Date: 20011121
Docket: IMM-5964-00
Neutral citation: 2001 FCT 1275
BETWEEN:
ZHU, RUI RONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] In August 1999, the Applicant, a citizen of Fujin province, China, arrvied in Canadian waters aboard a discrepit fishing vessel, and she, together with 190 other people, was taken off the ship and into custody by RCMP and Immigration officials. All persons were subsequently transported by bus from Gold River, British Columbia to CFB Esquimalt where they were processed for immigration purposes over a four-day period.
[2] It is agreed in the present judicial review that, upon being taken into custody, the applicant was not free to go. Therefore, an important argument made by the Applicant before the CRDD was that she was under "arrest" or in "detention" within the meaning of those terms in s. 10 of the Charter, and further, her rights were violated while being held.
[3] The primary Charter argument before the CRDD related to the exact authority for the Applicant to be taken into and held in custody. I find that this determination is essential to the Charter analysis required to be conducted because, only upon such a determination being made, can it be decided whether s. 10 of the Charter applies.
[4] With respect to this critical analysis the CRDD found as follows:
... The panel asked counsel to direct them to any section of the Immigration Act that provided Immigration officials with the authority to take control of persons entering Canada not at a designated port of entry. Counsel identified section 27(2)(f) of the Act, which clearly delineates the authority of the Minister of Immigration officials to take control of persons entering Canada not at a port of entry for the purposes of establishing their admissibility into Canada or their eligibility to make representations on matters including determination to be a Convention Refugee.
...
Immigration officials had the right under section 27(2)(f) of the Immigration Act to take control of persons arriving at a point not designated a port of entry, or arriving in a manner that appeared to elude proper entry controls and review. The panel does not consider that it was either detention or an arrest or unreasonable behaviour for CIC officials, the Canadian Coast Guard, members of the Canadian military or the RCMP to assist in removing those who had entered Canada illegally to a designated port of entry.
...
The panel does not consider that section 103 would have applied. No reason for an arrest was warranted because no facts had been gathered about the claimant or the other persons on the boat. The claimant had merely arrived on the shores of Canada. Furthermore, when the panel recognizes the difficulties and considerable logistics, requiring in removing almost 200 persons from a remote part of the shoreline to a designated port of entry: cleaning, feeding and clothing those persons and settling them into accommodation in advance of interviews as to their admissibility into Canada. A delay of three days is not unreasonable. In this regard, Dehghani can be applied. The delay in that instance describes some several hours for one individual arriving at a port of entry.
[5] After careful examination of the words quoted during the course of the judicial review hearing, I find there is a fundamental error in the CRDD's reasoning. During the course of the hearing it was fairly admitted by counsel for the Respondent that the finding with respect to the applicability of s. 27(2)(f) of the Immigration Act is an error in law. Because this error is the start point of a proper Charter analysis, I am unable to discount it and, thus, find it is a critical erroneous finding.
ORDER
[6] Accordingly, I set aside the CRDD's decision and refer this matter to a differently constituted panel for redetermination.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
November 21, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5964-00
STYLE OF CAUSE: Rui Rong Zhu v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER OF THE COURT BY: Campbell J.
DATED: November 21, 2001
APPEARANCES:
Adrian D. Huzel FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia