A-401-76
Olivia Weber (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and Smith
D.J.—Toronto, July 27 and 28; Ottawa, August
11, 1976.
Judicial review—Deportation order following special inqui
ry pursuant to s. 18 of the Immigration Act—Error in inquiry
proceedings—Failure to provide full interpretation—Breach of
s. 2(g) of Canadian Bill of Rights and s. 4 of Immigration
Inquiries Regulations—Right to interpretation implied in s.
26(1) of Immigration Act—Immigration Act, R.S.C. 1970, c.
I-2, ss. 4 and 18—Canadian Bill of Rights, S.C. 1960, c. 44, s.
2(g)—Immigration Inquiries Regulations, SOR/67-621.
Application to review and set aside a deportation order
following a special inquiry arising out of a report that the
applicant remained in Canada after ceasing to be a non-immi
grant. Applicant argues that failure to translate all that trans
pired during the inquiry deprived her of a fundamental right
under the Canadian Bill of Rights, was in breach of section 4
of the Immigration Inquiries Regulations and was in breach of
an implied right provided by section 26(1) of the Immigration
Act.
Held, the application is allowed, the deportation order is set
aside and the application for admission to Canada is remitted
to the immigration authorities for a new special inquiry. The
Special Inquiry Officer's attempt to rectify the failure to
interpret his examination of a witness and of counsel for the
applicant by summarizing their answers was not sufficient to
provide the applicant with the rights granted by the Canadian
Bill of Rights and the Immigration Inquiries Regulations. The
Ontario Court of Appeal decision in Regina v. Reale analyzes
the applicable statutory and judicial authorities and although
the case at bar is not a criminal one, the proceeding is
administrative in nature and must be decided on a quasi-judi
cial basis and the reasoning in the Reale case is therefore
applicable. This view is reinforced by the requirement under
the Immigration Act that the person concerned should be
present during a special inquiry.
Regina v. Reale (1974) 13 C.C.C. (2d) 345, applied.
APPLICATION for judicial review.
COUNSEL:
Charles E. Roach for applicant.
T. L. James for respondent.
SOLICITORS:
Charles E. Roach, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside an order of deportation made
against the applicant on June 3, 1976 at Toronto
following a special inquiry arising out of a report
pursuant to section 18 of the Immigration Act'
stating that the applicant had remained in Canada
after ceasing to be a bona fide non-immigrant.
Counsel for the applicant argued that there were
a number of errors in the inquiry proceedings, only
one of which, in our opinion, was one of substance.
That alleged error was that the Special Inquiry
Officer deprived the applicant, a Portuguese-
speaking Brazilian, of a fundamental right in fail
ing to ensure that all that transpired during the
inquiry was translated for her. An interpreter was
present who clearly, from the evidence, interpreted
a substantial part of what was said during the
proceedings. However, in at least two instances, it
is equally clear that some things that were said by
a witness, by counsel and by the Special Inquiry
Officer were not interpreted as they were spoken
but were later interpreted in summary form, at the
direction of the Special Inquiry Officer. It is this
procedure of which the applicant complains.
It should first be observed that section 2(g) of
the Canadian Bill of Rights 2 makes the right to an
interpreter one of the human rights and fundamen
tal freedoms which that statute grants to all
individuals. It reads as follows:
2. 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
R.S.C. 1970, c. I-2.
2 S.C. 1960, c. 44.
(g) deprive a person of the right to the assistance of an
interpreter in any proceedings in which he is involved or in
which he is a party or a witness, before a court, commission,
board or other tribunal, if he does not understand or speak
the language in which such proceedings are conducted.
In addition, section 4 of the Immigration In
quiries Regulations 3 , set out hereunder, requires
that in the circumstances therein referred to, an
interpreter will be provided.
4. (1) Where a person being examined at an inquiry does
not understand or speak the language in which such proceed
ings are being held, the presiding officer shall forthwith
adjourn the hearing and obtain an interpreter for the assistance
of the said person.
(2) The interpreter referred to in subsection (1) shall be an
individual who is conversant in a language understood by the
person being examined at the inquiry and shall be provided by
the Department of Manpower and Immigration without charge
to such person.
The failure to interpret all that was said as the
inquiry proceeded occurred, in one instance,
during the testimony of a witness called by counsel
for the applicant, a Mrs. Janet May. Questioning
to the extent of nearly two pages of the transcript
had taken place before the following exchange
between the Special Inquiry Officer, the appli
cant's counsel, the applicant and the interpreter
took place.
By Special Inquiry Officer to Counsel:
Q. Before we go on, Mr. Ramkissoon, I am just wondering
whether you want Mrs. May's testimony translated into
Portuguese for Miss Weber?
A. I do not think that is necessary. Its up to you. She is your
client.
By Special Inquiry Officer to Person Concerned:
Q. Do you want Mrs. May's testimony interpreted to you?
A. Yes.
I will just give you a brief summary—Mrs. May is a social
worker who was assigned to the East General Hospital,
and she was assigned purely on recommendation by Dr.
Phillips. Now, you had a hysterectomy and something
LSO fibroid uterus. You were interviewed by Immigra
tion Officers Waterman and Corbett on the 13 May 1976
when you were leaving the hospital. Mrs. May says that
whenever a patient is admitted to that hospital and there
is no OHIP plan and they have to determine the ability
for the patient to pay, and if there appears to be any
problems, the Immigration is called.
