Re Vinarao,

• Date: 17 January 1968
• Court: Court of Appeal (British Columbia)

Canada, Supreme Court of British Columbia.

Court of Appeal of British Columbia.

(Verchere J.)

(Davey C.J.; Maclean and Bull JJ.A.)

Re Vinarao.

Aliens Expulsion of Procedure of expulsion Deportation order Right to be represented by counsel at inquiry Right to have inquiry conducted separate and apart from the public The law of Canada.

The Facts.This was an application for a writ of certiorari to quash a deportation order made by a Special Inquiry Officer under the Immigration Act. The applicant, a nurse, had come into Canada from the Philippines as a tourist or visitor with a non-immigrant visa. Upon arrival in Vancouver, she, in company with four other young women, was examined by an immigration officer. They were reported to a Special Inquiry Officer and thereupon detained for an immediate inquiry to determine whether or not they were admissible. Prior to the enquiry, which was held three days later, they were told that they were entitled to a lawyer or lawyers to represent them at such enquiry and while they were at their hotel over the week-end they would have full opportunity to communicate with anyone by telephone. At the opening of the inquiry, the applicant asked if she might be represented by a friend who was not a lawyer but was, in fact, the assistant manager of a finance company. Her request was granted, the inquiry was held and an order of deportation was made against her on the ground that she was not a bona fide non-immigrant. An application for a writ of certiorari was then made on her behalf on the ground that the Special Inquiry Officer had acted without jurisdiction or in excess of jurisdiction by allowing a layman to act as counsel. The applicant contended that this was contrary to her statutory rights under the Immigration Act and Regulations made thereunder, and also contrary to the provisions of the Canadian Bill of Rights. She also contended that the granting of leave to have a friend present at the inquiry constituted a breach of her right to have an inquiry conducted separate and apart from the public wherever practicable, as provided in the Immigration Act.

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 a 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.

Section 2 (c) (ii) of the Bill of Rights provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular no law of Canada shall be construed or applied so as to

(c) deprive a person who has been arrested or detained

(ii) of the right to retain and instruct counsel without delay.

Held (by the...