A-5-90
Sergio Rene Urroz Rios (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: RIOS V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, MacGuigan and Desjar-
dins JJ.A.—Toronto, June 21; Ottawa, July 4,
1990.
Immigration — Deportation — Applicant not appearing at
inquiry in Montreal as without funds to travel from Toronto
— Report filed under Immigration Act, s. 27(2)(1)— Deporta
tion order issued — Adjudicator erred in defining "elude" as
simple volitional non-attendance — "Elude" having mental
element — Dictionary definitions indicating "elude" implying
intent to evade law in general way.
This was an application to review and set aside a deportation
order. The applicant failed to appear for a scheduled inquiry at
Montreal as he lacked the funds to come from Toronto. Para
graph 27(2)(f) of the Immigration Act, requires an immigra
tion officer who has information that a person has eluded
examination or inquiry to forward a written report to the
Deputy Minister setting out the details. Such a report was
made and a warrant was issued for the applicant's arrest. Three
days after the hearing date the applicant had a friend call
immigration officials to explain his absence. He was arrested in
Toronto and an inquiry held. The adjudicator ruled that the
applicant had eluded the inquiry by failing to attend upon his
own volition. The issue was whether a mental element of intent
was required to "elude" an inquiry.
Held (Desjardins J.A. dissenting), the application should be
allowed.
Per MacGuigan J.A. (Pratte J.A. concurring): According to
dictionary definitions, "elude" has the connotation either of
artifice or surreptitiousness, or of the intention to repudiate an
obligation or escape the effect of the law in a general way. This
ties in with the usage of "elude" in the statute. "Eluded
examination or inquiry", without articles, suggests something
more general than the fact of simply missing one inquiry. The
other two acts referred to in paragraph 27(2)(f), entering the
country unlawfully or escaping custody, are serious and in
keeping with a general intention to evade rather than mere
non-attendance. Finally, the penalty—deportation—suggests a
more serious offence than what occurred here.
The adjudicator erred in failing to consider the applicant's
excuse because of his view that no excuse that was not a "legal
excuse" could be acceptable. He should have made a finding of
fact by examining whether the applicant had reasonable
grounds for believing that he had good excuse for not appearing
at the inquiry. This judgment should not hinder administration
of the Act. Failure to attend an inquiry raises a prima fade
case under paragraph 27(2)(j) which would set in motion the
enforcement procedures. The matter should be returned to the
adjudicator for decision on the basis that a person does not
elude inquiry within paragraph 27(2)(J) if that person has
reasonable grounds for believing that he has good excuse for
not appearing at an inquiry.
Per Desjardins J.A. (dissenting): Although some definitions
of "elude" do not seem to carry an element of artifice, all
definitions imply the necessity for examining all the circum
stances in determining whether someone had the intention of
not complying with an obligation of the law. The adjudicator
correctly held that "elude" under the Immigration Act does not
mean that the person is going to forever avoid the inquiry or
remain away from it. By adding that the applicant had no
lawful excuse he implied that the excuse did not have the
"moral substance" which would make it "not forbidden by
law". The test applied by the adjudicator was the same as that
suggested by MacGuigan J.A. In finding that the applicant
eluded the inquiry in failing to attend upon his own volition, the
adjudicator expressed his final assessment of the facts accord
ing to the evidence. In light of the serious consequences,
someone in the applicant's situation must find a way to report,
prior to the inquiry date, to the immigration office closest to his
home.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 27(2)(/), 32(6)
(as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11), 82.1
(as am. idem, s. 19), 94.
AUTHORS CITED
Black's Law Dictionary, 5th ed., St. Paul, Minn.: West
Publishing Co., 1979, "evasion", "lawful".
Concise Oxford Dictionary, 7th ed., Oxford: Clarendon
Press, 1982, "avoid","elude", "evade".
Consolidated Webster Encyclopedic Dictionary, [S.1.:
s.n.: s.d.], "elude".
Robert, Paul Dictionnaire alphabetique et analogique de
la langue francaise (Le Grand Robert), tome III, 2° ed.
Paris: Societe du nouveau Littre, 1986, "se derober"
(elude).
Robert, Paul Dictionnaire alphabetique et analogique de
la langue francaise (Le Petit Robert), Paris: Societe du
nouveau Littre, 1973, "se derober" (elude).
Shorter Oxford English Dictionary, 3rd ed., Oxford:
Clarendon Press, 1973, "elude", "evade".
COUNSEL:
Douglas Lehrer for applicant.
Claire A. LeRiche for respondent.
SOLICITORS:
Douglas Lehrer, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This is a section 28 applica
tion, brought with leave of this Court under sec
tion 82.1 of the Immigration Act, R.S.C., 1985, c.
1-2, as amended [by R.S.C., 1985 (4th Supp.), c.
28, s. 19] ("the Act"), to review and set aside the
deportation order issued against the applicant by
an adjudicator on November 3, 1989.
Upon arrival in Canada on July 26, 1988, at
Dorval Airport, the applicant, a citizen of Nicara-
gua, was directed by an immigration officer to
appear at an immigration inquiry in Montreal on
November 25, 1988. When he failed to show up at
the inquiry, an immigration officer filed a report
under section 27 of the Act stating that he had
information indicating that the applicant had
"eluded examination or inquiry" as specified by
paragraph 27(2)(/).
Consequently, on December 30, 1988, a warrant
was issued in Montreal for the applicant's arrest,
and he was arrested at an immigration office in
Toronto on April 24, 1989. He was conditionally
released, and an inquiry was commenced in
Toronto on June 1, 1989.
The applicant's story at his Toronto inquiry was
that he proceeded to Toronto the day after his
arrival at Dorval Airport, had never returned to
Montreal, and in fact had not had the money to
return to Montreal. He also claimed that he had a
friend telephone immigration officials in Montreal
to explain the reasons for his non-attendance,
though admittedly this was on November 28,
1988, three days after the scheduled date for the
Montreal inquiry. His friend was allegedly
informed that a new inquiry would be held for the
applicant in Toronto. The applicant also testified
that on December 1, 1988, he had visited a
Toronto immigration office to further explain his
non-attendance in Montreal.
Paragraph 27(2)(f) of the Act reads as follows:
27. ...
(2) Where an immigration officer or a peace officer is in
possession of information indicating that a person in Canada,
other than a Canadian citizen or permanent resident, is a
person who
• • •
(I) came into Canada at any place other than a port of entry
and failed to report forthwith to an immigration officer or
eluded examination or inquiry under this Act or escaped
from lawful custody or detention under this Act,
• • •
the immigration officer or the peace officer shall forward a
written report to the Deputy Minister setting out the details of
such information unless that person has been arrested without
warrant and held in detention pursuant to section 103.
The key question before the Toronto adjudicator
was whether the applicant was such a person as
described in paragraph 27(2)(1) who had "eluded
. .. inquiry". His counsel contended that the word
"elude" implied a mental element, an intention on
his part to go underground, i.e., not to show up for
an inquiry at any time. This interpretation was
rejected by the adjudicator, who held as follows
(Case, at page 103):
Now, the evidence is that you knew that you were to be at an
inquiry in Montreal on the 25th of April ... November, 1988. I
am satisfied that elude under the Immigration Act of Canada,
does not mean that you're going to forever avoid the inquiry or
remain away from it. You had a lawful order to be at the
inquiry in Montreal on the 25th of November, 1988 and you
had no lawful excuse for not being there. You chose deliberate
ly to not appear for the inquiry for your own reasons, as the
reasons given at this inquiry, you didn't have the funds in order
to travel to Montreal to attend the inquiry.
As you had no lawful excuse not to attend the inquiry—that
is, you had no right to not attend it—even though if you are
able, that is had the funds, you would have attended it, I'm ...
it's my decision that you did elude this inquiry by failing simply
to attend it upon your own volition. As you had no lawful
excuse in not attending it, it is my decision that you eluded an
inquiry under the Immigration Act.
Now you realize that I have found you to be person described
in 27(2)(/) of the Immigration Act?
The question argued before this Court was as to
whether the adjudicator had erred in defining
"elude" as a simple volitional non-attendance. The
applicant renewed his contention that a mental
element was required for eluding.
The relevant meaning of "elude" in The Shorter
Oxford English Dictionary, 3rd ed., 1973, is "to
evade compliance with or fulfilment of," or simply
"to evade". "Evade", in turn, is defined as "to
escape by artifice from".
