Date: 19990611
Docket: IMM-980-97
OTTAWA, ONTARIO, JUNE 11, 1999
BEFORE: TEITELBAUM J.
BETWEEN:
KASSONGO TUNDA (alias KIZUZI DIBAYULA),
Applicant,
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
For the reasons given in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Bernard Olivier, LL.B.
Date: 19990611
Docket: IMM-980-97
BETWEEN:
KASSONGO TUNDA (alias KIZUZI DIBAYULA),
Applicant,
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] The applicant Kassongo Tunda (alias Kizuzi Dibayula) filed an application for judicial review of a deportation order made by the immigration officer Claude Yelle on January 16, 1997, in which he asked the Court to quash the said deportation order.
FACTS
[2] The applicant arrived in Canada from France at Mirabel Airport on January 16, 1997. On his arrival in Montréal the applicant was referred to Micheline Bélanger, an immigration officer, who questioned him about his identity and his admissibility to Canada under the Immigration Act. Ms. Bélanger found that the passport held by the applicant in the name of Kizuzi Dibayula had been forged and that he was appearing under a false identity, that of Kizuzi Dibayula, a permanent resident of Canada since 1988. The applicant refused to disclose his true identity and maintained that he was Mr. Dibayula. In view of this refusal to identify himself and the absence of any valid identity papers, Ms. Bélanger prepared a report pursuant to s. 20(1)(a) of the Immigration Act. The matter was then referred to the senior immigration officer, Claude Yelle, for review. As appears from his affidavit, Mr. Yelle examined Ms. Bélanger"s report and the applicant"s file and questioned the applicant on January 16, 1997. Mr. Yelle made an exclusion order and a detention order was issued. The applicant is no longer in detention.
PARTIES ARGUMENTS
[3] The applicant maintains that the deportation order was made without jurisdiction and was consequently ultra vires. First, the applicant alleges that he was denied access to the services of a lawyer and that this contravened s. 2(d) of the Canadian Bill of Rights and the rules of natural justice. Second, the applicant argues that he was denied the right to claim refugee status before the deportation order was made and that this contravened s. 28 of the Immigration Act, which provides that an officer must consider the admissibility of a claim for Convention refugee status before making a deportation order. Further, the applicant contends that no report was made and that accordingly the deportation order was ultra vires, since it was made contrary to ss. 23(4) and 28 of the Immigration Act, which require that it be preceded by the report mentioned in s. 20 of the Immigration Act.
[4] In his supplementary memorandum the applicant argues that the deportation order was ultra vires since the officer exceeded his jurisdiction by making a deportation order pursuant to s. 23(4). Section 23(4)(b) provides that a deportation order may be made against a person who does not belong to any other inadmissible class. The applicant alleges that the officer should have believed that he belonged to another inadmissible class of persons mentioned in s. 19(1)(c.1) because he was in possession of a forged passport and was appearing under a false identity. On this basis, the officer was required to conduct an investigation to determine whether the applicant belonged to an inadmissible class mentioned in s. 23(4)(b) of the Act. Further, the applicant alleged that the appointment of the senior immigration officer was invalid. The applicant also alleges that the Immigration Act, as amended, and all statutes of Canada adopted after 1985 are ultra vires since they were adopted by the House of Commons, which was not duly and constitutionally formed. He also alleges that the amendments to the 1995 Immigration Act are ultra vires since they received the assent of the Deputy Governor General, a judge of the Supreme Court of Canada, who had not taken the oath, and such a power could only be delegated to him by express authorization, and this contravened the Delegatus non potest delegare rule.
[5] The respondent submits that the senior immigration officer had jurisdiction to make the deportation order, that the applicant had an opportunity to claim refugee status, that the examination process is an administrative one which does not require counsel to be present and that the appointment of the senior immigration officer and the Immigration Act as amended are valid and constitutional. The respondent"s arguments are discussed in greater detail in the following analysis.
ISSUE
[6] Despite all the applicant"s arguments, the only point of importance at issue in this Court is whether the senior immigration officer made an error of fact or law or acted without jurisdiction or contrary to the rules of natural justice or procedural fairness so as to justify intervention by this Court.
ANALYSIS
[7] In his written submissions, as appears from his original memorandum and his supplementary memorandum and the submissions made at the hearing, the applicant alleges that the deportation order made by the senior immigration officer, the appointment of the senior immigration officer, legislation adopted in Canada since 1985, including the Immigration Act as amended, the formation of the House of Commons and the powers of the Deputy Governor General and the judges of the Supreme Court of Canada are invalid or unconstitutional.
[8] The respondent submits that some certain of his arguments are prima facie misplaced or irrelevant to the resolution of this judicial review. It is therefore unnecessary for the purposes of the case at bar to deal with all the points raised by the applicant in detail.
Validity of deportation order
[9] The applicant contends that the deportation order of January 16, 1997 is ultra vires for the following reasons:
[TRANSLATION]
| (a) the order was made contrary to s. 23(4) of the Act since no report had been made on the applicant as required by s. 20 of the Act; |
| (b) the order was made contrary to s. 28 of the Act since the applicant did not have an opportunity to claim refugee status before the order was made; |
| (c) the order was made contrary to natural justice and s. 2(d) of the Canadian Bill of Rights, since the applicant did not have access to the services of a lawyer before the order was made; |
| (d) the order was made contrary to s. 23(4)(b), which provides that an order may not be made against a person belonging to another inadmissible class. Counsel for the applicant maintains that the applicant was in possession of forged documents and appeared under the name of a person, and belonged to the class of persons who are inadmissible under ss. 19(1)(c.1)(ii) or 27(2)(g) of the Act. Additionally, in order to apply the Act, the officer should have ordered that an investigation be conducted to determine whether the applicant was an inadmissible person within the meaning of the Act. |
Report mentioned in s. 20(1)(a) of the Act
[10] The applicant argues that no written report was submitted to the senior immigration officer and that the deportation order was invalid as it was contrary to s. 23(4) of the Act. This argument is without merit. As appears from the respondent"s affidavits, Micheline Bélanger, an immigration officer, prepared the report mentioned in s. 20(1)(a ) of the Act on Kassongo Tunda (alias Kizuzi Dibayula), Exhibit E attached to her affidavit, and Claude Yelle, senior immigration officer, stated that he had read the report prepared by Ms. Bélanger and the applicant"s entire file before making the deportation order mentioned in s. 23(4) of the Act.
