Charter.8 It is therefore possible that, in
certain specific circumstances, the Immigration Division might be recognized as a “court
of competent jurisdiction” to the extent that, under its enabling statute, it is authorized to
grant the remedy applied for.
It is also important to note that subsection 24(1) of the Charter provides a remedy for any
damages that may be sustained. Accordingly, the Immigration Division does not have to
decide whether it has jurisdiction to grant a remedy under this provision if no Charter
right has been infringed.9
12.3.2
Subsection 24(2) of the Charter
Subsection 24(2) of the Charter is worded as follows:
(2) Where, in proceedings under subsection (1), a court concludes that
evidence was obtained in a manner that infringed or denied any
rights or freedoms guaranteed by this Charter, the evidence shall be
8
9
Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177; Mills v. The Queen,
[1986] 1 S.C.R. 863; Cuddy Chicks Ltd., supra, note 2.
Chan, Ngorn Hong v. M.E.I. (IAD, V90-00287), Wlodyka, Guillanders, Verma, July 31, 1992;
Maharaj, Davechand v. M.E.I. (IAD, T90-07339), Sherman, Ariemma, Weisdorf, October 21, 1991.
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excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.
The remedy provided by this provision consists in the admission or exclusion of
evidence. It is intrinsically linked to subsection 24(1). Consequently, all of the comments
made above apply here as well. There is little case law concerning the use by
administrative tribunals of the subsection 24(2) remedy.
In Mooring,10 the Supreme Court of Canada addressed the issue of whether the National
Parole Board is a “court of competent jurisdiction” for the purposes of excluding
evidence under subsection 24(2) of the Charter. It found that the Board was not
empowered by its enabling statute, the Corrections and Conditional Release Act, to
exclude evidence.
The Supreme Court found that, even assuming that the Parole Board has jurisdiction over
the parties and the subject matter, both its structure and function and the language of its
constituting statute show that it is not empowered to make the order sought. More
specifically, the Court stated that the Board acts in neither a judicial nor a quasi-judicial
manner and that the usual rules for the presentation of evidence do not apply. It went on
to note other differences between parole hearings and more ordinary court proceedings.
For example, the Board lacks the power to issue subpoenas; evidence is not presented
under oath, and the members of the panel hearing the case may have no legal training.
The Court noted that the Parole Board does not hear and assess evidence, but instead acts
on information.11
10
11
Mooring v. Canada, [1996] 1 S.C.R. 75.
Idem, pp. 91 to 93.
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The Federal Court’s decision in Bertold12 indicated that the Immigration Appeal Division
has jurisdiction for the purpose of the exclusion of evidence under subsection 24(2) of the
Charter. The Federal Court referred the case back to the Immigration Appeal Division,
among other reasons, because the Division had admitted criminal and investigations files
from Germany, obtained through the illegal, fraudulent and deceptive schemes of a third
party in violation of sections 7 and 8 of the Charter. The Court stated that this evidence
should have been excluded under subsection 24(2) of the Charter, thus confirming that
the Immigration Appeal Division had jurisdiction to do so.
A basic difference between the Immigration Division and the Immigration Appeal
Division is that the Appeal Division is a “court of record,”13 but some court decisions
indicate that an administrative tribunal may be considered as a court of law for the
purposes of section 24 of the Charter even if it is not designated as a “court of record.”
Since all of the elements considered by the Supreme Court of Canada in Mooring can be
found in the Immigration Division, with the exception of the members’ legal training, the
Immigration Division is arguably a “court of competent jurisdiction” for the purposes of
subsection 24(2) of the Charter.
To apply this subsection, the decision-maker must determine, first, whether the evidence
that the tribunal has been asked to set aside was obtained in a manner that infringed
Charter rights and, second, whether the use of that evidence would likely bring the
administration of justice into disrepute. Three factors bear on whether the administration
of justice has been brought into disrepute: (1) the impact that use of the evidence might
12
13
Bertold, Eberhard v. M.C.I. (F.C.T.D., IMM-5228-98), Muldoon, September 29, 1999. In this case, the
documents had been obtained from the German authorities. The Immigration Appeal Division did not
accept the appellant’s argument that the documents had been obtained in conditions that infringed his
rights guaranteed by the Charter. The argument was based on the decision in Schreiber v. Canada
(Attorney General), [1998] S.C.R. 841, in which the Supreme Court of Canada held that it is the law of
the country where the information is found that governs the issue of whether and how it may be
obtained. The Court appears to have found that the German authorities had, at the request of Canadian
immigration authorities, only confirmed information they had received from a certain Langreuther, a
creditor of the appellant who had harassed and threatened him. The judgment does not shed any light
with respect to determining how the evidence was obtained in a manner that infringed sections 7 and 8
of the Charter. The Court did not make any pronouncement on the issue of whether the evidence was
likely to bring the administration of justice into disrepute.
Subsection 174(1) of the Act.
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have on the fairness of the proceeding, (2) the seriousness of the infringement of the
rights, and (3) the consequences of not admitting the evidence. These factors were
developed in criminal proceedings,14 but it is believed that they would apply to
administrative matters as well if properly adapted.
12.3.3
Subsection 52(1) of the Constitution Act, 1982
Subsection 52(1) of the Constitution Act, 1982 reads as follows:
(1) The Constitution of Canada is the supreme law of Canada, and any
law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.
Subsection 52(1) of the Constitution Act, 1982 affords the basis for the argument most
commonly used before an administrative tribunal to assert a Charter right. The Supreme
Court of Canada has made it clear that some administrative tribunals are competent to
consider Charter questions under subsection 52(1) of the Constitution Act, 1982 as part of
the mandate they have been given by Parliament.15 The Immigration Division’s
jurisdiction in this regard has been confirmed by the Federal Court of Appeal and by the
Federal Court.16 This means that the Division has the authority to rule on the
inconsistency of a provision of its own enabling legislation with the Constitution and to
declare it to be of no force or effect, subject to the following.
Under section 52, a law inconsistent with the Charter can be judicially recognized as
being of no force or effect. The Supreme Court has equated this kind of finding with
invalidity.17 However, it is important to note that only a superior court may strike
down a statutory provision without regard to other questions of law; administrative
tribunals can only by implication draw conclusions from a conflict between the law and
the Charter in exercising the main power conferred on them by their enabling statute.
14
15
16
17
R. v. Collins, [1987] 1 S.C.R. 265, pp. 280 and 281; R. v. Ross, [1989] 1 S.C.R. 3, p. 15; R. v. Genest,
[1989] 1 S.C.R. 59, p. 83.
Supra, notes 2 and 3.
Supra, notes 4 and 5.
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, p. 746.
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Consequently, a decision by an administrative tribunal that a provision of its
enabling Act is “of no force or effect” or is “invalid” is valid only for the parties in
the case and does not constitute a general declaration of invalidity.
In order to avoid the use of wording that might suggest a general declaration of invalidity,
which lies solely within the jurisdiction of a superior court, it is better to refer to the
inapplicability of the Act rather than to its invalidity. The member should couch any
decision of that kind in terms of the inapplicability of certain provisions of the Act
because if they were applied to the person, they would violate a right guaranteed him or
her by the Charter [see also section 12.5.4 – Procedure for deciding Charter challenges].
12.4
CHARTER CASE LAW
In immigration matters, freedom of the press and the right to an interpreter, guaranteed
respectively by paragraph 2(b) and section 14 of the Charter, have been the subject of
constitutional arguments. On these topics, see Chapter 4 – Public or Private Hearing and
Chapter 6 – Language of Proceedings and Interpreter. The rights guaranteed by
sections 7, 9, 10, 11, 12 and 15 of the Charter, reproduced in Annex A-12, have also been
the subject of constitutional challenges.
The higher courts have decided a number of constitutional challenges in the area of
immigration. Many jurisprudential principles have been identified in these decisions. This
chapter covers only those which affect the functions of the Immigration Division and
which may therefore be of interest to the members in the performance of their duties.
12.4.1
Removal orders
The case-law principles concerning removal orders are as follows:
The deportation of a permanent resident (paragraph 45(d) of the Act)
because of serious criminal offences does not in itself constitute an
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infringement of the rights guaranteed by sections 7, 12 and 15 of the
Charter.18
Limitations of the right to appeal (subsections 64(1) and (2) of the Act)
do not infringe the rights guaranteed by section 7 of the Charter.19
The deportation of a protected person could constitute a violation of the
rights guaranteed by sections 7 and 12 of the Charter.20 However, it is not
the “making” of a removal order, but rather the “execution” of that order
that could, in certain circumstances constitute a violation of a Charter
right. The execution of a removal order comes under the responsibility of
the Minister, and he or she cannot make a decision as to the country of
removal until the Board has settled the deportation issue.21 The result is
that any constitutional argument that the implementation of a removal
order to the country of persecution violates a Charter right, which might
be made at a hearing before the Immigration Division, is premature and
ultra vires. It is the decision of the Minister to carry out the removal order
that may be challenged constitutionally before the Federal Court [for more
details, see Chapter 11 in the Handbook on Inadmissibility and Detention].
Section 11 of the Charter does not apply to removals. This section applies
to criminal and quasi-criminal proceedings and to proceedings involving
penal consequences. A removal is not a criminal or quasi-criminal matter
and cannot be considered as involving a true penal consequence.22
18
19
20
21
22
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711; Chiarelli v.
Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (C.A.). See also M.C.I. v.
Thompson, Leonard George (ID 0003-A3-00144), Iozzo, September 11, 2003, application for leave to
seek judicial review dismissed on January 14, 2004.
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.); see also
Canada (Minister of Employment and Immigration) v. Chiarelli, supra, note 18; M.C.I. v. Medovarski,
Olga, (F.C.A., A-249-03), Rothstein, Evans, Pelletier, March 3, 2004; Nokhodchari, Moseyab Nazari
v. M.C.I. (F.C.T.D., IMM-4535-02), Blais, June 26, 2003; M.C.I. v. Powell, Hylroy Charles (ID 0003A2-01742), Tumir, June 12, 2003; application for leave to seek judicial review filed on September 5,
2003 is under review.
See, for example, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. In
that case, the Supreme Court of Canada decided that the removal of a refugee to a country where he or
she is subject to a danger of torture could constitute a violation of the person’s Charter rights.
Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.). See also Atef v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 86 (T.D.).
Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.). See also R. v.
Wigglesworth, [1987] 2 S.C.R. 541; Gittens (In re), [1983] 1 F.C. 152; Bowen v. Canada (Minister of
Employment and Immigration), [1984] 2 F.C. 507 (C.A.). See also Blencoe v. British Columbia
(Human Rights Commission), [2000] 2 S.C.R. 307.
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Detention
Detention may raise issues pertaining to sections 7, 9 and 10 of the Charter.
12.4.2.1
Section 7 of the Charter
The Federal Court laid down a number of principles in Sahin:23
Detention engages the right to liberty guaranteed by section 7 of the
Charter, and the member must take account of that section when
exercising his or her powers under section 58 of the Act.
The principles of fundamental justice referred to in section 7 of the
Charter are also engaged and require balancing the right of society to
be protected from those who pose a danger to public safety and the
right of Canada to control who enters and remains in this country with
the liberty interest of the individual.
Long-term detention may, in certain cases, constitute an indefinite
detention and therefore a deprivation of liberty that is not in
accordance with the principles of fundamental justice.
In Sahin, the Federal Court set out a number of factors that a member must consider in
deciding whether to detain or release a person under section 7 of the Charter. These
factors have been codified in section 248 of the Regulations:
248. If it is determined that there are grounds for detention, the following
factors shall be considered before a decision is made on detention or
release:
(a) the reason for detention;
(b) the length of time in detention;
23
Supra, note 5.
