A-329-89
Her Majesty the Queen in Right of Canada, the
Minister of Employment and Immigration and
William Hoogerdyk (Appellants) (Defendants)
v.
Said Mohamed Kigowa (Respondent) (Plaintiff)
INDEXED AS: KIGOWA V. CANADA (CA.)
Court of Appeal, Heald, Mahoney and Desjardins,
JJ.A.—Vancouver, January 8; Ottawa, January
26, 1990.
Federal Court jurisdiction — Trial Division — Foreign
seaman jumping ship in British Columbia — Detained by
immigration officer — Action in damages against immigration
officer for unlawful arrest and detention on basis Charter
rights violated — Motion to dismiss for want of jurisdiction
on basis Charter not "law of Canada" within meaning of
Constitution Act, s. 101 — Supreme Court's threefold test for
Federal Court jurisdiction met: Immigration Act federal law
upon which respondent's case based, essential to disposition
and nourishing grant of jurisdiction by Federal Court Act, s.
17(5).
Immigration — Foreign seaman jumping ship in British
Columbia — Detained by immigration officer acting under
Immigration Act — Federal Court having jurisdiction to
entertain action in damages against immigration officer for
violating Charter rights by unlawful arrest and detention:
Immigration Act federal law upon which alien's case based,
essential to disposition and nourishing grant of jurisdiction by
Federal Court Act, s. 17(5).
Constitutional law — Charter of Rights — Criminal process
— Immigration officer, acting under Immigration Act, detain
ing foreign seaman having jumped ship in British Columbia —
Action in damages against immigration officer for unlawful
arrest and detention as violating Charter ss. 7 and 9 — Motion
to dismiss for want of jurisdiction — Constitution and Charter
not "laws of Canada" within Constitution Act, s. 101 —
However, jurisdiction in Federal Court as meeting Supreme
Court of Canada's threefold test: Immigration Act federal law
upon which claim based, essential to disposition and nourish
ing grant of jurisdiction by Federal Court Act, s. 17(5).
The respondent, a seaman residing in Kenya, jumped ship at
Nanaimo, British Columbia. He was arrested by an immigra
tion officer, the appellant, William Hoogerdyk, on March 22,
1987 and detained in custody until the following day. The
immigration officer claimed to have acted under subsection
104(2) of the Immigration Act, 1976 which authorized peace
officers to arrest and detain a person who is in Canada illegally
"where ... the person poses a danger to the public or would not
otherwise appear for the inquiry or for removal from Canada".
The respondent then initiated an action in damages against
the immigration officer, alleging that he had no reason to
believe that the respondent was a danger to the public or that
he would fail to appear for the inquiry and that his arrest and
detention were therefore a violation of the Charter rights to
liberty (section 7) and not to be arbitrarily detained (section 9).
The appellant had moved before the Trial Judge for an order
dismissing the action for want of jurisdiction. This was an
appeal from the denial of that motion to strike.
Held, the appeal should be dismissed.
Per Mahoney J.A.: Subsection 17(5) of the Federal Court
Act, giving the Court jurisdiction in proceedings against offi
cers or servants of the Crown, is inherently limited by section
101 of the Constitution Act, 1867, which enables the Court to
deal with claims that require the administration of the "laws of
Canada". And since the courts have decided that the Constitu
tion Acts, 1867 to 1982, and therefore the Charter, not having
been enacted by the Parliament of Canada, is not a "law of
Canada" within the meaning of section 101, the Court would
therefore have lacked jurisdiction to hear this case on that
ground alone. That left the Immigration Act, 1976 as a basis
for jurisdiction.
A threefold test to determine whether the Federal Court has
jurisdiction over a matter has been established by the Supreme
Court of Canada: (1) there must be a statutory grant of
jurisdiction; (2) there must be an existing body of federal law
which is essential to the disposition of the case and which
nourishes the statutory grant of jurisdiction; (3) the law on
which the case is based must be a "law of Canada" as the
phrase is used in section 101.