Refugee status claim
[11] The applicant alleges that he did not have an opportunity to claim refugee status before the deportation order was made and that this contravened s. 28 of the Act. This argument is without merit. As appears from the affidavits of Ms. Bélanger and Claude Yelle, the applicant had more than one opportunity to claim refugee status and preferred to maintain his false identity and the fact that he had never had problems in Zaire.
Access to the services of a lawyer
[12] The applicant argues that he was entitled to the services of a lawyer before the deportation order was made by the senior immigration officer and that this contravenes the rules of natural justice and the Canadian Bill of Rights.
[13] In this regard the respondent submits that the examination was part of an administrative process which enables immigrants to establish their right to enter Canada in accordance with ss. 8, 12(4) and 23(4.1) of the Act, and that this process is not coercive. Consequently, the senior immigration officer did not have to tell the applicant that he was entitled to the assistance of counsel. The examination did not have the consequence of affecting such a right: the only right which might be affected is the right to enter Canada. The respondent relied on Dehghani v. M.E.I., [1993] 1 S.C.R. 1053, for the proposition that the rules of natural justice do not require a person to be informed of the right to the assistance of counsel during examination by a senior immigration officer. Alternatively, the respondent further submits that if the examination is contrary to the Bill of Rights it was a reasonable departure and it was for the applicant to show that there had been an infringement of a protected right and the infringement was not reasonable: R. v. Cornell, [1988] 1 S.C.R. 461, and R. v. Hufsky, [1988] 1 S.C.R. 621.
[14] In Dehghani, supra, the Supreme Court of Canada considered inter alia the question of whether s. 10(d) of the Canadian Charter of Rights and Freedoms and the rules of natural justice require that an immigrant who is subjected to an examination by an immigration officer be informed of the right to obtain the services of counsel. Mr. Dehghani had arrived in Canada without valid identity papers or documents and claimed refugee status. He was initially examined and was referred to a second examination. At the close of the second examination he was informed of his right to counsel to help him make his refugee claim. Following an inquiry the Immigration and Refugee Board concluded that his claim was without basis and made an exclusion order. The Supreme Court concluded that routine examinations to gather routine information do not require a person to be informed of his right to counsel. The right to counsel does not apply beyond situations of arrest or detention.
[15] In the case at bar, the applicant, like any immigrant arriving at a port of entry to Canada, was examined on arrival to obtain routine information. It was a routine examination which was part of the administrative process of the Immigration Act, which first enables immigration officers to ensure compliance with the Act and related regulations, and second enables persons appearing at a port of entry to prove in accordance with s. 8 that they have a right to enter Canada. Although they are required to answer the questions honestly and to produce all the documents requested by the immigration officer, it is not a coercive measure. The person is not detained. In my opinion, this argument by the applicant should be dismissed.
Inadmissible person under s. 23(4)
[16] The applicant also argues that the senior immigration officer exceeded his jurisdiction by making a deportation order under s. 23(4), since the applicant was part of another class of inadmissible persons, in particular 19(1)(c.1)(ii) and 27(2)(g), and in light of the facts of the case he should have ordered an inquiry.
[17] As the respondent notes, this argument is without merit since to begin with s. 27(2)(g) applies only to person who have already been admitted to Canada, which is not the case with the applicant who appeared under a false identity and with a forged passport. Secondly, the decision of the officer that the applicant fell within ss. 23(4) and 19(2)(d) and did not belong to another inadmissible class was not unreasonable. Further, if the immigration officer had been of the opinion that the applicant belonged to an inadmissible class and an inquiry had confirmed such inadmissibility, the adjudicator would have had no choice but to issue a deportation order.
Notice of constitutional questions
[18] Counsel for the plaintiff filed a notice of constitutional questions in the record of the Court on June 15, 1998. In his supplementary memorandum filed on September 2, 1998, the questions raised in the said notice were summarized as follows:
[TRANSLATION]
| The plaintiff challenges the power conferred by s. 23(4) of the Immigration Act because that section derives from chapter 15 of the 1995 Canada Statutes and because the said statutes cannot be in effect since: |
| it received the assent of Sopinka J., who could not hold the power of assent at that time; |
| because when chapter 15 of the 1995 Canada Statutes was adopted the House of Commons was formed in an unconstitutional manner, as it was constituted on the principles of representation derived from the Constitution Act, 1985 and the accompanying Representation Act; |
| The plaintiff maintains that the Constitution Act, 1985 and the representation resulting from it in the provinces was and is unconstitutional since: |
| This legislation received the assent of Dickson C.J., notwithstanding the provisions of s. 55 of the Constitution Act, 1867; |
| Parliament as composed on December 18, 1985 could not by itself amend the provisions made by the Constitution Act, 1982, even before those provisions were made, in particular in light of s. 51 of the Constitution Act, 1867; |
| Changes in the number of Members of Parliament or representation in Parliament could not be made without taking into account the special requirements laid down in the Newfoundland Act (1949); |
| The plaintiff further maintains that the appointment of Claude Yelle in March 1993, or his subsequent appointment on July 23, 1996 by document I-17, is not valid since at that time the Minister of Immigration represented a riding which was not duly constituted. |
[19] I had an opportunity to review the memorandums of the parties before the hearing. I should say at once that in the circumstances of the case at bar I do not intend to undertake an exhaustive and complete analysis of the adoption of the various constitutional statutes which have amended the Constitution Act, 1867 regarding the representation of the provinces in the Canadian Parliament, and in particular in the House of Commons.
