Juliet Rodney and son, Ernest Rodney
(Appellants)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Cameron and
Sweet JJ.—Toronto, June 6 and 7; Ottawa, June
6, 1972.
Judicial review—Deportation order—Hearing before Spe
cial Inquiry Officer—Wife and child included in deportation
order—Whether given real opportunity of putting their
case—Whether given sufficient warning of allegations
against them—Immigration Act, s. 37(1)—Immigration
Inquiries Regulations, s. 11.
A special inquiry was held under the Immigration Act to
inquire into an allegation that C was subject to deportation
because he had been convicted of a criminal offence and
lodged in jail. After C had been questioned by the Special
Inquiry Officer his wife entered the room, was sworn as a
witness, then without any previous warning was informed
that under section 37(1) of the Act (which was read to her)
all dependent members of Cs family might be included in a
deportation order against him, and was told that she had an
opportunity of establishing that she should not be so includ
ed and had the right to be represented by counsel. The wife
said she did not desire counsel and that she wished to
remain in Canada. The deportation order however included
Cs wife and his 8 year old son. An appeal from the
deportation order was dismissed by the Immigration Appeal
Board.
Held, under the circumstances the wife had not been
given a real opportunity of establishing that she should not
be included in the deportation order as required by section
11 of the Immigration Inquiries Regulations, and the order
against her and Cs son must accordingly be set aside.
An opportunity to answer what is alleged against one's
interests must involve a warning of what is alleged in
sufficient time before the time to reply so as to enable
reasonable preparation of a case in reply.
Moshos v. Minister of Manpower & Immigration [1969]
S.C.R. 886, followed.
APPEAL from Immigration Appeal Board
and motion to set deportation order aside.
J. R. Charlebois for appellants.
E. A. Bowie for respondent.
JACKETT C.J. (orally)—This is an appeal from
a decision of the Immigration Appeal Board
dated June 11, 1971, dismissing an appeal from
a deportation order made against the appellants
and an application under section 28 of the Fed
eral Court Act for an order that that decision of
the Immigration Appeal Board be set aside. The
appeal and the application have been joined
pursuant to Rule 1314.
Carl Culbert Rodney, who was born in British
Guiana in 1941, was admitted into Canada as a
landed immigrant on May 18, 1966, after
coming to Canada from London, England. The
appellant, Juliet Rodney, who was born in Brit-
ish Guiana on June 30, 1947 and was married to
Carl Culbert Rodney in England on February
19, 1966, was admitted to Canada on July 2,
1966, as a landed immigrant. She brought with
her to Canada the appellant Ernest Rodney,
who was born in 1964. Ernest Rodney's father
was Carl Culbert Rodney and his mother was a
woman other than the appellant Juliet Rodney.
Ernest Rodney was born out of wedlock, but it
would seem that, at least since their marriage,
he was a de facto member of the family of Carl
Culbert and Juliet Rodney.
On August 20, 1970, Carl Culbert Rodney
was convicted of wilfully obstructing a police
officer in the execution of his duty.
On March 24, 1971, a special inquiry officer
wrote a letter to Carl C. Rodney reading as
follows:
A report has been made to the Director of Immigration
stating that you are a person described in subparagraphs (ii)
and (iii) of paragraph (e) of subsection (1) of Section 19 of
the Immigration Act for the reasons that you have been
convicted of an offence under the Criminal Code and have
become and (sic) inmate of a gaol.
On instructions from the Director of Immigration, it is
now required that you appear before a Special Inquiry
Officer who will examine you in relation to the above
report. The date set for the hearing is Wednesday 31 March
1971 at_, _ p.m. at this office, on the third floor. Your
wife must accompany you to this inquiry.
If the Special Inquiry Officer finds that you are a person
as described herein, a deportation order may be made
against you, subject to your right of appeal under Section
11 of the Immigration Appeal Board Act.
Under subsection (2) of Section 27 of the Immigration
Act, you have the right to obtain and be represented by
counsel at your own expense. Further information concern
ing counsel is contained on the attached form Imm. 689.
The form, Imm. 689, referred to in that letter as
being attached thereto is addressed to Carl Cul-
bert Rodney and reads in part as follows:
If you so desire and at your own expense, you have the
right to retain, instruct and be represented by counsel.
Counsel need not necessarily be a lawyer, but may be a
friend, priest or minister of your church, or a representative
of the Salvation Army.
Free legal counsel may be provided by
Legal Aid, York County
73 Richmond Street West
Toronto, Ontario.
The minutes of the Inquiry, which was held
on March 31, 1971, show that it was an inquiry
"concerning Mr. Carl Culbert Rodney". The
minutes show that, when the inquiry opened,
those present at the Inquiry were
W. O. Darling—Special Inquiry Officer
Carl Culbert Rodney—Person Concerned
G. J. Dowhan—Stenographer
According to the minutes, after Mr. Rodney had
been questioned, the wife, that is the appellant
Juliet Rodney, entered the Inquiry room. After
Mrs. Rodney was sworn, the minutes show that
the Inquiry proceeded as follows:
MRS. RODNEY DULY SWORN.
Subsection (1) of section 37 of the Immigration Act reads as
follows:
37 (1) Where a deportation order is made against the
head of a family, all dependent members of the family
may be included in such order and deported under it.
Q. Do you understand that?
A. Yes.
Section 11 of the Immigration Inquiries reads as follows:
11. No person shall, pursuant to subsection (1) of
section 37 of the Act, be included in a deportation order
unless the person has first been given an opportunity of
establishing to an immigration officer that he should not
be so included.
Q. Do you understand that?
A. Yes.
These two sections simply mean that if this Inquiry results
in an order being made for your husband's deportation from
Canada you can be included in the order if it is established
that you are dependent on him for support. Before you
would be included, however, I must give you and will give
you an opportunity of establishing that you should not be so
included.
As your husband was given the right to counsel I now
inform you that you have the right to be represented by
counsel at this Inquiry.
Q. Do you wish to be so represented?
A. No.
Certain questions were then put to Mrs. Rodney
concerning the family and then the following
exchange took place:
Q. I would like to now give you an opportunity of estab
lishing to me why you should not be included in any
deportation order that may be made against your
husband?
A. Well, I would think if you are going to deport him I
would prefer if you know we didn't go right on with
him because of the children's sake more less you
know, having to find, rearranging again. So that is all I
have to say.
Q. Is it your wish to remain in Canada?
A. Yes: I think we can get things sorted out for the
children.
Q. Is there anything more you would like to say?
A. Nothing that I can think of.
After considering the matter, the Special Inqui
ry Officer then delivered the following decision:
Carl Culbert Rodney, on the basis of the evidence
adduced at this Inquiry I have reached the decision that you
may not come into or remain in Canada as of right in that:
(1) you are not a Canadian citizen;
(2) you are not a person having Canadian domicile; and
that
(3) you are a person described under subparagraph (ii)
of paragraph (e) of subsection (1) of section 19 of the
Immigration Act as you have been convicted of an
offence under the Criminal Code;
(4) you are a person described under subparagraph (iii)
of paragraph (e) of subsection (1) of section 19 of the
Immigration Act as you have become an inmate of a gaol;
(5) you are subject to deportation in accordance with
subsection (2) of section 19 of the Immigration Act.
I hereby order you to be detained and to be deported.
This deportation order also includes your dependent wife,
Juliet Rodney, and your dependent son, Ernest Randolph
Rodney, under the provisions of subsection (1) of section
37 of the Immigration Act.
An appeal was taken to the Immigration
Appeal Board from that part of this order which
made it applicable to Juliet Rodney and Ernest
Randolph Rodney, and the appeal was dis
missed. Carl Culbert Rodney did not appeal.
This proceeding is an appeal from the deci
sion of the Immigration Appeal Board dismiss
ing the appellants' appeal to the Board and an
application to set that decision aside.
As we have already shown, there was a single
deportation order made on the basis of a depor
tation case made out against Carl Culbert
Rodney and the appellants were "included" in
that deportation order in the exercise of the
discretion contained in section 37(1) of the
Immigration Act, which reads as follows:
37. (1) Where a deportation order is made against the
head of a family, all dependent members of the family may
be included in such order and deported under it.
The discretion contained in section 37(1) can,
however, only be exercised after compliance
with section 11 of the Immigration Inquiries
Regulations, which reads as follows:
11. No person shall, pursuant to subsection (1) of section
37 of the Act, be included in a deportation order unless the
person has first been given an opportunity of establishing to
an immigration officer that he should not be so included.
The question to be decided is, therefore, wheth
er the appellants were given "an opportunity of
establishing" that they should not be "included"
in a deportation order that was contemplated
against Carl Culbert Rodney.
In our opinion, this case is governed by the
decision of the Supreme Court of Canada in
Smaro Moshos and minor children, Sultana and
Panagiotis v. Minister of Manpower and Immi
gration [1969] S.C.R. 886. From the point of
view of compliance with section 11 of the
Immigration Inquiries Regulations, the proceed
ings in the Moshos case followed a similar
course to that outlined above as having been
followed in this case. A report was made by an
immigration officer in the Moshos case against
the husband. An inquiry was held by a Special
Inquiry Officer as a result of the report. The
wife was not present when her husband was
being examined by the Special Inquiry Officer
but she was subsequently called as a witness.
While she was being examined as a witness,
section 37(1) of the Immigration Act was read
to her, she was informed that, in view of that
provision, in the event that a deportation order
was issued against her husband, it might be
necessary to include her and the children in that
order, and she was asked if she wished to
secure counsel. In these circumstances, it was
held that an opportunity to establish that she
should not be included in the deportation order
had not been given to the wife as required by
section 11 of the Regulations. Martland J.,
delivering the judgment of the Supreme Court
of Canada, dealt with this aspect of the matter
as follows (at p. 891-2):
In my opinion the deportation order, as against the appellant
and the two children, was not valid because of the failure of
the Special Inquiry Officer to comply with s. 11 of the
Immigration Inquiries Regulations. That section provides as
follows:
11. No person shall, pursuant to subsection (1) of section
37 of the Act, be included in a deportation order unless the
person has first been given an opportunity of establishing to
an immigration officer that he should not be so included.
I have already quoted that which took place between the
Special Inquiry Officer and the appellant when she
appeared as a witness at the inquiry. In my opinion there
was not a sufficient compliance with this section. The
appellant's status at that inquiry was as a witness in an
inquiry concerning John Moshos. She was not there
throughout the inquiry.
It is true that the Special Inquiry Officer read the provi
sions of s. 37(1) to her and told her that "in view of this
section of the Regulations (sic), in the event a deportation
order is issued against your husband it may be necessary on
the basis of the evidence that we wish you to give now to
include you and the children in such deportation order". He
also asked her if she wished to secure counsel "before
giving evidence". He then proceeded to question her.
However, at no point was she told that she had the right
to an opportunity to establish that she should not be includ
ed in the order. I do not regard the mere reading of s. 37(1)
to her, when she was on the stand as a witness, followed by
questioning by the Special Inquiry Officer, as constituting
the giving of such an opportunity.
In my opinion the deportation order was made against the
appellant and the children without complying with s. 11 of
the Immigration Inquiries Regulations.
In our opinion the facts in the Moshos case are
not fairly distinguishable from the facts in this
case as far as compliance with section 11 of the
Immigration Inquiries Regulations is concerned.
In this case, it is true, in addition to reading
section 37(1), the Special Inquiry Officer read
Regulation 11 to the wife, and, in addition, he,
in terms, offered her an opportunity to show
why she should not be included in any deporta
tion order that might be made against her hus
band. The question of opportunity to answer
what is alleged against one's interests is a
matter of substance and does not turn exclu
sively on the words used or the forms followed.
In the circumstances of this case, we are of the
view that Juliet Rodney was not given any real
"opportunity" of establishing that she should
not be included in the deportation order that
was proposed against her husband when, with
out any prior warning whatsoever, after being
sworn as a witness in the inquiry concerning her
husband, she had the provisions in question
read to her and was told that she was being
given such an opportunity.
It is not possible to lay down a simple rule
applicable in all circumstances to determine
what is an "opportunity" to answer what is
alleged against one's interests. Having said that,
we may say that such an opportunity must
involve a warning of what is alleged in suffi
cient time before the time for reply so as to
enable reasonable preparation of the case in
reply. In this connection, it is of some assist
ance to compare the opportunity that was given
to the husband in this case with the opportunity
that was given to the wife. He was sent a
notice, some time in advance of the hearing, of
what was alleged against him and was given
information to assist him in obtaining such legal
aid as he might require. The proceedings were
conducted as proceedings to which he was a
party. The wife, on the other hand, was given
no advance notice that there was any possibility
of any order being made affecting her and was
merely informed, after being sworn in as a
witness in proceedings that were framed exclu-
sively against her husband, that the resulting
order might be made to include her. It would be
a very intelligent and experienced layman con
fronted with such a situation who would realize,
on the spur of the moment, what action he had
to take to protect his interests.
Before leaving the matter, it might be useful
to refer to the situation of the appellant Ernest
Rodney. It is common ground that no "oppor-
tunity" was given to him as required by Regula
tion 11 even if it be assumed that the "father"
or the "mother" had the necessary authority to
act on his behalf.' It is, moreover, difficult to
visualize, as a practical matter, how such an
"opportunity" could have been given in the
case of a young child. In some jurisdictions in
Canada, a legal parent has no authority to legal
ly represent a child in respect of his property
without obtaining special authority under the
appropriate provincial legislation. Even if such
legislation were apt to authorize a legal repre
sentative of a child for the purpose of immigra
tion proceedings, there might be practical dif
ficulties in resorting to it. It may be that,
consideration should be given by the appropri
ate authorities to the scheme of Regulation 11
having regard to the practical problems
involved as far as infants are concerned.
One other incidental question should be men
tioned to guard against the possibility that we
might otherwise be taken to have expressed
some opinion on it. It seems to have been
assumed, in the conduct of proceedings before
special inquiry officers such as the one present
ly under consideration, that section 11 is
restricted to giving a person who is dealt with
thereby a right to show that he is not a depend
ent member of the family. It may well be,
however, that, properly interpreted, section 11
confers a right to an opportunity of establishing
that the person concerned should not be includ
ed "in a deportation order" and that this would
involve the right to be heard concerning the
question whether a deportation order should be
made at all.
The appeal will be allowed and the deporta
tion order, in so far as it relates to the appel
lants, will be set aside.
The importance of such an opportunity being exercised
on behalf of an infant is illustrated by the fact that it is not
impossible, on the facts that appear on the record, that the
appellant Ernest Rodney was a Canadian citizen and not
subject to deportation.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.