Here, the statutory grant of jurisdiction was paragraph
17(5)(b) of the Federal Court Act. The law essential to disposi
tion will not necessarily be the same as that which nourishes the
statutory grant of jurisdiction. It may be that where the third
element is supplied by a comprehensive statutory framework,
that in itself can be taken as the existing federal law which
nourishes the statutory grant to such an extent as to demand
little in the way of discrete federal law essential to the disposi
tion of the case.
Subsection 104(2) of the Immigration Act, 1976 not only
defines the authority of immigration officers and others to
arrest and detain aliens in Canada for purposes of the Act; it
sets a limit on the right of aliens to be at liberty in Canada
while awaiting an inquiry or removal. In the case at bar, federal
law was both the basis of the respondent's case and essential to
its disposition and also nourished the grant of jurisdiction by
subsection 17(5) of the Federal Court Act.
Per Heald J.A.: The respondent's right to be in Canada and
his right to freedom here emanated entirely from the provisions
of the Immigration Act, 1976. If the torts of false arrest and
false imprisonment alleged here were committed, it was
because the plaintiff's right to remain free pursuant to the
provisions of the Immigration Act, 1976 had been interfered
with. The plaintiffs right to freedom and liberty came, not
from the common law but from the provisions of the Act.
Accordingly, the threefold test for jurisdiction had been
satisfied.
Per Desjardins J.A.: Although damages had been claimed,
the basis of the respondent's action was not a common law right
of freedom from illegal arrest. At common law, an alien had no
right to enter the country and no right of movement once
having entered illegally. Whatever right of movement the
respondent may have had was governed by the Immigration
Act, 1976, a "law of Canada". The threefold test was met.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 7, 9.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 1) [R.S.C., 1985, Appen
dix II, No. 5], s. 101.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(5)(b).
Immigration Act, R.S.C., 1985, c. I-2, ss. 12, 103(2).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(2)(j),
104(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators v. Miida Elec
tronics et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R.
(4th) 641; 34 B.L.R. 251; 68 N.R. 241; Roberts v.
Canada, [1989] 1 S.C.R. 322; [1989] 3 W.W.R. 117;
(1989), 35 B.C.L.R. (2d) 1; 92 N.R. 241; Rhine v. The
Queen; Prytula v. The Queen, [1980] 2 S.C.R. 442;
(1980), 116 D.L.R. (3d) 385; 34 N.R. 290.
CONSIDERED:
Northern Telecom Canada Ltd. et al. v. Communication
Workers of Canada et al., [1983] 1 S.C.R. 733; (1983),
147 D.L.R. (3d) 1; 83 CLLC 14,048; 48 N.R. 161; Oag
v. Canada, [1987] 2 F.C. 511; (1987), 33 C.C.C. (3d)
430; 73 N.R. 149 (C.A.).
REFERRED TO:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273;
13 N.R. 181; Oag v. The Queen et al., [1983] 1 S.C.R.
658; (1983), 52 A.R. 347; 41 O.R. (2d) 271; 147 D.L.R.
(3d) 528; [1984] 1 W.W.R. 191; 29 Alta. L.R. (2d) 1; 33
C.R. (3d) 97; 52 N.R. 258; Marshall v. The Queen,
[1986] 1 F.C. 437 (T.D.); Varnam v. Canada (Minister
of National Health and Welfare), [1988] 2 F.C. 454;
(1988), 50 D.L.R. (4th) 44; 17 F.T.R. 240; 84 N.R. 163
(C.A.); R. v. Governor of Pentonville Prison, ex parte
Azam, [1973] 2 All ER 741 (C.A.); Quebec North Shore
Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2
S.C.R. 1054; (1976), 9 N.R. 471.
COUNSEL:
Paul F. Partridge for appellants (defendants).
Carolyn McCool for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Legal Services Society of British Columbia,
Vancouver, for respondent (plaintiff).
