T-163-91
Mahadri Jaipaul Singh (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: SING/I V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (TD.)
Trial Division, Jerome A.C.J.—Toronto, January 28;
Ottawa, July 3, 1991.
Immigration — Practice — Applicant seeking to raise pre
liminary jurisdictional issue at commencement of Immigration
Act, s. 46 inquiry — Decision to proceed with inquiry before
deciding constitutional issue based on Immigration Regula
tions, s. 34 power to permit evidence to be adduced in manner
adjudicator deeming appropriate having regard to all circum
stances — Decision procedural, within Tribunal's competence
and not subject to s. 18 review — Outside Tribunal's jurisdic
tion to declare Immigration Act, ss. 46 et seq. unconstitutional
— Appropriate to proceed to full factual determination neces
sary to discharge mandate under Immigration Act.
Constitutional law — Charter of Rights — Life, liberty and
security — Preliminary jurisdictional issue raised at com
mencement of Immigration Act, s. 46 inquiry — Alleging
unreasonable delay in processing Convention refugee claim
violation of Charter, s. 7 right to fair hearing — Tribunal
deciding to continue inquiry — In Askov S.C.C. setting out fac
tors to be considered in deciding whether breach of Charter, s.
I1(b) (right to trial within reasonable time) and indicating six-
to-eight month delay generally acceptable — Charter infringe
ment not simply question of delay or of right to fair trial —
Each case considered in light of all factors (including explana
tion for delay and prejudice to applicant) set out in Askov —
Constitutional issues not to be decided in factual vacuum.
This was an application for leave to commence a proceeding
under Federal Court Act, section 18 to quash the decision of a
Tribunal, consisting of an immigration adjudicator and a
member of the Refugee Division of the Immigration and Refu
gee Board, to proceed with an inquiry under Immigration Act,
sections 46 et seq. prior to receiving evidence on constitutional
arguments challenging its jurisdiction to proceed with the hear
ing. At the commencement of the inquiry, applicant's counsel
indicated an intention to establish that the applicant's right to a
fair hearing under Charter, section 7 had been violated by the
unreasonable delay in processing the Convention refugee claim
and that Immigration Act, section 46 should not be applied.
The decision to proceed with the inquiry and then deal with the
constitutional issues was based on an adjudicator's power
under Immigration Regulations, /978, section 34 to require or
permit evidence to be adduced in such manner as he deems
appropriate, having regard to the circumstances. The applicant
submitted that the Tribunal had erred in law by refusing to con
sider preliminary jurisdictional issues and by failing to comply
with principles of fundamental justice when it applied section
32. It was argued that section 34 authorized an adjudicator to
direct the conduct of the inquiry, not the manner in which a
preliminary jurisdictional issue is raised. Because the constitu
tional issues deal with whether the applicant can have a fair
hearing, they must be determined before the Tribunal embarks
upon the inquiry. The respondent argued that the applicant had
not challenged the constitutional validity of any section of the
Immigration Act and the decision as to the order in which the
evidence would be heard was purely procedural.
Held, the application should be dismissed.
The request to suspend the inquiry was essentially based on
R. v. Askov, wherein the Supreme Court of Canada set out the
factors to be considered in determining whether there has been
an infringement of the Charter, paragraph 11(b) right to be
tried within a reasonable time. Those factors included the
length of and explanation for delay, waiver and prejudice to
the accused. Generally, a delay of six to eight months was con
sidered acceptable. Subsequent cases have indicated that
infringement is not simply a question of delay or of an
accused's right to a fair trial. Each case must be considered in
light of all the factors set out in Askov.
The decision was not subject to review under Federal Court
Act, section 18 because it was entirely procedural and within
the Tribunal's competence.
