Rebrin v Bird and Minister of Citizenship and Immigration,

• Judge: Kerwin C.J.,Martland,Locke,Taschereau,Cartwright,Fauteux,Judson,Ritchie JJ.
• Date: 27 March 1961
• Court: Supreme Court (Canada)

Canada, Supreme Court of British Columbia.

Court of Appeal of British Columbia.

Supreme Court.

(Norris J.)

(Des Brisay C.J.B.C.; Coady and Sheppard JJ.A.)

Rebrin

and

Bird and Minister of Citizenship and Immigration.

Aliens — Expulsion of — Procedure of expulsion — Deportation order — Appeal from — Discretion of Minister — Whether reasons need be given — The law of Canada.

The applicant appealed to the British Columbia Court of Appeal, in which Court a further ground for appeal was urged, namely, that Regulation 20 (b) was ultra vires.

Held (by the Court of Appeal): that the appeal must be dismissed. The reasons for the deportation did not need to be particularized in the order, nor was it necessary to state in the order the place to which the appellant was to be deported. The proceedings leading to the deportation order and the circumstances of the appeal were not contrary to principles of natural justice. The warrant was not defective.

On the question of the specification of the destination of deportation, Coady J. said: [32 West. Weekly R. 400, at p. 405] “The order for deportation having been made, the statute then provides the place or places to which the appellant may be deported. There is no uncertainty in the matter. The special officer is not required

to designate any particular place. That is a matter for the minister who has to make the necessary arrangements for carrying out of the order made by the inquiry officer.”

On the matter of the hearing, Coady J. said: “It should be observed that the order for deportation is one which, on the evidence taken on the inquiry, the special inquiry officer was, based upon that evidence, bound to make. There was no discretion to be exercised by him. The appellant was clearly within the prohibited class and the officer, being satisfied on the appellant's own evidence that this was so, had no option but to make the order he did. The Act is imperative, or as the learned Judge below has said, intractable.”

Concerning the appeal to the Minister, Sheppard J. said: “The applicant has suggested that a statement by the minister in the House of Commons referring to ‘security grounds’ may permit the inference that the minister had information which was not disclosed to the applicant and which the applicant had no opportunity to correct or contradict. Assuming that the suggested inference could be drawn, it does not follow that there was any such information in the hands of the minister at the time the appeal was disposed of, hence this contention is not supported by the evidence. However, as this applicant, an alien, has made this the principal ground of appeal, and has asserted her right as an alien to require a minister of the Crown to disclose all information relevant and prejudicial to the applicant, as well as the source of the information, it would seem advisable to consider whether there is any basis in law for such alleged right. The applicant does not contend that the minister in person has acquired information but rather contends for the right to have disclosed all information relevant and prejudicial to the applicant which the Crown may have acquired through its servants. In substance, the applicant is asserting a right to disclosure of information obtained by the Crown, and the question arises whether the applicant has such a right.

“Lord Loreburn in Board of Education v. RiceELR[1]… should be understood as construing the particular statute there in question and in declaring the intention to be inferred from that statute but should not be understood as holding that Parliament in other statutes was incapable of a contrary intention. The intention under each statute in question is a distinct problem of construction. That was the method there followed by Lord Loreburn in Board of Education v. Rice and by the learned Judges in …Local Government Board v. ArlidgeELR,[2] and Errington v. Minister of HealthELR.[3] This case involves the construction of the Immigration Act.