The following are the reasons for judgment
rendered in English by
HEALD J.A.: I have read the reasons for judg
ment in draft prepared by my brother Mahoney
J.A. I agree with the result which he proposes.
The respondent (plaintiff) is a seaman who lives
in Kenya. He entered Canada as a member of a
ship's crew. He abandoned his ship while it was at
Nanaimo, British Columbia. Accordingly, at the
point in time when he jumped ship, it is alleged
that he became a member of the inadmissible class
of persons described in paragraph 27(2)(j) of the
Immigration Act, 1976 [S.C. 1976-77, c. 52],
i.e.—person who "came into Canada as ... a
member of a crew, and, without the approval of an
immigration officer, failed to be on the vehicle
when it left a port of entry". The statement of
claim asserts that the plaintiff was arrested by the
defendant Hoogerdyk, an immigration officer, on
March 22, 1987 and was detained in custody until
March 23, 1987. The legal basis for the arrest was
said to be subsection 104(2) of the Immigration
Act, 1976.'
In my view this respondent had no entitlement,
per se, to enter and to remain in Canada. His right
to be in Canada and his right to be at liberty in
Canada existed only so long as he was a member
of the ship's crew and so long as the ship remained
in Canada. His right to be in Canada and his right
to freedom here emanated entirely from the provi
sions of the Immigration Act, 1976. The depriva
tion of that liberty was also said to be pursuant to
the provisions of the Immigration Act, 1976.
The issue raised by the statement of claim is a
narrow one—namely, whether the defendant Hoo-
gerdyk, in arresting the plaintiff, had reason to
believe that the plaintiff posed a danger to the
public or would not otherwise appear for the inqui
ry or for removal from Canada. The statement of
claim alleges that the torts of false arrest and
imprisonment were committed. If those torts were
committed, it was because the plaintiffs right to
remain free pursuant to the provisions of the
Immigration Act, 1976 were interfered with.
Accordingly, the torts alleged are dependant upon
federal law, namely, the provisions of the Immi
gration Act, 1976. The damages alleged to have
been suffered would necessarily arise from the
deprivation of a right whose only source was a
federal statute. The plaintiffs only right to free
dom and liberty comes, not from the common law
but from the provisions of the Immigration Act,
1976. Accordingly, I agree that the threefold test
discussed by both of my colleagues has been satis
fied and that the appeal should therefore be dis
missed with costs.
' That subsection reads:
104....
(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
2 7 (2)(b), (e), (l), (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.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This is an appeal from the
refusal of the Trial Division [T-612-89, Collier J.,
order dated 26/6/89, not yet reported] to dismiss
the respondent's action as against the appellant,
William Hoogerdyk, for want of jurisdiction in the
Federal Court to entertain it. The statement of
claim alleges that the respondent is a seaman,
resident of Kenya, and that Hoogerdyk is an immi
gration officer who was, at all material times,
manager of the Canada Immigration Centre at
Nanaimo, B.C. Hoogerdyk is alleged to have
arrested the respondent at about 10:10 a.m. on
Sunday, March 22, 1987, and to have caused him
to have been detained until about 3:45 p.m.,
March 23, 1987.
The statement of claim goes on:
5. The defendant Hoogerdyk purported to make this arrest and
to cause this detention under the authority of s. 104(2) of the
Immigration Act, 1976, S.C. 1976-77, ch. 52, (as it then was).
6. The defendant Hoogerdyk had no reason to believe, nor did
he believe, or have the opinion, that the plaintiff was either
a) a danger to the public, or
b) a person who would not otherwise appear for examina
tion, inquiry, or for removal from Canada
within the meaning of s. 104(2) (as it then was) of the
Immigration Act, 1976.
7. The defendant Hoogerdyk had no authority to arrest or
detain the plaintiff except under s. 104(2) (as it then was) of
the Immigration Act, 1976.
8. The defendant Hoogerdyk had an improper motive in arrest
ing and causing the detention of the plaintiff.