The Tribunal was not a court of competent jurisdiction and
could not declare Immigration Act, sections 46 et seq. uncon
stitutional as contrary to the Charter. In any event, it was
appropriate for the Tribunal to proceed to the full factual deter
mination necessary to discharge its mandate under the Immi
gration Act. Constitutional issues cannot be decided in a fac
tual vacuum. The Tribunal must consider whether the delay
was attributable to the applicant or solely to the administration
of the process at issue, and whether and to what extent the
applicant's rights had been prejudiced by the delay. Finally, it
is sometimes practical to determine the merits of a case at the
same time as the constitutional validity of a provision because
a favourable adjudication on the merits may obviate the neces
sity of a protracted constitutional proceeding.
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], s. 7.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 46, 82.1 (as
enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19).
Immigration Regulations, 1978, SOR/78-172, s. 34.
CASES JUDICIALLY CONSIDERED
APPLIED:
Union Gas Ltd. v. TransCanada PipeLines Ltd., [1974] 2
F.C. 313 (C.A.); Novopharm Ltd. v. Wyeth Ltd. (1986), 26
D.L.R. (4th) 80; 8 C.P.R. (3d) 448; 64 N.R. 144 (F.C.A.);
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253; (1987), 26 Admin. L.R. 295; 87 CLLC 14,053; 31
C.R.R. 244; 82 N.R. 341 (C.A.); Canada (Minister of
Employment and Immigration) v. Borowski, [ 1990] 2 F.C.
728; (1990), 32 F.T.R. 205; 10 Imm. L.R. (2d) 115
(T.D.); R. v. Askov, [1990] 2 S.C.R. 1199; (1990), 75 O.R.
(2d) 673; 74 D.L.R. (4th) 355; 59 C.C.C. (3d) 449; 79
C.R. (3d) 273; 49 C.R.R. I; 42 O.A.C. 81; R. v. Fortin
(1990), 75 O.R. (2d) 733 (Gen. Div.); R. v. Bennett
(1991), 3 O.R. (3d) 193; 64 C.C.C. (3d) 449 (C.A.);
Tétreault-Gadoury v. Canada (Canada Employment and
Immigration Commission), [1989] 2 F.C. 245; (1988), 53
D.L.R. (4th) 384; 33 Admin. L.R. 244; 23 C.C.E.L. 103;
88 CLLC 14,050; 88 N.R. 6 (C.A.).
REFERRED TO:
R. v. Mills, [1986] I S.C.R. 863; (1986), 29 D.L.R. (4th)
161; 26 C.C.C. (3d) 481; 52 C.R. (3d) I; 21 C.R.R. 76; 67
N.R. 241; 16 O.A.C. 81; Cuddy Chicks Ltd. v. Ontario
(Labour Relations Board), [1991] 2 S.C. R. 5; (1991), 91
CLLC 14,024; Tétreault-Gadoury v. Canada (Employ-
ment and Immigration Commission), [1991] 2 S.C.R. 22;
(1991), 91 CLLC 14,023.
COUNSEL:
Barbara L. Jackman for applicant.
Kevin Lunney for respondent.
SOLICITORS:
Jackman, Zambelli & Silcoff, Toronto, for appli
cant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
JEROME A.C.J.: This matter came on for hearing at
Toronto, Ontario on January 28, 1991. By notice of
motion dated January 9, 1991 the applicant seeks an
order pursuant to section 82.1 of the Immigration Act,
R.S.C., 1985, c. I-2 [as enacted by R.S.C., 1985 (4th
Supp.), c. 28, s. 19] to commence a proceeding under
section 18 of the Federal Court Act, R.S.C., 1985, c.
F-7, for:
(a) a writ of certiorari to quash the decision of an immigration
inquiry tribunal, composed of Mr. W. Renehan, an immigra
tion adjudicator, and Mr. 1. Jeffers, a member of the Conven
tion Refugee Determination Division of the Immigration and
Refugee Board, made on December 20, 1990, wherein it was
decided to proceed with the inquiry concerning the Applicant,
prior to receiving evidence on and considering the constitu
tional arguments raised as to the tribunal's jurisdiction to pro
ceed with the hearing; and
(b) a writ of mandamus directing the tribunal to receive evi
dence put forward by the Applicant and to hear argument put
forward by the Applicant as to the tribunal's jurisdiction to
hold an inquiry prior to proceeding with the inquiry concern
ing the Applicant.
On January 16, 1991 the applicant applied for an
order permitting her to make oral submissions in sup
port of her application. On February 12, 1991 at
Toronto, Ontario, I dismissed the applications for rea
sons given orally from the Bench and indicated that
these written reasons would follow.
FACTS
The facts as set out in the affidavit of Toni
Schweitzer, sworn January 15, 1991, are not in dis
pute. The applicant is the subject of an immigration
inquiry commenced on November 29, 1990 before an
Immigration Adjudicator, Mr. W. Renehan, and a
member of the Refugee Division (Backlog) of the
Immigration and Refugee Board, Mr. I. Jeffers (the
"Tribunal"). At the outset of the hearing, counsel for
the applicant indicated to the Tribunal that she
intended to raise a preliminary jurisdictional argu
ment under section 52 of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]]. She outlined
the nature of her argument and the evidence to be
presented to establish that the applicant's rights under
section 7 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act /982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] had been vio
lated by the unreasonable delay in processing her
Convention refugee claim and that section 46 and
related provisions of the Immigration Act should not
be applied because her right to a fair hearing has been
prejudiced presumptively and actually through the
delay.
When the hearing resumed on December 20, 1990,
the Adjudicator indicated that the Tribunal would
proceed with the immigration inquiry and then deal
with the constitutional issues raised by the applicant.
His reasons, to the best of the recollection of the
deponent, were inter alia that subsection 34(1) of the
Immigration Regulations, 1978, SOR/78-172, pro
vides that "the adjudicator may require or permit evi
dence to be adduced at an inquiry in such manner as
he deems appropriate having regard to all the circum
stances of the case" and that, since the applicant's
evidence is important, she must testify first on the
matters raised in subsection 46(1) of the Immigration
Act and the evidence and arguments on the constitu
tional issues would be considered only after the full
hearing under section 46 is complete. The inquiry
was adjourned and scheduled to resume February 26,
1991.
The applicant now states that the Tribunal has
erred in law: (a) in refusing to consider the prelimi
nary jurisdiction issues raised by the applicant under
section 52 of the Constitution Act, /982 before pro
ceeding with the applicant's inquiry under the Immi
gration Act; and (h) when it failed to comply with the
principles of fundamental justice and of natural jus
tice when it applied subsection 34(1) of the Regula-
tions to determine that it would proceed with the
applicant's inquiry before receiving evidence and
considering arguments arising under section 52 of the
Constitution Act, 1982 as to its jurisdiction to proceed
with the inquiry.
LEAVE
A good deal of argument was directed by both
counsel to the question of leave. It is the respondent's
contention that no proceeding of this nature can be
commenced without leave pursuant to subsection
82.1(1) of the Immigration Act and that it must be
done in the ordinary way by written application. The
applicant's position is that since this is not a review
of an immigration decision as such, but a constitu
tional attack, leave is not required. I consider the
question to be somewhat academic. It is inconceiv
able to me that leave would be denied for an applica
tion that raises, as this does, substantial constitutional
questions and accordingly, I deferred the question of
leave until I heard full argument and for the reasons
that follow, consider. it unnecessary to decide that
issue.
APPLICANT'S ARGUMENT
The applicant submits that section 34 of the Regu
lations simply authorizes the adjudicator to direct the
conduct of the inquiry and does not authorize him to
direct the manner in which a preliminary jurisdic
tional matter or motion under section 52 of the Con
stitution Act, 1982 is raised. Because these constitu
tional issues deal directly with the issue of whether
she can have a fair hearing, they must be determined
by the Tribunal before it embarks upon the inquiry
which it is otherwise mandated by statute to hold.
