R v Spalding,

Date06 July 1955
CourtCourt of Appeal (British Columbia)
Canada, British Columbia Court of Appeal.

(O'Halloran, Robertson, Sidney Smith, Bird and Davey JJ.A.)

Regina
and
Spalding

Aliens — Expulsion of — Denial of Natural Justice — The Law of Canada.

The Facts.—A special Inquiry Officer acting under the provisions of the Immigration Act made an order for the deportation of the respondent after a hearing from part of which the respondent was excluded while evidence was being taken. The respondent appealed to the Minister of Citizenship and Immigration, but instead of proceeding thereon she launched a motion for a writ of certiorari. On the return of the motion the deportation order was quashed by Manson J., and from that decision the Minister appealed.

Held: that the appeal must be dismissed. The deportation order made as a result of a hearing which constituted a denial of natural justice, was invalid and could properly be questioned by way of certiorari, notwithstanding that the appeal to the Minister had not been disposed of.

The Court said (per O'Halloran J.A.): “Counsel for the appellant Minister conceded in this Court that the hearing before the special Inquiry Immigration Officer was conducted in violation of the essentials of justice. The respondent had been excluded from the room while a witness was questioned. She had no opportunity to hear his testimony and to examine him thereon. Moreover, it does not appear she was informed of the reason for the special enquiry, nor of the specific ground upon which the deportation order was made. In true effect therefore it was not a valid legal hearing at all, and if the Inquiry Officer had been a court it would have been described as coram non judice. At the conclusion of this invalid hearing, or mishearing, and seemingly as part of it, the respondent when asked by the Special Inquiry Officer if she wished to appeal to the Minister of Citizenship and Immigration said ‘yes’, and immediately signed the form of notice of appeal he proffered her. It contained no grounds for appeal let alone any provision or requirement there for; and if respondent had not signed it, she would have been liable to immediate deportation. She was without legal counsel.

“The only point taken on this appeal by counsel for the appellant Minister was that Manson J. acted prematurely and in wrong exercise of discretion in quashing on certiorari the deportation order before the Minister had disposed of the ‘appeal’ to him. Counsel was unable to cite any judicial decision relating to the...

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