It concludes by alleging that the arrest and deten
tion were each a violation of rights guaranteed him
by sections 7 and 9 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] ] and by claiming unspecified general and
special damages.
The Federal Court Act, R.S.C., 1985, c. F-7,
provides:
17....
(5) The Trial Division has concurrent original jurisdiction
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
Parliament's legislative authority is found in, and
defined by, section 101 of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5]].
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
Thus, notwithstanding Parliament's apparently
clear grant of jurisdiction over the respondent's
claim against Hoogerdyk by subsection 17(5) of
the Federal Court Act, that jurisdiction is inher
ently limited by section 101. It exists only if the
claim requires the administration of "the laws of
Canada", as that term is employed in section 101.
In Northern Telecom Canada Ltd. et al. y
Communication Workers of Canada et al., [1983]
1 S.C.R. 733; (1983), 147 D.L.R. (3d) 1; 83 CLLC
14,048; 48 N.R. 161, Estey J., for the majority, at
pages 744-745 S.C.R., said:
Anglin C.J.C., in Consolidated Distilleries Ltd. v. Consolidat
ed Exporters Corporation Ltd., [1930] S.C.R. 531, at p. 534,
said that the expression "laws of Canada" must mean "... laws
enacted by the Dominion Parliament and within its compe
tence". I read the reasons of the Chief Justice of this Court in
McNamara ([1977] 2 S.C.R. 654), and Quebec North Shore,
([1977] 2 S.C.R. 1054), as being to the same effect.
One final note should be added to this jurisdictional discus
sion. The Constitution Act, 1867, as amended, is not of course a
"law of Canada" in the sense of the foregoing cases because it
was not enacted by the Parliament of Canada. The inherent
limitation placed by s. 101, supra, on the jurisdiction which
may be granted to the Federal Court by Parliament therefore
might exclude a proceeding founded on the Constitution Act.
It follows that the provisions of the Charter upon
which the present action is founded are not laws of
Canada in the section 101 sense and that we are
left with the Immigration Act, 1976 as a basis for
jurisdiction.
The Supreme Court has had a number of occa
sions, starting with the McNamara Construction
(Western) Ltd. et al. v. The Queen, [ 1977] 2
S.C.R. 654; (1977), 75 D.L.R. (3d) 273; 13 N.R.
181; and Quebec North Shore Paper Co. et al. v.
Canadian Pacific Ltd. et al., [1977] 2 S.C.R.
1054; (1976), 9 N.R. 471 decisions referred to by
Estey, J., to consider the meaning of "laws of
Canada" in the section 101 sense since this Court
was established in 1970. The presently accepted
test was stated by McIntyre J., in ITO—Interna-
tional Terminal Operators v. Miida Electronics et
al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th)
641; 34 B.L.R. 251; 68 N.R. 241, at page 766
S.C.R. I think it most useful to quote it in its most
recent recitation, by Wilson, J., for a unanimous
court, in Roberts v. Canada, [1989] 1 S.C.R. 322;
[1989] 3 W.W.R. 117; (1989), 35 B.C.L.R. (2d)
1; 92 N.R. 241, at pages 330 ff. S.C.R., because of
its context there.
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction.
3. The law on which the case is based must be a "law of
Canada" as the phrase is used in s. 101 of the Constitution
Act, 1867.
This test is well established as the one to be applied in every
case where the jurisdiction of the Federal Court is in issue.
While there is clearly an overlap between the second and
third elements of the test for Federal Court jurisdiction, the
second element, as I understand it, requires a general body of
federal law covering the area of the dispute, i.e., in this case the
law relating to Indians and Indian interests in reserve lands,
and the third element requires that the specific law which will
be resolutive of the dispute be "a law of Canada" within the
meaning of s. 101 of the Constitution Act, 1867. No difficulty
arises in meeting the third element of the test if the dispute is to
be determined on the basis of an existing federal statute. As
will be seen, problems can, however arise if the law of Canada
which is relied on is not federal legislation but so-called "feder-
al common law" or if federal law is not exclusively applicable
to the issue in dispute.