The constitutionality of section 46 and related provi
sions of the Immigration Act must, therefore, be
resolved prior to their application and the applicant
submits that the Adjudicator's failure to address these
preliminary issues amounts to a refusal to exercise
jurisdiction and an excess of jurisdiction. In the alter
native, the applicant states that her submissions
involve questions of natural justice and jurisdiction at
common law arising under the Immigration Act itself.
RESPONDENT'S ARGUMENT
The respondent states that the applicant has not
challenged the constitutional validity of any particu
lar section of the Immigration Act and that the deci
sion which the applicant seeks to review is purely
procedural in nature in that the Adjudicator merely
decided the order in which the Tribunal would hear
evidence. This decision was made on a discretionary
basis within the Adjudicator's authority under sub
section 34(1) of the Regulations. Because the materi
als filed by the applicant fail to demonstrate that the
Tribunal has violated a rule of natural justice in
choosing to proceed as it did, the applicant has failed
to demonstrate that there is a serious issue or argua
ble case.
The respondent further submits that mandamus
should not issue. The applicant has failed to show
that she specifically demanded that the Tribunal
address itself to the constitutional issues prior to con
sidering matters under section 46 of the Immigration
Act and that the Tribunal has refused to consider the
constitutional issues which she has raised. Rather, the
materials show that the Tribunal will in fact consider
these issues once it has heard the applicant's evi
dence bearing upon the allegations in the immigra
tion officer's report, the applicant's eligibility to
claim Convention refugee status, and the question of
whether there is a credible basis to her claim. The
applicant has also failed to show that the Tribunal has
violated any rule of natural justice or committed any
error sufficient to warrant the issuance of certiorari.
RELEVANT STATUTORY PROVISIONS
The statutory provisions relevant to this applica
tion are section 82.1 of the Immigration Act and sec
tion 34 of the Regulations:
82.1 (I) An application or other proceeding may be com
menced under section 18 or 28 of the Federal Court Act with
respect to any decision or order made, or any other matter aris
ing, under this Act or the rules or regulations only with leave
of a judge of the Federal Court—Trial Division or Federal
Court of Appeal, as the case may be.
(4) Unless a judge of the appropriate Court directs other
wise, an application under this section for leave to commence a
proceeding shall be disposed of without personal appearance.
34. (1) Notwithstanding the requirements of sections 31 to
33, the adjudicator may require or permit evidence to be
adduced at an inquiry in such manner as he deems appropriate
having regard to all the circumstances of the case including the
burden of proof and presumption referred to in subsections
8(1) and (2) of the Act.
ANALYSIS
At issue here is a request by counsel for the appli
cant to suspend an immigration inquiry for the pur
pose of presenting an argument essentially based on
the recent unanimous decision of the Supreme Court
of Canada in R. v. Askov, [ 1990] 2 S.C.R. 1199. This
decision has triggered a great number of withdrawals
or applications for stay of proceedings in criminal
proceedings throughout Canada, particularly in Onta-
rio and, particularly in Peel District. In Askov, the
Court considered the issue of what constitutes an
unreasonable delay of the trial of a person charged
with an offence, contrary to paragraph 11(b) of the
Charter. Cory J., for the majority concurring opinion,
set out the following factors (at pages 1231-1232) to
be considered in determining whether or not there
has been an infringement of the paragraph 11(b) right
to be tried within a reasonable time:
(i) the length of the delay;
(ii) explanation for the delay;
(a) the conduct of the Crown;
(b) systemic or institutional delays;
(c) the conduct of the accused;
(iii) waiver;
(iv) prejudice to the accused.
He acknowledged [at page 1219] that "the primary
aim of s. 11(b) is the protection of the individual's
rights and the provision of fundamental justice for the
accused", however, he determined that there is "at
least by inference, a community or societal interest
implicit in s. 11(b)" and that it had a dual dimension
[at pages 1219-1220]:
First, there is a collective interest in ensuring that those who
transgress the law are brought to trial and dealt with according
to the law. Secondly, those individuals on trial must be treated
fairly and justly.
With reference to the reasoning of Lamer J. [as he
then was] in R. v. Mills, [1986] 1 S.C.R. 863, Cory J.
concluded (at page 1222) that an "inferred societal
interest should be considered in conjunction with the
main and primary concept of the protection of the
individual's right to fundamental justice".
Subsequently, Trainor J. of the Ontario Court of
Justice (General Division), in R. v. Fortin (1990), 75
O.R. (2d) 733, examined the consequences of Askov
and concluded that the six-to-eight-month general
limitation period in Askov did not apply to Provincial
Court trials or preliminary hearings. His position was
based on the fact that the Supreme Court of Canada
had not stated that the Provincial Court was subject
to the delay restriction even though it was clearly
aware of the lengthy delays and the dramatic effect
such a limitation period would have on the Provincial
Court backlog and the fact that the Court had stated
that Askov applications will be "infrequently
granted".
On May 31, 1991, the Ontario Court of Appeal
released a number of decisions concerning Askov
applications and the right to be tried within a reasona
ble time under paragraph 11(b) of the Charter. In R.
v. Bennett (1991), 3 O.R. (3d) 193 (C.A.), the Court
allowed an appeal from a stay of proceedings based
on its findings that the Trial Judge had erred in con
cluding, without sufficient regard to any other factors
prescribed by the Supreme Court of Canada in Askov,
that eight months to find a trial date in Provincial
Court was unreasonable. Arbour J.A., suggested that
the granting of a judicial stay of proceedings because
of an infringement of paragraph 11(b) of the Charter
calls for a skilful exercise of judgment in balancing
the factors set out in Askov and that it cannot be
reduced to an administrative task or a simple calcula
tion of time. She observed that [at page 208]:
Askov has frequently been given a minimalist or reductionist
interpretation. When mere lip service is paid to the required
balancing of the four factors, the trial within a reasonable time
issue is often resolved by the mechanical computation of the
systemic time required to bring the charge to trial and the six to
eight months referred to in Askov is then given the force of a
judicially developed limitation period. This isolates and over
emphasizes systemic delay and reduces the concept of reasona
bleness in s. 11(b) to a simplistic computation of time. This is
not what the Supreme Court decision in Askov stands for.
Chief Justice Dubin, in concurring reasons, agreed
with Madam Justice Arbour that the Supreme Court
of Canada in Askov had not prescribed a statutory
limitation period which, if exceeded, must automati
cally result in a stay of charges. He, however, placed
greater emphasis on the fact that the right protected
by paragraph 11(b) is not simply a right of an indi
vidual charged with an offence but that it involves a
societal interest as well. He commented [at page
202]:
That societal interest can also be protected by the duty of the
Crown to proceed expeditiously with the criminal process, and
the duty of the courts where adjournments are sought to pre
vent unreasonable delay. However, there is, I think, as a corol
lary to the societal interest in expeditious proceedings, a socie
tal interest in seeing that every person charged with an offence
be brought to trial to be found guilty or not guilty and if, after a
fair trial in which all the rights of the accused are fully pro
tected, the accused is found guilty, the accused should be pun
ished.
He also noted [at page 196] that "[t]he effect of [a]
stay is tantamount to an acquittal but without a trial"
and that "[t]he staying of so many charges has had a
serious impact on the administration of justice in this
province and, I fear, has eroded the public's confi
dence in the administration of justice."
It appears, therefore, that while significant time
delay and prejudice to the accused are important con
siderations, a paragraph 11(b) Charter infringement is
not simply a question of delay or simply a question of
the accused's right to a fair trial. Each individual case
must be considered in the light of all the factors set
out by Cory J. in Askov.
CONCLUSION
I refused the application for the following reasons.
