Three Recent Decisions of the Supreme Court on the
Control of Administrative Bodies by the Courts
Hon. George Montgomery *
In Canada, as elsewhere, there is an unceasing struggle between,
on the one hand, individuals who feel themselves prejudiced by deci-
sions of the executive branch of government, federal or provincial,
and who desire to obtain redress through the courts and, on the other
hand, representatives of the executive who feel they should be free
to exercise their discretionary authority untrammelled by judicial
control. The courts try to strike a balance between these conflicting
interests, but the task is not easy. This is illustrated by three recent
decisions of our Supreme Court, on appeals from Quebec: Guay V.
Lafleur,’ Gagnon v. Commission des Valeurs Mobili~res du Quebec2
and Violi v. Superintendent of Immigration.3 In none of these cases
was the decision unanimous, and in all three a majority decision of
our Court of Queen’s Bench (Appeal Side) was reversed. The facts
in these cases being quite different, they illustrate three different
facets of the problem.
Guay v. Lafleur
The question here was the right of the Department of National
Revenue to make an inquiry into the affairs of a taxpayer un-
impeded by the presence of the taxpayer or his lawyer.
In December 1960 the Minister of National Revenue authorized
Mr. Guay, under Sec. 126 of the Income Tax Act,4 to make an inquiry
into the affairs of Mr. Lafleur, a resident of the Province of Quebec,
and of certain other individuals and corporations that seem to have
been associated with him. Guay was an officer of the Department
of National Revenue and seems to have acted throughout in accord-
ance with instructions received from his superiors. If there was
anything unfair in the manner in which he conducted the inquiry,
it was at no time suggested that he was personally to blame. The
inquiry started in January, 1961, and Guay had examined several
* Of the Court of Queen’s Bench (Appeal Side) of the Province of Quebec.
1[1965] S.C.R. 12.
2 [1965] S.C.R. 73.
3 [1965] S.C.R. 232.
4 R.S.G. 1952 c. 148.
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DECISIONS OF THE SUPREME COURT
201
witnesses, under oath, when lawyers representing Lafleur, who had
neither been summoned to attend the inquiry nor officially advised
of it, appeared before Guay and asserted the right to be present.
This was refused, and they applied to the Superior Court for an
injunction. Guay then suspended the inquiry. This made an inter-
locutory injunction unnecessary, and the proceedings were heard
as an application for a final injunction.
In February 1961, Brossard, J.5 issued a final injunction in the
following terms :6
… ordonne que les seances du d~fendeur agissant en sa qualit6 d’enqu6teur
nomm6 par le sous-ministre du Revenu National en date du 28 d~cembre
1960 et en vertu des dispositions de l’article 126, paragraphe 4, de la Loi
de l’imp~t sur le revenu soient suspendues jusqu’h ce que le demandeur ait
obtenu du d6fendeur l’autorisation d’y Atre present et d’y
tre repr~sent6
par ses avocats;
In a long and carefully reasoned judgment, he gave his answer
to three questions. He held that the Superior Court had jurisdiction
and that an injunction was an appropriate remedy. On these points,
his judgment was not challenged on appeal. He then turned to the
substantive question: whether Lafleur had the right to insist on
being represented at the inquiry.
Brossard, J. was careful to draw attention to the difference be-
tween an inquiry under Section 126 and a trial. Any finding or
recommendation that Guay might make as the result of his inquiry
would be binding on no one, and the Minister would be free to dis-
regard it. He concluded on this point as follows :7
En consequence, le tribunal est d’accord avec
les avocats du demandeur
que le d~fendeur n’est tout au plus qu’une e persona designata 2 charg~e
de fonctions sp~ciales en vertu de la Loi de l’imp~t sur le revenu.
I1 est vrai que, pour les fins de son enquite, certains pouvoirs de caractare
judiciaire lui sont accord~s en vertu de Particle 126, paragraphe 8, de la
Loi de l’imp~t sur le revenu et des articles 4 et 5 de la Loi sur les enquates. 8
Ce sont ceux d’assigner des t6moins, de leur enjoindre de rendre t~moignage
sous serment et de produire les documents et choses jug~s n~cessaires et,
en particulier, ceux dont sont rev~tues les Cours d’archives en mati~re
civile pour contraindre certains t~moins A rendre tdmoignage (les procedures
au cas d’outrage au tribunal). Ces pouvoirs conf6r6s par les articles 126,
paragraphes 8, et 4 et 5 susdits, ne cr~ent pas et ne conf~rent pas la
juridiction du dfendeur; ils ne font que lui donner certains pouvoirs
sp~ciaux destin~s A Paider dans l’exercice de sa juridiction qui est essen-
tiellement et exclusivement celle de recueillir des faits, et A rendre cet
exercice possible et efficace.