The respondent referred us to the definition in
the Consolidated Webster Encyclopedia Diction
ary:
to evade, to avoid by artifice, stratagem, wiles, deceit or
dexterity. To remain unseen, undiscovered, or unexplained.
Again, the respondent referred to the definition of
"evasion" in Black's Law Dictionary, 5th ed.,
1979:
An act of eluding, dodging, or avoiding, or avoidance by
artifice .... A subtle endeavoring to set aside truth or to escape
the punishment of the law.
It seems to me, therefore, that "elude" has the
connotation either of artifice or surreptitiousness,
or of the intention to repudiate the obligation or
escape the effect of the law in a general way,
which in the present context would mean not only
not being present at a particular inquiry, but also
of not complying with the obligation of the law.
The French text (s'est derobee a l'interrogatoire
ou l'enquete prevus par la presente loi) appears to
me to have the same flavour.
This definitional analysis appears to tie in with
the usage of "elude" in the statute itself. First, the
phrase employed in paragraph 27(2)(f) is "eluded
examination or inquiry", not "an examination" or
"an inquiry". There is therefore a suggestion of
something more general than the fact of simply
missing one inquiry. Second, in paragraph (f)
eluding inquiry is conjoined with trying to enter
the country at an unauthorized place without
reporting entry and with escaping from lawful
custody or detention, both serious acts with which
a general intention to evade would better cohabit
than mere non-attendance at an inquiry. Third, by
subsection 32(6) [as am. by R.S.C., 1985 (4th
Supp.), c. 28, s. 11], the penalty for being found to
be a person described in subsection 27(2) is depor
tation, which would suggest a more serious offence
than occurred here.'
I must, therefore, hold that the adjudicator
erred in concluding that the applicant "did elude
this inquiry by failing simply to attend it upon
[his] own volition". The applicant's volition is not
a sufficient mental element, nor is the mere
absence of lawful excuse; both would be present in
the event of personal or familial illness, e.g., which
might also prevent attendance at an inquiry. The
applicant's excuse, even though not a "legal
excuse", must be taken into account in assessing
whether he had the mindset necessary for eluding.
This is so even though his attempt to inform the
authorities, if believed, took place after the date of
the inquiry, because it could nevertheless elucidate
his state of mind at the time he failed to appear for
the inquiry.
Of course, the obligation of the law includes
that of being present at an inquiry on the date set
(not just at a time of the claimant's choosing),
absent extenuating circumstances. The adjudica
tor's error was to fail to examine the applicant's
excuse, because of his view that no excuse that was
not lawful could be acceptable. In my view, he
should have made a judgment, not of law but of
' In addition to deportation, a person who eludes inquiry may
by section 94 be guilty of an offence carrying a possible
penalty, on conviction on indictment, to a fine of $5,000 and
imprisonment for two years, but this provision is not relevant
here.
fact, by examining whether the applicant had
reasonable grounds for believing that he had a
good excuse for not appearing at the inquiry.
It was urged upon us by the respondent that
such a holding by this Court would render the
administration of the Act extremely difficult by
lessening the legal compliance associated with in
quiries. I cannot, however, see why any such dif
ficulty should follow. The failure to attend an
examination or inquiry would certainly, it seems to
me, raise a prima facie case under paragraph
27(2)(f) such that an immigration officer could
believe that the person in question eluded exami
nation or inquiry, and the train of enforcement
could consequently be set in motion. The differ
ence is that under the present holding the person
would be able to have his or her case subsequently
adjudicated in relation to his or her real intentions.
I cannot think that this renders administration
difficult or that, indeed, given the possible conse
quences, is anything but due in justice.
The section 28 application should, therefore, be
allowed, the decision of the adjudicator of Novem-
ber 3, 1989 set aside, and the matter returned to
the adjudicator for decision on the basis that a
person does not elude inquiry within the meaning
of paragraph 27(2)(f) of the Immigration Act if
that person has reasonable grounds for believing
that he has a good excuse for not appearing at an
inquiry.
PRATTE J.A.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A. (dissenting): My comments
will address both the legal test to be applied when
dealing with paragraph 27(2)(f) of the Immigra
tion Act 2 (the "Act") and the manner in which it
was applied in the case at bar.
2 R.S.C., 1985, c. 1-2.
I note that the meaning of the word "elude" in
The Concise Oxford Dictionary' is slightly differ
ent from the one found in The Shorter Oxford
English Dictionary, 3rd ed. 1973, cited by my
colleague the Honourable Mark MacGuigan J.A.
The Concise Oxford gives the following meaning:
"avoid compliance with (law, request) or fulfil
ment of (obligation)". "Avoid", in turn, is defined
as: "keep away or refrain from (thing, doing);
escape, evade". The meaning given to the word
"evade" is: "escape from, avoid". "Escape" means:
... "avoid".
"Se derober" according to Le Petit Roberto is:
"echapper, soustraire (se) . . . eviter, fuir . . . Fig.
Se derober a ses devoirs, a ses obligations."
The element of artifice or stratagem is not
present, at least in those definitions. What is impli
cit however, in my view, in all the definitions cited,
including those found in the reasons for judgment
of MacGuigan J.A., is the necessity of examining
all the circumstances so as to determine whether,
by not appearing at an inquiry, someone had the
intention of not complying with the obligation of
the law.
What the law prescribes is that a person should
not elude "inquiry under this Act" (l'enquete
prevus par la presente loi). In the case at bar, the
inquiry under the Act had been set for November
25, 1988 when the applicant entered Canada at
Dorval Airport on July 26, 1988.
The adjudicator was correct, in my view, when he
said: 5
I am satisfied that elude under the Immigration Act of Canada,
does not mean that you're going to forever avoid the inquiry or
remain away from it .... [Emphasis added.]
He then added:
You had a lawful order to be at the inquiry in Montreal on the
25th of November 1988 and you had no lawful excuse for not
being there .... [Emphasis added.]
3 The Concise Oxford Dictionary, 7th ed., 1982.
Le Petit Robert, 1973; Le Grand Robert de la langue
francaise, 2nd ed., 1986, is equivalent.
5 A.B., at p. 103.
"Lawful', according to Black's Law Dictionary is
the following: 6
The principal distinction between the terms "lawful" and
"legal" is that the former contemplates the substance of law,
the latter the form of law. To say of an act that it is "lawful"
implies that it is authorized, sanctioned, or at any rate not
forbidden, by law. To say that it is "legal" implies that it is
done or performed in accordance with the forms and usages of
law, or in a technical manner. In this sense "illegal" approaches
the meaning of "invalid". For example, a contract or will,
executed without the required formalities, might be said to be
invalid or illegal, but could not be described as unlawful.
Further, the word "lawful" more clearly implies an ethical
content than does "legal." The latter goes no further than to
denote compliance, with positive, technical, or formal rules;
while the former usually imports a moral substance or ethical
permissibility. [Emphasis added.]
When the adjudicator said that the excuse given
by the applicant was not a lawful excuse, he
implied that it did not have the "moral substance"
which would make it "not forbidden by law". The
test he was applying amounts, in my view, but in
different words, to the directive which my col
league MacGuigan J.A. suggests should be given
to the adjudicator, should the matter be returned
to him, which he formulates [at page 638] as
follows and with which I agree: "a person does not
elude inquiry within the meaning of paragraph
27(2)(f) of the Immigration Act if that person has
reasonable grounds for believing that he has a
good excuse for not appearing at any inquiry".
Both terms contain a subjective and an objective
element.
When the adjudicator said:
... it is my decision that you did elude this inquiry by failing
simply to attend it upon your own volition.
he was expressing his final assessment of the facts
according to the evidence. The applicant failed, in
his view, to attend the inquiry because he did not
want to attend.
6 Black's Law Dictionary, 5th ed., 1979.
Given the seriousness of the prescription of the
law,' someone in the situation of the applicant
must find ways to report, before the date set for
his inquiry, to the immigration office, the closest
to his home, and explain the situation he is in.
I would have dismissed the section 28 applica
tion.
7 The term "eluded . . . inquiry under this Act" is found in
paragraph 27(2)(/) together with two other situations, i.e.
failing to report forthwith to an immigration officer after
having entered Canada at a place other than a port of entry and
escaping lawful custody. Under subsection 32(6) of the Act, a
deportation order follows in cases where subsection 27(2)
applies.
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.