IMM-3331-96
Larkland Smith (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-3333-96
Larkland Smith (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Smithv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, MacKay J."Toronto, September 3, 1997; Ottawa, March 2, 1998.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Applicant found to be inadmissible under Immigration Act, s. 19(1)(c) as convicted of narcotics trafficking — Adjudicator issuing deportation order under Act, s. 32(5)(a) — Before order executed, applicant left Canada, returned without obtaining Ministerial consent — Exclusion order issued by senior immigration officer under Act, s. 19(1)(i) — After latter decision, applicant granted pardon under Criminal Records Act — Whether pardon expunged conviction — Case law as to effect of pardon under Criminal Records Act — Conviction not deemed not to have existed by virtue of pardon — Pardon must be given effect prospectively — Deportation, exclusion order —disqualification— within Criminal Records Act, s. 5(b) — Execution of deportation, exclusion order would enforce disqualification removed by pardon contrary to Criminal Records Act, s. 5.
Administrative law — Judicial review — Declarations — Deportation order against applicant, valid when issued, should not be quashed by certiorari — Exclusion order issued after granting of pardon which removed basis for enforcement of deportation order — Should be set aside by certiorari — Declaration most appropriate remedy in respect of deportation order — Requirements for declaration met — Declaration issued enforcement of deportation, exclusion order would constitute enforcement of disqualification contrary to Criminal Records Act, s. 5(b) — No basis for order of prohibition under Federal Court Act, s. 18.1(4).
These were two applications for leave and judicial review in respect of a deportation order made by an adjudicator in file IMM-3331-96 and in regard to an exclusion order issued by a senior immigration officer in file IMM-3333-96. In July 1995, the applicant was found by an immigration adjudicator to be an inadmissible person under paragraph 19(1)(c) of the Immigration Act, as he had been convicted of two drug traffic offences carrying maximum terms of imprisonment for life. It also turned out that the applicant had entered Canada without a visa and was declared inadmissible under paragraph 19(2)(d) of the Act. Therefore, he was ordered deported under paragraph 32(5)(a) of the same Act. In October 1995, before the deportation was executed, the applicant left Canada for three weeks. Upon his return, he was examined at the airport and detained. On November 15, 1995, a senior immigration officer issued an exclusion order on the basis that the applicant was a person who, by reason of his deportation order, required Ministerial consent before returning to Canada, which consent was not obtained. One week before the latter decision, the applicant had been granted a pardon under the Criminal Records Act. Three issues were raised: (1) the effect of the pardon on the deportation order and the exclusion order; (2) whether the deportation and exclusion orders constitute a disqualification under paragraph 5(b) of the Criminal Records Act and (3) if applicant is entitled to relief, the form it should take.
Held, the applications should be allowed in part.
(1) A pardon under the Criminal Records Act does not have the same legal effect as the setting aside by an appeal court of a conviction, or a conditional discharge substituted by a court of appeal for the sentence imposed at trial. The respondent's arguments concerning the differences between the wording of the French and English versions of section 5 of that Act were persuasive. It was pointed out rightly that amendments to the French version of section 5 of the 1985 Revised Statutes, changing the words from "annule la condamnation" to "efface les conséquences de la condamnation" reflected an intention on the part of Parliament to preserve the existence of the conviction while curbing detrimental consequences arising from it. The effect of the grant of a pardon under the Criminal Records Act has been considered in a number of cases. In one of them, it was said that the pardon has the effect of cleansing the individual "of any stain that the conviction caused". It is clear from these authorities that the Act cannot be said to erase the conviction so that the latter is deemed not to have existed. While the purpose of the Criminal Records Act is to bar any further disadvantage imposed by Parliament that arises from a pardoned conviction by cleansing the individual of the stain caused by the conviction, the latter cannot be said not to have existed by virtue of the pardon. The deportation order herein having been issued whilst the conviction stood, the adjudicator did not err in issuing it. However, the pardon issued on November 8, 1995 must be given effect not retroactively, but prospectively.
(2) To determine whether a deportation order or an exclusion order constitute a "disqualification" ("incapacité") within the terms of paragraph 5(b ) of the Criminal Records Act, it is helpful to consider the dictionary definitions of these words. On the basis of these definitions, a classification based on a conviction as described in paragraph 19(1)(c) of the Immigration Act is a "disqualification" ("incapacité"), one without which no deportation order would have issued herein. The applicant's convictions must be regarded as the cause in fact of the disqualification and resulting deportation order. That order was properly made because it predated the pardon; however, after the grant of the pardon in November 1995, the disqualification of the applicant under paragraph 19(1)(c ) of the Immigration Act was removed by the operation of paragraph 5(b) of the Criminal Records Act. Enforcement of the deportation order thereafter would enforce a disqualification removed by the latter Act and would be in violation of that Act. The exclusion order gave effect to a disqualification also, and in the case at bar, one that stems entirely from the applicant's convictions. Whether there is a sufficient link between the convictions and the exclusion order depends on the degree to which the order can be viewed as resulting from the original conviction. The pardon, when granted, removed the disqualification arising from the applicant's conviction. At the date of his return to Canada on November 14, 1995, there was no enforceable deportation order and the exclusion order was issued in error for it was based on assumptions no longer valid.
(3) As to the form of appropriate relief, the deportation order, valid when issued, could not be set aside by an order of certiorari. None of the grounds for such relief set out in subsection 18.1(4) of the Federal Court Act had been established. But the exclusion order had been issued after the granting of the pardon which removed the statutory disability arising under paragraph 19(1)(c) of the Immigration Act. That order was issued in error, on assumptions of fact that no longer pertained, and should be set aside by an order in the nature of certiorari. A declaration was the most appropriate remedy in relation to the deportation order. All requirements set out for issuing a declaration were met both in regard to the deportation order and the exclusion order. In each case, an order should be issued declaring that enforcement of the order would constitute enforcement of a disqualification, contrary to paragraph 5(b) of the Criminal Records Act. As to the issue of prohibition, counsel for the applicant asked for prohibition in written argument and in his memoranda of fact and law, but failed to do so in his originating motions. The Court was free to grant the remedy under section 18.1 of the Federal Court Act that it deems just and equitable, particularly where the relief concerned action that was found to be contrary to law. The respondent has not been prejudiced by the failure of the applicant to specify prohibition as a remedy in the applications for leave and for judicial review. However, as in the case of certiorari, there was no basis to support an order of prohibition within the terms of subsection 18.1(4) of the Federal Court Act.
statutes and regulations judicially considered
Criminal Records Act, R.S.C., 1985, c. C-47, ss. 5(a) (as am. by S.C. 1992, c. 22, s. 5), (b) (as am. by S.C. 1995, c. 42, s. 78), 6, 7 (as am. by S.C. 1992, c. 22, s. 7), 8 (as am. idem, s. 8).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).
Federal Court Rules, C.R.C., c. 663, RR. 1602(2)(c) (as enacted by SOR/92-43, s. 19), (4) (as enacted idem), 1723, 1733.
Federal Court Immigration Rules, 1993, SOR/93-22, R. 5(1)(e).
Immigration Act, R.S.C. 1927, c. 93.
Immigration Act, R.S.C., 1985, c. I-2, s. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 19(1)(b) (as am. idem, s. 11), (c) (as am. idem), (i), (2)(d), 20 (as am. idem, s. 12), 23(4) (as am. idem, s. 13), 32(5)(a) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11; S.C. 1992, c. 49, s. 21), 55 (as am. idem, s. 45), 83(1) (as am. idem, s. 73).
cases judicially considered
applied:
Flota Cubana de Pesca (Cuban Fishing Fleet) v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 303 (C.A.); Silver v. Silver (1980), 22 A.R. 235; [1980] 4 W.W.R. 500 (C.A.); J.C. v. British Columbia (Director of Child, Family and Community Service), [1997] B.C.J. No. 2223 (B.C.S.C.) (QL); Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44; (1991), 78 D.L.R. (4th) 103; 13 Imm. L.R. (2d) 102; 122 N.R. 228 (C.A.); Lui v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1029 (T.D.) (QL); Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc. (1993), 74 F.T.R. 185 (F.C.T.D.); Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; (1994), 119 D.L.R. (4th) 224; [1995] 1 C.N.L.R. 47; 24 C.R.R. (2d) 233; 173 N.R. 241.
distinguished:
Nagra v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 497; (1995), 103 F.T.R. 261; 81 Imm. L.R. (2d) 165 (T.D.); Kalicharan v. Minister of Manpower and Immigration, [1976] 2 F.C. 123; (1976), 67 D.L.R. (3d) 555 (T.D.); Reference as to the effect of the Exercise by His Excellency the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; [1933] 2 D.L.R. 348; (1933), 59 C.C.C. 301.
considered:
LeBar v. Canada, [1989] 1 F.C. 603; (1988), 33 Admin. L.R. 107; 46 C.C.C. (3d) 103; 90 N.R. 5 (C.A.); Adjei et al. v. Minister of Employment and Immigration (1994), 74 F.T.R. 57 (F.C.T.D.).
referred to:
Montana Band of Indians v. Canada, [1991] 2 F.C. 30; [1991] 2 C.N.L.R. 88; (1991), 120 N.R. 200 (C.A.); Bauer v. Regina (Canadian) Immigration Commission, [1984] 2 F.C. 455; (1984), 12 C.R.R. 235 (T.D.); Minister of Manpower and Immigration v. Tsakiris, [1977] 2 F.C. 236; (1977), 73 D.L.R. (3d) 157; 15 N.R. 224 (C.A.); Reece v. Minister of Employment and Immigration, [1982] 2 F.C. 743; (1981), 130 D.L.R. (3d) 724 (T.D.); Gittens (In re), [1983] 1 F.C. 152; (1982), 137 D.L.R. (3d) 687; 68 C.C.C. (2d) 438; 1 C.R.R. 346 (T.D.); Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468; (1997), 132 F.T.R. 281 (T.D.).
authors cited
Le Petit Robert I, Dictionnaire alphabétique et analogique de la langue française, Montréal: Les Dictionnaires Robert-Canada S.C.C., 1987. "incapacité".
New Shorter Oxford English Dictionary on Historical Principles. Oxford: Clarendon Press, 1993. "disqualification"; "disqualify".
APPLICATIONS for leave and for judicial review in respect of a deportation order made by an adjudicator and in regard to an exclusion order issued by a senior immigration officer. Applications allowed in part.
counsel:
Micheal T. Crane for applicant.
Diane B. N. Dagenais for respondent.
solicitors:
Micheal T. Crane, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for orders rendered in English by
MacKay J.: These reasons concern two applications for leave and for judicial review made pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended [by S.C. 1990, c. 8, s. 5], which were heard together. In both originating motions, as filed, the applicant refers to the relief sought in terms only of an order of certiorari and declaratory relief, and only the former is specified as relief desired upon judicial review, in respect of a deportation order made by an adjudicator on July 13, 1995 in file IMM-3331-96, and, in file IMM-3333-96, in regard to an exclusion order issued by a senior immigration officer on November 15, 1995. When these matters were heard, counsel for the applicant also argued, as was set out at the commencement of the applicant's written memorandum of fact and law in each case, for the award of orders in the nature of prohibition, relief not specifically referred to in the originating motions filed. This matter became an issue warranting further written submissions on behalf of the parties following the hearing.
Background
The facts in these applications are relatively straight forward. On July 13, 1995, the applicant was found by an immigration adjudicator to be an inadmissible person as one described in paragraph 19(1)(c) of the Immigration Act, R.S.C., 1985, c. I-2, as amended [by S.C. 1992, c. 49, s. 11] (the Act), on the basis that in 1987 he had been convicted of two drug traffic offences which carried maximum terms of imprisonment for life, though his sentence was apparently limited to one year on probation. At the same inquiry, it was found that the applicant had not applied for and received a visa before entering Canada, as required pursuant to subsection 9(1) [as am. idem, s. 4] of the Act, and thus he was a person who was inadmissible to Canada under paragraph 19(2)(d) of the Act. The adjudicator issued a deportation order, as required by paragraph 32(5)(a) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11; S.C. 1992, c. 49, s. 21] where a person is found to be as described in paragraph 19(1)(c), and that is the decision questioned in file IMM-3331-96. No separate order was issued in relation to the finding that the applicant is a person described in paragraph 19(2)(d).1
In October 1995, before the deportation was executed, the applicant left Canada for three weeks for personal reasons, believing he would be able to return. Upon his return on November 14, 1995, the applicant was examined at the airport, then detained and reported the following day under paragraphs 19(1)(b) and (i) of the Act. An exclusion order was issued by a senior immigration officer on November 15, 1995 on the basis that the applicant was a person who, pursuant to paragraph 19(1)(i), by reason of his deportation order, required Ministerial consent before coming into Canada, which consent he did not have.