[20] For the purposes of the case at bar I will limit myself to analysing the constitutional validity of Chapter 15 of the 1995 Canada Statutes, which amended s. 23(4) of the Immigration Act, and of the 1985 Representation Act, known as the Constitution Act, 1985, as it was raised by counsel for the plaintiff in the notice of constitutional questions made pursuant to s. 57 of the Federal Court Act.
[21] With regard to the third question raised in the plaintiff"s memorandum, I note that in his notice of constitutional questions the plaintiff challenged the power of the Minister of Justice to appoint François Laberge as a senior immigration officer, first because no power to appoint by ministerial order was mentioned in the Immigration Act , and second, because the Minister of Immigration represented a riding that was not duly constituted.
1985 Representation Act (Constitution Act, 1985)
[22] McEachern C.J., then Chief Justice of the British Columbia Supreme Court, dealt with the constitutional validity of this statute in Campbell v. Canada (Attorney General), [1988] 2 W.W.R. 650. Essentially, this legislation amends s. 51(1) of the Constitution Act, 1867 and provides a new method of determining the number of representatives of each province in the House of Commons.
[23] In his analysis, McEachern C.J. reviewed the changes made to representation of the provinces in the Canadian Parliament:
| Brief electoral history |
| [para4] Prior to Confederation, the Union Act, 1840 (U.K.) created the province of Canada with equal representation in a legislative assembly for what is now Ontario and Quebec. By the 1850's it became apparent that Ontario had a greater population than Quebec and a movement for representation by population began with George Brown as its leading proponent. The census of 1861 showed that Quebec members represented an average population of 17,000 while Ontario members represented more than 21,000: The Life and Times of Confederation 1864-1867 (1962), P.B. Watts, University of Toronto Press. |
| [para5] The electoral bargain that was struck at Confederation was simply that the principle of representation by population would control the distribution of seats in the House of Commons and that each of the three great regions would have equal representation in the Senate. |
| [para6] Thus the British North America Act, 1867 provided: |
| (a) that there would be a census every ten years commencing in 1871 (s. 8); |
| (b) that until Parliament otherwise provided, Quebec would continue to have the 65 seats it had in the former legislature, and that the other provinces of Ontario, Nova Scotia and New Brunswick would have a proportionate number of seats relative to Quebec. This gave Ontario 82 seats, Nova Scotia 19 seats and New Brunswick 15 seats (s. 40); |
| (c) upon the completion of the 1871 census "the Representation of the Four Provinces shall be readjusted . . . as the Parliament of Canada from Time to Time provides" in accordance with specified rules which required Quebec to continue with 65 seats and the other provinces to have a number of members "as will bear the same Proportion to the Number of its Population . . . as the Number sixty-five bears to the Number of the Population of Quebec" (s.51SUB-SUBSECTION1); |
| (d) that no readjustment would reduce the number of members for any province unless and until its relative population decreased by 5 per cent (s. 51SUB-SUBSECTION4). |
| (e) Section 52 provided, and still provides: |
| 52. The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed. |
| [para7] It is significant that proportionate representation "prescribed" by the British North America Act, 1867 at the time of its passing contemplated imperfect representation by population under (d) above. |
| (f) each of the three great regions would have 24 senators, that is to say, 24 for each of Ontario and Quebec and 12 each for Nova Scotia and New Brunswick. Four of the Maritime Senate positions went to Prince Edward Island when that province joined Confederation in 1873. When the west joined Confederation it also received 24 senators which are distributed equally between the four western provinces. |
| [para8] The British North America Act, 1886 authorized the Parliament of Canada to provide for representation in the Senate and the House of Commons of any territories not included in any province. In those days, of course, the territories included what is now Saskatchewan and Alberta and that continued until those provinces joined the Canadian Confederation. After that, from 1907 to 1952, the present Yukon and Northwest Territories were represented by one member which was increased to two members in 1952 and to three in 1976. So far as I can ascertain, representation for the territories has never been based strictly upon population. |
| [para9] After Confederation the population of some provinces declined in relation to the total population of Canada and it was foreseen that, eventually, some provinces such as Prince Edward Island might become entitled to only one member or perhaps no member at all. This was the subject of special cases referred by the Governor General in Council to the Supreme Court of Canada where that court decided (1903), 33 S.C.R. 475 and 33 S.C.R. 594, affirmed, that representation must be calculated strictly in accordance with the formula established by the B.N.A. Act even if that meant a loss or elimination of seats in a province. |
| [para10] In the best Canadian tradition, a political compromise was approved by an amendment to the Constitution called the Senatorial or Senate Floor Rule which was enacted in 1915 adding s. 51A to the British North America Act, 1867 (now s. 41(b)). Section 51A was in the following terms: |
| 51A. Notwithstanding anything in this Act, a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province. |
| [para11] By this single expedient each province was guaranteed at least as many members in the House of Commons as the number of senators representing that province. This, of course, did some violence to strict representation by population but Mr. Berger does not complain about that because s. 51A was validly enacted as a constitutional amendment by the Imperial Parliament. In practical terms it ensured Prince Edward Island four and each of New Brunswick and Nova Scotia ten seats although the population of Nova Scotia has always entitled it to representation at least equal to its Senate Floor of ten. |
| [para12] By the British North America Act, 1946, s. 51 was further amended by the Imperial Parliament at the request of the Canadian Parliament to provide a new formula for the distribution of seats. This formula was based upon proportional representation subject to the Senatorial Rule and the assignment of the traditional one seat to the territories. |
| [para13] The Constitution was further amended in 1949 by the British North America Act (No. 2) which added s. 91 Class (1) to the Constitution. This is a 14-line sentence which is much too long to quote. It authorized Parliament unilaterally to amend the Constitution of Canada except in relation to certain matters including those classes of subjects assigned exclusively to the provinces, and certain other matters. |
| [para14] In Ref. re Legislative Authority of Parliament to Alter or Replace Senate, (1979), 102 D.L.R. (3d) 1, the Supreme Court of Canada said at p. 8: |
| The apparent intention of the 1949 amendment to the Act which enacted s. 91(1) was to obviate the necessity for the enactment of a statute of the British Parliament to effect amendments to the Act which theretofore had been obtained through a joint resolution of both Houses of Parliament and without provincial consent. Legislation enacted since 1949 pursuant to s. 91(1) has not, to quote the White Paper, "affected federal-provincial relationships". |