“As to the applicant's position, she entered Canada under

permit, sec. 8 (1). That permit expired by lapse of time. Thereafter the applicant is to be deemed ‘a person seeking admission to Canada’ (sec. 7 [3]), admission by definition includes entry for a limited time, and includes landing, which is the admission for permanent residence (sec. 2 [a]).[1] This application asks admission for permanent residence, hence [she] is an immigrant (sec. 2 (i)),[2] and is in the same position as any other immigrant outside of Canada seeking admission into Canada. The applicant is therefore to be distinguished from that group which may come into or remain in Canada as of right (sec. 28 [2] [a]), which group would include citizens (sec. 3 [1]), those domiciled in Canada (sec. 3 [2]), and those granted admission (sec. 2 [a]), (28 [2]). In contrast thereto, this applicant seeks to obtain rights under the Act. There is no express grant of the right of disclosure to this applicant as an alien, and any such right must therefore be implied as incidental to the proceedings which she has taken or to the procedure permitted under the statute. The relevant procedure here followed was as follows:

“(1) An examination before an immigration officer under sec. 7 (3) and sec. 20 (1) (report of Lawther, November 19, 1958). No point was made of this proceeding.

“(2) An inquiry before the special inquiry officer (sec. 20 [3]). This proceeding is governed by sec. 27 which provides [that] an inquiry shall be in the presence of the person concerned wherever practicable (sec. 27 [1]).

“Sec. 27, subsecs. (2), (3) and (4) read:

‘(2) 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.

‘(3) The Special Inquiry Officer may at the hearing receive and base his decision upon evidence considered credible or trustworthy by him in the circumstances of each case.

‘(4) Where an inquiry relates to a person seeking to come into Canada, the burden of proving that he is not prohibited from coming into Canada rests upon him.’

“(3) An appeal to the minister from the decisions of the special inquiry officer (sec. 31). The powers of the minister on appeal are provided by sec. 31 (3) as follows:

‘(3) An immigration appeal board or the minister, as the case may be, has full power to consider all matters pertaining to a case under appeal and to allow or dismiss any appeal, including the power to quash an opinion of a special inquiry officer that has the effect of bringing a person into a prohibited class and to substitute the opinion of the board or of the minister for it.’

“The rights of an applicant for admission on his appeal to the

minister were dealt with in de Marigny v. Langlais, …[1] There the appellant, de Marigny, a British subject born in Mauritius, was granted a temporary permit to enter Canada. On that permit expiring, he applied for permanent admission to Canada and was refused by the board of inquiry. He then appealed, and his appeal to the minister was dismissed. The appellant then procured a writ of habeas corpus and eventually appealed to the Supreme Court of Canada on the ground that the minister, in hearing the appeal, had not allowed the appellant to appear personally, but it was held that the applicant had not the right to appear or to adduce evidence before the minister. Kellock J. in delivering the judgment of the majority said at p. 160:

“And at p. 164:

“Secs. 15 and 16 (RSC, 1927, ch. 93) there mentioned are so similar to sec. 27 (RSC, 1952, ch. 325) as to make that judgment equally applicable to the case at bar. In following the reasoning of that judgment it would appear that this applicant, before the special inquiry officer, had the right to appear in person where practicable (sec. 27 [1]), to be represented by counsel if she wished (sec. 27 [2]), and to adduce evidence, but those express rights are against the implication of additional rights at that hearing. Further, the express provisions of sec. 27 in providing for the applicant's rights before the special inquiry officer are against the implication of any such

rights before the minister—expressio unius est exclusio alterius. It would follow that as there is no right to appear or to adduce evidence before the minister, there can be no right of the applicant to correct or contradict ‘any relevant statement prejudicial to their view’ (referred to in Board of Education v. Rice, supra). As the applicant has no right to correct or contradict, then there would be no implied obligation on the minister to disclose any information which the minister may have. Any disclosure would be only for the purpose of enabling the applicant to correct or contradict when appearing before the minister, but the applicant may not appear before the minister; hence there disappears any reason for the alleged obligation to disclose.

“Any obligation of the minister to disclose is further excluded by provisions now appearing in sec. 31 (3) (RSC, 1952, ch. 325), but not appearing in secs. 19 and 20 (RSC, 1927, ch. 93), and hence are not referred to in de Marigny v. Langlais, supra. Sec. 31 (3) now provides that the minister ‘has full power to consider all matters pertaining to the case under appeal … and to substitute the opinion … of the...