A few days before the latter decision but apparently unknown to the applicant at that time, in a letter from the National Parole Board dated November 8, 1995, the applicant was advised he was granted a pardon under the Criminal Records Act, R.S.C., 1985, c. C-47, as amended. The Board wrote in part as follows:
. . . this pardon is evidence of the fact that the Board, after making proper inquiries, was satisfied that the said
LARKLAND OSBOURNE SMITH
has remained free of any conviction since completing the sentence and was of good conduct and that the conviction should no longer reflect adversely on his character and, unless it ceases to exist or is subsequently revoked, this pardon vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which
LARKLAND OSBOURNE SMITH
is, by reason of the conviction, subject by virtue of any Act of Parliament or a regulation made thereunder.
The Issues
In IMM-3331-96, the applicant challenges the validity of the deportation order or its execution on the grounds that the basis for this order has ceased to exist by reason of the pardon granted under the Criminal Records Act. It is urged that as the basis of the applicant's inclusion in the class of persons described in paragraph 19(1)(c), that is, his conviction, has now been pardoned, the conviction does not support a deportation order under paragraph 32(5)(a). The deportation order cannot stand, or its execution should now be prohibited, so it is urged. In addition, it is submitted in IMM-3333-96 that, since the basis for the deportation order has ceased to exist, the exclusion order issued on November 15, 1995 pursuant to subsection 23(4) [as am. by S.C. 1992, c. 49, s. 13] is not valid. Since the applicant could not properly be found included within paragraph 19(1)(i), the exclusion order should be quashed or, in the alternative, its execution prohibited.
The respondent argues that the pardon granted the applicant under the Criminal Records Act does not have the effect of "setting aside" or nullifying the convictions in the sense that they are deemed in law never to have existed. As a result, the pardon does not remove the sustaining basis for the deportation order and both the deportation order and the subsequent exclusion order remain valid. It is further urged by the respondent that both the deportation and exclusion orders do not constitute disqualifications arising under a statute of Canada by reason of the conviction, which disqualifications are expressly barred by the Criminal Records Act and, as a consequence, there are no reasons for this Court to intervene in regard to either one.
The respondent also submits, in supplementary submissions requested by the Court, that there is no basis for the Court to grant the remedy of prohibition in these matters. It is urged that the failure of the applicant to request this remedy in his originating motion violates paragraph 5(1)(e) of the Federal Court Immigration Rules, 1993, SOR/93-22, and paragraph 1602(2)(c) of the Federal Court Rules, C.R.C., c. 663 [as enacted by SOR/92-43, s. 19], both of which require an application for judicial review to set out the precise relief sought. Further, orders for prohibition would issue against the execution of the deportation and/or exclusion orders and not against the decisions of the adjudicator or the senior immigration officer, and this would in effect violate the requirement, set out in subsection 1602(4) [as enacted idem] of the Federal Court Rules, that each review concern only one decision. Finally, the respondent urges that prohibition is not a proper alternative to quashing the deportation or exclusion orders, given that because prohibition will issue only in respect to an excess of jurisdiction, the court would have to find the deportation and/or exclusion orders invalid to justify intervention, and if that were found then an order of prohibition would be unnecessary.
In my view, the essential issues raised may be stated thus:
1) What is the effect of the pardon granted to the applicant in relation to each of the deportation order, issued before the pardon, and the exclusion order, issued after the pardon was granted?
2) Are the deportation and exclusion orders within the meaning of the words "any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament . . . or of a regulation made under an Act of Parliament," as those words are used in paragraph 5(b ) [as am. by S.C. 1995, c. 42, s. 78] of the Criminal Records Act?
3) If the applicant is entitled to relief, what form should that relief take?
The Effect of the Pardon
The first issue concerns the effect of a pardon granted under the Criminal Records Act. If the Act has the effect of expunging the conviction, so that the conviction can be said to have never existed, it follows that the applicant cannot be a person described in paragraph 19(1)(c), which provides:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;
The relevant portions of the Criminal Records Act read as follows [s. 5(a) (as am. by S.C. 1992, c. 22, s. 5), (b) (as am. by S.C. 1995, c. 42, s. 78)]:
5. The pardon
(a) is evidence of the fact
(i) that, in the case of a pardon for an offence referred to in paragraph 4(a), the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and
(ii) that, in the case of any pardon, the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character; and
(b) unless the pardon is subsequently revoked or ceases to have effect, vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 100, 161 or 259 of the Criminal Code, or of a regulation made under an Act of Parliament.
Two authorities were cited by the applicant in support of his argument that the conviction should be set aside. In Nagra v. Canada (Minister of Citizenship and Immigration),2 Mr. Justice Muldoon held, in an instance where a criminal conviction was set aside on an appeal to the Supreme Court, that "the ground for the deportation order has been cut out from under it by the setting aside of the criminal convictions imposed on the applicant." In the result, Muldoon J. held that the deportation order had no sustaining basis and had to be quashed.
In Kalicharan v. Minister of Manpower and Immigration,3 Mahoney J., as he then was, was asked to intervene in regard to a deportation order where the underlying basis for the order, a conviction, had been affected by a conditional discharge issued by the Ontario Court of Appeal. In allowing the application, His Lordship wrote:
As I appreciate the provisions of the Criminal Code, as they bear upon a conditional discharge substituted by a court of appeal for a sentence imposed by a trial court, the conviction is not reversed; it is deemed never to have been passed. The decision of the Ontario Court of Appeal is not merely new evidence that would permit the Special Inquiry Officer to reopen his hearing; nor is it simply a fact to be taken into account by the Immigration Appeal Board if, as and when, that tribunal entertains an appeal from the Special Inquiry Officer's decision. Rather, its import is that the basis for making the deportation order not only no longer exists in fact; it is deemed, in law, not to have existed at all. This, therefore, is a proper case for prohibition and the order sought will issue accordingly.