Here, there is no issue that paragraph 17(5)(b) of
the Federal Court Act meets the first element.
In refusing to dismiss this action as against
Hoogerdyk, the learned Trial Judge relied on this
Court's decision in Oag v. Canada, [1987] 2 F.C.
511; (1987), 33 C.C.C. (3d) 430; 73 N.R. 149,
which he characterized as "the closest, among a
confusing array of decisions of the Appeal Division
of this Court, to the present situation". Oag
brought an action in tort for damages against the
Crown in right of Canada and a number of its
servants following a ruling by the Supreme Court
of Canada, Oag v. The Queen et al., [1983] 1
S.C.R. 658; (1983), 52 A.R. 347; 41 O.R. (2d)
271; 147 D.L.R. (3d) 528; [1984] 1 W.W.R. 191;
29 Alta. L.R. (2d) 1; 33 C.R. (3d) 97; 52 N.R.
258, that the National Parole Board had wrongly
revoked his release on mandatory supervision.
Stone J., delivering the judgment of this Court
held, at pages 520 ff F.C.:
There thus appears, to use the phrase of Laskin, C.J.C., in
the Rhine and Prytula case, "a detailed statutory framework"
of federal law under which the appellant not only acquired the
right to be free but also the right to remain so. It must be
emphasized that, as he remained under sentence, the quality of
freedom he enjoyed was not the same as that possessed by a
person not under sentence. Its limits were demarcated by
federal statutes. If the torts of false arrest and imprisonment
were committed as alleged, they were committed because his
right to remain free thus delineated was interfered with. I do
not think that law need expressly provide a remedy for such
interference for the claims to be governed by it. These torts, in
my view depend for their existence upon federal law; any
provable damages resulting from their commission are recover
able in the Trial Division. I have concluded that the claims are
provided for in the "laws of Canada" or "federal law".
Can it be said that the limits of the respondent's
right to remain free, said to have been trespassed
upon by Hoogerdyk, were likewise demarked by
the Immigration Act, 1976?
The provision specifically pleaded is subsection
104(2) of the Immigration Act, 1976, now subsec
tion 103(2) of the Immigration Act, R.S.C., 1985,
c. I-2.
103... .
(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), (/), (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.
To date, in its reported decisions, the Supreme
Court appears to have recognized two types of
cases as involving the necessary application of
federal law, absent express federal statutory pre
scription of the law, so as to engage the Federal
Court's jurisdiction. One involves the incorpora
tion by statute into federal law of law other than
statute law and the second involves the existence of
a federal statutory framework supporting a cause
of action even though its resolution may require,
largely if not entirely, application of law that is
neither federal legislation nor incorporated into
federal law by legislation. The first category is
exemplified by the ITO and Roberts decisions; the
second by the Rhine v. The Queen; Prytula v. The
Queen, [1980] 2 S.C.R. 442; (1980), 116 D.L.R.
(3d) 385; 34 N.R. 290.
In ITO, Canadian maritime law was so found
and, in Roberts, it was the common law of aborigi
nal titles. In the former case, the adoption by
Parliament, by section 2 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] of a definition
which comprehended the non-statute law upon
which the cause of action was based was found to
suffice.
2. In this Act,
"Canadian maritime law" means the law that was administered
by the Exchequer Court of Canada on its Admiralty side by
virtue of the Admiralty Act or any other statute, or that
would have been so administered if that Court had, on its
Admiralty side, unlimited jurisdiction in relation to maritime
and admiralty matters, as that law has been altered by this or
any other Act of Parliament of Canada.
McIntyre J. at page 774 [ITO], expressed the
conclusion as follows:
In my view the second part of the s. 2 definition of Canadian
maritime law was adopted for the purpose of assuring that
Canadian maritime law would include an unlimited jurisdiction
in relation to maritime and admiralty matters. As such, it
constitutes a statutory recognition of Canadian maritime law as
a body of federal law dealing with all claims in respect of
maritime and admiralty matters. Those matters are not to be
considered as having been frozen by The Admiralty Act, 1934.