| [para15] Between 1949 and 1982 Parliament unilaterally amended federal election laws: in 1952, the 15 per cent rule, in 1974 the amalgam rule, and in 1975, two seats for the Northwest Territories and two senators for the territories. The Supreme Court of Canada in the Senate Reference supra, described these and other provisions as "housekeeping" matters which, prior to 1949, could have been referred to the Imperial Parliament by the Parliament of Canada without the consent of the provinces. |
| [para16] The 1952 amendment (B.N.A. Act, 1952 - the "15 per cent rule") provided inter alia that, upon any readjustment, the number of members for any province should not be reduced by more than 15 per cent below the representation to which each province was entitled at the last preceding readjustment. |
| [para17] The 1974 amendment (B.N.A. Act, 1974 - the "amalgam rule") replaced the 15 per cent rule with a complicated formula. Briefly it increased Quebec's allotment to 75 seats, it provided for staged increases in Quebec's representation, it created three classes of provinces (large, intermediate and small), only large provinces were allocated seats in strict proportion to Quebec, separate rules applied to intermediate and small provinces and there was a form of grandfather clause which ensured existing floor levels of representation for each province. |
| [para18] These 1952 and 1974 amendments retained the Senatorial Rule and affected perfect representation by population by ameliorating any requirement for mathematical strictness. |
| [para19] In 1981 there was a decennial census which indicated that proportionate representation required either a substantial increase in the number of seats in the House of Commons or some provinces must lose some seats. Under the amalgam rule there would be 310 members in the 34th Parliament and up to 369 seats were projected after the 2001 census. |
| [para20] In the great constitutional renewal of 1982 a number of relevant changes took place. Of particular significance in this context are ss. 38(1), 41(b), 42(1)(a) and 44. They provide as follows: |
| 38.(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by |
| (a) resolutions of the Senate and House of Commons; and |
| (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. |
| 41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province: |
| (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; |
| 42.(1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1): |
| (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada. |
| 44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. [The italics are mine.] |
| [para21] After this constitutional renewal and the general election of 1984, it became necessary for Parliament to consider how to give effect to the 1981 census having regard to the constitutional amendments just quoted. |
| [para22] After a White Paper tabled 11th June 1985 and consideration by the Standing Committee on Privileges and Elections, where witnesses were called, the government introduced Bill C-74, entitled "An Act to Amend the Constitution Act, 1867 and the Electoral Boundaries Readjustment Act", which includes the impugned Representation Act, 1985 and which proposed amendment of the Constitution by providing that the allocation of seats to the provinces would be governed by relative population except that no province would have fewer seats (including seats gained under the Senatorial Rule) than were previously assigned to it in the present 33rd Parliament. This provision was in the following terms: |
| 51.(1) The number of members of the House of Commons and the representation of the provinces therein shall, on the coming into force of this subsection and thereafter on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules: |
| 1. There shall be assigned to each of the provinces a number of members equal to the number obtained by dividing the total population of the provinces by two hundred and seventy-nine and by dividing the population of each province by the quotient so obtained, counting any remainder in excess of 0.50 as one after the said process of division. |
| 2. If the total number of members that would be assigned to a province by the application of rule 1 is less than the total number assigned to that province on the date of coming into force of this subsection, there shall be added to the number of members so assigned such number of members as will result in the province having the same number of members as were assigned on that date. |
| [para23] The use of 279 seats in R. 1 is the total number of the members in the 33rd Parliament (282) less three seats assigned to the territories. |
| [para24] While I cannot use the debates in Parliament as an aid in determining the vires of the impugned legislation, they are useful and instructive in understanding the legislative underpinning of the bill. |
| [para25] In moving 3rd Reading of the bill, Mr. Hnatyshyn, then President of the Privy Council, said on 1st October 1985: |
| The new method of redistributing seats throughout Canada is fair because it ensures that the proportion of seats and proportion of population of each province does not significantly deviate from the present situation. This means that the relative imbalances which exist today and have long been accepted as necessary compromises on the principle of absolute representation by population will remain . . . |
| Accordingly, it attempts to accomplish three basic objectives. First, it limits increases in membership in the House of Commons to levels as moderate as are fair and practical. Second, it ensures that no province or Territory will lose seats in the House of Commons through redistribution. Third, it enables provinces with growing populations to get additional seats but in a way that reflects the need to maintain the House of Commons at something close to its present size. |
| [para26] Many honourable members spoke on the bill. Mr. Boudria M.P. specifically mentioned s. 42(1)(a) of the Constitution, but most attention was given to the following matters in no particular order of importance: |
| (a) representation by population and adjustments; |
| (b) the size of the House of Commons; |
| (c) the cost of increased membership in the House; |
| (d) the varying geographic sizes of constituencies; |
| (e) the varying differences in population in constituencies; and |
| (f) regional representation. |
| [para27] Many members pointed out the difficulties of representing large geographic areas. Mr. Manly M.P. and Mr. Tobin M.P. spoke eloquently about the difficulties of representing constituencies such as Skeena in British Columbia and Humber-Port au Port-St. Barbe in Newfoundland. It was pointed out that Skeena is an area twice the combined size of Nova Scotia, New Brunswick and Prince Edward Island while Labrador has a land mass which exceeds the size of the three older Maritime provinces but does not have its own member. Mr. Penner M.P., on the other hand, urged better regional representation, particularly for Northern Ontario and similar views were expressed by other members about other regions. |
| [para28] It is apparent from reading the debates that all considerations mentioned by the honourable members cannot be accommodated within any arrangement that recognizes strict proportionate representation. Some speakers conceded that strict proportionate representation is unattainable. Mr. Penner M.P., on 17th December 1985, said: |
