Marsella v Langlais,

• Judge: Fauteux J.,Cartwright J.,Locke J.,Abbott J.,Taschereau J.
• Date: 07 March 1955
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Tascherau, Locke, Cartwright, Fauteux and Abbott JJ.)

Masella

and

Langlais.

Aliens — Admission of — Alien Given Permission to Enter — Permission Improperly Given — Deportation Order Pursuant to Discovery of Impropriety — The Law of Canada.

Aliens — Deportation of — Alien Improperly Given Permission to Enter — Deportation Order Pursuant to Discovery of Impropriety — The Law of Canada.

The Facts.—The appellant was an Italian citizen resident in Italy. He was informed on November 3, 1950, that permission had been granted for him to enter Canada as an immigrant. In May 1951, an officer of the Canadian Embassy at Naples stamped his passport with the seal of the Ministry of National Health and Welfare, and issued a visa in favour of the appellant permitting him to enter Canada in order to establish a permanent residence there. The issue of this visa was irregular and the usual medical and other examinations of the appellant required by the Immigration Act1 and Regulations2 thereunder had not taken place. In June 1951, the appellant presented himself at the Canadian Office in Italy, where he produced his passport, visa and other documents, and he was informed that he could leave for Canada. On June 27, 1951,3 he arrived in Canada. In October 1951,3 the appellant made inquiries about the admission to Canada of his wife. His passport was examined and inquiries made concerning his visa, and the various irregularities were brought to light. A complaint was then made to the Minister that the appellant was a prohibited immigrant. A Board of Inquiry was set up, which ordered his deportation. The appellant appealed to the Minister, who confirmed the order for

deportation. At first the appellant was detained in custody for six days, but he was then released on signing an undertaking, on security of $500, to report weekly to the Immigration Authorities. The appellant was able to continue his employment. While thus at liberty the appellant asked for the issue of a writ of habeas corpus addressed to the respondent Immigration Officer, in order to have his case reviewed by a court of law. The appellant contended that his deportation order was illegal since all the necessary formalities had been fulfilled and the Canadian Minister of Citizenship and Immigration accepted his application and he had entered the country with permission of the competent authorities. The respondent contended (i) that the appellant being at liberty, habeas corpus proceedings did not lie, and (ii) that the provisions of the Immigration Act did not allow review by the Courts of decisions or orders of the Board of Inquiry if those decisions or orders were rendered in conformity with the provisions of the Act. The issue of the writ was authorized by Ferland J. of the Superior Court in Montreal, but, after a hearing, Perrier J., of the Superior Court in Montreal, quashed and annulled the writ. The Quebec Court of Queen's Bench affirmed the judgment of Perrier J. The appellant appealed to the Supreme Court of Canada.

Held: that the appeal must be dismissed. Habeas corpus did not lie in respect of an individual who was at liberty on a personal undertaking accompanied by a deposit of money as a forfeit. Notwithstanding that permission to enter Canada had been granted, the discovery that it had been granted improperly enabled the Immigration Authorities to order the deportation of an immigrant.

Taschereau J. said: “Perrier J. was of the opinion that s. 23 (now s. 39 of R.S.C. 1952, c. 325) of the Immigration Act must be applied. This section is drawn up as follows:

‘23. No court, and no judge or officer thereof, shall have jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge, had, made or given under the authority and in accordance with the provisions of this Act relating to the detention or deportation of any rejected immigrant, passenger or other person, upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile.’

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