On the contrary, the words "maritime" and "admiralty" should
be interpreted within the modern context of commerce and
shipping. In reality, the ambit of Canadian maritime law is
limited only by the constitutional division of powers in the
Constitution Act, 1867.
Likewise, in Roberts at page 340, Wilson J., stated
her reason for concluding that the law of aborigi
nal title was federal common law.
... the question for us, therefore, is whether the law of aborigi
nal title is federal common law.
I believe that it is ... While, as was made clear in Guerin,
([1984] 2 S.C.R. 335), s. 18(1) of the Indian Act did not create
the unique relationship between the Crown and the Indians, it
certainly incorporated it into federal law by affirming that
"reserves are held by Her Majesty for the use and benefit of
the respective bands for which they were set apart".
Roberts is instructive here in two other respects.
It reiterates, at page 338, the proposition, original
ly stated in McNamara, that federal legislative
competence is not alone enough to satisfy the third
element. It also considered, at pages 331 ff., but
expressed no concluded opinion on the "intertwin-
ing" basis of jurisdiction propounded by the Trial
Division in Marshall v. The Queen, [1986] 1 F.C.
437. It did suggest, at page 334, that "it does not
appear to find support in the existing jurispru
dence ... nor indeed in the wording of s. 101".
This Court, in Varnam v. Canada (Minister of
National Health and Welfare), [1988] 2 F.C. 454;
(1988), 50 D.L.R. (4th) 44; 17 F.T.R. 240; 84
N.R. 163 (C.A.), held Marshall to have been
wrongly decided.
The other class of cases in which the Supreme
Court has found the causes of action to be sus
tained by the law of Canada in the section 101
sense is exemplified by the Rhine and Prytula case
referred to by Stone J., in the passage quoted from
the Oag decision. That case was concerned with
the recovery of debts by the Crown in right of
Canada from private persons. The debts had been
respectively incurred under the provisions of the
Prairie Grain Advance Payments Act, now R.S.C.,
1985, c. P-18, and the Canada Student Loans Act,
now R.S.C., 1985, c. S-23. In the former, the debt
resulted from the direct advance of monies by the
Crown; in the latter, from the Crown's guarantee
of bank advances. The ratio as to grain advances,
stated at pages 446 ff, was:
... it is contended that there is simply the enforcement of an
ordinary contractual obligation which owes nothing to federal
law other than its origin in the statutory authorization to make
the advance.
I do not agree that the matter can be disposed of in such
simple terms. What we have here is a detailed statutory frame
work under which advances for prospective grain deliveries are
authorized as part of an overall scheme for the marketing of
grain produced in Canada. An examination of the Prairie
Grain Advance Payments Act itself lends emphasis to its place
in the overall scheme. True, there is an undertaking or a
contractual consequence of the application of the Act but that
does not mean that the Act is left behind once the undertaking
or contract is made. At every turn, the Act has its impact on
the undertaking so as to make it proper to say that there is here
existing and valid federal law to govern the transaction which
became the subject of litigation in the Federal Court. It should
hardly be necessary to add that "contract" or other legal
institutions, such as "tort" cannot be invariably attributed to
sole provincial legislative regulation or be deemed to be, as
common law, solely matters of provincial law.
That was applied, with refinements immaterial to
the present discussion because of the guarantee, to
the student loans.