5 Since appointed to the Court of Queen’s Bench (Appeal Side).
6Lafleur v. Guay, [1962] S.C. 254, at p. 272.
7 At p. 258.
8R.S.C. 1952 c. 154.
202
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He went on to review the jurisprudence relating to the conduct
of administrative inquiries. Up to that time, the leading Canadian
case on this matter, to which frequent reference was made at all
levels, was St. John v. Fraser0 a decision of the Supreme Court on an
appeal from British Columbia regarding an investigation under the
Security Frauds Prevention Act.’0 The plaintiffs were the under-
writer of a company under investigation and the underwriter’s prin-
cipal officer, St. John, but the investigation was not nominally
directed against them. St. John was examined at the investigation
and was then assisted by. counsel, but other sessions were held with-
out notice to him and without his being present. He and the under-
writer applied for an injunction to halt the investigation. An interim
injunction was granted but later set aside, and plaintiffs’ appeals
were dismissed. This case may be distinguished because the Security
Frauds Prevention Act contained a provision banning injunctions
and because the plaintiffs, while clearly interested, were not the
direct object of the investigation.
Brossard J. distinguished the previous jurisprudence on various
grounds, but particularly because it antedated the Canadian Bill
of Rights.”‘ He relied on paragraphs (d) and (e) of section 2, which
reads in part as follows:
Every law of Canada shall, unless it is expressly declared by an Act of
the Parliament of Canada that it shall operate notwithstanding the “Canadian
Bill of Rights”, be so construed and applied as not to abrogate, abridge
or infringe or to authorize the abrogation, abridgment or infringement of
any of the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as to
……….. ,………………. …………………………………………………………………………………….
(d) authorize a court, tribunal, commission, board or other authority to
compel a person to give evidence if he is denied counsel, protection
against self crimination or other constitutional safeguards;
.o………
(e) deprive a person of the right to a fair hearing in accordance with
the principles of fundamental justice for the determination of his
rights and obligations;
………………………………………………………….
,…………………………………………………
…… .. …
.
He considered that these two paragraphs should be read together
and that the inquiry was one that could affect Lafleur’s rights and
obligations within the meaning of paragraph (e). After referring to
the wide discretion conferred by the Income Tax Act upon the Minis-
ter to take action against suspected tax evaders, he stated :12
9 [1935] S.C.R. 441.
10 B.C. (1930) c. 64.
118-9 Eliz. II c. 44.
12 At p. 272,
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DECISIONS OF’THE SUPREME COURT
203
Le l~gislateur a, en 1960, par sa Loi sur la d6claration canadienne des
droits, eu l’intention admirable de mettre fin h des abus et de prot6ger la
libert6 des sujets coptre certaines lois dont l’application et l’interpr6tation
ont pu, dans le passe, constituer une atteinte b cette libert6; d’autre part,
certaines dispositions de la Loi de llimp~t sur le revenu et l’interpr6tation
qu’on suggre constituent, de l’avis du tribunal, une telle atteinte ih la libertd.
Peuvent s’appliquer h ces lois administratives les directives d’interpr~tation
souvent appliqu~es en droit canon: dans le cas de la Loi sur la d~claration,
celles de l’adage: “favores ampliendi”; dans le cas de la Loi de l’imp~t,
celles de 1’adage: “odiosa restringenda”.
On appeal, 13 the granting of the injunction was upheld, by a 3-2
majority. Bissonnette and Rinfret-JJ. adopted the reasons of Bros-
sard J. but went somewhat further, suggesting that the inquiry was
of a semi-judicial nature. Bissonnette J.14 cited the decision of the
Supreme Court in Alliance des Professeurs Catholiques de Montr6al
v. Labour Relations Board of Quebec,15 the leading Canadian case
on the application of the maxim audi alteram partem to adminis-
trative tribunals, where it was held that the Board could not deprive
a union of its certification without a hearing. Owen J. concurred
in the result but doubted whether the Bill of Rights or the maxim
audi alteram partem applied to an administrative inquiry such as
this. The basis of his opinion is set forth in the following para-
graph :16
In my opinion Guay is obliged to permit Lafleur to be present and to be
represented by counsel at the inquiry in virtue of a fundamental principle
of justice which has been recognized and enforced by dur courts prior to
the passage of the Bill of Rights. According to this fundamental principle
an inquiry or investigation, even if it is purely administrative must be
conducted fairly and impartially.
The dissenting judges, Hyde and Montgomery would have quashed
the injunction on the ground that this was a mere administrative
inquiry that could be held in private. They pointed out that if, as
the result of this inquiry, the Minister saw fit to proceed against
Lafleur, he would then be entitled to his day in court. Hyde J. as-
similated such an inquiry to the ex parte hearing before a justice
who has received an information under Section 440 of the Criminal
Code. 17
The Supreme Court recognized the importance of the question
by having the appeal heard by the full bench of nine but found
13Guay v. Lafleur, [1963] B.R. 623.
14 At p. 635.
15 (1953), 2 S.C.R. 140.
16 At p. 631.
17 2-3 Eliz. II c. 51. The daily press has recently carried accounts of such a
hearing before Lagarde, J., at which a number of witnesses testified, on an
information that one Sicotte had been beaten by the police.
McGILL LAW JOURNAL
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comparatively little to add. The appeal was maintained by a ma-
jority of eight to one. Abbott J. expressed the majority opinion,
though Cartwright and Spence JJ. -added reasons of their own. He
adopted the views of Hyde and Montgomery JJ., concluding as
follows :1s
The fact that a person authorized to make an investigation on behalf of
the Minister is given certain limited powers of compelling witnesses to
attend before him and testify under oath, does not, in my opinion, change
the nature of the enquiry. That view was admirably expressed by Mr.
Justice Hyde whose words I adopt:
As a purely administrative matter where the person holding the inquiry
neither decides nor adjudicates upon anything, it is not for the Courts to
specify how that inquiry is to be conducted except to the extent, if any,
that the subject’s rights are denied him. The taking of sworn statement is
a common everyday occurrence. The deponent is frequently examined in
subsequent Court proceedings where the interests of another may be affected
by the statements of that witness. I know of no requirement in law that
any person likely to be affected in such a way is entitled to be present with
counsel when such a sworn statement is originally made, and I see little
distinction from the proceeding in issue.
Dissenting, Hall J. shared the opinion of Owen J.
The Supreme Court’s decision was distinguished by Dorion C.J.
in Pouliot v. Pickersgill.19 Pouliot was a pilot whose license had been
suspended following a preliminary inquiry under Section 555 et seq.
of the Canada Shipping Act.20 He applied for a writ of certiorari,
alleging that he had been denied the right to be present at the
inquiry. The Chief Justice ordered the issue of the writ, holding
that the officer holding the inquiry was acting in a quasi-judicial
capacity in suspending the license and that the alleged refusal to
permit the pilot to attend was a violation of the Canadian Bill of
Rights.
Gagnon v. Commission des valeurs mobil~res du Quebec
This case demonstrates that the desire to operate with a mini-
mum of public scrutiny is by no means confined to agencies of the
Federal Government. In other respects, the facts are quite different
from those in the case considered above.
This case had its origin in a dispute as to the ownership of the
contents of a safety deposit box. One of the claimants was Gagnon,
acting as liquidator of a mining company. The contents were also
claimed by the estate of a man in whose name the box was regis-
18 At p. 17.
19 [1965] P.R. 51, at pp. 54-55.
20 R.S.C. 1952 c.29.
No. 2]
DECISIONS OF THE SUPREME COURT
205
tered. His estate being bankrupt, Gagnon took proceedings against
the trustee in the Superior Court sitting in bankruptcy.
In an effort to establish his claim, Gagnon examined the secre-
tary of the Quebec Securities Commission and asked him to produce
a certain letter allegedly addressed to the Commission nearly five
years previously. The witness refused, and at the suggestion of
Hannen J., the presiding judge, Gagnon made a petition to compel
him, which was granted, 21 although the Commission had appeared
on the petition and had produced a letter to its chairman from the
Attorney-General, the Honourable G. E. Lapalme. After giving in
the heading a reference to the case in question, the letter stated
as follows :22
II est d’int6r~t public que les faits et documents recueillis au cours des en-
quotes faites par la Commission des Valeurs Mobilires du Quebec ne soient
pas divulgu~s.
Vous 6tes en consdquence autoris6 h vous pr6valoir des dispositions de l’arti-
cle 332 du Code de Procedure Civile de la Province de Qu6bec, amend6 par
6-7 Elizabeth II, chapitre 43, article 2.
Article 332 of the Code of Civil Procedure (1897), to which
the Attorney-General referred, read as follows:
He cannot be compelled to declare what has been revealed to him confi-
dentially in his professional character as religious or legal adviser, or as
an officer of state where public policy is concerned.
The same shall apply to any member, officer or employee of a commission,
board or other body the members of which are appointed by the Lieutenant-
Governor in Council, whenever the Attorney-General or Solicitor-General
of the Province certifies, by a writing in the possession of the witness, who
must produce the same, that public order is involved in the facts concerning
which it is desired to examine him.
It has been superseded by Article 308 of the 1965 Code, which
is in different terms, so that insofar as the decisions in this case
merely interpret the wording of Article 332 they are now of little
interest, but the discussion of principles remains of value. It was
recognized throughout that Article 332 was applicable, notwith-
standing that the proceedings were being conducted under the Bank-
ruptcy Act,23 because of Section 36 of the Canada Evidence Act,24
which makes applicable provincial rules of evidence not inconsistent
with Federal legislation.
Hannen J. found that the Attorney-General’s letter did not satis-
fy the requirements of Article 332. He commented as follows:25
211n re Mercier, (1963), 5 C.B.R. (N.S.) 153.
22 At p. 156.
23R.S.C. 1952 c. 14.
24R.S.C. 1952 c. 307.
25 At pp. 158-59.
McGILL LAW JOURNAL
[Vol. 13
if it exists –
In the first place, if the Minister’s letter means what I understand, then
I should say it is very presumptuous in simply saying casually –
and I do
not belittle the most laudable and vital work of the respondent Commis-
sion –
that “everything” done by the Commission, in effect, is of such
“interft public” as not to be divulged. And if the debtor intended to refer
only to the Mercedes matter, I say it is still presumptuous in giving no
reasons or details, or in offering none in confidence to judge, as to why the
production of the five-year-old letter in question –
could
harm the national interest, particularly as it allegedly came to the Com-
mission voluntarily – not being found on a search-warrant etc.; and why
the Commission might not, in utter safety to the state, say –
not as peti-
tioner asks, “how” it received this letter, which might conceivably be too
confidential if there are or may yet be proceedings in court on the sub-
ject – but, whether it received the letter from Mr. J. Antoine Mercier and
when, where and how.
The Commission’s appeal was maintained by a 2-1 majority.20
Badeaux J. referred to the Supreme Court’s decision in R. v. Snider,27
where the Minister of National Revenue was obliged to produce the
income tax returns of certain accused persons. He distinguished this
on the ground that the court was there dealing with criminal pro-
ceedings. Taschereau J. agreed and referred to the decision of the
House of Lords in Duncan v. Cammell, Laird & Co.25 This was an
action in damages against a naval contractor arising from the sink-
ing of the submarine Thetis on a trial dive. There was an affidavit
made by the First Lord of the Admiralty stating that, for reasons
of public policy, certain documents that had passed between the
Admiralty and the contractor ought not to be produced. Viscount
Simon L. C., with whom his colleagues concurred, held that the
opinion of the responsible minister should be regarded as conclusive. He
commented adversely 29 upon the Privy Council’s decision in Robinson
v. State of South Australia (No. 2).30 In that case the defendant was the
State, which was being sued because of allegedly negligent acts of
its agents in the operation of a wheat-marketing scheme. The At-
torney General declared that the disclosure of various documents
relating to this scheme would be contrary to public policy. The
Privy Council held, reversing the decision of the Supreme Court
of South Australia, that this was not conclusive and remitted the
case to the Supreme Court so that it might consider the documents
individually.
26 Commission des Valeurs Mobiliares V. Gagnon, [1964] B.R. 349. It was
heard as an interlocutory appeal before three judges under Art. 1227a C.C.P.
27 [1954] S.C.R. 479.