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(c) whether there are any elements that can assist in determining the
length of time that detention is likely to continue and, if so, that
length of time;
(d) any unexplained delays or unexplained lack of diligence caused by
the Department or the person concerned; and
(e) the existence of alternatives to detention.
These factors are not exhaustive. The member must always have regard to all the
circumstances of the case and correctly weigh the relevant factors.24
The question of whether section 248 of the Regulations applies when a person is held
under paragraph 58(1)(c) of the Act because he or she is suspected of being inadmissible
for serious reasons is undecided [for more details, see Part II (Detention) of the
Handbook on Inadmissibility and Detention]. The right guaranteed by section 7 of the
Charter could, however, be invoked and the member should then consider those criteria
in reaching a decision.
12.4.2.2
Section 9 of the Charter
Section 9 of the Charter guarantees protection from arbitrary detention or imprisonment.
Section 57 of the Act provides for detention reviews at regular intervals by means of a
hearing before the Immigration Division, an independent tribunal. It would therefore be
difficult to argue that a detention in an immigration case is arbitrary. Moreover, this
argument does not appear to have been raised in the context of a detention review.
However, it was made in the context of a detention under section 82 of the Act in relation
to persons named in a certificate (subsection 77(1) of the Act). Sections 83 and 84 of the
24
See, for example, M.C.I. v. Kamail, Nariman Zangeneh (F.C.T.D., IMM-6474-00), O’Keefe, April 8,
2002; M.C.I. v. Singh, Harjit (F.C.T.D., IMM-3937-01), McKeown, August 27, 2001; M.C.I. v. Lin,
Rui Jiao (F.C.T.D., IMM-1098-00), Heneghan, July 27, 2001; M.C.I. v. Lai, Cheong Sing (F.C.T.D.,
IMM-486-01), Campbell, February 26, 2001; Ahani, Mansour v. M.C.I. (F.C.A., A-160-99), Linden,
Rothstein, Malone, July 11, 2000; San Vicente, Roberto v. M.C.I. (F.C.T.D., IMM-2615-97), MacKay,
January 27, 1998; Kidane, Derar v. M.C.I. (F.C.T.D., IMM-2044-96), Jerome, July 11, 1997.
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Act provide for review of the detention by a Federal Court judge at much greater
intervals (48 hours and then every 6 months) in the case of a permanent resident and on
application only in the case of a foreign national.
In Charkaoui,25 the Federal Court ruled that these provisions are constitutional and do not
infringe, among other things, the rights guaranteed by section 9 of the Charter. The
Federal Court of Appeal had earlier ruled, in Ahani,26 on the constitutionality of
section 40.1 of the former Immigration Act, which concerned certificates involving
detention provisions similar to those in the current Act. On this subject, the Federal Court
of Appeal wrote as follows at paragraph 4 of the decision:
[…] in view of the test for the issuance of the certificate, that is to say the
reasoned opinion of two ministers based on security information; in view
of the fact that the scheme provides for the obligatory judicial scrutiny of
the reasonableness of those opinions within an acceptably short period of
time; in view, also, of the possibility given to the detainee to put an end
to the detention at any time by agreeing to leave the country; and in
view, finally, of the type of prohibited class of individuals there are
reasons to believe we are dealing with, that is to say individuals
somehow associated with terrorism, it appears to us, as it appeared to the
learned trial judge, that such preventive detention is not arbitrary, nor
excessive.
Consequently, it is unlikely that a detention under section 58 of the Act would be found
to infringe the right guaranteed by section 9 of the Charter, in view of the detention
review process provided by Division 6 of the Act.
25
26
Charkaoui, Adil v. M.C.I. and Solicitor General of Canada, (F.C.T.D., DES-3-03), Noël, December 5,
2003, certified question on appeal before the Federal Court of Appeal (A-603-03), December 23, 2003.
Ahani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 669 (T.D.); confirmed by
the Federal Court of Appeal, Ahani Mansour v. Canada (A-639-95), Marceau, Hugessen, Décary,
July 4, 1996; Application for leave to appeal dismissed [1996] S.C.C.A. No. 496.
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12.4.2.3
IRB
Section 10 of the Charter
The purpose of section 10 of the Charter is to ensure that a detainee is informed of his or
her right to counsel and that he or she can retain and instruct counsel without delay.
There is no doubt that a person who is the subject of a detention review has the right to be
represented by counsel and that he or she must be informed of this right at the beginning
of the hearing [see Chapter 8 – Right to Counsel, section 8.3.2 – Right to counsel at a
hearing before the Immigration Division]. It appears that no Charter challenges have been
launched based on the right guaranteed by section 10 of the Charter when a detention
review hearing has been held in the absence of counsel in order meet the time limit
imposed by section 57 of the Act [see sections 8.3.2.2.2 – Detention review and
8.3.2.2.3 – Admissibility hearing for a detained person].
However, the right to counsel in cases of an arrest or detention by Citizenship and
Immigration Canada (CIC) has been addressed in a number of decisions. For
constitutional purposes, the time at which a person is considered to be detained depends
on the circumstances of each case. It would appear that the length of the detention and its
place are important factors in determining whether the person has been arrested and
detained within the meaning of section 10 of the Charter.27
According to section 54 of the Act, the Immigration Division is the competent Division
of the Board with respect to the review of reasons for detention under Division 6 of the
Act, which includes section 55; this section provides for the arrest and detention by CIC.
Accordingly, a detainee could argue at a hearing before the Immigration Division that the
rights guaranteed him or her by paragraphs 10(a) and (b) of the Charter had been
violated. Constitutional arguments can take various forms, and the remedy sought may
vary depending on the circumstances. However, the member must make sure that he
or she has jurisdiction under the Act to grant the remedy sought. For example, if the
member finds that there has been a breach of the right guaranteed by section 10 of the
27
See Deghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; Dragosin,
Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay, January 27, 2003; Huang v. Canada (Minister
of Citizenship and Immigration), [2002] 3 F.C. 266.
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Charter, the appropriate remedy is not simply to release the person. The member’s
jurisdiction over detention or release is set out in section 58 of the Act. The member may
not order release without examining the evidence relating to one or more of the
four grounds for detention. The appropriate remedy would instead be to exclude the
evidence obtained during the detention in accordance with subsection 24(2) of the
Charter.
In Huang,28 the refugee protection claimant was on board a ship that was intercepted in
Canadian waters. The person was searched, handcuffed, taken to a holding facility and
interviewed. She was told three days after she was apprehended that she could consult a
lawyer. The notes taken at the port of entry were submitted in evidence in a hearing
before the Refugee Protection Division (the RPD, formerly the CRDD). The Division
found that Ms. Huang was not credible and refused the refugee protection claim. The
Federal Court found that there had been a breach of the right guaranteed by section 10 of
the Charter. With respect to the remedy, it wrote as follows at paragraph 31 of the
decision:
The ultimate remedy for that wrong, in appropriate circumstances, would
be exclusion from evidence of any statements made in that period of
delay if those statements were to form a significant basis for the CRDD
decision.
In this case, the Federal Court found that the CRDD’s decision to admit the port-of-entry
notes into evidence did not affect the fairness of the hearing because its finding of lack of
credibility was not based on those notes.
28
Supra, note 27.
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12.4.3
IRB
Non-disclosure of information
In Sogi,29 the Federal Court ruled that the procedure for reviewing certain information in
camera ex parte under section 86 of the Act did not violate the rights guaranteed by
section 7 of the Charter.
In Ahani,30 the Federal Court had earlier held that the procedure set out in section 40.1 of
the former Immigration Act was consistent with the principles of fundamental justice
guaranteed by section 7 of the Charter. In Jaballah,31 it examined the provisions of
Division 9 of the Act relating to the referral of a certificate and found that they were
similar to the former provisions in almost every respect and were therefore consistent
with the rights guaranteed by section 7 of the Charter. The case involved a security
certificate referred to the Federal Court; section 86, which provided that, on application
of the Minister, the procedure for reviewing information to be protected was applicable to
the Immigration Division and the Immigration Appeal Division, was not therefore at
issue [see also Chapter 5 – Applications for Non-Disclosure of Information, section 5.7 –
Constitutionality of the Process for Examining the Information to be Protected].
In Sogi,32 it was argued that section 86 of the Act provided for a procedure that engaged
the rights guaranteed by section 7 of the Charter since it was a procedure that did not
respect the principles of fundamental justice. The applicant argued that the procedure
before the IRB differed on two points:
Referring a certificate to the Federal Court (section 77 of the Act)
means that two Ministers review the information to be protected rather
than just one (subsection 44(2) and section 86 of the Act).
29
30
31
32
Sogi, Bachan Singh v. M.C.I. (F.C.T.D., IMM-5125-02), MacKay, December 8, 2003. Certified
question – appeal to the Federal Court of Appeal pending, Sogi v. M.C.I. (A-597-03).
Supra, note 26.
Jaballah, Mahmoud (Re) (F.C.T.D., DES-4-01), MacKay, May 23, 2003.
Supra, note 29.
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The members of the Immigration Division do not have the expertise
and experience required to consider information said to be security
intelligence and balance the state’s interests with the interests of the
individual concerned in the fullest possible disclosure of the case to be
met.
The Court noted a third significant difference: when a security certificate is referred to
the Federal Court, the decision of that Court is final and may not be appealed or judicially
reviewed (subsection 80(3) of the Act), whereas the decision of a member of the
Immigration Division is subject to judicial review by the Federal Court [see also
Chapter 5 – Applications for Non-Disclosure of Information, section 5.4 – Legislative
context and Annex 5-A].
For the same reasons as those given by McGillis J. in Ahani,33 MacKay J. found that the
procedure for reviewing the information to be protected in the context of a hearing before
the IRB is not contrary to the principles of fundamental justice and does not infringe the
rights guaranteed by section 7 of the Charter.
12.4.4
Unconstitutional vagueness
A statutory provision may be challenged on constitutional grounds for vagueness. In
Nova Scotia Pharmaceutical Society,34 the Supreme Court of Canada said, at page 643 of
the judgment: “[…] a law will be found unconstitutionally vague if it so lacks in
precision as not to give sufficient guidance for legal debate.” Although the matter is
unsettled, it appears that administrative tribunals do not have jurisdiction to rule in the
matter.
However, it is interesting to note that the vagueness argument has been raised in relation
to the words “danger to the public” (paragraph 58(1)(a) of the Act). In Suresh,35 the
33
34
35
Supra, note 26, pp. 691 to 697.
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.
Supra, note 20.
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Supreme Court of Canada found that this expression is not so vague as to be
unconstitutional.36
12.4.5
Unreasonable delay
The unreasonable delay argument has been raised primarily in criminal proceedings to
assert the right of an accused to be tried within a reasonable time in accordance with
paragraph 11(b) of the Charter. When the argument is accepted, the result is a stay of
criminal proceedings. In the wake of the Supreme Court of Canada’s decision in Askov,37
where Cory J. stated that a delay of six to eight months between the committal for trial
and the actual trial is the outer limit of reasonableness, several attempts were made to use
the unreasonable delay argument before the various divisions of the IRB.
In Akthar,38 it was argued that the right guaranteed by section 7 of the Charter was
infringed because of the two-and-a-half-year delay between the initial refugee claim and
the tribunal’s decision. The Federal Court of Appeal drew a clear distinction between a
person claiming refugee status and a person accused of a criminal offence; the former
benefits from no presumption, whereas the latter is presumed to be innocent. The Court
did not, however, rule out the possibility that an unreasonable delay in being heard might
constitute an infringement of the right guaranteed by section 7 of the Charter. The Court
stated as follows:
36
37
38
See also Williams v. Canada (Minister of Citizenship and Immigration), supra, note 19 and Rasa,
Sriranjan v. M.C.I. (F.C.T.D., IMM-6818-98), O’Keefe, May 11, 2000. The Federal Court of Appeal
and the Federal Court had reached a similar decision with respect to the words “danger to the public”
found in various sections of the former Immigration Act.
Askov v. The Queen, [1990] 2 S.C.R. 1199.
Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.)
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In the first place, the applicants are not at all in the same legal position as
an accused person. This, of course means that they do not enjoy the
specific protection afforded by paragraph 11(b) of the Charter. That in
itself is not conclusive for it is well accepted that the specific dispositions
of section 11 are only particular applications of the principles of
fundamental justice enshrined in section 7.39
The Court added, however, that in non-criminal cases any infringement of the Charter
based on delay must be supported by evidence that the person making the claim suffered
prejudice or an injustice attributable to the delay.
It is unlikely that this argument could be advanced in a detention review in view of the
detention review process provided for in Division 6 of the Act. Normally, the Minister is
diligent in bringing detained persons before the Division within the time limits provided
for in section 57 of the Act.
The unreasonable delay argument could be raised before the Immigration Division,
particularly if the Minister is unduly slow to refer a case to the Division for a hearing.40
Note that two elements are required to sustain such an argument: the person concerned
must show, first, that he or she has suffered prejudice or an injustice as a result of the
delay and, second, that the prejudice constitutes an infringement of a Charter right.
39
40
Ibid., p. 38.
For example, a permanent resident who is a member of the entrepreneur class (sections 97 et seq. of
the Regulations) has three years after the day on which he or she becomes a permanent resident to
provide evidence of compliance with the conditions imposed on him or her. The former Immigration
Act contained similar provisions. Occasionally, the Minister allows four to six years to elapse before
making a report and referring the case to the Adjudication Division (now the ID). The more time goes
by, the more the entrepreneur and his or her family will have become established. This situation could
give rise to an argument that the delay in referring the matter to the ID caused prejudice to the person
concerned and his or her family.
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12.5
IRB
PROCEDURE IN CHARTER CHALLENGES
12.5.1
Notice of Constitutional question
Constitutional challenges are governed by Rule 47, which comply with the
requirements of section 57 of the Federal Court Act41 [reproduced in Annex B-12].
A party wanting to challenge the constitutional validity, applicability or operability of a
statutory provision must prepare a Notice of Constitutional Question and then provide the
original to the Division with a copy to the other party, the Attorney General of Canada
and the Attorney General of every province and territory in Canada.
The Notice must be received by the recipients no later than 10 days before the date on
which the constitutional question is to be argued. It must contain the information listed in
Rule 47(2); this information is similar to that contained in Form 69 of the Federal Court
Rules (1998), entitled “Notice of Constitutional Question.”
12.5.2
Failure to comply with Rule 47
If a party does not comply with Rule 47, the member may rightfully refuse to hear the
constitutional arguments.42 Constitutional challenges are nearly always complex. It is
therefore important that the panel be informed in advance of a party’s intention to present
such arguments. In addition, according subsection 57(1) of the Federal Court Act, a
federal board, commission or other tribunal, in this case, the Immigration Division,
cannot declare a provision invalid, inapplicable or inoperable unless the Attorney
General of Canada and the Attorneys General of the provinces have been notified.
According to subsection 57(4), moreover, the latter are entitled to adduce evidence and
make submissions, although they exercise this right primarily before the courts.
41
42
R.S.C. 1985, c. F-7, as am.
Gonsalves, Gwendolyn Barbara v. M.C.I. (F.C.T.D., IMM-1992-96), Muldoon, May 9, 1997;
Carpenter, Herbert Wayne v. M.C.I. (IAD, V94-02423), Clark, January 3, 1997.
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In the case of a 48-hour review or a 7-day review or an admissibility hearing held at the
same time, the party who wants to submit constitutional arguments cannot of course
comply with the requirements of Rule 47. In the case of a detention review, the member
must hold the hearing while taking the requirements of section 57 of the Act into account,
and must invite the party in question to reserve his or her constitutional arguments for
another detention review, if any, which will give him or her time to comply with Rule 47.
When the party wants to submit constitutional arguments in an admissibility hearing held
at the same time as the detention review hearing, consideration should be given to
adjourning the hearing to allow him or her to comply with Rule 47. The member should,
however, proceed with the detention review.
In all other cases, unless the circumstances are exceptional, the panel may rightly refuse
to hear constitutional arguments and may refuse to grant an adjournment to allow the
party to comply with Rule 47 since the party will have enough time to comply with
the rule.
12.5.3
Discretionary power to deal with Charter challenges
When an Immigration Division member is faced with a Charter challenge, he or she must
use his or her judgment in the light of the circumstances of the case, but the following
suggestions may be helpful.
In general, it is more efficient to hear the evidence and save the Charter questions for the
end. The panel may hear the case on the merits before hearing the Charter arguments in
case the decision is favourable to the person concerned.43 Sometimes, the circumstances
do not lend themselves to this and it is necessary to hear the Charter arguments. In one
way or another, the panel should determine the Charter questions only if it considers it
necessary for the outcome of the case.
43
Singh, Mahadri Jaipaul v. M.E.I. (F.C.T.D., T-163-91), Jerome, July 3, 1991; Bissoondial, Kemraj v.
M.E.I. (F.C.T.D., T-807-91), Jerome, July 3, 1991; Gayle, Everton Simon v. M.C.I. (IAD, T94-02248),
Hopkins, June 5, 1995.
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Sometimes, the Charter arguments are presented somewhat haphazardly. The member
should not hesitate to intervene and may rightly request that counsel present his or her
argument coherently, that is, that counsel specify which rights are violated and in what
way and that counsel establish the panel’s jurisdiction to grant the remedy sought.
12.5.4
Procedure for deciding Charter challenges
First, it should be emphasized that the panel should in no case rule on Charter issues
without advising the Minister’s counsel that he or she will consider these issues and
without giving him or her the opportunity to be heard in that regard.44
As indicated earlier, the Immigration Division’s jurisdiction to consider and decide
constitutional questions based on section 24 of the Charter is uncertain. The superior
courts have not settled this issue. Consequently, a party seeking a remedy under
section 24 of the Charter must show that the panel has, by virtue of its enabling statute,
the power to grant the remedy sought; otherwise, the panel may not rule on the violation
of the Charter rights.
More often than not, a party uses subsection 52(1) of the Constitution Act, 1982 to assert
Charter rights. In Nova Scotia (WCB),45 the Supreme Court of Canada clearly laid down
the procedure that should be followed in ruling on Charter challenges based on
subsection 52(1) of the Constitution Act, 1982. At paragraph 33, it wrote:
[…] the Court has adopted a general approach for the determination of
whether a particular administrative tribunal or agency can decline to
apply a provision of its enabling statute on the ground that the provision
violates the Charter. This approach rests on the principle that, since
administrative tribunals are creatures of Parliament and the legislatures,
their jurisdiction must in every case “be found in a statute and must
extend not only to the subject matter of the application and the parties,
but also to the remedy sought”: Douglas College, supra, at p. 595; see
also Cuddy Chicks, supra, at pp. 14-15. When a case brought before an
44
45
M.C.I. v. Zheng, Wei (F.C.T.D., IMM-462-01), Lemieux, February 23, 2001.
Supra, note 3.
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administrative tribunal involves a challenge to the constitutionality of a
provision of its enabling statute, the tribunal is asked to interpret the
relevant Charter right, apply it to the impugned [page 532] provision,
and if it finds a breach and concludes that the provision is not saved
under s. 1, to disregard the provision on constitutional grounds and rule
on the applicant's claim as if the impugned provision were not in force.
When the panel has a Charter challenge before it, it should:
interpret the relevant Charter right;
apply it to the impugned provision of the Act;
if it decides that there is a violation of a right and that the violation is
not justified under section 1, the panel must decide the case as if the
impugned provision were not in force.
If, after examining the applicable Charter provisions and the impugned provisions of the
Act, the panel decides that there has been a violation of a right, it must determine whether
the violation is justified under section 1 of the Charter, which is worded as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.
Section 1 comes into play only if the person who raises the Charter establishes that there
has been a violation of a right guaranteed to him or her by the Charter. It is then the
government’s responsibility (in this case, the Minister’s counsel, unless the Attorney
General of Canada or of a province intervenes) to establish, on a preponderance of
probabilities, that the limitation on the right is reasonable.46 The reasonableness of the
limitation is established according to a proportionality test between the objective sought,
46
R. v. Oakes, [1986] 1 S.C.R. 103.
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which must be of sufficient importance to justify the limitation on the right, and the
means employed, which should impair the right as little as possible.47
47
Ibid.
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ANNEX 12-A
Canadian Charter of Rights and Freedoms, ss. 7, 9, 10, 11, 12 and 15
7.
Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice.
9.
Everyone has the right not to be arbitrarily detained or imprisoned.
10.
Everyone has the right on arrest or detention:
a) to be informed promptly of the reasons therefore;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
11.
Any person charged with an offence has the right:
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect
of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal,
to the benefit of trial by jury where the maximum punishment for the offence is
imprisonment for five years or a more severe punishment;
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g) not to be found guilty on account of any act or omission unless, at the time of the
act or omission, it constituted an offence under Canadian or international law or
was criminal according to the general principles of law recognized by the
community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found
guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been
varied between the time of commission and the time of sentencing, to the benefit
of the lesser punishment.
12.
Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
15.
(1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
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ANNEX 12-B
Federal Court Act, s. 57
57.
(1) Where the constitutional validity, applicability or operability of an Act of
Parliament or of the legislature of any province, or of regulations made thereunder is in
question before the Court or a federal board, commission or other tribunal, other than a
service tribunal within the meaning of the National Defence Act, the Act or regulation
shall not be judged to be invalid, inapplicable or inoperable unless notice has been served
on the Attorney General of Canada and the attorney general of each province in
accordance with subsection (2).
(2)
Except where otherwise ordered by the Court or the federal board, commission or
other tribunal, the notice referred to in subsection (1) shall be served at least ten days
before the day on which the constitutional question described in that subsection is to be
argued.
(3)
The Attorney General of Canada and the attorney general of each province are
entitled to notice of any appeal or application for judicial review made in respect of the
constitutional question described in subsection (1).
(4)
The Attorney General of Canada and the attorney general of each province are
entitled to adduce evidence and make submissions to the Court or federal board,
commission or other tribunal respect of the constitutional question described in
subsection (1).
(5)
Where the Attorney General of Canada or the attorney general of a province
makes submissions under subsection (4), that attorney general shall be deemed to be a
party to the proceedings for the purposes of any appeal in respect of the constitutional
question described in subsection (1).
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TABLE OF CASES
Ahani v. Canada (Minister of Citizenship and Immigration), [1995]
3 F.C. 669 (T.D.).............................................................................. 12-14, 12,-17, 12-18
Ahani Mansour v. Canada (A-639-95), Marceau, Hugessen, Décary,
July 4, 1996.............................................................................................................. 12-14
Ahani, Mansour v. M.C.I. (F.C.A., A-160-99), Linden, Rothstein, Malone,
July 11, 2000............................................................................................................ 12-13
Akthar v. Canada (Minister of Employment and Immigration), [1991]
3 F.C. 32 (C.A.) ....................................................................................................... 12-19
Armadale Communications Ltd. et al. v. Minister of Employment and Immigration
(1991), 127 N.R. 342 (F.C.A.)..........................................................................12-4, 12-9
Askov v. The Queen, [1990] 2 S.C.R. 1199.................................................................. 12-19
Atef v. Canada (Minister of Citizenship and Immigration), [1995]
3 F.C. 86 (T.D.)........................................................................................................ 12-11
Barrera v. Canada (Minister of Employment and Immigration), [1993]
2 F.C. 3 (C.A.) ......................................................................................................... 12-11
Bertold, Eberhard v. M.C.I. (F.C.T.D., IMM-5228-98), Muldoon,
September 29, 1999 ................................................................................................... 12-7
Bissoondial, Kemraj v. M.E.I. (F.C.T.D., T-807-91), Jerome, July 3, 1991................ 12-24
Blencoe v. British Columbia (Human Rights Commission), [2000]
2 S.C.R. 307 ............................................................................................................. 12-11
Bowen v. Canada (Minister of Employment and Immigration), [1984]
2 F.C. 507 (C.A.) ..................................................................................................... 12-11
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992]
1 S.C.R. 711 ............................................................................................................. 12-11
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Canada (Minister of Employment and Immigration) v. Borowski, [1990]
2 F.C. 728 (T.D.)........................................................................................................ 12-5
Carpenter, Herbert Wayne v. M.C.I. (IAD, V94-02423), Clark, January 3, 1997 ...... 12-21
Chan, Ngorn Hong v. M.E.I. (IAD, V90-00287), Wlodyka, Guillanders,
Verma, July 31, 1992 ................................................................................................. 12-6
Charkaoui, Adil v. M.C.I. and Solicitor General of Canada (F.C.T.D.,
DES-3-03), Noël, December 5, 2003....................................................................... 12-14
Chiarelli v. Canada (Minister of Employment and Immigration), [1990]
2 F.C. 299 (C.A.) ..................................................................................................... 12-11
Cooper v. Canada (Human Rights Commission), [1996]
3 S.C.R. 854 ......................................................................................................12-4, 12-9
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board),
[1991] 2 S.C.R. 5 .................................................................................... 12-4, 12-6, 12-9
Deghani v. Canada (Minister of Employment and Immigration), [1993]
1 S.C.R. 1053 ........................................................................................................... 12-15
Douglas/Kwantlen Faculty Association v. Douglas College, [1990]
3 S.C.R. 570 ......................................................................................................12-4, 12-9
Dragosin, Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay,
January 27, 2003 ...................................................................................................... 12-15
Gayle, Everton Simon v. M.C.I. (IAD, T94-02248), Hopkins, June 5, 1995............... 12-20
Gittens (In re), [1983] 1 F.C. 152 ................................................................................ 12-11
Gonsalves, Gwendolyn Barbara v. M.C.I. (F.C.T.D., IMM-1992-96),
Muldoon, May 9, 1997............................................................................................. 12-21
Gwala v. Canada (Minister of Citizenship and Immigration), [1998]
4 F.C. 43............................................................................................................12-4, 12-9
Halm v. M.E.I. (1991), 172 N.R. 315 (F.C.A.) .............................................................. 12-5
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Howard, Kenrick Kirk v. M.C.I. (F.C.T.D., IMM- 5252-94), Dubé,
January 4, 1996 .......................................................................................................... 12-5
Huang v. Canada (Minister of Citizenship and Immigration), [2002]
3 F.C. 266......................................................................................................12-15, 12-16
Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C.
594 (C.A.) ................................................................................................................ 12-11
Jaballah, Mahmoud (Re) (F.C.T.D., DES-4-01), MacKay, May 23, 2003 ................. 12-17
Kidane, Derar v. M.C.I. (F.C.T.D., IMM-2044-96), Jerome,
July 11, 1997............................................................................................................ 12-13
M.C.I. v. Kamail, Nariman Zangeneh (F.C.T.D., IMM-6474-00),
O’Keefe, April 8, 2002 ............................................................................................ 12-13
M.C.I. v. Lai, Cheong Sing (F.C.T.D., IMM-486-01), Campbell,
February 26, 2001 .................................................................................................... 12-13
M.C.I. v. Lin, Rui Jiao (F.C.T.D., IMM-1098-00), Heneghan,
July 27, 2001............................................................................................................ 12-13
M.C.I. v. Medovarski, Olga, (F.C.A., A-249-03), Rothstein, Evans, Pelletier,
March 3, 2004 .......................................................................................................... 12-11
M.C.I. v. Powell, Hylroy Charles (ID 0003-A2-01742), Tumir, June 12, 2003.......... 12-11
M.C.I. v. Singh, Harjit (F.C.T.D., IMM-3937-01), McKeown,
August 27, 2001 ....................................................................................................... 12-13
M.C.I. v. Thompson, Leonard George (ID 0003-A3-00144), Iozzo,
September 11, 2003 ................................................................................................. 12-11
M.C.I. v. Zheng, Wei (F.C.T.D., IMM-462-01), Lemieux, February 23, 2001............ 12-23
Maharaj, Davechand v. M.E.I. (IAD, T90-07339), Sherman, Ariemma,
Weisdorf, October 21, 1991....................................................................................... 12-6
Mills v. The Queen, [1986] 1 S.C.R. 863....................................................................... 12-6
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Mooring v. Canada, [1996] 1 S.C.R. 75........................................................................ 12-7
Nokhodchari, Moseyab Nazari v. M.C.I. (F.C.T.D., IMM-4535-02),
Blais, June 26, 2003 ................................................................................................. 12-11
Nova Scotia (Workers’ Compensation Board) v. Martin, 2003
S.C.C. 54 ............................................................................................... 12-4, 12-9, 12-23
R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 ........................................................ 12-3
R. v. Collins, [1987] 1 S.C.R. 265.................................................................................. 12-9
R. v. Genest, [1989] 1 S.C.R. 59 .................................................................................... 12-9
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606................................. 12-18
R. v. Oakes, [1986] 1 S.C.R. 103 ................................................................................. 12-24
R. v. Ross, [1989] 1 S.C.R. 3.......................................................................................... 12-9
R. v. Wigglesworth, [1987] 2 S.C.R. 541..................................................................... 12-11
Rasa, Sriranjan v. M.C.I. (F.C.T.D., IMM-6818-98), O’Keefe,
May 11, 2000 ........................................................................................................... 12-19
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 .................................... 12-9
Sahin v. Canada (Minister of Citizenship and Immigration),
[1995] 1 F.C. 214 .................................................................................. 12-4, 12-9, 12-12
San Vicente, Roberto v. M.C.I. (F.C.T.D., IMM-2615-97), MacKay,
January 27, 1998 ...................................................................................................... 12-13
Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841..................................... 12-8
Singh v. Canada (Minister of Employment and Immigration), [1985]
1 S.C.R. 177 ............................................................................................................... 12-6
Singh, Mahadri Jaipaul v. M.E.I. (F.C.T.D., T-163-91), Jerome,
July 3, 1991.............................................................................................................. 12-22
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Sogi, Bachan Singh v. M.C.I. (F.C.T.D., IMM-5125-02), MacKay,
December 8, 2003 .................................................................................................... 12-17
Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 ..........................................................................................12-11, 12-18
Tétreault-Gadoury v. Canada (Employment and Immigration Commission),
[1991] 2 S.C.R. 22 ............................................................................................12-4, 12-9
Williams v. Canada (Minister of Citizenship and Immigration),
[1997] 2 F.C. 646 (C.A.)...............................................................................12-11, 12-19
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TABLE OF CONTENTS
13.
EVIDENCE AND SUBMISSIONS .......................................... 13-1
13.1
INTRODUCTION................................................................................... 13-1
13.2
DIFFERENCES BETWEEN THE CONDUCT OF AN
ADMISSIBILITY HEARING AND A DETENTION REVIEW ................. 13-1
13.3
13.2.1
Admissibility hearing........................................................................ 13-2
13.2.2
Detention review ............................................................................... 13-3
DOCUMENTARY EVIDENCE............................................................... 13-5
13.3.1
Form of documents ........................................................................... 13-5
13.3.1.1 Marking and numbering exhibits ...................................... 13-6
13.4
13.3.2
Language of documents.................................................................... 13-7
13.3.3
Disclosure of documents................................................................... 13-7
13.3.4
Time limits for filing and disclosing documents ............................ 13-7
TESTIMONY ......................................................................................... 13-9
13.4.1
Providing witness information......................................................... 13-9
13.4.2
Hearing witnesses............................................................................ 13-10
13.4.2.1 Competence ....................................................................... 13-10
13.4.2.1.1 Children................................................................. 13-10
13.4.2.1.2 Mental disorder or mental disability .................. 13-11
13.4.2.2 Compellability ................................................................... 13-11
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13.4.2.2.1 Privileges ................................................................ 13-12
13.5
13.4.3
Summons ......................................................................................... 13-13
13.4.4
Arrest warrant ................................................................................ 13-14
SUBMISSIONS ....................................................................................13-15
13.5.1
Admissibility hearing...................................................................... 13-15
13.5.2
Detention review ............................................................................. 13-16
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13.
EVIDENCE AND SUBMISSIONS
13.1
INTRODUCTION
Paragraphs 173(c) and (d) of the Act specify that the Immigration Division is not bound
by any legal or technical rules of evidence and may receive and base a decision on
evidence adduced in the proceedings and considered credible or trustworthy in the
circumstances. The form, manner and time limits for the presentation of the evidence are
governed by the Rules. There is no mention of submissions in any provision of the Act or
the Rules. To comply with the principles of natural justice, however, the panel must give
both parties an opportunity to make submissions.
Neither the Act nor the Rules specify the order in which a hearing is to be conducted. The
parties are entitled to a proceeding that is fair in accordance with the principles of natural
justice.
This chapter describes the procedural differences between an admissibility hearing and a
detention review, as well as specifics concerning the presentation of the documentary
evidence, testimony and submissions.
13.2
DIFFERENCES BETWEEN THE CONDUCT OF AN ADMISSIBILITY
HEARING AND A DETENTION REVIEW
Procedurally speaking, an admissibility hearing and a detention review hearing are
basically the same in terms of the preliminary issues and the kinds of applications that
may be made at the hearing. As the preceding chapters have indicated, the differences lie
in how the issues and applications are settled because of the time limits imposed by
section 57 of the Act for detention review hearings.
The differences are found in the presentation of evidence and the making of submissions.
Because of the nature of the hearings conducted by the Immigration Division, the
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members do things in a different order depending on whether an admissibility hearing or
a detention review is involved.
13.2.1
Admissibility hearing
Once the preliminary issues have been settled, an admissibility hearing generally
proceeds as follows:
The person concerned is sworn;
The Minister’s counsel presents the supporting evidence for
the allegations contained in the report under
subsection 44(1) of the Act (the person concerned is
usually called as a witness);
Rebuttal evidence (including the cross-examination of the
person concerned) is presented;
The Minister’s counsel makes his or her submissions;
Counsel for the person concerned (or the person himself or
herself if unrepresented) makes submissions.
Except in exceptional circumstances, the party who has instituted the proceedings, in this
case, the Minister, presents his or her evidence first.1 The member has the discretion,
however, to change this order if circumstances warrant. For example, the member could
hear a witness called by the person concerned who cannot be present for the entire
hearing even though the Minister’s counsel has not yet completed his or her evidence.
The order in which the submissions are made will rarely be changed, although it may be
if the circumstances require it. At the request of the parties, the member may, at his or her
discretion, allow a response and a reply to the submissions.
1
In general, the party who has the burden of proof goes first. In this regard, note that the wording of
paragraph 45(d) of the Act seems to place the onus on the person seeking to enter Canada
(admissibility hearing at the port of entry), while it lies with the Minister when the admissibility
hearing concerns a person who is in Canada (admissibility hearing in Canada).
