A-522-83
Linette Mavour (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Le Dain, Stone JJ. and Lalande
D.J.—Toronto, March 9; Ottawa, May 17, 1984.
Judicial review — Applications to review — Immigration —
Applicant detained for inquiry — Inquiry not proceeding on
date to which adjourned — Detention review not held as
required by Act — Principles in criminal proceedings jurisdic
tion lost if nothing done on remand date not applicable to
administrative tribunals — Adjudicator making release offer
on conditions — Not exceeding jurisdiction — S. 104(3)
empowering Adjudicator to impose terms — Application
denied — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
27(2)(b),(e),(g), 104 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
Jurisdiction — Federal Court of Appeal — S. 28 applica
tion to review Adjudicator's release decision — Applicant
detained for Immigration Act inquiry — Adjudicator making
time-limited release offer subject to cash deposit and other
conditions — Applicant securing release — Arguing
Adjudicator exceeded jurisdiction — Court rejecting Minis
ter's argument Adjudicator's decision not final — S. 104(3)
decision exhausting Adjudicator's powers — Adjudicator's
decision judicial or quasi-judicial as involving liberty, con
sideration of statutory criteria and person concerned having
right to be heard — Court having jurisdiction but application
dismissed on merits — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c.
52, s. 104 — Immigration Regulations, 1978, SOR/78-172, ss.
35(2), 37.
Immigration — Applicant arrested as person described in s.
27 of Act — Inquiry not held on date to which adjourned — S.
104(6) detention review not held — Adjudicator not losing
jurisdiction — Adjudicator offering release on certain terms
— Not exceeding jurisdiction as s. 104(3) authorizing imposi
tion of terms — Release decision reviewable by Federal Court
of Appeal as adjudicator's decision final in exhausting powers
for time being — Release decision to be made on judicial or
quasi-judicial basis — Immigration Act, 1976, S.C. 1976-77,
c. 52, ss. 27(2)(b),(e),(g), 104 — Immigration Regulations,
1978, SOR/78-172, ss. 35(2), 37.
The applicant was arrested on March 15, 1983 under subsec
tion 104(2) of the Immigration Act, 1976 as one suspected of
being a person described in paragraphs 27(2)(b),(e) and (g).
An inquiry was to be held on March 22 but on that day the
Adjudicator adjourned the inquiry to March 30 and ordered
the applicant's continued detention. A case presenting officer
not being available on March 30, the inquiry was not resumed
until April 6. There was no detention review between March 22
and April 6. Subsection 104(6) provides that persons detained
pursuant to the Act shall be brought before an adjudicator at
least once during each seven-day period for a review of the
reasons for continued detention. On April 6, it was submitted
that the applicant had been illegally detained and .that the
Adjudicator had lost jurisdiction in failing to resume the inqui
ry on March 30. While rejecting these arguments, the
Adjudicator made a time-limited "offer" to release the appli
cant upon the making of a deposit of $2,000 in cash and on
certain conditions as to reporting and residence. The money
was put up and the applicant released. A section 28 review
application was made to the Federal Court of Appeal. The issue
of illegal detention was not pursued but it was urged (1) that
the Adjudicator lost jurisdiction in failing to resume the inquiry
on March 30 and (2) jurisdiction was exceeded by the making
of a release "offer" open for acceptance during a specified time.
It was argued on behalf of the Minister that the Court lacked
jurisdiction to entertain this application in that a subsection
104(3) release order was not a decision within the meaning of
section 28 of the Federal Court Act and, in any event, was not
one required to be made on a judicial or quasi-judicial basis. In
the alternative, it was submitted that the Adjudicator's decision
was not invalidated by any error of law or want of jurisdiction.
Held, the application should be dismissed.
The Court did have jurisdiction to entertain this application.
The decision was final in the sense contemplated by the case
law in that the making of a subsection 104(3) decision exhausts
the adjudicator's powers for the time being. The Adjudicator's
decision had to be made on a judicial or quasi-judicial basis. It
met the criteria enunciated by Dickson J. in Minister of
National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R.
495. It involved the liberty of the person concerned. Further, it
involved the consideration of statutory criteria of a factual
nature rather than a broad question of policy. Most important
ly, a reading of the Act and the Regulations suggested that
there was a right to be heard. Section 37 of the Regulations, by
which the person concerned was given a reasonable opportunity
to make submissions, clearly applied in the instant case.
The principle that an inferior court may lose jurisdiction due
to a procedural irregularity such as doing nothing on an
accused's remand or trial date, was one applicable to criminal
proceedings. It was inappropriate with respect to administrative
tribunals which required reasonable flexibility as to the
adjournment and resumption of hearings. The fact that a
detention was involved did not make that principle applicable to
these proceedings. The Adjudicator had not lost jurisdiction.