I accept the respondent's submissions that each of these cases can be distinguished from that at bar in that each concerns an expungement of a conviction by means other than a pardon under the Criminal Records Act. A pardon under that Act is not the same, in legal effect, as the setting aside by an appeal court of a conviction found at trial, or a conditional discharge substituted by a court of appeal for a trial sentence. The effect of a pardon granted under the Act in question is not the same as if the conviction were quashed on appeal; its effect depends on the Act.
It is urged by the respondent that the English and French versions of section 5 of the Criminal Records Act are not identical. It is submitted that the Court should apply the narrower of the two versions, that is, the French version. In paragraph 5(b), the English text provides that a pardon "vacates the conviction in respect of which it is granted", while the French text provides for erasing the consequences of the conviction, not of erasing or vacating the conviction itself. The respondent submits that amendments to the French version of section 5 of the 1985 Revised Statutes, changing the words from "annule la condamnation" to "efface les conséquences de la condamnation", reflects an intention on the part of Parliament to preserve the existence of the conviction while curbing detrimental consequences arising from it.
Further, it is urged the purpose and context of the Act support the French version of section 5. Specifically, it is urged that if the conviction were expunged or "vacated", in the sense that it was presumed never to have existed, there would be no need for other provisions of the Act, for example subsection 6(1) which bars disclosure of pardoned convictions, subsection 6(2) which provides for maintenance of records of pardoned convictions separate from records of convictions not pardoned, section 7 [as am. by S.C. 1992, c. 22, s. 7] which provides for revocation of a pardon, section 8 [as am. idem , s. 8] which precludes solicitation of information about pardoned convictions in prospective employment or service with federal agencies. Moreover, because a pardon is revokable, it is urged that the underlying conviction must be viewed as continuing to exist, at least in terms of an historic event.
I find persuasive the respondent's arguments concerning the differences between the wording of the French and English versions of section 5. In coming to this conclusion, I take note of the Federal Court of Appeal's discussion of statutory interpretation in Flota Cubana de Pesca (Cuban Fishing Fleet) v. Canada (Minister of Citizenship and Immigration).4 In that case, after reviewing the case law and textual authorities, Mr. Justice Stone, writing for the Court, concluded that discrepancies between the French and English versions of a provision must be reconciled by examining the legislative context in which the discrepancy is used and the purpose and object of the Act in question. In this case if the Act were intended to vacate the conviction in the sense that the conviction is deemed never to have existed, there would be no need for reference to specific effects of pardoned convictions, for all potential effects would be precluded if the conviction were erased from the historic record by a pardon. There would then be no logical basis for revocation of a pardon and restoration of the record of conviction.
The effect of the grant of a pardon under the Criminal Records Act has been considered in a number of cases. In Silver v. Silver,5 the defendant husband applied to strike out portions of divorce pleadings which referred to his having been jailed for assaulting women, a crime for which his conviction had been pardoned. In holding that the pleadings were admissible, the Alberta Court of Appeal wrote that the granting of a pardon under the Criminal Records Act [R.S.C. 1970 (1st Supp.), c. 12] does not extinguish those significant factual events which the trial judge may find to be relevant in the course of his consideration of the history of the marriage.
In J.C. v. British Columbia (Director of Child, Family and Community Service),6 the British Columbia Supreme Court was asked to determine whether a provincial court judge erred by allowing evidence to be led as to the past criminal convictions of an accused who had been pardoned under the Criminal Records Act. The trial judge had ruled that where a pardon is granted and the "conviction vacated", the circumstances leading to the conviction may, if relevant and otherwise admissible, be presented to the court. The Court, in upholding the trial judge, noted that [at paragraph 31]:
. . . the Canadian legislation does not go so far as to deem convictions not to be convictions. In fact, the possibility of drafting the Canadian legislation in this manner was explicitly rejected by the Report of the Canadian Committee on Corrections which preceded the enactment of the Criminal Records Act: (see A.M. Kirkpatrick, Significance of Criminal Records and Recognition of Rehabilitation (1970) 12 Can. J. Corr. 306.)
In Canada (Minister of Employment and Immigration) v. Burgon,7 Mr. Justice Linden, writing for the majority of the Federal Court of Appeal, described the effect of a pardon under the Criminal Records Act, in these words: "someone convicted of an offence, upon showing that he was of "good behaviour', could be cleansed of any stain that the conviction caused." At issue in that case was the scope of a similar law in Britain. On this point, His Lordship wrote "The British went farther than Canada; in addition to allowing absolute and conditional discharges, it enacted . . . that, when an offender was placed on probation, his conviction would be `deemed not to be a conviction', except for certain technical purposes." I infer from this reasoning that Linden J.A. was of the view that the Criminal Records Act does not deem that when a pardon is granted the pardoned conviction is deemed not to have existed. Nevertheless, he comments further:
In my view, when Parliament re-enacted the Immigration Act in 1976 [S.C. 1976-77, c. 52], it must be taken to have known about its own earlier penal legislation which allowed for the elimination of criminal convictions from the records of deserving individuals. In using the word "convicted" in paragraph 19(1)(c ), therefore, Parliament meant a conviction that had not been expunged, pursuant to any other legislation it had enacted. If a "conviction" had been erased by the provisions of another law of Parliament, it was not meant to be treated in the same way as a conviction that had not been removed from a person's record. If it had intended that the word "convicted" in the Immigration Act be interpreted otherwise, it could and should have demonstrated that. Interpreting paragraph 19(1)(c) in this way, the Immigration Act and the criminal legislation in Canada is rendered consistent, not in conflict. The policy of the criminal law is incorporated within the Immigration Act.
In Lui v. Canada (Minister of Citizenship and Immigration),8 Mr. Justice Rothstein of this Court had occasion to interpret the scope of the Criminal Records Act in assessing whether a similar Hong Kong law, there at issue, could be said to have the same effect. His Lordship described the effect of the Canadian statute as follows:
The effect of the Criminal Records Act is, subject to very few exceptions pertaining to certain provisions of the Criminal Code, to vacate a conviction if the National Parole Board grants a pardon and to remove any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provision of any Act of Parliament.
. . .
While a pardon may be revoked if a person is subsequently convicted or for other reasons, it would appear that except for those few Criminal Code exceptions to which I have referred, the pardon, in the words of Linden J.A. in Burgon, has the effect of cleansing the individual "of any stain that the conviction caused".
I conclude from these authorities that the Act cannot be said to erase the conviction in the sense that the conviction is deemed not to have existed. While the purpose of the Criminal Records Act is to bar any further disadvantage imposed by Parliament that arises from a pardoned conviction, by cleansing the individual of the stain caused by the conviction and limiting the uses to which the fact of the conviction can be put, the conviction cannot be said not to have existed by virtue of the pardon.
In my opinion, since the deportation order was issued while the conviction for which the applicant was classed within paragraph 19(1)(c) was outstanding, before the pardon was granted, there can be no finding that the adjudicator erred in issuing the order. Nevertheless, the pardon issued on November 8, 1995 must be given effect, not retroactively, but prospectively, within the terms of paragraph 5(b) of the Criminal Records Act.
The deportation and exclusion orders and paragraph 5(b) of the Criminal Records Act
The applicant's principal submissions are that the basis sustaining the deportation order ceased to exist with the grant of the pardon and the exclusion order, predicated on the existence of the deportation order, is not valid. Whether either order constituted a "disqualification" within the terms of paragraph 5(b ) of the Criminal Records Act is the matter to which I now turn, first, by considering the deportation order.
It may be useful to repeat the relevant portion of section 5 which describes the "disqualification" removed by a pardon under that section. It is:
5. The pardon
. . .
(b) . . . vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 100, 161 or 259 of the Criminal Code, or of a regulation made under an Act of Parliament.
I am not persuaded by the respondent's argument, based upon the decision in Reference as to the effect of the Exercise by this Excellency the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings,9 that the deportation order was not a consequence constituting a disqualification within paragraph 5(b) because the order was made by a separate administrative process apart from the conviction. The Reference case, in responding to questions asked of the Supreme Court, found that, under provisions of the then existing Immigration Act [R.S.C. 1927, c. 93] providing for deportation of a person other than a Canadian citizen or one with a Canadian domicile who had been convicted of a criminal offence in Canada, a convict released by exercise of the prerogative of mercy was still subject to deportation. Moreover, the Court there found that the results which follow from deportation proceedings "are not attached to the criminal offence as a legal consequence following de jure upon conviction", rather they "follow . . . as the result of an administrative proceeding initiated at the discretion of the Minister at the head of the Department of Immigration".10
That case, of course, was not concerned with a pardon under the Criminal Records Act, or with interpretation of the provisions of that Act and the current Immigration Act, and it is not helpful, in my opinion, in interpreting a "disqualification" or "incapacité" within the meaning of paragraph 5(b ).
Under section 19 of the Immigration Act various described classes of persons are said to be inadmissible to Canada, including in paragraph 19(1)(c), those convicted in Canada of described offences. When such persons are reported, an adjudicator is required to conduct an inquiry and has no discretion, but must issue a deportation order when the person concerned is found to be within that inadmissible class. I emphasize that there is no discretion where the fact of the conviction is established, nor is there discretion to waive the required hearing where a person is reported as within one of the inadmissible classes. A person otherwise free to remain in Canada becomes inadmissible as a result of his or her conviction of an offence within paragraph 19(1)(c), and subject to deportation once that fact is confirmed by an adjudicator. That inadmissibility and resulting deportation order, in my opinion, is a "disqualification", or an "incapacité", against remaining in Canada, by reason of the conviction, imposed under provisions of the Immigration Act , an Act of Parliament.
The New Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1993) defines "disqualification" as:
1. Something which disqualifies; a ground or cause of incapacity. 2. The action of disqualifying; the fact or condition of being disqualified.
"Disqualify" is there defined as:
1. Deprive of the qualities required (for a situation, purpose, etc.); make unfit or unsuited; prevent by lack of qualification from doing. 2. Incapacitate legally; pronounce unqualified . . .
"Incapacité" is defined in Le Petit Robert 1, Dictionnaire alphabétique et analogique de la langue française , (Montréal: Les Dictionnaires Robert-Canada S.C.C., 1987) in part as follows:
[translation] 1E Condition of being incapable . . . 3E Condition of being deprived, by law, of the use or exercise of certain rights . . .
On the basis of these definitions, a classification based on a conviction as described in paragraph 19(1)(c) of the Immigration Act, in my opinion is a "disqualification", an "incapacité", one without which no deportation order would have issued in this case.
By analogy, I find support for this conclusion from Mr. Justice Linden's decision in Burgon11, where His Lordship wrote:
I am fortified in this view by an examination of the legislative history of paragraph 19(1)(c), which was significantly different in its earlier form. The Immigration Act, R.S.C. 1970, c. I-2, paragraph 5(d), prohibited certain classes of "persons who have been convicted of or admit having committed any crime involving moral turpitude . . ." [underlining added] from entering Canada. If this wording had continued in the legislation of 1976, Ms. Burgon would probably have fallen within it and been properly excluded, because she had "admit[ted] having committed a crime" [underlining added]. However, the new immigration legislation of 1976 dropped the underlined words, leaving only the key word "convicted". This provision now had a different meaning; a mere plea of guilty would not now be sufficient to come within the section. This legislative reform came after the Criminal Code amendments which received royal assent on June 15, 1972, permitting absolute and conditional discharges as a method of disposition in Canada. Thus when the underlined words were omitted from the Immigration Act in 1976, leaving only the word "convicted", Parliament must be taken to have been aware of the device of deeming an offender not to have been convicted and, therefore, must be taken to have meant to exclude such persons from the ambit of paragraph 19(1)(c ) and to render the Immigration Act consistent with the Criminal Code of Canada.
I also note that both counsel were agreed that had the pardon been granted before the inquiry leading to the deportation order, it would have been effective in removing the applicant from the class of persons described by paragraph 19(1)(c) and a deportation order could not then issue on that ground. That clearly supports the conclusion that, in the circumstances of this case, the applicant's convictions must be regarded as the cause in fact of the disqualification and resulting deportation order. In other words, but for the unpardoned conviction, there could be no deportation order in this case.
As a result, and with respect, I cannot agree with counsel for the respondent that the intervening administrative act of issuing the deportation order renders that order so remote from its cause in fact that it cannot be considered a disqualification stemming from a conviction within the meaning of paragraph 5(b) of the Criminal Records Act. That administrative act arose only by reason of the conviction.
It is my view that while the deportation order was properly made because it predates the pardon, after the grant of the pardon in November 1995 the disqualification of the applicant under paragraph 19(1)(c) of the Act is removed by the operation of paragraph 5(b) of the Criminal Records Act. Enforcement of the deportation order thereafter would enforce a disqualification removed by the latter Act and, in my opinion, would be in violation of that Act.
The respondent notes that the applicant was found inadmissible by the adjudicator on the basis of two grounds, the second being paragraph 19(2)(d), and submits that if this Court were to quash the deportation order on the basis of the pardon, the applicant would be in a better position than he should be, given that no exclusion order was issued with regard to paragraph 19(2)(d). It is also urged that it would be absurd for this Court to quash the deportation order as, were the pardon subsequently to be revoked, the deportation process would have to begin all over again. I am not so persuaded.
With respect, I am not prepared to endorse an act by the Minister, that is, deportation of the applicant, that in my view would violate section 5 of the Criminal Records Act. If there are other grounds for removal of the applicant from Canada, the Minister is free to pursue those. Further, I am of the view that section 5 of the Criminal Records Act would be robbed of all effect were the Court to agree that because that pardon is capable of being revoked, a disqualification prohibited by section 5 is permissible, again for the sake of speculative administrative convenience.
The question remains whether the exclusion order issued upon the applicant's return to Canada in November 1995 can be given effect. Taking into account, once again, the definition of "disqualification" ("incapacité"), in my opinion, the exclusion order gives effect to a disqualification, and in the case at bar, one that stems entirely from the applicant's convictions. It is by reason of the Immigration Act that conviction of the applicant makes him inadmissible and subject to a deportation order, and that he thereafter required permission of the Minister to enter Canada after leaving the country.
Counsel for the respondent urges that because the exclusion order was made pursuant to a deportation order, the validity of which immigration officials had no reason to doubt at the time the order issued, the exclusion order is an independent act, unrelated to the applicant's pardoned conviction. It is without doubt, however, that, in this case, but for the convictions, there would be no deportation order, and but for that order, there would be no exclusion order.
In my view, whether there is a sufficient link between the convictions and the exclusion order depends, as it did with the deportation order, on the degree to which the exclusion order can be viewed as resulting from the original conviction. Under section 55 [as am. by S.C. 1992, c. 49, s. 45] of the Act, a person against whom a deportation order is issued who is removed or otherwise leaves Canada, shall not come into Canada again without the written consent of the Minister, subject only to a successful appeal of the deportation order. Under paragraph 19(1)(i) of the Act, no person shall be granted admission to Canada who is a person required under section 55 to have the permission from the Minister to do so, and who lacks this permission. Under section 20 [as am. idem, s. 12], an immigration officer who believes that to grant a person entry to Canada would violate the Act must report the matter to a senior immigration officer, unless that person leaves voluntarily. Under subsection 23(4), the latter must allow the person reported to either leave Canada or issue an exclusion order if the person is as described in paragraph 19(1)(i), with different options available only if the person claims to be a convention refugee or is a member of other excluded classes other than those described in the subsection.
On this basis, it is my view that from the moment the applicant was issued a deportation order, he was automatically subject to an exclusion order, should he leave Canada and later seek to return without ministerial consent. Thus, I do not view the exclusion order as being so remote from the conviction that the disqualification it introduces is to be considered as not flowing directly from that conviction. For this reason, the exclusion order cannot be enforced without violating paragraph 5(b) of the Criminal Records Act.
There is a final consideration in regard to the exclusion order. It was issued after the pardon was granted to the applicant for his earlier convictions, though the fact that it had been granted was not then known to the officer concerned, or apparently to the applicant. Their lack of knowledge of the pardon is immaterial, if my reading of the Criminal Records Act is correct, that the pardon, when granted, removed the disqualification arising from the applicant's conviction. From November 8, 1995 the applicant was no longer classifiable within the inadmissible class defined by paragraph 19(1)(c), his disqualification from remaining in Canada was removed, and the outstanding deportation order was unenforceable. There was, at the date of his return to Canada on November 14, no enforceable deportation order and the exclusion order, when issued, was issued in error for it was based on assumptions no longer valid.
The form of relief
As earlier noted, there was discussion in oral argument about the remedy that would be available to the applicant in accord with the Federal Court Act. Counsel for the applicant argued that this Court should prohibit the removal of the applicant. Counsel for the respondent pointed out, rightly, that in his application for leave and for judicial review in both files, the applicant only refers to relief in the form of a declaration and an order of certiorari, and specifically asks only for the latter in the event of judicial review.
In my opinion, the deportation order, acknowledged to be valid when issued, is not subject to being quashed or set aside by an order in the nature of certiorari. None of the grounds for such relief set out in subsection 18.1(4) are here established. In contrast, the exclusion order was issued after the granting of the pardon, which removed the statutory disability arising under paragraph 19(1)(c) and thus removed the basis for enforcement of the deportation order. In my view that order was issued in error, on assumptions of fact that no longer pertained, and that order is appropriately set aside by an order in the nature of certiorari. I note that if that should be found inappropriate I also consider the exclusion order in the brief discussion which follows concerning declaratory relief.
In my view, the most appropriate remedy in relation to the deportation order is a declaration. I note that while this remedy was not argued significantly in oral argument, it is requested, albeit in a somewhat passing way, in the applicant's originating motions in both files, which motions describe each application as one in which "the Applicant seeks leave of the Court to commence an application for judicial review in the nature of a declaration and certiorari". In LeBar v. Canada ,12 Mr. Justice MacGuigan, writing for the Federal Court of Appeal, described declaratory relief as follows:
A declaration differs from other judicial orders in that it declares what the law is without pronouncing any sanction against the defendant, but the issue which is determined by a declaration clearly becomes res judicata between the parties and the judgment a binding precedent.
. . .
. . . a declaration is a peculiarly apt instrument in dealing with bodies "invested with public responsibilities" because it can be assumed that they will, without coercion, comply with the law as stated by the courts. Hence the inability of a declaration to sustain, without more, an execution process should not be seen as an inadequacy of declaratory proceedings vis-a-vis the Government.
. . .
Elusive as it is as a concept, the rule of law must in all events mean "the law is supreme" and that officials of the Government have no option to disobey it. It would be unthinkable, under the rule of law, to assume that a process of enforcement is required to ensure that the Government and its officials will faithfully discharge their obligations under the law. That the Government must and will obey the law is a first principle of our Constitution.
In Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc.,13 Mr. Justice Joyal held that Rule 1723 allows the Court to grant a declaration simpliciter so long as the requirements set out by the Federal Court of Appeal in Montana Band of Indians v. Canada14 are met; namely, the question at issue is real, and not theoretical, the person raising it has a real interest to raise it and there is a proper contradictor, specifically, someone who has a true interest to oppose the declaration sought. In my view, all these requirements are met in the case at bar. They are met both in regard to the deportation order in IMM-3331-96 and in regard to the exclusion order in IMM-3333-96, each of which may be affected, in practice, by an appropriate declaration.
The orders now issued allow in part the applications here made, and include in each case a declaration that enforcement of the order questioned would constitute enforcement of a disqualification contrary to paragraph 5(b) of the Criminal Records Act. That, it seems to me is the appropriate remedy in the case of the deportation order in file IMM-3331-96. In the event certiorari is considered by the Court of Appeal as inappropriate in the case of the exclusion order in file IMM-3333-96, then in the alternative the exclusion order is treated in the same manner as the deportation order, that is, its enforcement is declared to constitute enforcement of a disqualification contrary to paragraph 5(b) of the Criminal Records Act.
Turning to the issue of prohibition, I have noted that in written argument, in his memoranda of fact and law, counsel for the applicant asks for prohibition, but he failed to do so in his originating motions. As the respondent noted, paragraph 1602(2)(c) of the Federal Court Rules requires the originating notice of motion in a judicial review to "identify the precise relief being sought". Similarly, paragraph 5(1)(e ) of the Federal Court Immigration Rules, 1993 requires that the precise relief to be sought, should leave be granted, is to be identified in the application for leave. A "basket clause", requesting any other relief the Court may deem appropriate, is permissible, and in Native Women's Association of Canada v. Canada15 , a majority of the Supreme Court of Canada held that such a clause may allow the Federal Court to provide relief not specifically requested by the applicant in its notice of motion, so long as the respondent is not prejudiced. Specifically, the Court held that the Federal Court of Appeal had jurisdiction to make a declaration even though, in proceedings before the Trial Division, the respondent had only sought an order of prohibition. Mr. Justice Sopinka, writing for the majority and after noting the existence of a basket clause in that case, commented:
. . . I note that s. 18.1 of the Federal Court Act, which came into effect on February 1, 1992, now provides for a uniform procedure of an application for judicial review in order to obtain the remedies available in s. 18. In Federal Court Practice 1994, David Sgayias et al. state (at p. 88) the following with respect to the effect of s. 18.1:
The section expressly sets out the standing requirements, the grounds of review, and the powers of the court on an application for judicial review. As a result, it is not necessary to refer expressly to the prerogative or extraordinary remedies when applying for judicial review. [Emphasis added in original text.]
In the case at bar, the originating notices of motion contain no basket clause. However, the applicant urges that the remedy of prohibition was repeatedly requested in his argument within the application records in both cases, thereby giving the respondent fair notice that such relief would be requested of the Court. The applicant relies on Adjei et al. v. Minister of Employment and Immigration,16 a decision of my colleague, Madam Justice Reed. In that case, the applicants sought reconsideration of an order issued by Reed J. denying them leave to commence an application for judicial review. One of the grounds of argument relied upon by the applicants in oral argument for reconsideration, namely, Rule 1733, was not set out in the notice of motion. At issue was whether the argument could be heard. In finding that it could, Reed J. wrote:
Even though this argument was not set out in the notice of motion, dated November 29, 1993, counsel for the respondent knew that the applicant intended to apply for an amendment to that motion to include argument thereon before me. No prejudice arises from allowing such a procedure and thus I decided to hear the motion on both grounds even though the second part was technically brought without the appropriate written documentation having been filed.
By analogy, the applicant in the present cases argues that the failure to plead a particular remedy or to include a basket clause in the originating notices of motion does not deprive the Court of the capacity to grant a remedy where, as was the case here, the respondent had notice that this remedy would be sought.
In my view, it would be inconsistent with the amendments made to sections 18 and 18.1 of the Federal Court Act in 1992 [S.C. 1990, c. 8, ss. 4, 5], and the thrust of the above-cited passage from the Supreme Court's decision in Native Women's Association, for the Court to deny relief to the applicant that would otherwise be available if his or her lawyer had included a boilerplate basket clause in the prayer for relief in the application for leave. In my view, in the circumstances of this case, this Court is free to grant the remedy under section 18.1 that it deems just and equitable, particularly where the relief concerns action that is found to be contrary to law. In this case in my view, the respondent has not been prejudiced by the failure of the applicant to specify prohibition as a remedy in the applications for leave and for judicial review, if that be an appropriate remedy.
Yet, even if prohibition is not barred by the applicant's failure to plead it as relief sought in his originating motions, it is my opinion that, as in the case of certiorari, there is no basis here established to support an order of prohibition within the terms of subsection 18.1(4) of the Federal Court Act. There are authorities standing for the principle that a prohibition order may issue only to restrain an excess or improper exercise of jurisdiction by an administrative body,17 and it is not to be mistaken for a stay or an injunction.18 I am cognizant that there is one case, Kalicharan,19 where the Court issued an order prohibiting the execution of a deportation order. However, on the facts in that case, the basis for the deportation order was deemed never to have existed, and, in my view, the Minister was thereby without jurisdiction to act on the order, a circumstance that made prohibition an appropriate remedy in that case. Possibly, injunctive relief might be appropriate in this case in regard to the deportation order,20 but relief in that form was not requested and was not argued.
Finally, even if prohibition could otherwise be supported, as I understand the circumstances here the respondent has decided that the outstanding deportation and exclusion orders against the applicant will not be executed pending this Court's determination of the issues raised by these two applications. Since no immediate action to enforce the orders is contemplated, an order of prohibition, or an injunction or a stay is unnecessary at this stage.
Conclusion
I sum up my conclusions. I find that the deportation order in file IMM-3331-96 was validly made and this Court declines to quash the order. However, the exclusion order in file IMM-3333-96 resulted from a disqualification flowing from a conviction that had been pardoned under the Criminal Records Act. That disqualification had been removed by reason of the pardon before the exclusion order issued. An order now issues setting aside that exclusion order.
Further, an order issues in each file declaring that the execution of the deportation order and of the exclusion order, respectively, would enforce a disqualification to which the applicant was subject by reason of his conviction, a disqualification removed by the pardon granted on November 8, 1995, and enforcement of those orders would be contrary to section 5 of the Criminal Records Act.
The applicant and respondent propose several questions for certification under subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] as serious questions of general importance for consideration of the Court of Appeal. Those questions proposed are, in relation to Court file IMM-3331-96:
1. Does a pardon granted pursuant to s. 5 of the Criminal Records Act have a retroactive effect of voiding the conviction for which it is granted and deeming it never to have occurred, thereby removing the sustaining basis of a validly issued removal order?
2. Is a removal order a disqualification by reason of the conviction, such as is contemplated by s. 5 of the Criminal Records Act?
3. If a person, at a "port of entry" inquiry under the Immigration Act to determine his admissibility to Canada (i.e. the person is seeking admission to Canada), is found to be described as inadmissible in paragraph 19(2)(d) of the Immigration Act and in paragraph 19(1)(c) of the Immigration Act, is the Adjudicator required to issue an exclusion order (in respect of the s. 19(2)(d) inadmissibility finding) and a deportation order (in respect of the s. 19(1)(c) inadmissibility finding) or is the Adjudicator required, by virtue of s. 32(5) of the Immigration Act, to issue only a deportation order?
in relation to Court file IMM-3333-96:
If a person is required to obtain the Minister's consent to come into Canada by virtue of being subject to a deportation order, and having otherwise left Canada (as contemplated by s. 55 of the Immigration Act) and if such a person has been granted a pardon pursuant to s. 5 of the Criminal Records Act for convictions on which the deportation order is based, and if a decision maker issues an exclusion order pursuant to s. 19(1)(i) of the Immigration Act against the person without being aware of the pardon, does the granting of the pardon provide grounds for either quashing the exclusion order, declaring it invalid or prohibiting its execution in the future?
A further question proposed by the applicant, but opposed by the respondent, is:
Can the court grant relief in the nature of prohibition, if this relief is not referred to in an application for leave and for judicial review?
I do not certify these questions as proposed.
Rather, the essence of the questions posed, so far as that is raised by my determinations, can appropriately be expressed in somewhat more general terms, and, thus pursuant to subsection 83(1) of the Act, I certify questions, in the orders now issued, as follows:
(i) What effect follows by virtue of section 5 of the Criminal Records Act in relation to an outstanding deportation order, issued before the grant of a pardon under that Act in relation to a person found to be within paragraph 19(1)(c) of the Immigration Act because of a conviction, which conviction is pardoned after the deportation order was issued?
(ii) What effect follows by virtue of section 5 of the Criminal Records Act in relation to an exclusion order issued after the grant of a pardon under that Act in relation to a person earlier found to be within paragraph 19(1)(c) of the Immigration Act because of a conviction, which conviction is pardoned after a deportation order issues, because a person is found within paragraph 19(1)(c), and before the exclusion order issues?
(iii) Does the enforcement of the deportation order or of the exclusion order, in the circumstances of this case, enforce a disqualification within the meaning of that term in paragraph 5(b) of the Criminal Records Act?
(iv) In the circumstances of these applications, if the applicant is entitled to relief, is a declaration an appropriate form of relief?
The original of these reasons is directed to be filed on Court file IMM-3331-96 and a copy on Court file IMM-3333-96.
1 The classes of inadmissible persons found relevant in the applicant's case may be summarized, as found and reported by the adjudicator, under:
paragraph 19(1)(c)"persons convicted in Canada of an offence punishable by a maximum term of imprisonment of 10 years or more, and
paragraph 19(2)(d)"persons seeking to enter Canada without a visa, as may be required,
and as later found and reported by the senior immigration officer, under:
paragraph 19(1)(b) [as am. by S.C. 1992, c. 49, s. 11]"persons who there are reasonable grounds to believe will be unable to support themselves or their dependents,
paragraph 19(1)(i)"persons required to obtain consent of the Minister to enter into Canada who seek to do so without that permission (including all persons to whom a deportation order has been issued).
2 [1996] 1 F.C. 497 (T.D.), at p. 514.
3 [1976] 2 F.C. 123 (T.D.), at pp. 125-126.
4 [1998] 2 F.C. 303 (C.A.).
5 (1980), 22 A.R. 235 (C.A.).
6 [1997] B.C.J. No. 2223 (B.C.S.C.) (QL).
7 [1991] 3 F.C. 44 (C.A.), at pp. 59-61.
8 [1997] F.C.J. No. 1029 (T.D.) (QL), at paras 6-7.
9 [1933] S.C.R. 269.
10 Id., at p. 278.
11 Supra, note 7, at p. 61.
12 [1989] 1 F.C. 603 (C.A.), at pp. 610-611.
13 (1993), 74 F.T.R. 185 (F.C.T.D.).
14 [1991] 2 F.C. 30 (C.A.).
15 [1994] 3 S.C.R. 627, at p. 648.
16 (1994), 74 F.T.R. 57 (F.C.T.D.), at p. 58.
17 See Bauer v. Regina (Canadian) Immigration Commission, [1984] 2 F.C. 455 (T.D.) and cases cited therein.
18 See Minister of Manpower and Immigration v. Tsakiris, [1977] 2 F.C. 236 (C.A.); Reece v. Minister of Employment and Immigration, [1982] 2 F.C. 743 (T.D.).
19 Supra, note 3.
20 See In Re Gittens, [1983] 1 F.C. 152 (T.D.); Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.).