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Detention review
In practice, a detention review is conducted in a different order, among other reasons,
because the Act does not require a report or other document containing the allegations to
be prepared and presented at the hearing. Consequently, at the beginning of the hearing,
the Minister’s counsel states the allegations against the person concerned so that the
person is informed of the case against him or her and the member may be informed of the
allegations he or she will have to determine. Once the preliminary issues have been
settled, a detention review usually proceeds as follows [see also 13.5 – Submissions and
13.5.2 – Detention review]:
The detainee is sworn;
The Minister’s counsel is asked to present the facts
justifying the detention of the person concerned and to
present his or her recommendations regarding continuance
of the person’s detention or release (the recommendations
are a kind of submission);
If necessary, the member may request further details or
clarifications from the Minister’s counsel concerning the
circumstances in which the person was arrested and
detained by an officer;
Counsel for the detainee (or the person himself or herself if
unrepresented) is asked to respond to the submissions of
the Minister’s counsel;
If the detainee is not represented by counsel, his or her
statements constitute testimony and submissions;
When facts are in dispute, the hearing proceeds by way of
presentation of evidence, including the testimony of the
detainee presenting his or her version of the facts;
If the facts are not disputed, the parties may not have to
present any contested evidence;2
2
It is, then, a proceeding by way of admission.
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The member may ask the parties to submit evidence
concerning some of the facts;
Even when the facts are not in dispute, the person
concerned may testify to give explanations most likely
intended to downplay the seriousness of his or her past
conduct and to establish his or her future intentions, and the
member will assess the credibility of this testimony;
Since the present and future intentions of the detainee may
be relevant (danger to public safety and flight risk), the
member may question the detainee for explanations
regarding his or her past conduct and future intentions;
The parties are invited to make further submissions.
It is appropriate to administer the oath to the detainee at the outset of the hearing
since the person’s testimony tends to merge with his or her submissions, particularly if
the person is not represented by counsel. In fact, even if the facts are not contested, the
detainee usually wants to offer explanations which, if they are deemed credible, may
temper the seriousness of his or her past conduct. Furthermore, when determining
whether the detainee is a danger to public or a flight risk, the member must form an
opinion regarding the detainee’s intentions and future conduct. The member does not
base his or her opinion solely on facts concerning the detainee’s past conduct. The
testimony concerning his or her future intentions is also heard (for more details, see the
Manual entitled Inadmissibility and detention – Part II – Detention).
At 48-hour detention reviews, the procedure is explained to the detainee, in order that he
or she may fully consider the submissions made by the Minister’s counsel and be able to
respond with his or her own version of the facts and whatever explanations may be
necessary.
The order in which the detention review usually proceeds, as described, has become the
practice for basically three reasons.
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More often than not, the facts presented by the Minister’s counsel are not directly
contested. The parties instead offer explanations or suggest an interpretation of the facts
intended to persuade the decision maker of the existence or absence of one of the reasons
justifying continued the detention,3 which may be considered argument instead of
evidence. Consequently, this approach makes for a shorter hearing, which is important in
the case of a 48-hour detention review.
It can happen that new facts emerge in subsequent detention reviews, which can lead to a
re-assessment of the whole situation and perhaps to the person’s release. However, facts
established at the first detention review rarely change thereafter, which explains why
there is no need to hear the evidence each time and why it is better to proceed by way of
argument, unless certain facts are contested.4
The dispute may not relate directly to the detention or the release but instead to the
conditions of the release. Hearing the parties’ recommendations first is more efficient
since it allows the decision maker to identify the issues in dispute.
13.3
DOCUMENTARY EVIDENCE
The Rules govern the form and language of documents and the time limits for disclosing
and providing them.
13.3.1
Form of documents
Rule 24 sets out the Federal Court’s requirements respecting the form of documents.
Usually, the documentation is not voluminous, and the strict application of this rule is not
necessarily required. However, if the case is complex and the documentation is
voluminous, the parties should be asked to produce the documents in the form required
3
4
See section 58 of the Act.
See M.C.I. v. Thanabalasingham, Kaileshan (F.C.A. No. A-479-03), Rothstein, Stone, Sharlow,
January 9, 2004.
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by Rule 24, even if the hearing has to be adjourned for that purpose. Consistency of
format facilitates the processing of Division files, especially if an appeal is lodged with
the Immigration Appeal Division or an application for judicial review is made to the
Federal Court.
13.3.1.1 Marking and numbering exhibits
The member should mark and number all of the documents he or she admits into
evidence as supporting evidence. Usually, a “C” (for Citizenship and Immigration
Canada) is used for the documents filed by the Minister’s counsel (for instance, at an
admissibility hearing, the report is marked as Exhibit C-1 even if it has more than one
page, and the referral is marked as Exhibit C-2). “P” is used for the documents tendered
by the person concerned.
Rules 24(3) and (4) require the parties to number each document consecutively and to
provide a list of the documents if more than one document is provided. Consecutive
numbering of documents means that each page must be numbered consecutively. For
example, if the first document has four pages and the second document has three pages,
the first will be numbered from 1 to 4 and the second from 5 to 7. The numbering is
independent of the list of exhibits, which will indicate Exhibit 1 and Exhibit 2, etc. The
list of exhibits lists the various documents without reference to how many pages each
contains.
The member must mark the first page of every document used at the hearing and include
those documents in the record as supporting exhibits. If a party provides a list of exhibits,
the member may use the same numbering. Before placing the documents in the record as
supporting evidence, the member should ensure that they are relevant and that they have
been provided to the other party [for more details, see 13.3.3 – Disclosure of documents].
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Language of documents
Rule 25 sets out the requirements for the language of the documents tendered by the
parties [for more details, see Chapter 6 – Language of Proceedings and Interpreter, 6.8 –
Translation of documents].
13.3.3
Disclosure of documents
The documentary evidence may be adduced at the hearing or provided to the Division
before the hearing. In all cases, the member must ensure that a copy of the
documentary evidence has been provided to the other party. If a document is
produced at the hearing, the party producing it must give the original (if available) to the
member and a copy to the other party.5 If the documentary evidence was provided to the
Division before the hearing, the member ensures that a copy has been provided to the
other party.
13.3.4
Time limits for filing and disclosing documents
Rule 26 provides that any document that a party wants to use at the hearing must be
provided to the other party and to the Division as soon as possible, in the case of a
48-hour or a 7-day detention review or an admissibility hearing held at the same time,
and at least five days before the hearing in all other cases.
5
Sometimes, the party who wants to tender a document at the hearing does not have a copy for the other
party. This is rare and, as a general rule, is unacceptable if the fault is counsel’s. If it does happen, a
break should be taken to allow the party at fault to photocopy the document and give a copy to the
opposing party. This situation arises more frequently when the person concerned wants to tender a
document and is not represented by counsel. If, after reading the document, counsel agrees, the
member can proceed with the hearing and have a copy sent to the other party after the hearing.
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In practice, documents are frequently not provided until the 48-hour or 7-day detention
review or an admissibility hearing held at the same time. In view of the tight deadlines
for the parties, Rule 26(a) provides that the evidence must be provided “as soon as
possible”. It may be difficult to determine what constitutes “as soon as possible” and thus
whether there has been a breach of the Rules concerning the disclosure of documents. In
general, it may be more efficient to accept the documents, as long as they are relevant.
However, in the case of an admissibility hearing for a person who is not detained or in the
case of a 30-day detention review, the parties generally have enough time to comply with
the requirement to provide the evidence five days before the hearing, and the member
may refuse to accept evidence that was not disclosed in accordance with the Rules. When
a party has not complied with Rule 26, the member should note the failure and require the
party at fault to justify why it is appropriate and necessary to admit the documents into
evidence.
Generally, if the evidence is relevant and needed for a full and proper hearing, the
member may excuse the party at fault from the requirements of the Rules. If the
documents are not long, a short break is generally sufficient to allow the member and the
other party to examine the evidence that was not disclosed in accordance with Rule 26. If
the documents are voluminous, an adjournment of the hearing may be unavoidable. In the
case of a detention review when an adjournment would mean that compliance with the
time limits prescribed by section 57 of the Act would not be possible, the member may
refuse to accept the documents and may invite the party to provide the documentary
evidence in accordance with the Rules before the next detention review, if there is one.
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TESTIMONY
The Rules set out certain requirements concerning the appearance of witnesses. The
hearing of witnesses raises issues of competence and compellability. The Rules also
provide for postponing and cancelling a summons and for the possibility of issuing an
arrest warrant for a person who fails to appear at a hearing when he or she has received a
summons.
13.4.1
Providing witness information
A party who wants to call a witness must, under Rule 32, provide in writing certain
information to the Division and to the other party. The Division and the other party must
receive such information as soon as possible, in the case of a 48-hour or a 7-day detention
review or an admissibility hearing held at the same time, and at least five days before the
hearing in all other cases.
The purpose of providing the Division with the information to enable it to anticipate the
approximate length of the hearing and make whatever arrangements are needed so that
the hearing can proceed on the day fixed. The purpose of providing information regarding
any expert witness is principally to enable it to be determined in advance whether the
witness that a party wants to call has the necessary expertise and whether his or her
testimony is relevant and necessary.
Usually, the person concerned is always called as the first witness and is often the only
witness. As a party to the hearing, the requirements of Rule 32 do not apply to the person
concerned.
The time limits for providing the information are the same as those for providing
documents. The comments in 13.3.4 – Time limits for filing and disclosing documents,
also apply to the provision of witness information.
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Hearing witnesses
Rule 36 prohibits communicating to a witness excluded from a hearing room any
testimony given while that witness was excluded until he or she has finished testifying.
Witnesses other than the person concerned are usually excluded from the hearing room
until it is time for them to deliver their testimony.6 The purpose of this practice is to avoid
their being influenced by other testimony and make it easier to assess the credibility of
each witness.
It is also important to stress that the hearing of witnesses, including that of the person
concerned, may sometimes raise issues related to the competence or compellability of the
witnesses.
13.4.2.1 Competence
The competence of a witness becomes an issue when the witness is a young child or
when he or she suffers from a mental disorder or mental disability.
13.4.2.1.1
CHILDREN
Children who are 14 years of age or more are deemed to understand the nature of an oath
and are competent to testify under oath. Children under 14 years of age may also testify.
The Canada Evidence Act7 is a useful guide. According to section 16 of that Act, before
allowing a child under the age of 14 to testify, a court must conduct an inquiry to
determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
6
7
At a joint hearing, persons who are the subjects of the proceeding may not be excluded from the
hearing room at any time. Each person has a right to examine all of the evidence, including the
testimony of the other persons whose hearing is held jointly with theirs [for more details, see
Chapter 11 – Joining or Separating Cases, 11.3.4.1 – Exclusion of witnesses].
R.S.C. 1985, c. C-5, as am.
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If the child does not understand the nature of an oath, the member may nonetheless
receive the child’s testimony if the child understands the moral obligation to tell the truth.
If need be, the member may speak with the child before admitting the child’s testimony
in order to determine whether the child’s level of understanding of the facts is sufficient
to warrant admitting his or her testimony.8
13.4.2.1.2
MENTAL DISORDER OR MENTAL DISABILITY
A person who cannot rationally interpret the facts he or she observes and who can neither
communicate nor understand the questions asked him or her at a hearing is considered
unfit to testify. This does not mean that a person who suffers from a mental disorder is
necessarily incompetent to testify. A person may be incompetent to testify on one or
more issues, but could be held competent to give testimony on other issues. For example,
a person could testify if the mental disorder from which he or she suffers does not affect
perception or memory or does not prevent him or her from speaking clearly about a
specific issue.
The situation most frequently arises in the case of a permanent resident or foreign
national for whom the member has designated a representative because the person is
unable to understand the nature of the proceedings. Despite his or her incompetence, the
person may be able to testify regarding facts that concern him or her.
13.4.2.2 Compellability
Any person, including the person concerned, may be compelled to testify unless the law
makes a special exception or offers a particular means of protection. The Division may
issue a summons to any person in Canada requiring him or her to appear and to testify
about any matter being raised at the hearing and to produce any document or thing that
the person possesses that may be relevant.
8
Phillip, Mary Francisca v. Minister of Citizenship and Immigration (F.C.T.D., IMM-434-98),
Rothstein, December 11, 1998.
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In criminal cases, the accused has the right to refuse to testify by reason of his or her right
against self-incrimination. This right has long been protected by section 5 of the Canada
Evidence Act9 and, since 1982, by paragraph 11(c) of the Charter.10 The courts have
handed down a number of decisions regarding the compellability of a person in the
context of an immigration proceeding. They have held that the person concerned is a
compellable witness because he or she enjoys all of the protections against
self-incrimination provided for by the Canada Evidence Act.11 In other words, any
testimony that the person concerned might give in a proceeding before the Division could
not be used in a criminal proceeding. Paragraph 11(c) of the Charter does not apply to a
hearing before the Immigration Division because the person concerned is not a “person
charged with an offence”. In other words, the hearing before the Division is civil, not
criminal, in nature. The person concerned is therefore a compellable witness.12
13.4.2.2.1
PRIVILEGES
Even if a person is a compellable witness before the Division, that person may have a
valid reason in law (a privilege) for refusing to answer certain questions.
Communications between a person and his or her lawyer, doctor or religious leader may
be considered “privileged” communications, unless the person has explicitly or implicitly
waived the privilege by disclosing the communications.
Professional communications between a lawyer and his or her client concerning
confidential legal advice are privileged. No party may be compelled to disclose what he
or she said to his or her lawyer or the advice received from that lawyer. Solicitor-client
privilege applies to conversations and to documents exchanged between lawyer and
client.
9
10
11
12
Supra, note 7.
11. Any person charged with an offence has the right
[…]
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
[…].
See, for example, Chana v. Canada, [1977] 2 F.C. 496 (T.D.).
Bowen v. Canada, [1984] 2 F.C. 507 (C.A.); R. v. Wooten (1983), 9 C.C.C. (3d) 513 (B.C.S.C.).
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In common-law provinces, communications between doctor and patient are not covered
by any general doctor-patient privilege that would make the doctor a “non-compellable”
witness with respect to the patient. Psychiatric treatment is sometimes excepted because
it is recognized that confidentiality is essential to the relationship between psychiatrist
and patient. In Quebec, it is considered that the relationship between doctor and patient
involves privileged communications.
Communications between a member of the clergy and a member of the congregation are
not privileged. However, in practice, certain jurisdictions apply privilege in religious
matters. The courts may urge counsel not to ask questions that would oblige a priest or a
minister to violate a confidence, and they may refuse to compel those who invoke this
privilege to answer.
13.4.3
Summons
Rules 33 and 34 set out the conditions for the issuance and cancellation of a summons.
The term “subpoena” (which literally means “on pain of”) is also used on occasion. A
member may not issue a summons to a person living outside Canada. The member’s
jurisdiction in this regard does not extend beyond Canada.
In practice, a party rarely applies for a summons. Most witnesses report to the hearing
without being formally summoned. However, it is not just in cases when a witness is
reluctant that a summons can be applied for. A witness may need the summons to justify
his or her absence to the educational institution he or she is attending or to his or her
employer.
A summons should not automatically be issued in response to an application. Rule 33(2)
states that, in deciding whether to issue a summons, the Division must consider any
relevant factors, including
(a) the necessity of the testimony to a full and proper hearing, and
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(b) the ability of the person to give that testimony.
“Ability” must be understood in its broad sense; it does not apply only to a witness who
is a child or a person suffering from mental disorder or mental disability. For example, it
may be inappropriate to issue a summons to a hospitalized person who has a doctor’s
note stating that he or she cannot testify for health reasons.
Issuing a summons does not oblige the member to hear the witness. If, after issuing a
summons, the member realizes that the witness’s testimony will be irrelevant or
repetitive, the member may refuse to hear that witness.
According to Rule 34, a person who is summoned may apply in writing to the Division to
cancel the summons. This provision contains no other clarification. The member
therefore has broad discretion in the matter. To decide whether to allow the application,
the member should take into account all the circumstances of the case.
Rule 33(3) outlines the requirements that a party must comply with to use a summons. If
the witness is present on the day fixed for the hearing, the member does not have to check
whether the party has met these requirements. However, if the witness is absent, the
verification is necessary to determine the reasons for the absence. If the party has not
complied with the requirements, the member may grant an adjournment so that the party
may comply, or the member may decide to continue and conclude the hearing without
hearing the witness. If the party has complied with the requirements, he or she may, in
rare cases, wish to apply to the member for an arrest warrant.
13.4.4
Arrest warrant
Rule 35 provides that an arrest warrant may be issued against a person who does not
obey a summons. In view of the serious repercussions of such a measure, this power is
exercised with caution. The Division must ask the police to execute the warrant, which
requires a number of arrangements. The police may be reluctant to execute a warrant
issued by a non-judicial authority.
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It is therefore recommended that members check closely whether the conditions set out in
Rule 35(2) and (3) have been met and then carefully consider alternative solutions. In
practice, it is rare that the testimony of a person summoned cannot be dispensed with and
for there to be no other way to prove the facts that the witness would come to establish.
13.5
SUBMISSIONS
Although there is no statutory provision specifically providing for submissions, the two
parties must be given an opportunity to make submissions. The content, form and order
of the presentation of submissions varies depending on whether they are given at an
admissibility hearing or a detention review [see also 13.2 – Differences between the
conduct of an admissibility hearing and a detention review].
13.5.1
Admissibility hearing
At an admissibility hearing, the submissions are made after the parties have completed
the presentation of their evidence. As a general rule, the Minister’s counsel makes his or
her submissions, followed by the counsel for the person concerned (or the person himself
or herself if the person is unrepresented). This order may be reversed in specific
circumstances, but in general, the person concerned should have the last word. In
addition, the parties may want to respond and reply to the submissions. For reasons of
efficiency, the member should not encourage responses and replies, if they are not
required.
In principle, the parties’ submissions should summarize the evidence, suggest what
probative value should be given to certain portions of the evidence (especially if there is
contradictory evidence) and relate the evidence to the applicable law in the case.
Sometimes, the parties will want to raise issues of law such as, for example, the
interpretation of the applicable statutory provisions or the breach of a fundamental right.
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Coherent and well-articulated submissions facilitate the assessment of all the evidence
and decision-making. Each party is entitled to make submissions, subject to their
relevance. The right to be heard and the respect owed to those speaking require that the
parties be given a reasonable opportunity to express themselves.
When the person concerned is not represented by counsel, the submissions may be
incomplete. It may be the first time that the permanent resident or foreign national will
have been called to appear before a tribunal, and may not know what submissions are and
may continue his or her testimony, which then merges into his or her submissions. There
is no statutory provision that specifies that the evidence can no longer be provided
at any particular stage of the hearing. Consequently, the member may take the
statements of the person concerned into account, even if they are not made until the
submissions stage. If this happens, the member should offer the Minister’s counsel an
opportunity to respond.
13.5.2
Detention review
Detention reviews proceed differently and are usually less formal. Each party makes
submissions at the beginning of the hearing. These are not submissions in the proper
sense of the term; rather, they offer all parties an opportunity to make preliminary
remarks. After that, the evidence is presented and, depending on the circumstances,
additional submissions may be made.
The Minister’s counsel is asked at the beginning of the hearing to state the facts justifying
the arrest and detention of the person concerned and to make recommendations
concerning whether the detention should continue or whether the person should be
released. If the Minister’s counsel wants to present documentary evidence, he or she
usually does so at the same time. His or her submissions and recommendations are
integrated, which means that he or she often makes no further submissions after the
detainee has testified.
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Counsel for the person concerned is then asked to state his or her client’s position.
Sometimes, he or she will immediately ask to question the person concerned. Counsel
for the person concerned may then be asked to start by presenting his or her client’s
position and be assured that he or she will be able to question the client after that.
Usually, some facts are admitted, and there is therefore no need to hear the detainee’s
testimony in that regard. The facts themselves may not be disputed, but the parties
disagree as to what they establish. Proceeding in this way enables the member to identify
and determine the issues. When the person concerned is not represented by counsel, he or
she is asked to present his or her submissions which may form part of his or her
testimony.
After the witnesses are heard which, more often than not, consists only of the detainee’s
testimony, the parties may make additional submissions. In order to avoid repetition, the
member may simply ask the parties if they have anything to add before making his or her
decision.
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TABLE 0F CASES
Bowen v. Canada, [1984] 2 F.C. 507 (C.A.) ............................................................... 13-12
Chana v. Canada, [1977] 2 F.C. 496 (T.D.)................................................................ 13-12
M.C.I. v. Thanabalasingham, Kaileshan (F.C.A. No. A-479-03), Rothstein,
Stone, Sharlow, January 9, 2004................................................................................ 13-5
Phillip, Mary Francisca v. Minister of Citizenship and Immigration (F.C.T.D.,
IMM-434-98), Rothstein, December 11, 1998 ........................................................ 13-11
R. v. Wooten (1983), 9 C.C.C. (3d) 513 (B.C.S.C.)..................................................... 13-12
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TABLE OF CONTENTS
14.
DECISIONS AND REASONS .............................................................. 14-1
14.1
INTRODUCTION................................................................................... 14-1
14.2
REQUIREMENTS FOR ALL DECISIONS OTHER THAN
INTERLOCUTORY DECISIONS........................................................... 14-1
14.3
14.2.1
Duty to give reasons.......................................................................... 14-2
14.2.2
When a decision takes effect ............................................................ 14-3
ADMISSIBILITY HEARING .................................................................. 14-3
14.3.1
Decision under section 45 of the Act ............................................... 14-4
14.3.2
Closing the Division file.................................................................... 14-6
14.3.3
Decision under section 168 of the Act ............................................. 14-6
14.3.3.1 Abandonment ...................................................................... 14-7
14.3.3.1.1 Possible consequences of determining that a
proceeding has been abandoned.......................... 14-9
14.3.3.2 Withdrawal and abuse of process..................................... 14-11
14.4
DETENTION REVIEW HEARING........................................................14-12
14.4.1
Generally.......................................................................................... 14-12
14.4.2
Decision under section 58 of the Act ............................................. 14-13
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14.
DECISIONS AND REASONS
14.1
INTRODUCTION
After having analysed and weighed the evidence and taken the parties’ submissions into
consideration, the member must make a decision under section 45 or 58 of the Act,
depending on whether an admissibility hearing or a detention review hearing is involved.
If the person who is the subject of the proceeding is not present, the member may also
end the hearing on a purely administrative level. Under section 168 of the Act, an
admissibility hearing may also be terminated in another manner, by abandonment or
withdrawal.
This chapter sets out the requirements that govern decisions, other than interlocutory
decisions, and the various features of the different kinds of decisions that may be taken to
end a hearing.
14.2
REQUIREMENTS FOR ALL DECISIONS OTHER THAN
INTERLOCUTORY DECISIONS
Decisions other than interlocutory decisions are those that end a hearing. They are subject
to the requirements of section 169 of the Act, which reads as follows:
169. In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee
Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to
the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests
reasons for a decision within 10 days of notification of the decision, or in circumstances
set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is
calculated from the giving of notice of the decision or from the sending of written
reasons, whichever is later.
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In summary, reasons must be given for all decisions other than interlocutory decisions.
The panel may render its decision orally or in writing, but written reasons must be
provided to the parties on request.
The duty to give reasons for a decision must be distinguished from the duty to provide
written reasons when a party requests them. Most Immigration Division decisions are
rendered orally and, as a general rule, the reasons for the decision are stated orally at the
same time. The reasons are normally transcribed and provided to the parties. The result is
that the Division receives few requests for written reasons.
As will be seen below, there may be circumstances where a member may render his
decision orally without giving reasons at the same time. To comply with the requirements
of paragraph 169(b) of the Act, the member must give the reasons for the decision as
soon as possible following the conclusion of the hearing and transmit them to the parties
[see also sections 14.3.1 – Decision under section 45 of the Act and 14.4.2 – Decision
under section 58 of the Act].
14.2.1
Duty to give reasons
Whether the reasons are stated orally or in writing, they must be proper, adequate and
intelligible and must give consideration to the substantial points of argument raised by
the parties.1 The reasons should allow the parties to know the underlying rationale for the
the panel’s decision and permit the unsuccessful party to decide whether to seek recourse
against the decision.2
Accordingly, the reasons for a decision rendered under section 45 or 58 of the Act should
reflect:
1
2
Syed, Saqlain Mohyuddin v. M.E.I. (F.C.T.D., IMM-2080-93), Jerome, September 13, 1994. See also,
infra, note 2;
Mehterian, Pierre Antoine v. M.E.I. (F.C.A., A-717-90), Hugessen, MacGuigan, Desjardins, June
17, 1992.
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the allegations against the person who is the subject of the proceeding;
a summary of the evidence;
an analysis and assessment of the evidence;3
the findings of fact;
the legal arguments, if any;
the applicable law; and
the decision.
14.2.2
When a decision takes effect
The time at which a decision takes effect varies depending on whether the decision is
rendered orally or in writing. Subsections 7(3) and 11(3) of the Rules complete paragraph
169(a) of the Act on the subject of when a decision takes effect. They provide that a
decision made orally takes effect when it is stated by the member. A decision made in
writing takes effect when the member signs and dates it. The point of this is that, once the
decision takes effect, the member is functus officio. Therefore, the decision cannot be
changed once it takes effect.4
14.3
ADMISSIBILITY HEARING
An admissibility hearing will most often lead to a decision under section 45 of the Act. In
certain circumstances, the panel will take administrative action to close the file without
3
4
See, for example, McIntosh v. Canada (Minister of Citizenship and Immigration) (1996), 30 Imm. L.R.
(2d) 314 (F.C.T.D.); Agranovski, Vladislav v. M.C.I. (F.C.T.D., IMM-2709-95), Tremblay-Lamer,
June 28, 1996; Arruda v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d)
54 (F.C.T.D.).
An order may issue for the reopening of a hearing if there has been a failure to observe the principles
of natural justice. See Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.
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rendering a decision within the meaning of the Act. At any stage of the hearing, the panel
may also end the hearing by making a decision under section 168 of the Act.
14.3.1
Decision under section 45 of the Act
After holding an admissibility hearing, the member must render his or her decision as
soon as possible and inform the parties of it. As paragraph 169(b) of the Act provides,
reasons must be given for the decision. Decisions where oral reasons are given after a
short recess, if necessary, are frequent and are strongly encouraged. Complex cases may
require that the decision be reserved.
Rule 7 states the requirements for decisions in admissibility hearings and specifies the
circumstances in which they take effect. If the decision is in favour of the permanent
resident or foreign national, the member must, under Rule 7(1), date and sign a notice of
decision and provide a copy to the parties. If the decision is not in favour of the
permanent resident or foreign national, the member must, under Rule 7(2), date and sign
a removal order and provide a copy to the parties.
Paragraph 169(c) of the Act provides that a decision may be rendered orally or in writing,
but whenever practicable decisions of the Immigration Division are rendered orally in the
presence of the person who is the subject of the proceeding. If the decision is reserved,
the hearing should be adjourned and a date be fixed for its resumption that is convenient
to both parties so the decision and the reasons may be communicated to them orally. In
practice, a favourable notice of decision or a removal order are signed and provided to the
parties immediately after the oral decision has been rendered. In most cases, therefore,
the decision takes effect at the time it is rendered orally under Rule 7(3).
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This practice was adopted because the notice of decision or the removal order must in
principle be signed by the person who is the subject of the proceeding5 and because, if the
decision is not in favour of the person who is the subject of the proceeding, the member
must inform him, under Rule 7(2), of the recourses at his disposal. This information
appears on the removal order, but it is preferable to give it orally.6 In practice, the reasons
for decision are given orally when the decision is rendered and are subsequently
transcribed and sent to both parties, even where there is no request for this purpose. Thus,
the parties rarely request written reasons under Rule 10(7).
Sometimes, the member may know how he or she will decide in a case but needs some
time to structure the reasons clearly. Wherever practicable, the member should refrain
from rendering a decision if he or she is not prepared to give reasons. However, if the
circumstances so require,7 a decision may be rendered orally without stating the reasons
for the decision at the same time. If this happens, the member must provide reasons for
the decision later in order to comply with paragraph 169(b) of the Act. It is suggested that
the member briefly explain why he or she is not giving reasons for the decision and, in
consultation with the parties, he or she should fix a date in the near future by which the
reasons will have been prepared and should inform the parties that the written reasons
will be sent to them no later than that date.
5
6
7
The person who is the subject of the proceeding may occasionally refuse to sign the removal order. If
this happens, a note should be placed in the section provided for the person’s signature indicating that
he has refused to sign.
The time limit for providing a notice of appeal is no later than 30 days after the person receives the
removal order (Rule 5(3) of the Immigration Appeal Division Rules, SOR/2002-230).
For example, an admissibility hearing held in a detention institution may end at the institution’s closing
time, leaving the member without enough time to state the reasons for his decision. In this case, the
member should sign the notice of decision or removal order and mail the written reasons for decision
instead of fixing a time for the hearing to continue, which would mean getting every one together
again.
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14.3.2
IRB
Closing the Division file
Where a person who is the subject of the proceeding does not appear for the hearing and
his or her absence is not explained, the member normally ends the admissibility hearing
by closing his file.8 This is a purely administrative action. Usually the Minister will issue
an arrest warrant under subsection 55(1) of the Act and, if the person is eventually found,
he or she could technically apply for the hearing to continue. However, the Minister will
often prepare a new report under section 44 of the Act, a report that will be referred to the
Division. This allows the Division to close files that would otherwise remain active for
months or even years.
14.3.3
Decision under section 168 of the Act
The panel may end the admissibility hearing at any stage by determining that the case has
been abandoned or withdrawn.9 Withdrawing the case may, in certain circumstances, give
rise to an abuse of process according to section 168 of the Act, which reads as follows:
168.
(1) A Division may determine that a proceeding before it has
been abandoned if the Division is of the opinion that the applicant is in
default in the proceedings, including by failing to appear for a hearing, to
provide information required by the Division or to communicate with the
Division on being requested to do so.
(2) A Division may refuse to allow an applicant to withdraw
from a proceeding if it is of the opinion that the withdrawal would be an
abuse of process under its rules.
Two comments should be made about this provision. First, with regard to the hearings of
the Immigration Division, it would appear that the “applicant” [l’intéressé] referred to in
8
9
In these circumstances, it is not appropriate to hold a hearing because a report under subsection 44(1)
of the Act is for a person who “is in Canada”. Where the absence of the person is not explained, the
person may have left Canada.
See, infra, notes 10, 11, 12 and 13.
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this section is the Minister.10 The term “applicant” [intéressé] in the Act and the
Immigration and Refugee Protection Regulations (the Regulations),11 depending on the
context, can designate the person who is the subject of the proceeding12 or the Minister.
For the purposes of section 168 of the Act, the term arguably applies to the Minister since
it is he or she who initiates any proceeding before the Immigration Division. The person
who is the subject of the proceeding cannot abandon or withdraw from an admissibility
hearing or a detention review hearing since this person is the subject of the hearing.13
Next, section 168 of the Act does not apply to a detention review hearing because a
decision determining that the case has been abandoned or withdrawn or that there has
been an abuse of process is not a decision on the merits of the detention and cannot lead
to the release of the detainee. According to section 56 of the Act, as soon as a detainee is
brought before the Division for the first detention review, the officer ceases to have
jurisdiction to release the person. A decision to detain or release the person then falls
entirely within the Division’s jurisdiction. A detention not in keeping with the
requirements of sections 57 and 58 of the Act would be illegal.
14.3.3.1
Abandonment
There are no provisions in the Regulations or the Rules that govern abandonment. The
wording of subsection 168(1) of the Act gives a few indications concerning the failure to
pursue a case. Even if the Minister fails to appear, provide information required by the
10
11
12
13
Before the Refugee Protection Division, the “applicant” [intéressé] is the claimant. Before the
Immigration Appeal Division, the person is generally the sponsor appealing against a refusal to issue a
permanent resident visa (subsection 63(1) of the Act) or the person who is the subject of a removal
order (subsections 63(2) and (3) of the Act). Sometimes, it is the Minister (subsection 63(5) of the
Act).
SOR/2002-227.
See, for example, sections 244 to 247 of the Regulations.
It must be stressed that there was no similar provision with respect to the Adjudication Division
[Immigration Division] in the former Immigration Act. Therefore, despite the words “A Division…,” it
can be argued that section 168 does not apply to admissibility hearings before the Immigration
Division because the “applicant” in question can only refer to the person who is the subject of the
proceeding.
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Division or communicate with the Division on being requested to do so, it does not
necessarily follow that the case has been abandoned. The use of the term “may” leaves
the member with broad discretion to determine whether a proceeding has been
abandoned. In exercising his or her discretion, the member should consider the reasons
for the Minister’s default. If there has been a breach, the member notifies the Minister
and allows him or her to explain the default. If the Minister’s counsel is present, the
notice can be given verbally in the hearing room.
However, if the Minister’s counsel is absent at the beginning of the hearing, the member
generally allows a 15-minute waiting period. Once that time is up, the member may call a
brief recess to ask the registry office to contact CIC to find out why counsel did not
appear. The Minister’s counsel may simply have been delayed or some emergency may
have prevented him or her from appearing. It is extremely rare that the problem is not
resolved at that stage. Usually, CIC offers a reasonable explanation and immediately
arranges for another Minister’s counsel to attend.
If the member fails to obtain the required information within a reasonable time, he or she
fixes a date for the continuation of the hearing. A notice in writing is sent to the
Minister’s counsel informing him that, if he or she fails to appear on the date fixed for the
continuation of the hearing, the Division may determine that the proceeding before it has
been abandoned. If the Minister’s counsel appears at the next sitting, the member may
rightly request that he or she explain his or her absence from the earlier sitting.
Depending on the explanation, he or she may excuse the Minister’s counsel for the
default or determine that the proceeding has been abandoned.
Before the current Act came into force, the Immigration Division did not have the power
to determine that a proceeding had been abandoned. Accordingly, there is no case law on
this subject. However, there is ample case law concerning determinations by the former
Convention Refugee Determination Division (now the Refugee Protection Division) that
a proceeding had been abandoned and some general principles have emerged from those
authorities that can guide the Immigration Division. For example, there is the principle
that a proceeding should not be determined to have been abandoned if the person’s
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justifications for his failure to appear are reasonable. This explains why it is important for
the panel to notify the Minister and allow him or her to explain himself or herself before
determining that the proceeding before it has been abandoned.
14.3.3.1.1 POSSIBLE CONSEQUENCES OF DETERMINING THAT A
PROCEEDING HAS BEEN ABANDONED
In practice, it is extremely rare for the Minister to fail to pursue a case. An application to
withdraw is generally made if, for some reason, the Minister does not wish to pursue the
case. However, if the situation arises, the member considers all of the circumstances of
the case before determining that the proceeding before him has been abandoned. This is
because such a decision is not without consequences. The Minister could later refer the
case back to the Division based on the same allegations, which, at a later hearing, could
lead to res judicata arguments. If the panel accepts such arguments, the Minister will be
unable to remove a person who is possibly inadmissible.
The former Immigration Act (the former Act) had a specific provision that excluded the
application of this doctrine.14 There is no provision in the current Act that bars the
application of this doctrine, which applies to public and to administrative law, unless
there is legislation excluding its application.15 The doctrine applies where three
requirements are met: (1) the previous decision is final; (2) the parties are the same in
each proceeding; and (3) the same question is to be decided.
Although there is no provision in the current Act that is equivalent to section 34 of the
former Act, the Minister could, following a determination that a proceeding had been
abandoned, make a new report based on the same allegations and refer the matter again to
the Division.
14
15
Section 34 of the Immigration Act: “No decision given under this Act prevents the holding of a further
inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2)
or by reason of arrest and detention for an inquiry pursuant to section 103.”
O’Brien v. Canada (Attorney General of Canada) (1993), 153 N.R. 313 (F.C.A.).
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The case law developed on this subject under the former Act16 is obviously inapplicable
given the differences between the provisions of the former Act and those of the current
Act. However, it appears that the third requirement, that “the same question is to be
decided”, which must be present for res judicata to apply, is not present. A determination
that a proceeding has been abandoned does not decide the substantive issue, namely
whether the person is inadmissible and should be the subject of a removal order. In order
for the doctrine of res judicata to apply, the previously decided issue must have been
fundamental. It must concern substantive facts, findings of law or findings of mixed fact
and law.17
In addition, in Danyluk,18 the Supreme Court of Canada considered this issue. It
confirmed that, even if the three requirements are met, the panel must then exercise its
discretion to decide whether the doctrine of res judicata should be applied. The appeal
was allowed because the lower courts had committed an error of principle in failing to
address the issue of the discretion. The following principle emerges from this decision:
the doctrine of res judicata, which was developed by the courts to serve the ends of
justice, should not be applied mechanically to work an injustice.
Even if, in the light of the case law on the subject, an argument based on the doctrine of
res judicata would not be accepted, it is unclear how the superior courts would interpret
Parliament’s failure to enact a statutory provision equivalent to section 34 of the former
Act. When a member is considering whether to exercise the powers conferred on him or
her by subsection 168(1) of the Act, he or she must give the Minister an opportunity to
provide an explanation.
16
17
18
See, for example, Rabat v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 46
(T.D.), affirmed by the Federal Court of Appeal (A-100-85), January 21, 1987, leave to appeal to the
Supreme Court of Canada refused (1987), 80 N.R. 319n (S.C.C.).
See Angle v. Canada (Department of National Revenue), [1975] 2 S.C.R. 248.
Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460. In this case, the Supreme Court
considered issue estoppel resulting from a previously decided question, which is a variant of res
judicata.
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14.3.3.2
IRB
Withdrawal and abuse of process
The wording of subsection 168(2) of the Act allows the Division to refuse a withdrawal
from a proceeding before it if it is of the opinion that the withdrawal would be an abuse
of process under its rules.
Rule 5 governs the withdrawal of a request and abuse of process. Rule 5(1) provides
that a withdrawal is not an abuse of process if no evidence has been accepted in the
context of a proceeding. According to Rule 5(2), the Minister may withdraw a request for
a hearing by notifying the Division orally at a proceeding or in writing if no substantive
evidence has been accepted. According to Rule 5(3), if he wishes to withdraw his request
for a hearing when substantive evidence has been accepted, the Minister must make a
written application to the Division and give reasons to justify it.
Most of the time, the Minister notifies the registry office before the hearing begins or the
member at the beginning of the hearing that the case is being withdrawn. At this stage,
the Minister is not obliged to justify the withdrawal, which may not be refused. Of
course, withdrawing a case may inconvenience the Division, especially if the member has
read through a substantial body of documentary evidence in order to prepare the file.
However, such a situation does not give rise to an abuse of process. Rule 5 refers to
substantive evidence that has been “accepted”, which means that the documentary
evidence has been accepted by the member at the hearing and placed in the record.
In practice, the Minister does not request that a case be withdrawn when it has been heard
in part as this could give rise to a finding of abuse of process. If it becomes apparent
during the hearing that the allegations in the report are unfounded, the Minister’s counsel
will usually let the hearing run its course and will make comments in favour of the
person’s position or will refrain from comment.
However, the possibility cannot be ruled out that there are circumstances that may lead
the Minister to seek to withdraw a case that he has referred to the Division where
substantive evidence has already been received. The panel should then ask that the
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Minister to justify the application to withdraw. After evaluating the merits of the
application, the panel may allow or refuse the withdrawal.
If the panel allows the withdrawal, Rule 6 allows the Minister to apply, subsequently, to
reinstate the request for a hearing. The request for a hearing will be reinstated only if a
principle of natural justice has been infringed or if it is in the interests of justice.
If the panel refuses to allow the withdrawal, the hearing continues and should end in a
decision under section 45 of the Act. A refusal to grant a withdrawal does not necessarily
lead to a finding of abuse of process. To determine whether there has been an abuse of
process, the member hearing the case must determine whether the withdrawal will have a
negative effect on the integrity of the Division (Rule 5(1)). This unspecific test has not
yet been defined by the superior courts. However, in terms of abuse of process, an
important principle emerges from the decision of the Supreme Court of Canada in
Blencoe.19 Abuse of process should be argued only in “the clearest of cases” and they are
“extremely rare”.
14.4
DETENTION REVIEW HEARING
14.4.1
Generally
There may be a request for a detention review hearing before the Division, but the
hearing does not take place. The circumstances that justify cancelling the hearing are: (1)
the release of the person by an officer before the forty-eight-hour detention review under
section 56 of the Act; and (2) the removal of a detainee with a view to his removal before
the date fixed for the hearing. There is no provision in the Rules that governs the first
situation. In practice, it is rare because the Minister does not provide a notice to the
Division for a forty-eight-hour detention review until he or she has considered whether
the person could be released under section 56 of the Act. The second situation is more
19
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307.
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common. Rule 10 provides that the Minister must inform the Division as soon as the
detainee has been removed.
If one of these two situations occurs, CIC generally informs the Division registry office.
If the file has already been provided to the member, the registry office takes it back.
Sometimes, by inadvertence, the Division is not informed. Where the Minister’s counsel
and the detainee are not present in the hearing room, the member should contact the
registry office which will check with the CIC to find out the reasons for their absence.
14.4.2
Decision under section 58 of the Act
Unlike an admissibility hearing, a detention review hearing does not offer many different
possibilities with respect to its conclusion. The member must render a decision under
section 58 of the Act, that is, he or she must order either that the detention be maintained
or that the person be released with or without the conditions that the member considers
are indicated. Section 168 of the Act does not apply to a detention review hearing [for
more details, see section 14.3.3 – Decision under section 168 of the Act].
Rule 11 sets out the requirements for decisions in detention review hearings and
specifies the circumstances in which they take effect. After conducting a detention
review hearing, the member must make his or her decision as soon as possible and inform
the parties of it in accordance with Rule 11(1). According to Rule 11(2), he or she should
date and sign a detention or a release order and provide a copy to the parties.
As provided for in paragraph 169(b) of the Act, reasons for the decision must be given
[see also section 14.2.1 – Duty to give reasons]. In general, the reasons for decision are
given orally at the time the decision is rendered. Rule 11(4) allows written reasons to be
provided at the request of a party. If the detainee is released, the reasons for decision are
not transcribed unless this is requested under Rule 11(4). However, if the detention is
continued, the reasons are transcribed and kept in the Division file. A member who
conducts a seven-day or a thirty-day review gives the parties, before beginning the
hearing, a copy of the written reasons for the decision rendered at the preceding hearing.
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Although paragraph 169(c) of the Act provides that a decision may be rendered in
writing, decisions with reasons rendered orally after a suspension of the hearing, if any,
are the norm. Adjourning a hearing to render a decision is justified only in exceptional
circumstances20 and the adjournment should be short (24 hours or so) [see also Chapter
10 – Change of the date or time of a hearing, section 10.5.1 – Detention review hearing].
There is no specific provision in the Act, the Regulations or the Rules requiring that the
hearing be concluded the same day. This approach is nonetheless justified for the
following reasons:
Section 57 of the Act imposes specific time limits for detention review
hearings. In all fairness, the detainee is entitled to a decision that is
rendered within the time limits;
When a detention review hearing is adjourned without a decision, the
practical result is that the person will remain in detention until the
hearing resumes;
For obvious reasons of efficiency, the hearing date for a detention
review hearing is often fixed at the end of the time limits imposed by
section 57, which rarely leaves room to adjourn the hearing and stay
within the forty-eight-hour, seven-day or thirty-day time limits.
Sometimes, the member may know what decision he or she will make in a case but needs
some time to structure the reasons clearly. Whenever practicable, the member should
refrain from making a decision if he or she is not prepared to provide reasons with it.
However, if the circumstances require, the decision can be rendered orally without the
reasons for it being stated at the same time. The member should then sign the order for
detention or release and send it to the parties. The member must provide reasons for his
20
For example, the detention review takes place in a detention institution and the institution’s authorities,
because of the lateness of the hour or some other reason, come to get the inmate before the member
can render his decision, or the member needs a recess to study a very complex case that finished at the
end of the day.
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or her decision later in order to comply with the requirements of paragraph 169(b) of the
Act. The member must at the close of the hearing briefly explain why he or she is not
giving reasons for the decision and must fix, in consultation with the parties, a brief delay
to prepare the reasons and inform them that the written reasons will be sent to them by
the date that has been fixed.
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TABLE 0F CASES
Agranovski, Vladislav v. M.C.I. (F.C.T.D., IMM-2709-95), Tremblay-Lamer,
June 28, 1996 ............................................................................................................. 14-3
Angle v. Canada (Department of National Revenue), [1975] 2 S.C.R. 248 ................ 14-10
Arruda v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm.
L.R. (2d) 54 (F.C.T.D.).............................................................................................. 14-3
Blencoe v. British Columbia (Human Rights Commission), [2000]
2 S.C.R. 307............................................................................................................. 14-12
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 ............................ 14-3
Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 ................................... 14-10
McIntosh v. Canada (Minister of Citizenship and Immigration) (1996), 30 Imm.
L.R. (2d) 314 (F.C.T.D.)............................................................................................ 14-3
Mehterian, Pierre Antoine v. M.E.I. (F.C.A., A-717-90), Hugessen,
MacGuigan, Desjardins, June 17, 1992 ..................................................................... 14-2
O’Brien v. Canada (Attorney General of Canada) (1993), 153 N.R. 313
(F.C.A.) ...................................................................................................................... 14-9
Rabat v. Canada (Minister of Employment and Immigration), [1986] 2 F.C.
46 (T.D.)................................................................................................................... 14-10
Syed, Saqlain Mohyuddin v. M.E.I. (F.C.T.D., IMM-2080-93), Jerome,
September 13 ............................................................................................................. 14-2
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