By Special Inquiry Officer to Witness:
Q. Mrs. May, is that basically what you said?
A. Yes.
3 SOR/67-621.
Clearly, the Special Inquiry Officer recognized
the right of the applicant to know what was being
said by the witness and endeavoured to rectify the
error in failing to do so, in the fashion above
disclosed. Earlier in the proceedings, the interpret
er had, on the instructions of the Special Inquiry
Officer, summarized for the applicant a series of
questions and answers between the Special Inquiry
Officer and counsel which had not been translated.
In my view, the attempt to correct the interpret
ing deficiency which occurred during Mrs. May's
testimony, did not suffice to provide the applicant
the fundamental rights granted her both by the
Canadian Bill of Rights and the Immigration
Inquiries Regulations.
While there is a dearth of jurisprudence in civil
matters on the question of a party's right to have
the assistance of an interpreter, there have been a
number of cases in criminal matters in which the
subject has been discussed both before and after
the enactment of the Canadian Bill of Rights. I
think it necessary to refer only to the Ontario
Court of Appeal decision in Regina v. Reale 4
where a careful analysis was made of the appli
cable statutory and judicial authorities. In that
case, the accused had been convicted on a charge
of non-capital murder. The appellant, who was of
Italian origin, required the services of an interpret
er in order to understand the proceedings and,
consequently, they were interpreted to him up to
the time of the Judge's charge. The Trial Judge,
being concerned that the sound of the interpreter's
voice as the charge was being given, would distract
the jury, ruled that his charge should not be
interpreted as it was being given. It was held that
this omission violated the accused's right to an
interpreter contained in section 2(g) of the
Canadian Bill of Rights, and the conviction was
quashed and a new trial was ordered.
At page 348 of the report, the Court pointed out
that the provisions of section 2(g) of the Canadian
Bill of Rights should not be viewed detached from
their context but construed in relation to the
human rights defined in section 1 and went on to
say:-
4 (1974) 13 C.C.C. (2d) 345.
An accused who is unable to understand what is being said
during an essential part of the trial by reason of his inability to
understand the language in which the trial is conducted can
scarcely be said to stand on the same footing or in an equal
position with respect to the application of the criminal law as
others who are subject to its process, where he wishes to have
that part of the proceedings translated for him and when the
situation can be so readily remedied.
Counsel for the Crown submitted that the Canadian Bill of
Rights does not require the Judge's charge to be translated if
the accused is defended by counsel. In our opinion, the right not
to be deprived of the assistance of an interpreter when the
circumstances require such assistance extends to every essential
part of the proceedings and in the circumstances of this case
there was an infringement of a fundamental right of the
accused which is protected by the Canadian Bill of Rights.
The case at bar is, of course, not a criminal one
but is a proceeding administrative in nature which
must be decided on a quasi-judicial basis. The
requirements of section 2(g) would appear to
embrace it and since the rights of an individual are
certainly at issue, the reasoning in the Reale case
would appear applicable in an inquiry of this
nature.
That this view is correct is reinforced by observ
ing that section 26(1) 5 of the Immigration Act
requires that a special inquiry be held in the
presence of the person concerned wherever practi
cable, just as an accused in a criminal trial must
be present.
In my opinion, the failure to interpret verbatim
the testimony of a witness called on her behalf,
deprived the applicant of her fundamental right to
know what was being said in an essential part of
the inquiry. Moreover, I am of the opinion that the
attempt of the Special Inquiry Officer to correct
the failure to translate a substantial part of the
witness's testimony by summarizing it, as best he
could, and having the summary translated, did not
cure the error. The applicant was entitled to know
exactly what was said, particularly since she not
only did not waive her right to know, but, at this
stage, demanded it.
Supportive of that view, is the further passage
from the Reale reasons for judgment found at
pages 349-50, where it is stated:
5 26. (1) An inquiry by a Special Inquiry Officer shall be
separate and apart from the public but in the presence of the
person concerned wherever practicable.
No doubt the right of an accused to the assistance of an
interpreter with respect to some part of the proceedings may, in
proper circumstances, be waived or dispensed with, in which
case the accused would not be "deprived" of any right. In the
present case counsel for the appellant at the trial did not waive
the appellant's right to the assistance of an interpreter but, on
the contrary, urged that he should continue to be provided with
the services of the interpreter during the Judge's charge.
It may be said that the failure to interpret the
exchange between the Special Inquiry Officer and
applicant's counsel at the time such took place was
not in respect of an essential part of the proceed
ings since the exchange did not advance the pro
ceedings in any material way. In view of the
conclusion which I have come to in respect of the
essentiality of the applicant being aware of the
exact evidence of the witness, it is unnecessary for
me to express any view on this argument.
For all of the above reasons, I am of the view
that the deportation order cannot stand. Accord
ingly, the section 28 application will be allowed
and the deportation order will be set aside and the
application for admission to Canada by the appli
cant will be remitted to the Immigration authori
ties for a new special inquiry.
* * *
RYAN J.: I concur.
* * *
SMITH D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.