Nor had the Adjudicator exceeded her jurisdiction in making
the release offer. Subsection 104(3) of the Act empowered the
Adjudicator to make a release from detention "subject to such
terms and conditions as he deems appropriate in the
circumstances".
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Minister of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495.
DISTINGUISHED:
R. v. Krannenburg, [1980] I S.C.R. 1053; Trenholm v.
The Attorney-General of Ontario, [1940] S.C.R. 301.
REFERRED TO:
The Attorney General of Canada v. Cylien, [1973] F.C.
1166 (C.A.).
COUNSEL:
Brent Knazan for applicant.
Michael W. Duffy for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is a section 28 application to
review and set aside the decision of an Adjudicator
ordering the applicant's release from detention
pursuant to subsection 104(3) of the Immigration
Act, 1976 [S.C. 1976-77, c. 52].
The applicant was arrested on March 15, 1983
pursuant to subsection 104(2) of the Act as one
suspected of being a person described in para
graphs 27(2)(b),(e) and (g). An inquiry was
caused to be held on March 22. On that day the
Adjudicator adjourned the inquiry to March 30
and ordered that the applicant continue to be
detained. (The applicant was also being detained
pending her appearance on criminal law charges
on March 24, and on the assumption that she
might be released on bail on that day the
Adjudicator ordered the continuation of her deten
tion under the Act.) The inquiry was not resumed
on March 30 because there was no case presenting
officer available. It was resumed on April 6. The
applicant's detention was not reviewed by an
adjudicator between March 22 and April 6.
At the resumption of the inquiry on April 6
counsel for the applicant submitted that she was
illegally detained because of the failure to review
the reasons for her continued detention, as
required by subsection 104(6) of the Act, after the
detention order made on March 22. He proposed
that the Adjudicator recognize the illegality of the
detention by permitting the applicant to make a
voluntary appearance at the inquiry. He also sub
mitted that the Adjudicator had lost jurisdiction
by the failure to resume the inquiry on March 30.
The Adjudicator declined to treat the applicant's
detention as illegal in the manner suggested but
took the position that she had jurisdiction to con
sider whether the applicant should be detained or
released. After further inquiry the Adjudicator
made an "offer", to expire on April 12 at 4:00
p.m., to release the applicant on a cash deposit of
$2,000 and subject to the conditions that the appli
cant would report for the resumption of the inqui
ry on April 21, would report thereafter as required
by either an adjudicator or a senior immigration
officer, and would reside only at a specified
address. The necessary cash deposit having been
made before the time specified by the Adjudicator,
the applicant was released.
At the hearing of the section 28 application
counsel for the applicant stated that he was not
making any further submission based on the
alleged illegality of the detention. He attacked the
validity of the Adjudicator's decision on the
ground that she had lost jurisdiction to continue
the inquiry by the failure to resume it on March
30, 1983, the date to which it had been adjourned,
and that she therefore lacked jurisdiction to make
a decision respecting release pursuant to subsec
tion 104(3) of the Act. Alternatively, he submitted
that in making an "offer" of release that was open
for acceptance for a certain period the Adjudicator
exceeded her jurisdiction or otherwise erred in law.
Despite the applicant's release, counsel for the
applicant contended that the issue of the validity
of the Adjudicator's decision was not moot and
that the applicant had a sufficient interest to
attack it because of the possibility of forfeiture of
the security deposit for failure to comply with the
conditions imposed by the Adjudicator. This con-
tention was not seriously challenged by counsel for
the Minister, and I do not think we should dispose
of the section 28 application on the basis that the
issues are moot or that the applicant does not have
a sufficient interest to raise them.
Counsel for the Minister submitted first that the
Court was without jurisdiction to entertain the
section 28 application because the decision or
order to release the applicant from detention, pur
suant to subsection 104(3) of the Act, was not a
decision or order within the meaning of section 28
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], and if a decision or order within the
meaning of that section, was not one required by
law to be made on a judicial or quasi-judicial
basis. Alternatively, he submitted that there was
no merit in the applicant's contentions that the
Adjudicator's decision was invalid for lack of juris
diction or error of law.
The submissions on the question of the Court's
jurisdiction must be considered in the light of the
whole of section 104, which is as follows:
104. (1) The Deputy Minister or a senior immigration officer
may on reasonable grounds issue a warrant for the arrest and
detention of any person with respect to whom an examination
or inquiry is to be held or a removal order has been made
where, in his opinion, the person poses a danger to the public or
would not otherwise appear for the examination or inquiry or
for removal from Canada.
(2) Every peace officer in Canada, whether appointed under
the laws of Canada or of any province or municipality thereof,
and every immigration officer may, without the issue of a
warrant, an order or a direction for arrest or detention, arrest
and detain or arrest and make an order to detain
(a) for an inquiry, any person who on reasonable grounds is
suspected of being a person referred to in paragraph
27(2)(b), (e), (J), (g), (h), (i) or (j), or
(b) for removal from Canada, any person against whom a
removal order has been made that is to be executed,
where, in his opinion, the person poses a danger to the public or
would not otherwise appear for the inquiry or for removal from
Canada.
(3) Where an inquiry is to be held or is to be continued with
respect to a person or a removal order has been made against a
person, an adjudicator may make an order for
(a) the release from detention of the person, subject to such
terms and conditions as he deems appropriate in the circum
stances, including the payment of a security deposit or the
posting of a performance bond;
(b) the detention of the person where, in his opinion, the
person poses a danger to the public or would not otherwise
appear for the inquiry or continuation thereof or for removal
from Canada; or
(c) the imposition of such terms and conditions as he deems
appropriate in the circumstances, including the payment of a
security deposit or the posting of a performance bond.
(4) Where any person is detained for an examination or
inquiry pursuant to this section, the person who detains or
orders the detention of that person shall forthwith notify a
senior immigration officer of the detention and the reasons
therefor.
(5) A senior immigration officer may, within forty-eight
hours from the time when a person is placed in detention
pursuant to this Act, order that the person be released from
detention subject to such terms and conditions as he deems
appropriate in the circumstances, including the payment of a
security deposit or the posting of a performance bond.
(6) Where any person is detained pursuant to this Act for an
examination, inquiry or removal and the examination, inquiry
or removal does not take place within forty-eight hours from
the time when such person is first placed in detention, that
person shall be brought before an adjudicator forthwith and the
reasons for his continued detention shall be reviewed and
thereafter that person shall be brought before an adjudicator at
least once during each seven day period, at which times the
reasons for continued detention shall be reviewed.
(7) Where an adjudicator who conducts a review pursuant to
subsection (6) is not satisfied that the person in detention poses
a danger to the public or would not appear for an examination,
inquiry or removal, he shall order that such person be released
from detention subject to such terms and conditions as he
deems appropriate in the circumstances, including the payment
of a security deposit or the posting of a performance bond.
(8) Where an adjudicator has ordered that a person be
released from detention pursuant to paragraph (3)(a) or sub
section (7), that adjudicator or any other adjudicator may at
any time thereafter order that the person be retaken into
custody and held in detention if he becomes satisfied that the
person poses a danger to the public or would not appear for an
examination, inquiry or removal.
Counsel for the Minister contended that the
decision or order, pursuant to subsection 104(3), to
detain or release a person from detention was not a
decision or order within the meaning of section 28
of the Federal Court Act because it was not a final
or ultimate decision in the sense required by the
decisions of the Court, such as The Attorney Gen
eral of Canada v. Cylien, [1973] F.C. 1166
(C.A.). It was argued that the decision was inci
dental to the exercise of the principal jurisdiction
or authority of an adjudicator and subject to
having its effect terminated by the review of the
reasons for a continued detention required at
specified intervals by subsection 104(6). While the
decision to detain or release from detention may be
made, as in the present case, in the course of an
inquiry, it is not when so made an incident in the
process by which an adjudicator decides whether a
person is to be allowed to come into or remain in
Canada. It cannot affect the validity of that deci
sion and is thus not subject to review as part of the
review of that decision. It is the exercise of a
statutory authority that is separate and distinct
from that which may result in a removal order or a
departure notice. Further, the decision is final in
the sense contemplated by the jurisprudence
because, while the reasons for a continued deten
tion must be reviewed from time to time and a
person may again be ordered to be detained after
having been released, a decision to detain or
release from detention pursuant to subsection
104(3) exhausts the powers of an adjudicator for
the time being with respect to this issue and is
binding on him or her as well as on the person
concerned. For these reasons I am of the opinion
that it is a decision or order within the meaning of
section 28.
A decision whether to release a person from
detention is one which, in my opinion, is required
by law to be made on a judicial or quasi-judicial
basis. The decision meets the criteria of a judicial
or quasi-judicial decision laid down by Dickson J.,
as he then was, in Minister of National Revenue v.
