R. v. Cole, (1980) 4 Man.R.(2d) 363 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: June 25, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 4 Man.R.(2d) 363 (CoCt)

R. v. Cole (1980), 4 Man.R.(2d) 363 (CoCt)

MLB headnote and full text

R. v. Cole

Indexed As: R. v. Cole

Manitoba County Court

Ferg, C.C.J.

June 25, 1980.

Summary:

This headnote contains no summary.

Civil Rights - Topic 4426

Protection against self-incrimination - Proceedings to which protection applies - Deportation proceedings - Immigration Act, S.C. 1976-77, c. 52, s. 95(g) - The accused visitor to Canada was made the subject of an inquiry before an adjudicator for his possible deportation after a report was made against him under the Immigration Act, s. 27(2) - The accused was called to the stand, but refused to testify on the ground that his answers might tend to incriminate him - He relied upon the protection of s. 2(d) of the Canadian Bill of Rights, R.S.C. 1970, App. III, which provided that no tribunal could "compel a person to give evidence if he is denied ... protection against self-crimination ..." - The Crown then laid a charge against the accused for refusing to answer a question at an inquiry contrary to s. 95(g) of the Immigration Act - The trial judge acquitted the accused on the ground that compelling him to answer would violate s. 2(d) of the Canadian Bill of Rights - The Manitoba County Court dismissed the Crown's appeal and held that s. 2(d) was applicable to the proceedings before the adjudicator, because in the proceedings the accused was subject to possible arrest, detention and deportation - The court held that s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10, was not applicable to compel the accused to testify, because s. 5 protected him from his statements being used in subsequent proceedings, but not from use in the proceedings in which he testified, where the adjudicator would certainly consider his testimony - The court held that, even if the proceedings could not result in a conviction for a crime, the possible consequences were serious enough that the accused stood to incriminate himself within the meaning of s. 2(d).

Cases Noticed:

Chana v. Minister of Manpower and Immigration, [1979] 2 F.C. 496, dist. [para. 7].

Re Batary's Prohibition Application, [1966] 3 C.C.C. 152 (S.C.C.), reversing 46 W.W.R.(N.S.) 331 (Sask. C.A.), dist. [para. 11].

Re Immigration Act Re Vergakis (1964), 49 W.W.R.(N.S.) 720, dist. [para. 11].

DeVries (Hollander) v. Minister of Manpower and Immigration (1973), 9 I.A.C. 1, affd. [1975] 2 S.C.R.V., appld. [para. 16].

Marcoux and Solomon v. The Queen (1976), 4 N.R. 64; 24 C.C.C.(2d) 1, appld. [para. 16].

Di Iorio and Fontaine v. Warden of the Common Jail of Montreal and Brunet et al. (1977), 8 N.R. 361; 33 C.C.C.(2d) 289, appld. [para. 16].

Curr v. The Queen (1972), 7 C.C.C.(2d) 181, appld. [para. 18].

R. v. Vaaro et al., [1933] S.C.R. 36, refd to. [para. 26].

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 50, dist. [para. 27].

King v. Teu Jang How (1919), 59 S.C.R. 175, refd to. [para. 27].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 5.

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2, sect. 5 [para. 6].

Immigration Act, S.C. 1976-77, c. 52, sect. 95(g), sect. 104, sect. 113(b).

Counsel:

Robert McMechan, for the appellant;

Ken Zaifman, for the respondent.

This case was heard at Winnipeg, Manitoba, before FERG, J., of the Manitoba County Court, who delivered the following judgment on June 25, 1980: