Hyperdroitbase de données juridique hypertexte Moshos et al. v. Minister of Manpower and Immigration [1969] SCR 886

← Décisions

Moshos et al. v. Minister of Manpower and Immigration

[1969] SCR 886 Tribunal SCC Date de la décision 1969-06-26 Anglais

Décision Majority · Judgment of the Court

Table des matières

Majority

permitted to take employment in Canada". The appellant and her two children entered Canada as non-immigrants some four months after the husband had entered. She applied for permanent residence but never received any advice as to the disposition of her application.
At an inquiry held by a special inquiry officer following a report OF made by an immigration officer concerning her husband, the appellant was called as a witness. Before her evidence was given, the special inquiry officer read the provisions of s. 37(1) of the Immigration Act to her and told her that should a deportation order be issued against her husband, she and her two children could be included in that order. A deportation order was subsequently made against the husband, the appellant and the two children. The Immigration Appeal Board affirmed the deportation order. The appellant was granted leave to appeal to this Court.
Held: The appeal should be allowed and the deportation order, in so far as it relates to the wife and children, should be set aside.
The deportation order, as against the appellant and the two children, was not valid because of the failure of the special inquiry officer to

Judgment of the Court

MARTLAND J.:-This is an appeal, with leave of this Court, from a decision of the Immigration Appeal Board, which dismissed the appeal of the appellant, and of her two children, from a deportation order made by a Special Inquiry Officer, on December 6, 1968, which included them in the order made against the appellant's husband, John Moshos.
John Moshos, who was born in Greece on December 1, 1936, is a naturalized citizen of Australia, to which country he had emigrated when he was eighteen years old. He married the appellant in Australia in 1959. She was also born in Greece and is an Australian citizen. Their two infant children were born in Australia.
Early in 1966 he returned to Greece, his wife having preceded him, as her mother was not well. While in Greece he decided to travel to Canada. He completed an application for permanent admission to Canada, while he was in Greece, but says he did not receive a letter of refusal. He says that he was advised by an immigration officer, in R.C.S.
Athens, that, as a British subject and an Australian citizen, he could go to Canada as a tourist, and apply, in Canada, for permanent admission.
He entered Canada on November 22, 1967, as a nonimmigrant. He had about $1,500. He applied for permanent admission on January 2, 1968. His passport was endorsed "not permitted to take employment in Canada".
The appellant and the two children entered Canada on March 9, 1968, as non-immigrants. She applied on March 19 for permanent residence and was interviewed by the immigration authorities on April 19. She has never received any advice as to the disposition of this application. Her trade is that of a carpet weaver, at which she had worked for five or six years in Australia, except for the times she could not work because of her pregnancies.
The husband's finances were not sufficient to enable him to support his wife and children without earning an income. He says that he applied to the immigration authorities for permission to work on three occasions, but received no reply to his request. Finally, he had to take employment, without permission.
On August 13, 1968, an immigration officer made a report concerning the husband, pursuant to s. 23 of the Immigration Act, R.S.C. 1952, 325, and on December 6, 1968, an inquiry was held by a Special Inquiry Officer, as required by the Act as a result of that report.
The appellant was called as a witness by the Special Inquiry Officer. She was not present while her husband was testifying. After being sworn, and before her evidence was given, the following occurred:
COUR SUPRtME DU CANADA
Mrs. Moshos, subsection (1) of section 37 of the Immigration Act M O reads as follows:
"Where a deportation order is made against the head of the family, all dependent members of the family may be included in such order and deported under it".
BY: Counsel (who was Mr. Amourgis):
At this particular point I would like to make a submission to you Martland J.
sir that it not be interpreted by you or anyone else that I am appearing on behalf of this witness and I have come here only for the purpose of defending the rights of Mr. John Moshos so as an amicus curiae I would like to make the following submission that this particular lady might want to retain a lawyer to protect her rights in the event some of the facts used in this inquiry be used at a much later date against her. On her behalf I take the liberty of asking the protection of the Canada Evidence Act for all answers she might give in this inquiry that will tend to incriminate her or be used against her at any later proceedings. If this witness is brought on behalf of the Immigration Department, I, as counsel, to John Moshos reserve my right to cross examine her on the evidence she might give pertaining to my client's inquiry. Thank you.
BY: Special Inquiry Officer to Witness:
In view of this section of the Regulations, in the event a deportation order is issued against your husband it may be necessary on the basis of the evidence that we wish you to give now to include you and the children in such deportation order.
Q. Do you understand that?
A. Yes, of course.
Q. As your husband's counsel has pointed out, he is not prepared to act for you and you do have the right to be represented by counsel yourself. Do you wish to secure counsel?
A. Yes, Mr. Amourgis.
Q. Mr. Amourgis is not prepared to accept you as a client at this time?
A. Why, I have to get a lawyer.
Q. Do you wish to secure other counsel before giving evidence? A. No, I do not want a lawyer.
Q. In the event Mr. Amourgis is not prepared to act as counsel, do you wish to proceed with the giving of evidence without counsel? A. Yes.
Following the inquiry, a deportation order was made against the husband, the appellant and the two children. The basic ground for the deportation order against the husband was that he had taken employment, without the written approval of an officer of the Department, contrary to s. 34(3) (e) of the Immigration Regulations.
Section 34(3) of the Regulations reads as follows: (3) Notwithstanding section 28, an applicant in Canada who (a) if outside Canada would be an independent applicant; and R.C.S.
(b) is not in possession of an immigrant visa or letter of preexamination but, in the opinion of an immigraton officer, would o on application be issued a visa or letter of pre-examination if outside Canada;
may be admitted to Canada for permanent residence if
(c) he complies with the requirements of the Act and these Regulations;
(d) he makes application in the form prescribed by the Minister Martland J before the expiration of the period of temporary stay in Canada M authorized for him by an immigration officer;
(e) he has not taken employment in Canada without the written approval of an officer of the Department; and
(f) in the opinion of an immigration officer, he would have been admitted to Canada for permanent residence if he had been examined outside Canada as an independent applicant and assessed in accordance with the norms set out in Schedule A, except with respect to arranged employment.
With respect to the appellant and the children the deportation order was based upon s. 37(1) of the Act which provides:
37.
Both the husband and the appellant appealed, without success, to the Immigration Appeal Board. The appellant appeals to this Court from the Board's decision.
An appeal to this Court is limited, by s. 23 of the Immigration Appeal Board Act, 1966-67 ('Can.), c. 90, to a question of law, including a question of jurisdiction. In my opinion the deportation order, as against the appellant and the two children, was not valid because of the failure of the Special Inquiry Officer to comply with s. 11 of the Immigration Inquiries Regulations. That section provides as follows: No person shall, pursuant to subsection (1) of section 37 of the Act, be included in a deportation order unless the person has first been given an opportunity of establishing to an immigration officer that he should not be so included.
I have already quoted that which took place between the Special Inquiry Officer and the appellant when she appeared as a witness at the inquiry. In my opinion there was not a sufficient compliance with this section. The appellant's status at that inquiry was as a witness in an inquiry concerning John Moshos. She was not there throughout the inquiry.
It is true that the Special Inquiry Officer read the provisions of s. 37(1) to her and told her that "in view of this S.C.R.

Lois et règlements cités

  • Canada Evidence Act
  • Citations non résolues
    • s. 37(1) of the Immigration Act
    • s. 23 of the Immigration Act
    • subsection (1)
    • section 37 of the Immigration Act
    • s. 23 of the Immigration Appeal Board Act, 1966