28 [1942] A.C. 624.
29 At p. 641.
30 [1931] A.C. 704.
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DECISIONS OF THE SUPREME COURT
Hyde J., dissenting, would have dismissed the appeal. He based
his opinion upon his interpretation of Article 332. In the Supreme
Court six of the seven judges who heard the appeal shared this
view. Fauteux J., who expressed the opinion of the majority, also
commented on Duncan v. Cammell, Laird & Co. and on a more
recent decision of the English Court of Appeal, Re Grosvenor Hotel,
London.-‘ This was a dispute between a private company and the
British Railways Board regarding the lease of a hotel, and the
company sought the production of correspondence between the Board,
the Minister of Transport and other officials. The Minister made an
affidavit stating that on grounds of public interest these documents
ought to be withheld. The three judges in appeal refused to consider
themselves bound by this, though they concluded that, on the facts
before them, they should not order production of the documents.
Lord Denman M.R. 3 2 was critical of Viscount Simon’s opinion in
the Duncan case and preferred to follow the Privy Council’s decision
in Robinson v. State of South Australia. (As pointed out by him,
the Duncan case was decided in time of war, when there is a tenden-
cy to favour the safety of the state over the rights of the individual.)
Leave to appeal to the House of Lords was refused.
Commenting on this jurisprudence, Fauteux J. says:
En substance, le Maitre du R6le, avec le concours de ses coll~gues, a rappel6
que ce sont les juges qui sont les gardiens de la justice et, a-t-il ajout6, si
la confiance qu’on met en eux a un sens et doit avoir une porte, Us doivent
pouvoir raisonnablement s’assurer que Pintfr~t de l’Etat l’emporte sur celui
du justiciable, ou A tout le moins que l’objection minist~rielle n’est pas
ddraisonnable comme c’est le cas, 6videmment, lorsqu’il s’agit, par exemple,
de documents concernant des secrets militaires, 6changes diplomatiques,
“cabinet papers” ou decisions politiques prises en haut lieu. Sans doute, les
juges useront-ils d’une grande prudence et h~siteront-ils avant d’exercer ce
pouvoir r~siduaire de revision: mais le fait que celui-ci leur est attribu6
implique n~cessairement que, si rares qu’ils soient, il se pr~sentera des cas
oii naitra le devoir de l’exercer. Et il va de soi que, dans chaque cas, varieront
les faits invoqu6s pour le justifier; chacun devant Atre jug6 4 son m~rite.
Abbott J., alone dissenting, based himself on Quebec jurispru-
dence relating to Article 332.
The new Code of Civil Procedure replaces Article 332 by Article
308, which, in those parts that apply to this problem, reads as fol-
lows:
Similarly, the following persons cannot be obliged to divulge what has been
revealed to them confidentially by reason of their status or profession:
31 (1964) 3 All E.R. 354.
82At pp. 360-62.
McGILL LAW JOURNAL
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3. Government officials, provided that the judge is of the opinion, for
reasons set out in the affidavit of the minister or deputy-minister to whom
the witness is answerable, that the disclosure would be contrary to public
order.
This appears to bring the text of the Code into harmony with
the views above expressed by Fauteux J.
Violi v. Superintendent of Immigration
The above two cases the courts were primarily concerned with
rights of property. In the Violi case a question of personal freedom
was involved.
Giuseppe and Rocco Violi were brothers who came from Italy as
immigrants in December 1958. Before they could be naturalized,
each was in trouble with the law. In July 1960 Rocco was sentenced
to six months’ imprisonment for assault, and in December 1961 Giu-
seppe was fined for failing to stop after an automobile accident.
These convictions rendered them subject to deportation under Sec-
tion 19(1) (e) (ii) of the Immigration Act.8 3 Each was ordered de-
ported after an inquiry under section 26 of the Act. Each appealed
under sections 30 & 31, but the appeals were dismissed by Immigra-
tion Appeal Boards. It was not suggested that there was any irreg-
ularity in the proceedings up to this point, nor was it questioned
that the Violis could have been immediately deported after the dis-
missal of their appeals.
The Violis were not, however, immediately deported. Instead,
they received letters from the Immigration Department staying their
deportation. The authority of the officers who signed these letters
was not clearly established, but the Minister never repudiated them,
and the Supreme Court held that it could be presumed that they
were written with the Minister’s authority and in the exercise of
his discretion, under section 31(4) of the Act, to review a decision
of an Immigration Appeal Board and to stay execution of a deporta-
tion order pending his review.
In the case of Rocco, the letter was dated 24th February, 1961,
and read as follows:
In his letter of February 24, 1961, the Appeal Clerk, General Board of
Immigration Appeals, informed you that your appeal against the order of
of deportation made at Montreal, Quebec, on February 1, 1961, had been
carefully considered and dismissed.
This letter is to inform you that it has been decided to defer deportation
proceedings for a period of 12 months to give you a chance to demonstrate
that you can rehabilitate yourself.
33 R.S.C. 1952 c. 325. This was new legislation, printed in the supplement to
the Revised Statutes and replacing chap. 145.
No. 2]
DECISIONS OF THE SUPREME COURT
209
The local immigration office will be required to submit a report on your
circumstances in one year and I would therefore ask you to keep them
informed of your address. I would also like to advise you that any unfavour-
able reports could mean the carrying out of the deportation order.
In Giuseppe’s case, the letter was dated 10th December, 1962,
and in the following terms:
On November 26, 1962, you were informed by the Appeal Clerk of the
Immigration Appeal Board that your appeal, taken from a deportation
order made against you at Montreal on October 16, 1962, had been dismissed.
I have been directed to advise you that the deportation proceedings are
being suspended for a period of six months provided no unfavourable report
is received during that period. A further study of this case will be made
in six months’ time.
I wish to make it clear to you that should a further unfavourable report be
received, consideration will be given to proceeding immediately with your
deportation to Italy…
A further letter was sent to him on 28th May, 1963, as follows:
This is to inform you that your case has been reviewed and it has been
decided that it will not be necessary for you to report to this office as you
have been doing in the past; however, it will be necessary for you to present
yourself at this office on May 15, 1964.
Meanwhile, it will be necessary for you to inform us of any change of
address.
On 31st March, 1964, they were arrested and taken to the
Montreal Jail. Letters dated 1st April were sent to them there notify-
ing them that it had been decided to execute the orders of deportation.
No explanation of these decisions seems to have been given at any
time, either to them or to the courts, the Department taking the
stand that no explanation was required.
A third brother then obtained a writ of habeas corpus. It
is
doubtful whether this writ was directed against the proper person,
but the officers of the Department conceded that they had received
notice of it and very properly declined to invoke any technical defence,
seeking a decision on the right to enforce the original deportation
orders.
The writ was quashed on 13th May, 1964, by Martel J., in the
Superior Court,34 and his judgment was affirmed on appeal by
a 3-2 majority.35 An appeal to the Supreme Court was heard by
the full bench of nine. By a majority of 6-3, they maintained the
appeal, declared the Violis’ detention to be illegal and recommended
that the Minister pay Appellant’s costs throughout.
The basic discretion of the Minister to order deportation not
being challenged, the decision turned on the interpretation to be
34 S.C. No. 638,795, apparently unreported.
35 [1965) B.R. 81.
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[Vol. is
given to certain sections of the Immigration Act, particularly section
33,-which reads as follows:
(1) Unless otherwise provided in this Act, a deportation order shall
33.
be executed as soon as practicable.
(2) No deportation order becomes invalid on the ground of any lapse of
time between its making and execution.
There appeared to be no relevant jurisprudence under the present
Act, which came into force in 1953, and the courts found the
jurisprudence under the earlier legislation of limited utility. Rivard
J., of the Court of Queen’s Bench, with whom Bissonnette and
Choquette JJ. concurred, found nothing in
the Act enabling the
courts to restrict the Minister’s discretion to execute at any time
a deportation order validity made, saying: 30
Si le ministre n’ex6cute pas l’ordonnance d’expulsion le plus t6t possible,
il peut encourir les blames ou les reproches de ceux-li qui ont competence
pour critiquer les actes administratifs du ministre, et cela ne relave pas de la
comp6tence des tribunaux.
In the Supreme Court, Abbott J., with whom Taschereau C.J. and
Judson J. concurred, was of the same opinion, saying: 37
In my view the exercise of that power by the Minister requires positive
action on his part and is not to be inferred from circumstances such as
delay in the execution of the deportation order.
Execution of the deportation order against Rocco Violi was deferred for
some three years and that against Giuseppe for some eighteen months. Even
if such a, delay were relevant to the continuing validity of the orders (which
in my opinion it was not) deferment for such periods was not in my view
unreasonable in the circumstances.
The dissenting judges in the Appeal Court, Hyde and Montgomery
JJ., and the majority in the Supreme Court refused to accept that
Parliament had intended to authorize the Minister to play a cat
and mouse game with an immigrant subject to deportation. Hyde J.
expressed this idea as follows: 38
The statute does not envisage the placing of an immigrant in a position
where every knock on the door may presage an arrest when he has been
advised that his deportation is deferred to give him a chance to demonstrate
that he can rehabilitate himself.
He suggested that the contrary interpretation of the Act was
inconsistent with paragraph (a) of section 2 of the Canadian Bill
of Rights as authorizing “the arbitrary detention, imprisonment or
exile” of an immigrant. Montgomery J. agreed and drew attention
to the special procedure established by section 8 of the Immigration
Act, which provides that the Minister may by temporary permit,
s6At pp. 85-86.
37At pp. 235-36.
88 At p. 88.
No. 2]
DECISIONS OF THE SUPREME COURT
211
subject to cancellation at any time, . permit any person to remain
in Canada. The Minister is required to submit to Parliament an
annual report giving particulars of all such permits, and in the case
of the Violis there was no suggestion that he was attempting to
exercise his powers under this section.
It was held that, while because of section 33
(2) deportation
orders could not become invalid by mere lapse of time, they had
in effect been cancelled by the terms of the letters staying execution
coupled with the lapse of time. Martland J., who expressed the
opinion of the majority in the Supreme Court, put it this way: 31
The question in issue is whether, following the expiration of those stipulated
periods, the Minister can thereafter hold the deportation orders in suspense
and require their enforcement at any time he chooses, at his own discretion.
I do not think he can. Having exercised his power of review, under s. 31 (4),
his decision is, by the terms of that subsection, final. This decision was to
grant to each of the persons involved a probationary period. The proba-
tionary periods expired and no steps were then taken to enforce the orders.
The Minister did not, thereafter, have power to make a further review and
to decide to extend the probationary period for an additional time. Nothing
has been said on behalf of the respondent to establish the existence of any
authority given to the Minister to adopt such a course.
He held that the position was the same as if the Minister had allowed
the appeals from the decisions of the Immigration Appeal Boards.
CONCLUSION
In the above three cases our Supreme Court has reaffirmed the
right and duty of the courts to exercise some measure of control
over the executive branch of government, while recognizing that
the intent of the Legislature has in many cases been to confer wide
discretionary powers upon administrative officers and boards.
In the Lafleur case, while the Supreme Court held that great
latitude should be given to an officer holding a purely administrative
inquiry to conduct it as he may see fit, the courts generally reaffirmed
the duty of an administrative officer performing quasi-judicial
functions to act judicially. In the Gagnon case the Court reaffirmed
the right to exercise a measure of control over the refusal of a
minister to produce documents. The Violi case decided that an
immigrant legally admitted to Canada cannot be arrested or deported
unless it be in strict compliance with the law. More generally, this
latter case is authority for the proposition that an administrative
officer who has a decision to make should make it within a reasonable
time, that in special circumstances his decision may -be inferred from
39 At p. 242.
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[Vol. 13
his acts, or his inaction, and that, once made, the decision may be
treated as final and not subject to revision by him.
It is gratifying to observe that counsel representing the executive
presented their cases fairly, indicating a desire to obtain the
courts’ decisions on questions of principle without invoking legal
technicalities.
is further gratifying to note that the Quebec
Legislature, when subsequent to the decision in the Gagnon case
revised the Code of Civil Procedure, it did so in such a way as to
affirm the right of control by the court.40
It
The Canadian Bill of Rights proved to be of little assistance to
the subject in these cases. In the Lafleur case the majority of the
judges held it did not apply, and in the Gagnon case it was not
invoked. In the Violi case, Hyde J. cited it in support of his decision,
but the notes of the judges in the Supreme Court do not mention it,
and it seems probable that the final decision would have been the
same had it not been enacted.
40 For examples of the reverse tendency, see R. Dussault, Legislative Limita-
tions on the Courts’ Power to Review Administrative Action in Quebec, (1967)
13 McGill L.J. 23.
