Re Immigration Act, Re Kakorinis),

• Date: 03 May 1967
• Court: Court of Appeal (British Columbia)

Canada, Supreme Court of British Columbia.

Court of Appeal of British Columbia.

(Nemetz J.)

Re Immigration Act, Re Kokorinis

Aliens Expulsion of Procedure of expulsion Deportation order Whether person detained entitled to be represented at inquiry by practising lawyer Definition of counsel The law of Canada.

The Facts.This was an application for a writ of certiorari to quash a deportation order. The applicant, a Greek seaman who had deserted his ship at Vancouver, remained in Canada after the departure of the ship. He was arrested and detained by the Immigration authorities. At the hearing which took place before the Special Inquiry Officer appointed under the Immigration Act, the applicant was told that he had the right to be represented by counsel, at his own expense. The Special Officer then added:

The applicant then chose his sister-in-law, a dressmaker, to represent him. At the end of the inquiry, the Special Officer ordered the applicant to be deported. He applied for a writ of certiorari on the ground that the Special Officer had acted without or in excess of jurisdiction by failing to comply with the provisions of the Act and Regulations made thereunder relating to the right of a detained person to be represented by counsel at the inquiry. Section 27 (2) of the Immigration Act provides:

The person concerned, if he so desires and at his own expense, shall have the right to obtain and to be represented by counsel at his hearing.

Section 4 of the Immigration Regulations provides:

At the commencement of an inquiry where the person in respect of whom the inquiry is being held is present but is not represented by counsel, the presiding officer shall

(a) inform the said person of his right to retain, instruct and be represented by counsel at the inquiry; and

(b) upon request of the said person, adjourn the inquiry for such period as in the opinion of the presiding officer is required to permit the said person to retain and instruct counsel.

Held (by the Supreme Court of British Columbia): that the application must be allowed. The words retain, instruct and be represented by counsel in the Immigration Regulations clearly had reference to the retaining of a practising lawyer, and a Special Inquiry Officer who defines the word to a detained person in such a way that the definition amounts to an invitation to be represented by someone with no knowledge of the law is depriving that person of the safeguards which Parliament intended him to have.

The Court...