| With the vast geography of Canada and being a federal state, it is obvious and clear to every Member of Parliament who thinks about it that we cannot have representation by population. There will always be a pull between urban and rural representation, between the settled areas of Canada and those areas on the developing frontier.That pull will always be there between the two and in a federal state neither can be ignored. Therefore, strict adherence to representation by population makes no sense at all. |
| For example, I have never heard anyone argue that there should not be a Member of Parliament for Yukon. Yukon has only 20,000 people. No one has argued that the Yukon should not have its representative in the House of Commons. The Northwest Territories has double the population, about 44,000 [sic - should be 50,000], and it has two Members of Parliament. I have never heard anyone argue that the Northwest Territories ought not to be represented by two MPs. . . |
| Of course, Prince Edward Island has four seats. It has the same population as the City of Thunder Bay, just over 100,000 people. That was part of the bargain of Prince Edward Island when it came into Confederation. Although from time to time there may be grumblings about the fact that a constituency in Prince Edward Island only has 37 per cent of the population that one would find in a constituency in Ontario or Quebec, generally it is well accepted. We want Prince Edward Island to be an active member of Confederation as it is, and we do not argue it should not be well represented in the House of Commons. |
| [para29] Bill C-74 was vigorously debated and was passed on a division of the House and received Royal Assent on 4th March 1986. |
| [para30] The Representation Act, 1985 produces a House of Commons of 295 members, an increase of 13. Representation is by population adjusted by a combination of the Senatorial Rule and by assigning extra seats as required so that each province will have not less than the number of seats previously assigned to it. These two adjustments are called the senatorial and the new grandfather clauses. |
| [para31] The Chief Electoral Officer of Canada has calculated the allocation of seats pursuant to s. 51(1) as set forth in a schedule prepared by the Chief Electoral Officer, a copy of which is Sched. A to these reasons. |
| [para32] Thus it will be seen that Ontario, Alberta and British Columbia gain four, five and four seats respectively, while all other provinces and territories retain the same representation under the 1985 redistribution based upon the 1981 census, but the provinces where populations are increasing will have larger electoral quotients than provinces whose population has declined, particularly those to whom seats are assigned under either of the two adjustment rules. This is illustrated by noting that although the quotient for all the provinces in an unadjusted calculation will be 87,005, the British Columbia electoral quotient is 85,765 while other provinces have reduced quotients such as: |
| Nova Scotia 77,040 |
| New Brunswick 69,640 |
| Manitoba 73,303 |
| Prince Edward Island 30,627 |
| Saskatchewan 69,165 |
| [para33] Of the provinces which gained seats by adjustment, I understand Prince Edward Island and New Brunswick gained three and two seats under the senatorial adjustment while Quebec, Nova Scotia, Manitoba and Saskatchewan gained one, one, two and three seats under the new grandfather clause. |
| [para34] To continue the narrative, Parliament by the Representation Act, 1985 also provided for the amendment of the Electoral Boundaries Readjustment Act, R.S.C. 1970, c. E-2 [s. 13(1)(a)], which directs the division of the provinces into electoral districts by commissioners on the basis that the population of each district shall, as close as reasonably possible, correspond to the electoral quotient for the province: |
| (a) . . . that is to say, the quotient obtained by dividing the population of the province as ascertained by the census by the number of members of the House of Commons to be assigned to the province as calculated by the Chief Electoral Officer. . . |
| [para35] Thus the Chief Electoral Officer determined that the number of members for British Columbia was 32, and the quotient for British Columbia was therefore 85,765. It fell to the commissioners to divide the province appropriately. It was during this latter function that the riding of Vancouver-Kingsway was eliminated. |
[24] The British Columbia Court of Appeal, dismissing the appeal by a four-to-one majority, added:
| Thus, the proportionate representation demanded by the Constitution in 1867 was not pure, representation by population. If it had been, then there would not have been any need to limit the words "proportionate representation" in s. 52 by the words "prescribed by this Act". From the start, the principle was modified representation by population, a principle necessary to protect provinces with declining populations. In 1867 the five per cent rule was the means by which it was sought to achieve that constitutional objective. The changes in 1915 (the senatorial clause), in 1952, in 1974 (the grandfather clauses), and in 1985 were, in my opinion, all applications of the same principle. |
| Accordingly, I do not agree with the appellants' submission that the grandfather clauses are exceptions to the principle. |
IV
| The next question is what is the purpose of s. 42(1)(a) of the Constitution Act 1982? It is clear from the language of the subsection that it was not intended to enshrine presentation by population. The purpose was to preserve a principle which then, and since 1867, had been recognized. |
| I agree with Chief Justice McEachern that s. 42(1)(a) seeks to preserve a principle, but not the strict numbers of members by which a province is entitled to be represented in the House of Commons. The point is made by comparing the language of s. 42(1)(a) and s. 42(1)(c). The latter subsection requires a s. 38(1) amendment if "the number of members by which a province is entitled to be represented in the Senate" is changed. Such an amendment is not required to change the numbers of members in the House of Commons. |
V
| The thrust of the appellant's submission is that the principle of representation by population is disturbed by application of the "1985 grandfather clause". The argument focuses on numbers, and emphasizes the gains made by provinces with declining populations. But the strict application of the principle of representation by population would be inconsistent with the principle of modified proportionate representation which has been part of our constitutional framework since 1867, and which was preserved in 1982. The whole purpose of the principle is to make appropriate adjustments to protect the representation of the lesser populated provinces. I think that is what the redistribution legislation achieves. |
VI
| In my opinion, the principle preserved by s. 42(1)(a) of the Constitution Act, 1982 is not offended or disturbed so long as Parliament observes the modified form of proportionate representation recognized in Canada in 1982. If the principle is to be observed, then the purpose of the legislation must be to achieve the type of proportionate representation which will protect provinces with declining populations. In my opinion, the Constitution Act, 1985 (Representation) fulfils that purpose by incorporating a "grandfather clause" which provides similar protection to the provinces as afforded by the 1974 clause, which was in being and was not discarded during the constitutional renewal of 1982. |
[25] In view of the analysis made by the British Columbia Court of Appeal and Supreme Court, and the fact that the Supreme Court of Canada denied leave to appeal, I conclude as they did that the Constitution Act, 1985 is entirely valid and that, this being the case, the Canadian Parliament, and in particular the House of Commons, is validly constituted.
[26] Although the case at bar refers to a question involving British Columbia, it applies in the same way to the argument made in connection with the province of Quebec.
[27] I accordingly conclude that the appointment of the immigration officer was entirely valid and the exercise of the powers conferred on him by the Immigration Act was also valid.
Deputy Governor General
[28] The plaintiff twice challenged the validity of the appointment of two judges of the Supreme Court of Canada as Deputy Governors General, and hence the validity of the legislation to which they gave royal assent.
[29] In the first case, he challenged the validity of the assent given by the late Sopinka J., then a judge of the Supreme Court of Canada, for the adoption of Chapter 15 of the 1995 Canada Statutes. In the second case, he challenged the validity of the assent given by the late Rt. Hon. Brian Dickson, then Chief Justice of the Supreme Court of Canada, for adoption of the Constitution Act, 1985.
[30] The plaintiff submits that the appointment of judges of the Supreme Court of Canada as Deputy Governors General is contrary to s. 55 of the Judges Act, indicating that judges should devote themselves exclusively to their judicial duties. Further, he submits that this type of appointment is also contrary to the rule of judicial independence. In this connection, he notes s. 99 of the Constitution Act, 1867, which states that it is the duty of the Governor General of Canada on an address of the Senate and the House of Commons to divest judges of the superior courts of their judicial duties.
[31] On the appointment of judges of the Supreme Court of Canada as Deputy Governors General, the plaintiff submits that, in view of Part VIII of the Letters Patent creating the Office of Governor General of Canada ("the 1947 Letters Patent"), the instructions contained in the said Letters do not permit more than one judge of the Supreme Court of Canada to be authorized, at the same time or in the same period of time, to perform administrative acts of the government, to say nothing of the fact that such appointments would be subject to a capacity to act as the Chief Justice of the Supreme Court of Canada.
[32] The plaintiff further submits that no indication is given in the record as to the oath to be taken by judges of the Supreme Court of Canada in respect of the office of Deputy Governor General, and in any case the oath which the latter take when they are sworn in as judges will not suffice since it is quite different from that taken by the Governor General of Canada.
[33] On the delegation of power by the Governor General of Canada, the plaintiff submits that the latter is not authorized to delegate responsibility for giving royal assent to one of his or her deputies.
[34] The relevant provisions raised by the parties are the following:
Section 14 of the Constitution Act, 1867:
| 14. Il sera loisible à la Reine, si Sa Majesté le juge à propos, d'autoriser le gouverneur-général à nommer, de temps à autre, une ou plusieurs personnes, conjointement ou séparément, pour agir comme son ou ses députés dans aucune partie ou parties du Canada, pour, en cette capacité, exercer, durant le plaisir du gouverneur-général, les pouvoirs, attributions et fonctions du gouverneur-général, que le gouverneur-général jugera à propos ou nécessaire de lui ou leur assigner, sujet aux restrictions ou instructions formulées ou communiquées par la Reine; mais la nomination de tel député ou députés ne pourra empêcher le gouverneur-général lui-même d'exercer les pouvoirs, attributions ou fonctions qui lui sont conférées. |
14. It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function. |
Section 55 of the Constitution Act, 1867:
| 55. Lorsqu'un bill voté par les chambres du parlement sera présenté au gouverneur-général pour la sanction de la Reine, le gouverneur-général devra déclarer à sa discrétion, mais sujet aux dispositions de la présente loi et aux instructions de Sa Majesté, ou qu'il le sanctionne au nom de la Reine, ou qu'il refuse cette sanction, ou qu'il réserve le bill pour la signification du bon plaisir de la Reine. |
55. Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure. |
Part VII of the 1947 Letters Patent:
Et considérant que, par les Lois constitutionnelles de 1867 à 1940, il est prévu, entre autres choses, qu"il Nous sera loisible, si Nous le jugeons à propos, d"autoriser Notre gouverneur général à nommer une ou plusieurs personnes, conjointement ou séparément, pour agir comme son ou ses suppléants dans quelque partie ou toutes les parties du Canada, et exercer, en cette qualité, durant le plaisir de Notre gouverneur général, les pouvoirs, attributions et fonctions de Notre gouverneur général que celui-ci jugera nécessaire ou opportun d"assigner à ce ou ces suppléants, sous réserve de toutes restrictions ou instructions formulées ou communiquées, au besoin, par Nous: à ces causes, Nous autorisons par les présentes Notre gouverneur général, sous réserve des restrictions et instructions susmentionnées, à nommer une ou plusieurs personnes, conjointement ou séparément, pour agir comme son ou ses suppléants, dans quelque partie ou toutes parties du Canada et exercer en cette qualité, durant son plaisir, les pouvoirs, attributions et fonctions de Notre gouverneur général que celui-ci jugera nécessaire ou opportun d"assigner à ce ou ces suppléants. Toutefois, la nomination de ce ou ces suppléants ne doit pas porter atteinte à l"exercice de l"un quelconque de ces pouvoirs, attributions ou fonctions par Notre gouverneur général en personne.
And whereas by the Constitution Acts, 1867 to 1940, it is amongst other things enacted that it shall be lawful for Us, if We think fit, to authorize Our Governor General to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise, during the pleasure of Our Governor General, such of the powers, authorities, and functions of Our Governor General as he may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time expressed or given by Us: Now We do hereby authorize and empower Our Govenor General, subject to such limitations and directions, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise, during his pleasure, such of his powers, functions, and authorities as he may deem it necessary or expedient to assign to him or them: Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority or function by Our Governor General in person.
Part VIII of the 1947 Letters Patent:
| Et Nous déclarons, par les présentes, qu"il Nous plaît que, en cas de décès, incapacité, renvoi ou absence de Notre gouverneur général hors du Canada, tous et chacun des pouvoirs et attributions qui lui sont ici accordés doivent, jusqu"à ce que Notre nouveau plaisir y soit signifié, être dévolus à Notre juge en chef du Canada à l"époque considérée (ci-après désigné comme Notre juge en chef), ou, en cas de décès, d"incapacité, de renvoi ou absence hors du Canada, de Notre juge en chef, ensuite au juge alors le plus ancien de la Cour suprême du Canada, résidant à l"époque au Canada et n"étant pas frappé d"incapacité. Ledit juge en chef ou le juge le plus ancien de la Cour suprême du Canada, tant qu"il sera investi desdits pouvoirs et attributions, sera appelé Note administrateur. Toutefois, ce juge le plus ancien ne doit agir dans l"administration du Gouvernement que si Notre dit juge en chef ne se trouve pas au Canada et n"est pas capable d"administrer le Gouvernement. Cependant, aucun de ces pouvoirs ou attributions ne devra être dévolu audit juge en chef ou autre juge de la Cour suprême du Canada tant qu"il n"aura pas prêté les serments destinés à être prêtés par Notre gouverneur général. En outre, chaque fois et aussi souvent que Notre gouverneur général s"absentera temporairement du Canada, avec Notre permission, pour une période n"excédant pas un mois, Notre gouverneur général pourra alors et dans chacun de ces cas continuer à exercer tous et chacun des pouvoirs à lui dévolus aussi complètement que s"il résidait au Canada, y compris le pouvoir de nommer un ou des suppléants ainsi qu"il est prévu à l"Article VII de Nos présentes lettres patentes. |
| And We do hereby declare our pleasure to be that, in the event of the death, incapacity, removal, or absence of Our Governor General out of Canada, all and every the power and authorities herein granted to him shall, until Our further pleasure is signified therein, be vested in Our Chief Justice for the time being of Canada, (hereinafter called Our Chief Justice) or, in the case of the death, incapacity, removal or absence out of Canada of Our Chief Justice, then in the Senior Judge for the time being of the Supreme Court of Canada, then residing in Canada and not being under incapacity; such Chief Justice or Senior Judge of the Supreme Court of Canada, while the said powers and authorities are vested in him, to be known as Our Administrator. Provided always, that the said Senior Judge shall act in the administration of the Government only if and when Our Chief Justice shall not be present within Canada and capable of administering the Government. Provided further that no such powers or authorities shall vest in such Chief Justice, or other judge of the Supreme Court of Canada, until he shall have taken the Oaths appointed to be taken by Our Governor General. Provided further that whenever and so often as Our Governor General shall be temporarily absent from Canada, with Our permission, for a period not exceeding one month, then and in every such case Our Governor General may continue to exercice all and every the powers vested in him as fully as if he were residing within Canada, including the power to appoint a Deputy or Deputies as provided in the Seventh Clause of these Our Letters Patent. |
[35] I conclude from a careful reading of the preceding legislation, and in particular Part VII of the 1947 Letters Patent, that the Governor General of Canada is authorized to appoint one or more judges of the Supreme Court of Canada as Deputy Governors General, so that the latter should have the capacity to exercise such of the powers, authorities and functions of the Governor General as he may deem necessary or expedient to assign to them.
[36] Even read in conjunction with Part VIII of the 1947 Letters Patent, nothing in the wording of Part VII of the said 1947 Letters Patent authorizes the Court to conclude that any limitation exists on the appointment of judges of the Supreme Court of Canada as Deputy Governors General, as submitted by the plaintiff. The wording of each of these Parts makes it clear that they were designed for entirely different reasons and needs and that Part VIII of the 1947 Letters Patent is not a limitation on Part VII of the said letters.
[37] In view of this legislation, I also find nothing to prevent the Governor General of Canada delegating to one of his or her deputies the power of royal assent conferred on him by s. 55 of the Constitution Act, 1867.
[38] I also find that none of this legislation requires that any particular oath be taken by the person appointed Deputy Attorney General.
[39] Additionally, as noted by the defendant, the plaintiff"s argument that the appointment of a judge of the Supreme Court of Canada as Deputy Attorney General is contrary to s. 55 of the Judges Act is of no relevance, for the reason that s. 57 of the same Act expressly envisages the possibility of a judge holding the said office of Deputy Attorney General.
[40] Section 57 of the Judges Act reads as follows:
| 57. (1) Sauf cas prévu au paragraphe (3), ne donne lieu à aucune rémunération ou indemnité l'exercice par un juge des fonctions " soit visées au paragraphe 56(1), soit en qualité d'administrateur du Canada ou de suppléant du gouverneur général, soit ressortissant au pouvoir judiciaire ou exécutif " qu'il est tenu de remplir pour le gouvernement du Canada ou d'une province ou en leur nom. (2) Le paragraphe (1) n'a pas pour effet d'empêcher un juge de recevoir au titre de lois provinciales, pour des fonctions autres que celles visées au paragraphe 56(1), une rémunération qui ne saurait toutefois dépasser 3 000_$ par an au total. (3) Dans les cas visés au paragraphe (1), le juge peut toutefois être indemnisé de ses frais de transport et des frais de séjour et autres entraînés par l'accomplissement des fonctions hors de son lieu ordinaire de résidence à condition que l'indemnité soit versée par le gouvernement du Canada ou celui de la province, selon le cas; le montant et les modalités de versement de l'indemnité sont ceux qui sont par ailleurs attachés au poste du juge. |
| 57. (1) Except as provided in subsection (3), no judge shall accept any salary, fee, remuneration or other emolument or any expenses or allowances for acting in any capacity described in subsection 56(1) or as administrator or deputy of the Governor General or for performing any duty or service, whether judicial or executive, that the judge may be required to perform for or on behalf of the Government of Canada or the government of a province. (2) The right of a judge to receive remuneration under any Act of the legislature of a province, other than for acting in any capacity described in subsection 56(1), is not affected by subsection (1), but no judge is entitled to receive remuneration under any such Act or Acts in an aggregate amount exceeding_$3,000 per annum. (3) In the cases described in subsection (1), a judge may receive his moving or transportation expenses and the reasonable travel and other expenses incurred by him away from his ordinary place of residence while acting in any such capacity or in the performance of any such duty or service, in the same amount and under the same conditions as if the judge were performing a function or duty as such judge, if those expenses are paid in respect of any matter within the legislative authority of Parliament, by the Government of Canada, and in respect of any matter within the legislative authority of the legislature of a province, by the government of the province. |
[41] In any case, and after analysing the text on constitutional law, I also conclude that the plaintiff"s argument that the exercising of the office of Deputy Attorney General by a judge of the Supreme Court of Canada is a breach of the rules of judicial independence of the superior courts covered in ss. 99 and 100 of the Constitution Act, 1867 is without basis.
[42] When he acts as Deputy Attorney General, the judge of the Supreme Court of Canada in question does nothing which is likely to affect the rule of judicial independence. Further, like the Governor General of Canada, judges of the Supreme Court of Canada acting as Deputy Governors General are bound by a constitutional convention prohibiting them from refusing to give royal assent on their own initiative. This constitutional convention has also been restated many times.
[43] For all these reasons, I conclude that judges of the Supreme Court of Canada are authorized to act as Deputy Governors General.
[44] From the evidence submitted to the Court, I conclude that the royal assents given by the late Sopinka J. of the Supreme Court of Canada and by the late Rt. Hon. Brian Dickson, then Chief Justice of the Supreme Court of Canada, are entirely valid and as such are fully effective.
[45] Based also on the presumption that legislation is constitutional, I conclude that the plaintiff has not submitted evidence that the challenged legislation is unconstitutional.
Rule of law
[46] In Re Manitoba Language Rights, [1985] 1 S.C.R. 721, the Supreme Court of Canada had to determine the validity of Manitoba legislation adopted in English only since 1890. At that time it analysed the concept of the rule of law which is a basis for the Canadian Constitution and indicated:
Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life. "The rule of law in this sense implies [...] simply the existence of public order." (I. Jennings, The Law and the Constitution, 5th ed., 1959, at p. 43). As John Locke once said, "A government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society" (quoted by Lord Wilberforce in Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536 (H.L.) at p. 577). According to Wade and Phillips, Constitutional and Administrative Law (9th ed. 1977), at p. 89: ... the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the Western tradition is linked with basic democratic notions."
[...]
The de facto doctrine is defined by Judge Albert Constantineau in The De Facto Doctrine (1910), at pp. 3-4 as follows:
The de facto doctrine is a rule or principle of law which, in the first place, justifies th recognition of the authority of governments established and maintained by persons who have usurped the sovereign authority of the State, and assert themselves by force and arms against the lawful government; secondly, which recognizes the existence of, and protects from collateral attack, public or private bodies corporate, which, though irregularly or illegally organized, yet, under color of law, openly exercise the powers and functions of regularly created bodies; and, thirdly, which imparts validity to the official acts of persons who, under color of right or authority, hold office under the aforementioned governments or bodies, or exercise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage.
That the foundation of the principle is the more fundamental principle of the rule of law is clearly stated by Constantineau in the following passage (at pp. 5-6):
Again, the doctrine is necessary to maintain the supremacy of the law and to preserve Peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognize municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.
[47] Accordingly, in keeping with the rules underlying the Canadian Constitution, restated by the Supreme Court of Canada, I conclude that to avoid the creation of a legal vacuum it is impossible to declare the entire body of Canadian legislation invalid. Thus, the plaintiff"s argument that all Canadian legislation is unconstitutional because it was adopted by a Parliament which was itself unconstitutionally constituted is purely academic since in fact the said legislation will continue to be applied.
Responsibility of counsel
[48] As I have found that the legislation challenged by the plaintiff was constitutionally valid, I must unfortunately mention the conduct of counsel for the plaintiff.
[49] As appears from the record, Mr. Lebrun asked by motion that this Court order that the Rt. Hon. Antonio Lamer, Chief Justice of the Supreme Court of Canada, be called as a witness. As pointed out by Mr. Morneau, Federal Court prothonotary, such a motion is entirely tardy, wrongful and dilatory.
[50] As can be seen from the record, I also note the irrelevance of the constitutional question raised by Mr. Lebrun, regarding the constitutionality of the amendments made to the Constitution Act, 1867: he had in any case previously raised a similar constitutional question before Boilard J. of the Quebec Superior Court and the latter had dismissed it, but without discussing the point, and the said judgment was appealed to the Quebec Court of Appeal. Accordingly, in view of the fact that the question is now pending in the Quebec Court of Appeal we find it hard to understand why Mr. Lebrun should insist on again raising the point in this Court.
[51] Further, as I have noted, the fundamental constitutional question raised by Mr. Lebrun, namely the constitutional validity of the legislation amending the Constitution Act, 1867 regarding representation of the provinces in the House of Commons, had been dealt with by the British Columbia Supreme Court and Court of Appeal, quite apart from the fact that the Supreme Court of Canada refused to hear an appeal on this point. Additionally, I consider that the forum chosen by Mr. Lebrun for raising this point again, namely judicial review in an immigration case, is obviously unsuitable.
[52] At the close of the hearing I asked the parties to make their arguments on the question of costs. After hearing the comments of both counsel, I concluded that I would not award costs in the case at bar.
[53] If counsel for the plaintiff wishes to submit a question for certification he may do so by sending a copy of his question to counsel for the Minister within seven days of this judgment. Counsel for the Minister will have five days from receipt of the question to submit his comments as to whether the question should in his opinion be certified.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
June 11, 1999
Certified true translation
Bernard Olivier, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES AND COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-980-97
| STYLE OF CAUSE: KASSONGO TUNDA |
(ALIAS KIZUZI DIBAYULA) v. MCI
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MAY 17, 1999
REASONS FOR ORDER BY: TEITELBAUM J.
DATED: JUNE 11, 1999
APPEARANCES:
WILLIAM SLOAN FOR THE APPLICANT
MICHEL LEBRUN
JOCELYNE MURPHY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LEBRUN FOR THE APPLICANT
JOCELYNE MURPHY FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada