Ex parte Brent,

• Court: Supreme Court (Canada)
• Date: 06 February 1956

Canada, High Court of Ontario.

Court of Appeal of Ontario.

Supreme Court.

(Wilson J.)

(Roach, Aylesworth and Gibson JJ.A.)

(Kerwin C.J.C.; Tascherau, Rand, Kellock and Fauteux JJ.)

Ex parte Brent.

Aliens — Expulsion of — Right to Hearing Prior to Expulsion — Procedure Laid Down by Immigration Regulations — Immigration Regulation Invalid — The Law of Canada.

On appeal,

Held (by the Court of Appeal of Ontario): that the appeal must be dismissed and the deportation order quashed. Section 20(4) of the Immigration Regulations was invalid since, being virtually a repetition of Section 61(g) of the Immigration Act, it was not made in exercise of the powers conferred by that Act, and a deportation order made under Section 20(4) was therefore also invalid. Further, a deportation order made without a hearing as required by the Immigration Act was invalid.

The Court, after holding that proceedings by way of habeas corpus did not lie (Masella v. LanglaisUNKELR)1 but that the application for certiorari remained to be considered, said: “The real point for consideration is whether or not respondent had a hearing as required by law, or, putting it in another way, whether the order of the Special Inquiry Officer was an order ‘made under the authority and in accordance with the provisions’ of the Act. This question in turn involves two considerations, first, the validity of the Regulation upon which the Special Inquiry Officer purported to act and second, the nature of the inquiry which actually was held, assuming the validity of the Regulation. I turn first to a consideration of that Regulation. … [After setting out the provisions of Regulation 20 (4) (b) and of section 61 (g) of the Immigration Act, the Court continued:] It will seem at once that the specific subject-matters concerning which His Excellency in Council is authorized to make Regulations under cl. (g) of s. 61 are repeated verbatim in Regulation 20 (4) except for the ommission of the word ‘climatic’. … In short, those limited powers of legislation, wide though the limits of the subject-matter may be, which Parliament has delegated to His Excellency in Council have not been exercised by the delegate at all, but, on the contrary, by him have been redelegated bodily. …

“I can find nothing in the Act expressly (or by inference, if that is permissible) manifesting any intention to permit or authorise any such procedure. … The Regulation is invalid and the order of deportation based upon it is invalid likewise...