First, the action of the Adjudicator in this instance, is
not a decision which is subject to review under sec
tion 18 of the Federal Court Act. Rather, it is essen
tially a procedural decision and one which is entirely
within the competence of the Adjudicator. In Union
Gas Ltd. v. TransCanada PipeLines Ltd., [ 1974] 2
F.C. 313 (C.A.), the National Energy Board had
made a ruling at the beginning of a hearing which
determined the order in which the Board would
receive evidence and permit cross-examination of
witnesses. The ruling was found to be clearly within
the Board's powers even though it permitted cross-
examination to take place after the witnesses had
been cross-examined by those in opposition. Maho-
ney J.A., for the Court stated (at page 317):
The right of the Board to determine the order in which it will
receive evidence and permit cross-examination of witnesses,
regardless of how anomalous the result may be when the pro
ceedings are viewed as adversary proceedings, seems so clear
to me that I dismissed this aspect of the application from the
bench at the conclusion of the hearing. I mention it briefly now
only with a view to recording my views.
Secondly, constitutional issues cannot be decided
in a factual vacuum. In Novopharm Ltd. v. Wyeth Ltd.
(1986), 26 D.L.R. (4th) 80 (F.C.A.), Heald J.A. for
the Court held [at page 81] that it was an improper
exercise of discretion for a judge to order a hearing
into the constitutional validity of a section of a statute
"irrespective of any factual situation". Based on his
review of the jurisprudence he concluded [at page 83]
that it was a basic principle that "[e]xcept in certain
circumstances, it is not appropriate to consider con
stitutional issues in a factual vacuum." He stated (at
pages 84-85):
I am of the view that the Judicial Committee and the Supreme
Court of Canada have both clearly established the principle
that it is not appropriate to answer constitutional questions in
the absence of concrete facts. In the case of A.-G. Ont. v. Ham-
ilton Street R. Co. et al., [1903] A.C. 524 at p. 529, the Judicial
Committee said:
... it would be extremely unwise for any judicial tribunal to
attempt beforehand to exhaust all possible cases and facts
which might occur to qualify, cut down, and override the
operation of particular words when the concrete case is not
before it.
The problem of deciding constitutional issues in a factual
vacuum was discussed by the Judicial Committee again in the
case of A.-G. B.C. v. A-G. Can.; Re B.C. Fisheries (1913), 15
D.L.R. 308 at pp. 309-10, [1914] A.C. 153 at p. 162, 5 W.W.R.
878, where it was stated:
Not only may the question of future litigants be prejudiced
by the Court laying down principles in an abstract form
without any reference or relation to actual facts, but it may
turn out to be practically impossible to define a principle
adequately and safely without previous ascertainment of the
exact facts to which it is to be applied.
The same principle was again endorsed by the Supreme Court
of Canada in the case of A.-G. Man. v. Man. Egg & Poultry
Assn et al. (1971), 19 D.L.R. (3d) 169, [1971] S.C.R. 689,
[1971] 4 W.W.R. 705. Laskin J. (as he then was) said at p.
181:
The utility of the Reference as a vehicle for determining
whether actual or proposed legislation is competent under
the allocations of power made by the B.N.A. Act, 1867 is
seriously affected in the present case because there is no fac
tual underpinning for the issues that are raised by the Order
of Reference.
The Tribunal is also not a court of competent juris
diction and is not competent to grant the relief that
would ensue should it accept the applicant's constitu
tional arguments before considering her Convention
refugee claim. Based on the jurisprudence to date,
particularly in this Court, it is not within the jurisdic
tion of administrative tribunals to make general pro
nouncements that a particular law does not have con
stitutional effect in that it is contrary to the Charter.
In my opinion, by asking the Tribunal to determine
that section 46 and consequential sections of the
Immigration Act violate section 7 of the Charter, the
applicant is, in effect, asking the Tribunal to grant a
general declaration that these provisions infringe the
Charter.
This limited responsibility of an administrative
Tribunal has been clearly established. In Zwarich v.
Canada (Attorney General), [1987] 3 F.C. 253
(C.A.), Pratte J.A., for the Court, considered the juris
diction of administrative tribunals, in that case
Boards of Referees, under subsection 24(1) of the
Charter. He concluded (at page 255):
It is clear that neither a board of referees nor an umpire have
the right to pronounce declarations as to the constitutional
validity of statutes and regulations. That is a privilege reserved
to the superior courts. However, like all tribunals, an umpire
and a board of referees must apply the law. They must, there
fore, determine what the law is. And this implies that they
must not only construe the relevant statutes and regulations but
also find whether they have been validly enacted. If they reach
the conclusion that a relevant statutory provision violates the
Charter, they must decide the case that is before them as if that
provision had never been enacted. The law on this subject, as I
understand it, was clearly and accurately stated by Macfarlane
J.A. of the Court of Appeal of British Columbia in Re
Schewchuk and Ricard; Attorney-General of British Columbia
et al; Intervenors:
It is clear that the power to make general declarations that
enactments of Parliament or of the Legislature are invalid is
a high constitutional power which flows from the inherent
jurisdiction of the superior courts.
But it is equally clear that if a person is before a court
upon a charge, complaint, or other proceeding properly
within the jurisdiction of that court then the court is compe
tent to decide that the law upon which the charge, complaint
or proceeding is based is of no force and effect by reason of
the provisions of the Canadian Charter of Rights and Free
doms, and to dismiss the charge, complaint or proceeding.
The making of a declaration that the law in question is of no
force and effect in that context, is nothing more than a deci
sion of a legal question properly before the court. It does not
trench upon the exclusive right of the superior courts to
grant prerogative relief, including general declarations.
In Canada (Minister of Employment and Immigra
tion) v. Borowski, [1990] 2 F.C. 728 (T.D.), Joyal J.
considered inter alia whether a tribunal is competent
to declare that a particular enactment is in breach of a
Charter provision and grant a remedy. He noted that
in Tétreault-Gadoury v. Canada (Canada Employ
ment and Immigration Commission), [1989] 2 F.C.
245 (C.A.), it was established that declarations as to
the constitutional validity of any statute or regulation
and the granting of any remedy pursuant to section 24
of the Charter are reserved to the superior courts. Mr.
Justice Joyal then observed (at page 748) that "sub-
section 52(1) ... simply declares that if inconsistency
with a constitutional provision is found to exist, a
law, to the extent of the inconsistency, is of no force
or effect" and he concluded that "it cannot fashion a
remedy".
I also note that in the interim the Supreme Court of
Canada has rendered its decisions in Cuddy Chicks
Ltd. v. Ontario (Labour Relations Board), [1991] 2
S.C.R. 5 and Tétreault-Gadoury v. Canada (Employ-
ment and Immigration Commission), [1991] 2 S.C.R.
22. The result may very well be that this Tribunal has
no authority to dispose of the constitutional questions
raised by the applicant. If, however, it does possess
the authority to deal with such questions, the Tribunal
is clearly limited in the manner set out in these rea
sons. In either event, it is appropriate for the Tribunal
to proceed to the full factual determination necessary
to discharge its mandate under the Immigration Act.
The Tribunal would need to consider whether the
delay was attributable to the applicant or solely to the
administration of the process at issue, and whether
and to what extent this applicant's rights have been
prejudiced by the delay. I do not see how the Adjudi
cator can be asked to decide those questions without
knowing their precise factual context.
Finally, in doubtful cases there is a practical
advantage for an adjudicator to be in a position to
make a determination on the merits of a case at the
same time that the constitutional validity of a provi
sion is considered for the simple reason that a favour
able adjudication on the merits may obviate the
necessity of a long and protracted constitutional pro
ceeding.
In my view, therefore, the Adjudicator's decision
to proceed with the immigration inquiry is appropri
ate, entirely procedural in nature, and entirely within
the scope of the Tribunal's authority. Accordingly,
the applications must be dismissed.
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.