I should probably refrain from adding to the
array of this Court's confusing decisions but it
does seem to me, with respect, that the very recent
recognition, in Roberts, of the clear overlap be
tween the second and third elements of the test
suggests a basis for rational reconciliation of the
confusion. The second element requires an existing
body of federal law to do two very different things:
(1) to be essential to the disposition of the case and
(2) to nourish the statutory grant of jurisdiction. It
speaks of the same body of law but it seems
apparent that the law essential to disposition will
not necessarily be the same law as that which may
nourish a statutory grant of jurisdiction. Perhaps
where, as in Rhine and Prytula, the third element
is supplied by a comprehensive statutory frame
work, that in itself can be taken as the existing
federal law which nourishes the statutory grant to
such an extent as to demand little, if anything, in
the way of discrete federal law essential to the
disposition of the case. In other words, the rela
tionship between the parties being entirely a crea
ture of federal law, the law to be applied in the
resolution of disputes arising out of that relation
ship is also taken to be federal law even though it
is neither expressed nor expressly incorporated by
federal statute. That would appear to have been
the case in Rhine and Prytula where it is nowhere
suggested that the law by which the debtors' liabil
ity to the Crown would actually be determined was
anything other than that by which liability for an
ordinary commercial obligation would routinely be
determined.
Subsection 103(2) of the Immigration Act not
only defines the authority of immigration officers
and others to arrest and detain aliens in Canada
for purposes of that Act; it sets the limit on their
right to be at liberty in Canada while awaiting an
inquiry or removal, as the case may be. It is
federal law which, in the cause of action pleaded
here, is the law upon which the respondent's case is
based, is essential to its disposition and which also
nourishes the grant of jurisdiction by subsection
17(5) of the Federal Court Act.
All three elements of the test are met in this
case. I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: Said Mohamed Kigowa, the
respondent in this case, is a resident of Kenya who
jumped ship at Nanaimo, British Columbia. In all
likelihood, he was then under a duty to appear` at a
port of entry. 2 His arrest by an immigration offi
cer on March 22, 1987 and his detention till the
afternoon of March 23, 1987 prompted him to file
an action in damages before the Trial Division on
March 22, 1989, alleging illegal arrest and deten
tion by the immigration officer.
The issue raised by the appellants is whether the
Federal Court of Canada has jurisdiction to hear
his case.
I agree with the reasons for judgment of
Mahoney J.A. which I had the advantage of read
ing in draft. I add only one short comment.
Although damages are claimed by way of relief,
the basis of the respondent's action does not rest
on a common law right of freedom against illegal
arrest. Being an alien, he had no right of entry
2 Subsection 12(1) of the Immigration Act, R.S.C., 1985, c.
I-2 provides:
12. (1) Every person seeking to come into Canada shall
appear before an immigration officer at a port of entry, or at
such other place as may be designated by a senior immigra
tion officer, for examination to determine whether that
person is a person who shall be allowed to come into Canada
or may be granted admission.
under the common law,' consequently, no right of
movement once he had entered illegally. The case
at bar is distinct from actions in damages under
the common law which the respondent might have
in common with others. Had the respondent been
hurt by a motor vehicle or assaulted, a civil action
in tort would have been open to him like any other
person in Canada. But here, whatever right of
movement the respondent may claim to have and
wish to assert is governed by the Immigration Act,
a "law of Canada".
The threefold test giving rise to the jurisdiction
of the Federal Court being met, I would dismiss
the appeal with costs.
' R. v. Governor of Pentonville Prison, ex parte Azam,
[1973] 2 All ER 741 (C.A.), at p. 747.
At common law no alien has any right to enter this country
except by leave of the Crown; and the Crown can refuse
leave without giving any reason: see Schmidt v Secretary of
State for Home Affairs ([1969] 2 Ch. 149 at p. 168). If he
comes by leave, the Crown can impose such conditions as it
thinks fit, as to his length of stay, or otherwise. He has no
right whatever to remain here. He is liable to be sent home to
his own country at any time if, in the opinion of the Crown,
his presence here is not conducive to the public good; and for
this purpose, the executive may arrest him and put him on
board a ship or aircraft bound for his own country: see R v
Brixton Prison (Governor), ex parte Soblen ([1963] 2 QB
243 at pp. 300, 301). The position of aliens at common law
has since been covered by the various regulations; but the
principles remain the same.
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.