Coopers and Lybrand, [1979] 1 S.C.R. 495. It is
serious in its effect because it involves the liberty
of the person concerned. Although the decision has
a discretionary element, as in the granting of bail
in a criminal case (which has always been held to
be a judicial discretion), it involves the consider
ation of statutory criteria of a factual nature—
whether the person concerned poses a danger to
the public or if not detained would not otherwise
appear for the inquiry or for the continuation
thereof or for removal from Canada—rather than
a broad question of policy. There is a certain
adversarial aspect inasmuch as release, or the pro
posed terms or conditions of release, may be
opposed on behalf of the authorities. Finally, and
most importantly there are indications in the Act
and the Regulations that the person concerned is
to be heard. Subsection 104(6), which provides for
a review of the reasons for a continued detention at
certain times, requires that the person detained be
brought before an adjudicator. A decision whether
to release a person from detention that is made in
the course of an inquiry is subject to the inquiry
process with the procedural rights which that
affords to the person concerned. Section 37 of the
Immigration Regulations, 1978 [SOR/78-172]
makes express provision for hearing as follows:
37. (1) Where an inquiry is adjourned or where an adjudica
tor makes a removal order against the person concerned, the
case presenting officer, in the event that detention or continued
detention of the person is in his opinion justified, shall request
that the adjudicator make an order for the detention or con
tinued detention of the person concerned and shall inform the
adjudicator of the reasons for the request.
(2) Where a request for detention or continued detention is
made pursuant to subsection (1), the person concerned or his
counsel shall be given a reasonable opportunity to reply to the
request and make submissions with respect thereto.
In the present case the case presenting officer
requested that the applicant's detention be con
tinued and made submissions in support of that
request. The situation was therefore clearly one to
which section 37 of the Regulations applied.
For these reasons I am of the opinion that the
decision of the Adjudicator on April 6, 1983 to
release the applicant from detention was a decision
required by law to be made on a judicial or
quasi-judicial basis within the meaning of section
28 of the Federal Court Act and that the Court
therefore has jurisdiction to entertain the
section 28 application. It is necessary then to
consider the merits of the application.
The applicant's contention that the Adjudicator
lost jurisdiction by the failure to resume the inqui
ry on March 30, 1983, the date to which it had
been adjourned, was based on the principle stated
by Dickson J., as he then was, in R. v. Krannen-
burg, [1980] 1 S.C.R. 1053 at page 1055 as
follows: "It has long been recognized in our law
that an inferior court may suffer loss of jurisdic
tion by reason of some procedural irregularity, as
for example, when the date to which an accused is
remanded or to which a case is adjourned for trial
comes and goes without any hearing or appear
ance, 'with nothing done'." This principle, which
was first authoritatively affirmed by the Supreme
Court of Canada in Trenholm v. The Attorney-
General of Ontario, [1940] S.C.R. 301, has been
applied in many cases, but as far as I have been
able to ascertain it has always been applied to
courts of criminal jurisdiction and to criminal
proceedings. Counsel for the applicant was unable
to refer us to any case, and I have been unable to
find any, in which the principle has been applied to
proceedings before an administrative tribunal,
whether exercising powers of a judicial or quasi-
judicial nature or not. In my opinion this is not a
principle which it is appropriate to apply to
administrative tribunals, which must have some
reasonable flexibility in their power to adjourn and
resume hearings. That flexibility is reflected in
subsection 35(2) of the Immigration Regulations,
1978, which provides: "Where an inquiry is
adjourned pursuant to these Regulations or sub
section 29(5) of the Act, it shall be resumed at
such time and place as is directed by the adjudica
tor presiding at the inquiry." I do not think the
circumstance that detention may be involved
makes it appropriate to apply the principle
affirmed in Krannenburg to a failure to resume an
inquiry on the date to which it was adjourned.
Subsection 104(6) of the Act makes provision for
the regular review of the reasons for a continued
detention quite apart from the progress of an
inquiry. I am, therefore, of the view that the
Adjudicator did not lose jurisdiction by her failure
to resume the inquiry on March 30, 1983, the date
to which it had been adjourned.
The applicant's second contention is that in
making an "offer" to release the applicant from
detention that was to expire on April 12, 1983 at
4:00 p.m. the Adjudicator exceeded her jurisdic
tion or otherwise erred in law. This was in effect a
decision to release the applicant subject to the
condition, among others, that the necessary secu
rity or cash deposit be made before a certain time.
In my opinion this was a condition which it was
within the authority of an adjudicator to impose
under subsection 104(3) of the Act, which empow
ers an adjudicator to make a release from deten
tion "subject to such terms and conditions as he
deems appropriate in the circumstances".
For these reasons I would dismiss the section 28
application.
STONE J.: I concur.
LALANDE D.J.: I concur.
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.